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Summary

The claimant claimed JSA on 1 December 2011 . However, her request that it be backdated to 12 September 2011, the date of her 18th birthday, was refused. When at that time her parents had contacted HM RC to report her turning 18, they asked whether she was entitled to any other benefit at that time, and were told by HMRC that there were none. The claimant made her claim only when, later, she found out from what was then the Directgov website that she might be entitled to JSA. The claimant's appeal to the First-tier Tribunal against the refusal of backdating was rejected.

Judge Williams allowed the claimant's further appeal and substituted a decision that her claim be backdated to 12 September 2011. The tribunal had erred in failing to properly apply regulation 19(5)(d) of the Claims and Payments Regulations 1987, SI No.1968 (wrongly cited as 19(5)(e) in the decision transcript). That provided that there could be up to three months' backdating of JSA where the claimant could not reasonably be expected to have claimed earlier and s/he was given information by an officer of the DWP, 'or of the Board' which led her/him to believe that a claim for benefit would not succeed. The reference to the 'Board' was a reference to what is now known as HMRC. Both the DWP and the tribunal had failed to note that, and that failure was an error of law (paragraphs 6-8). The DWP guidance on this rule was wrong in failing also to refer to information from HMRC; and the Secretary of State had indicated to the judge that guidance to officials is to be amended (paragraphs 4-5, 10).

That left the question as to whether, in this case, the claimant could reasonably have been expected to make the claim earlier. Although the facts were not entirely clear, the judge accepted that a combination of erroneous information from HMRC and DWP meant that backdating under regulation 19 should be made to the date sought, 12 September 2011 (paragraph 9).

Summary

In this child support case, the First-tier Tribunal had proceeded with a hearing in the absence of a respondent in the appeal, namely the non-resident parent, even though it was aware that it had the wrong address for him and that notification of the hearing had been sent to that wrong address, as the Child Support Commission told the tribunal that he had notified itof a new address. In its reasons, the tribunal said that it was 'most probable' that he knew of the hearing because post 'would most likely have been passed to him or forwarded on to him', and even if not, it was 'overwhelmingly likely that he knew there was an on-going appeal'.

Judge Jacobs held that tribunal had erred in law. On the facts of this case, by proceeding in the non-resident parent's absence, the tribunal had made an unwarranted finding that he had been notified of the hearing, and (even without that) had broken the rules of natural justice by proceeding. The initial rule engaged here was at rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. That provided for a hearing in a party's absence where the tribunal was 'satisfied' that the party had been notified of the hearing or that reasonable steps had been taken to notify her/him, and that it was in the 'interests of justice' to proceed. The judge accepted submissions that the tribunal's finding that the party had 'probably' been notified was unsound as there was no reason to assume that the notification had been passed on, and that it was irrelevant that the party knew of the appeal, as the requirement was to notify him of the hearing (paragraph 13).

Further, held the judge, there was natural justice. The issue was whether the absent party had a fair hearing. Having considered rule 31, the tribunal, 'should have considered whether its conclusion allowed it to give a fair hearing'. Here, the tribunal knew it had the wrong address and showed no concern for the fact that the party had notified the Commission of his new address, suggesting he was not trying to avoid contact. Overall, the judge accepted an argument that there was more the tribunal could have done to ensure a fair hearing; not to have done so was an error of law (paragraph 13).

Summary

In this decision, the High Court rejected the claimant's challenge against decisions refusing to make interim payments of benefit and child tax credit to her, pending resolution of her appeals against decisions refusing her initial claims. The claimant was a Gambian national with a child who was a UK national. She had a complex history of claims and challenges, which included a judicial review application of 30 April 2012 in the High Court on a very similar issue, albeit regarding different decisions (Bulletin 229, p14).

For the purposes of the present decision, however, the only relevant decisions were now those of 29 November 2012, refusing to make interim payments of income support, and of 26 October 2012, refusing to make interim payments of child tax credit and child benefit. In both cases, the claimant had been refused entitlement on right to reside grounds, and now had current appeals against those decisions pending. It was not suggested that the decisions refusing to make interim payments were unlawful under domestic law; it was accepted that the only means of challenge open to the claimant was on the basis that to give effect to the right of her daughter as a European Union (EU) citizen to reside in the UK, she should be given interim payments pending resolution of the appeals (paragraphs 76-7).

Mr Justice Hickinbottom rejected the claimant's challenge. On the facts of the case, it was not the case that failure to make interim payments put her daughter's rights, as an EU citizen, to reside in the UK in jeopardy. Because of that, there was no need to for the judge to rule on whether, had there been such jeopardy, interim payments should have been made. The judge did accept that, given that the daughter was four years old, the claimant was her primary carer and there was no available substitute, the daughter's rights to reside in the UK would be in jeopardy were the claimant compelled to leave the UK (and hence EU territory- ie, because she was Gambian) (paragraph 94).

However, the challenge fell 'at the first hurdle', as the claimant in fact conceded that she will never in practice leave the UK due to economic pressure, as she was receiving payments under section 17 of the Children Act from the local authority which would 'inevitably prevent her and her daughter facing destitution and homelessness' (paragraph 97). Even without such a concession, Judge Hickinbottom said he would have found so himself, as the claimant had a council house, money in the form of section 17 payments and child support and the right to work (paragraph 96). It followed that in this case, 'EU law is simply not engaged at all', and that therefore the judge left open the question of what relief may or should be available in an appropriate case (paragraphs 103 and 113).

Summary

In this immigration case in the European Court of Justice (ECJ), the claimant and her son were Nigerian nationals. After arriving in the UK, they had a right of residence as (respectively) the spouse of national of a European Union (EU) member state and the child or dependent of that person. Those rights stopped in 2009. The claimant was divorced in 2010. The claimant worked on a self-employed basis; her son was in full-time education, firstly at school, then at university. Both applied for a permanent right to reside in the UK but were refused in 2010.

The first main question before the ECJ was in essence whether a parent of a child who was in education but who was more than 21 years old had a right to reside on the basis of being a primary carer of such a child, where the child had rights to education as the child of an EU worker. The Court held that the parent of such a child (where the child was exercising rights under Article 12 of EC Regulation 1612/68 to education as the child of an EU worker) may continue to have a 'derived' right to reside if that child 'remains in need of the presence and care of that parent in order to be able to continue and to complete his or her education', something which it was for the domestic court to assess, 'taking into account all the circumstances of the case before it' (paragraph 31).

The second main question before the Court was whether such a parent and child could have acquired a permanent right to reside on that basis - ie, on the basis of having been a primary carer, or a child in education of an EU worker respectively, for five years or more. The Court held that they could not. Permanent residence could only be acquired by fulfilling conditions laid down in EC Directive 2004/38. Although that made provision for situations in which family members who are not themselves EU nationals could acquire a right to reside, that was not satisfied in this case. Specifically, it held that, 'periods of residence in a host Member State which are completed by family members of a Union citizen who are not nationals of a Member State solely on the basis of Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, where the conditions laid down for entitlement to a right of residence under that directive are not satisfied, may not be taken into consideration for the purposes of acquisition by those family members of a right of permanent residence under that directive' (paragraph 48).

Summary

This decision of a Northern Ireland Chief Commissioner holds that, in the context of child benefit, the right-to-reside test is directly discriminatory in terms of nationality, and is therefore unlawful under European