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Summary

The claimant had a number of physical and mental health conditions, including inflammatory joint disease, rheumatoid arthritis, gout, pain and swelling in the hands. He failed the work capability assessment. The First-tier Tribunal rejected his appeal. In so doing, the tribunal noted that the claimant had last worked as a shelf stacker, and that taking account of the transferable skills from that job, there was 'an adequate range of work' he could undertake without substantial risk to himself or others.

Judge Bano set the decision aside and referred to case to a fresh tribunal. The tribunal had erred in not giving adequate reasons regarding the 'substantial risk' rule at regulation 29 of the Employment and Support Allowance Regulations 2008, SI No. 794. In Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, the Court of Appeal had held that is was necessary to assess the 'type of work' that a claimant could do without substantial risk. The tribunal's reasoning did not need to be long or elaborate, but- said Judge Bano - it was necessary that it was 'reasonably apparent' from the reasons that the individual circumstances of the claimant had been properly taken into account (paragraphs 8-9).

It was true that the tribunal had explained why (with reference to lack of reasons and differences from the claimant's own account) it did not accept the evidence of the claimant's GP. But his physical disabilities 'could be expected to call into serious question' his ability to resume work as a shelf stacker or similar work, and the tribunal had been unclear about how his alleged abilities regarding watching television and using a mobility phone were relevant to particular work (paragraphs 10 and 11).

Overall, held the judge, an informed reader of the tribunal's decision 'is left guessing as to what specific type of work the tribunal considered that the claimant could undertake without substantial risk to his mental or physical health' (paragraph 12).

Summary

The claimant had been entitled to income support (IS) with consequent 'passporting' to maximum HB - ie, through being treated as having nil income and capital. In January 2011, the local authority stopped her HB on the basis that her entitlement to IS had ceased in October 2010 and raised a recoverable overpayment of HB from that point. Although it was subsequently recognised that the claimant had been awarded HB from December 2010, recovery was still sought for the October to December 2010 period and the claimant was also held to be liable for the 'bedroom tax', a gap having arisen in the claimant's HB entitlement.

The First-tier Tribunal rejected the claimant's appeal, finding that the claimant had received IS between October and December 2010 in error, as she had not been entitled to it in law, that she did not become entitled to jobseeker's allowance (JSA) until December 2010 and, in the absence of producing details of her means, she was not entitled to HB in that period.

Judge Wikeley held that the tribunal had erred in law and substituted a decision that the claimant was entitled to 'passported' HB throughout the October to December 2010 period. On the facts, it was a reasonable interpretation of DWP correspondence that she had been awarded backdated JSA in that period (following a claim by the claimant in December 2010), but arrears had been withheld in recognition that IS had already been paid in error (paragraphs 48-50). The tribunal had erred in failing sufficiently to investigate the issue of backdated entitlement to JSA and failed adequately to explain its reasoning (paragraph 36).

The judge noted that the requirement for the claimant to be 'on' a qualifying benefit required lawful entitlement to the benefit. He rejected the claimant's argument that (applying the Court of Appeal decision in R v South Ribble DC HMRB ex p Hamilton [2000] 33 HLR 102 that meant only ruling out cases of fraud (paragraph 41). But he also had reference to the decision of Judge Masher in SO v Newcastle CC (HB) [2010] UKUT 306 (AAC). That held that a DWP decision that a person was no longer entitled to IS was only effective once notified. In the present case, the local authority's argument that HB entitlement ceased as soon as the qualifying criteria were no longer met was 'far too sweeping', and inconsistent with that (paragraph 40).

However, the judge went on to distinguish the present case from the facts in SO, as in the present case, unlike in SO, it was clear that the claimant knew of the termination of her IS before the local authority made its HB decision (paragraph 42).

Comment from CPAG

The saving grace for the claimant in this case was that it was accepted that she was in fact entitled to JSA (ie, a qualifying benefit) in the relevant period. Failing that, the fact that she knew of the termination of her IS before the HB overpayment decision was made would have been problematic for her.

Summary

In 2012, the claimant became aware that he would be liable to pay costs, as yet unspecified, to the developers of his apartment. In 2013, he applied for employment and support allowance (ESA). He did not disclose savings of about £50,000 in a building society account, as he had ear-marked that money for eventual repayment of the costs. In 2014, the court issued a costs certificate of around £47,700. Initially, the claimant's brother-in-law paid it as it would take the claimant time to get access to the money in the building society account. In the meantime, the DWP became aware of the money in the building society account and issued decisions that the claimant was not entitled to income-related ESA because the capital limit was exceeded, and that the benefit paid was recoverable on the basis of misrepresentation - ie, the amount of his capital.

On appeal, the First-tier Tribunal allowed the claimant's appeal, holding (in essence) that there was no overpayment because 'in his mind' the claimant regarded the capital as set aside for repayment of a debt and, therefore, was to be disregarded as capital.

Judge Wikeley set the decision aside and remade the decision to the effect that the claimant had been overpaid and the overpayment was recoverable from him because he had misrepresented his capital. The claimant 'enjoyed the sole legal and beneficial ownership' of the money in the building society account and, despite his intentions, it was 'in principle his money to do with as he wished' (paragraph 66). The claimant's misrepresentation was in the circumstances entirely innocent, but nevertheless caused the overpayment which was therefore recoverable (paragraph 67).

In closing remarks, the judge suggested that the absence of dishonesty, that the claimant might be said to have tried to act responsibly and his poor. mental health might all be factors in the purely discretionary decision as to whether actually to enforce recovery (paragraphs 68-74).

The judge dismissed the argument that the building society money should be ignored as the claimant was under a 'certain and immediate liability' to pay the court costs, an argument derived from the Court of Appeal decision in Chief Adjudication Officer v Leeves. The Leeves principle did not apply here. That was actually about the classification of income (by extension, capital) where when given by a creditor the money is already impressed with a certain obligation of immediate repayment. In the present case the money was already the claimant's capital and the repayment was due not to a creditor but to a third party. Applying Judge Mesher's comments in JH v SSWP [2009] UKUT 1 (AAC), 'the mere existence of unpaid liabilities, even if payment is due, does not affect the calculation of the amount of capital for benefit purposes' (paragraphs 50-51).

Also, the judge dismissed arguments that the money was somehow impressed with a trust or given a nil value. The claimant had received no money from his brother-in-law impressed with a trust, a trust was not created merely by what was in the claimant's mind, and there was no court order on the money in the account (paragraphs 53-57).

Summary

The claimant had various disabilities due to a history of persistent alcoholism. On transfer from disability living allowance (DLA) to PIP, he scored nil points. The First-tier Tribunal accepted that the claimant was alcohol dependant and (implicitly) that that amounted to a 'mental condition', but rejected his appeal, holding that alcohol was not having an impact upon his functioning.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in not explaining why it considered that alcohol did not affect the claimant's functioning and so 'effectively overlooking any possible consequences of the alcohol dependency and any intoxication when assessing whether or not any of the descriptors were satisfied' (paragraph 18).

The judge noted that in R(DLA) 6/06 it had been held, in the context of DLA, that alcohol dependency is a medical condition and a person who cannot realistically stop consuming alcohol to excess because of a medical condition could reasonably be said to have a disability, and to require help relevant to DLA entitleme11t. There was no reason why the effects of intoxication should not be taken into account for DLA (paragraphs 14-15). The judge said a similar approach should be taken to alcohol dependency and PIP. Specifically, alcohol dependence is a 'mental condition' for the context of PIP and difficulties caused by it may therefore be relevant to PIP (paragraph 16).

The judge accepted that, depending on the facts, an alcoholic claimant who only becomes significantly intoxicated at the very end of the day would probably have performed many of the PIP functions already. So tribunals may need to make findings of fact about when impairment would take hold during a day, which functions would be impaired and whether intoxication could properly found a conclusion that incapacity had a 'tangible impact' during a day (paragraph 24).

Comment from CPAG

The primary importance of this decision lies in its clarification that alcohol dependence is a 'mental condition' for PIP, and so that resulting disabilities can be taken into account. Tribunals are reminded that they must then attend to the particular facts in deciding whether or not PIP descriptors are satisfied.

Summary

The claimant had been on jobseeker's allowance but decided to go into business on his own as a painter and decorator. He claimed working tax credit (WTC) and explained on the claim form that his business was still in the early stages. His advertising consisted of an internet advertisement and door-to-door work. His preliminary accounts were a list of jobs with prices and outgoings. His claim was refused on the basis that it did not meet the definition of 'self-employed'. The First-tier Tribunal upheld that decision, holding that the claimant 'was unable to provide sufficient evidence that his self-employment was commercial, profitable, regular and organised'. For example, the tribunal considered it significant that the claimant did not have business plan.

Judge Wikeley allowed the claimant's further appeal and substituted a decision that he was 'self-employed', within the terms of the relevant definition of that term at regulation 2(1) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI No.2005. That requires that the claimant be 'engaged in carrying on a trade, profession or vocation or a commercial basis with a view to the realisation of profits, either on one's own account or as a member of a business partnership and the trade, profession or vocation is organised and regular'. The tribunal had erred in failing to adopt a sufficiently inquisitorial approach (given deficiencies in the HM Revenue and Customs (HMRC) response to the appeal) and/or by disregarding time spent in setting up the business and handing out leaflets door-to-door, in breach of R(FIS) 6/85 (paragraph 24).

The judge made some more general comments about the approach to the definition of 'self-employed'. He approvingly set out the appellant's own response to the HMRC decision that the business was not carried with a view to a profit, which was: 'Why would I even bother with this if I didn't intend to make a profit? Do you think I'm doing this for fun?' (paragraph 8). Commenting himself, the judge pointed out that the finding in R(FIS) 6/85 that remunerative work in the self-employed was not restricted to activities which are costed is still good law (paragraph 30). Also, tribunals needed to 'get real'. Self-employed WTC claimants are typically 'not putting together business proposals of sufficient rigour to pass muster on a Masters of Business Administration course or to withstand scrutiny in an episode of Dragon's Den. Usually they are much more modest enterprises, as in the present case, and expectations about the documentary paper trail should be adjusted accordingly' (paragraph 31).

Comment from CPAG

The judge's observation that tribunals need to 'get real' neatly captures what went wrong in this case. Both HMRC and the tribunal adopted a rigid and unrealistic approach to a claimant who was working alone on a small scale and had only recently started self-employment. In fact, he had an accountant, which the First-tier Tribunal overlooked and Judge Wikeley did not; but he was at pains to point out that not having an accountant (or a business plan) would not in itself have indicated that the claimant failed to meet the self-employed test (paragraphs 26-27).

Summary

The First-tier Tribunal adjourned with a direction (impliedly subject to the appellant's consent) for the production of the GP medical records. The appellant did not return the consent form and (after a repeat request for consent) the case was listed for disposal without the medical records. The appeal was dismissed.

Judge Wikeley set the decision aside as the tribunal had erred regarding the application of the 'substantial risk' provision at regulation 29 of the Employment and Support Allowance Regulations 2008, SI No. 794. However, he also addressed the question of the appellant's apparent refusal to consent to production of his medical records. Firstly, he was troubled by the suggestion of Judge Mark in EB v SSWP (ESA) [2015] UKUT 358 (AAC) that such a refusal amounted to a breach of the requirement to co-operate with the tribunal. Judge Wikeley said that given the importance that the law attaches to the confidentiality of an individual's medical records - eg, in human rights law (paragraph 17).

Secondly, the reference in EB v SSWP to it being open to a tribunal to draw an adverse influence from such a refusal needed to be treated with some care. As Judge Rowland had explained in SSWP v HS (JSA) [2016] UKUT 272 (AAC), an adverse inference was not a penalty and it was not permissible to draw one merely as a punishment. It may be more appropriate to bear in mind the investigatory nature of the tribunal with the result that the burden of proof was seldom of significance (paragraphs 18-20). In the present case, the claimant had every right to decline to consent to the disclosure of his medical records, but 'he may be making it more difficult for himself evidentially to make out his case' (paragraph 21).

Summary

In these decisions, the Upper Tribunal held that where the Secretary of State refuses to admit a late request for a mandatory reconsideration (ie, made later than one month but within 13 months of the original decision), that still means that he has 'considered' the request and the claimant has a right of appeal against the original decision.

The claimants had both claimed employment and support allowance (ESA) and been refused. Both were outside the basic one-month time limit for requesting a 'mandatory reconsideration' (ie, a revision) - one was five months late and the other was 10 months late. In both cases, the Secretary of State refused to accept that the claimant's circumstances justified undertaking a late mandatory reconsideration, and both claimants had their attempts to appeal against their original ESA decision rejected by the First-tier Tribunal.

In the Upper Tribunal, Mr Justice Charles, Judge Wikeley and Judge Wright had to decide whether the claimants satisfied the so-called 'mandatory reconsideration' requirement. That requirement is that, for there to be a right of appeal, the Secretary of State has, on an application for a revision, 'considered whether to revise' the original decision. The Secretary of State argued that was not satisfied because as a preliminary and separate consideration he had decided not to admit the late request and so had not considered a revision. The claimants therefore had no right of appeal and were limited to challenge by judicial review. The claimants argued they had a right of appeal because, in refusing to admit the late request, the Secretary of State had indeed 'considered whether to revise' the decision, and consideration of whether to admit the late request was not preliminary or separate to that. This for the judges was the 'core point of contention' in the case (paragraphs 35-37).

The Upper Tribunal held that the claimants did have a right of appeal to the First-tier Tribunal. That was as a matter of statutory interpretation of the relevant rules (paragraph 98). The rules setting out the mandatory reconsideration requirement were at section 12(3A) of the Social Security Act 1998 and regulation 3(ZA) of the Social Security (Decisions and Appeals) Regulations 1999, No.991. Bearing in mind the principles of identifying the 'statutory mischief' and beginning with the primary legislation (including with reference to the Explanatory Notes to the relevant Bill), the judges could see nothing that should be interpreted as meaning the right of appeal should be restricted by requiring an in-time application for revision (paragraphs 42-45). The statutory purpose was to give the Secretary of State the 'first opportunity' to change the decision and so avoid an appeal, rather than deprive the claimant of her/his right of appeal merely because her/his late request for a revision (ie, one made after one month but within the absolute 13-month time limit) was not admitted. The correct interpretation of the rules was, therefore, that such a refusal triggers the right of appeal to the First-tier Tribunal (paragraphs 88-90).

Comment from CPAG

Note that the decision simply confers the right of appeal, without leaving it to the First-tier Tribunal to decide whether sufficient reasons for a late application for mandatory reconsideration were made out. See also the article on p8.

Decision in brief

Tribunal erred in concentrating on ability to set an alarm clock and not focusing on the functions involved in 'learning tasks' - activity is about ability to absorb, understand and retain information and not a test of ability to read numbers or words - reference to setting an alarm clock is merely a way of an example - many other simple tasks do not require an ability to read or understand numbers or words

Decision in brief

Where claimants had the opportunity of complying with the requirement (under the Gender Recognition Act 2004) of obtaining a gender recognition certificate before they reached the age of 60, it is not in breach of European Union law (Directive 79ll /EC) for the rules to require them to have such a certificate to be entitled to a pension at age 60, and it is not required that certificates are retrospective in effect - decision in Richards v Secretary of State for Work and Pensions (reported as R(P) 1 /07) not authority that the claimants were entitled to be treated as women without certificates, on the basis of surgery - Richards was about the legal position before the scheme introduced by the 2004 Act came into force, and did not purport to consider what the terms of the scheme might be

Decision in brief

'It cannot have been the intention that people from different cultural or religious or ethnic communities with precisely the same disabilities in relation to cooking would have different levels of entitlement to benefit because of their community affiliation'

Comment from CPAG

This decision, although made in December 2015, seems only to have been published on the Upper Tribunal website in August 2017. That may have been because of reference to it in by Judge Gray in SC v SSWP (PIP) [2017] UKUT 317 (AAC) (27 July 2017) (file number CPIP/663/2017). The facts there involved a claimant whose ability to cook was hampered by the presence in the kitchen of her hyperactive son. The judge held (paragraph 15) that 'any difficulties in cooking because of the presence of a small child must be ignored because the test is not concerned with the practicalities of preparing and cooking food, but with the capability of so doing, and, to be relevant, any difficulties must arise out of a physical or mental condition'.

Summary

This decision of the Court of Appeal concerns whether a Latvian national had a permanent right to reside for pension credit purposes, on the basis of having 'resided' in the UK for more than three years prior to ceasing work on reaching pension age or having taken early retirement. In particular, the Court considered two questions: (1) whether for these purposes 'resided' meant merely being present or instead residing 'legally' (ie, with a right to reside), and (2) whether the extension of the worker registration scheme (WRS) in 2009- 2011 was lawful. These questions had been considered in this case by the Upper Tribunal in TG v SSWP (PC) [2015] UKUT 50 (30 January 2015).

On the first question, the Court held that in this context 'resided' meant 'legally reside' (ie, with a right of residence), so that mere presence for more than three years was insufficient. The relevant wording was in the provision about acquisition of a permanent right to reside after more than three years' 'residence', at Article 17(1 )(a) of the so-called 'Citizens Directive', EC 2004/38/EC. Giving the lead decision of the unanimous decision of the Court, Lord Justice Rupert Jackson considered that the natural meaning of the wording was that of legal residence, and that accorded with previous caselaw and in particular with the opinion of the Advocate General in the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group, intervening) [2011] All ER (EC) 1169 (paragraphs 49-50). On this point, the Secretary of State's appeal against the decision in TG succeeded.

However, it had also been held in TG that the extension of the WRS in 2009-2011 was unlawful, on the basis that it was not- as required - proportionate. On this point, the Court upheld the decision in TG and rejected the Secretary of State's appeal. Reviewing the reasoning of the Upper Tribunal in TG, the Court could find no fault with it. Although the WRS was lawful when introduced in 2004, 'the world had changed by 2009' (paragraph 77). Extension of the WRS was not expected to make any substantial contribution to alleviating disturbance to the UK labour market, and the Court concluded that the Upper Tribunal did not err in holding that the extension of the WRS was disproportionate and therefore incompatible with European Union law (paragraphs 78-81).

Note: this case proceeded on appeal to the Supreme Court, see our caselaw summary Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

The claimant was a disabled child. He was British but first came to the UK with his mother in May 2014, joining his father and brother who were already here. His claim for DLA was refused on the ground that he had not been present in Great Britain for 104 weeks out of the previous 156- ie, he failed the 'past presence test'. The First-tier Tribunal dismissed his appeal.

Judge Jacobs dismissed the claimant's further appeal. It was argued for the claimant that the test in its application to the claimant was in breach of Article 14 of the European Convention on Human Rights when read together with Article 1 of Protocol 1. Judge Jacobs did not consider that being a disabled child who had previously lived outside Great Britain constituted a 'status' for the purpose of Article 14: past residence did not constitute a defining personal characteristic (paragraph 26). In any case, the judge considered that any discrimination was justified as it was not manifestly without reasonable foundation. The test required a connection with Great Britain that was more than mere presence, and that was not manifestly without reasonable foundation. The period in the past presence test was reviewable, DLA was not the only source of funding for disabled children, and the test did contain some variation of the period according to the age of the child (paragraphs 31-39).

Looking at the evidence as a whole, which included not only an impact assessment (which admittedly did not deal with children specifically) but also a consultation process which expressly included the position of children, the judge was satisfied that the Secretary of State had due regard to the position of children regarding the test, and so had satisfied the public sector equality duty (paragraphs 41-46). For the same reasons, as well as the fact that the test provided for a delay in payment, not outright refusal, and that any savings 'will increase the pot for other purposes, which may be to the benefit of children generally or children with disabilities', the judge considered that the Secretary of State had treated the 'best interests of the child as a primary consideration'. There had therefore been compliance with any duty under Article 3 of the UN Convention on the Rights of the Child (paragraphs 4 7-53).

Comment from CPAG

Given the benefit cap, benefit freeze and two-child limit, some may question the judge's confidence in the Secretary of State's approach and his reference to savings 'increasing the pot' for children.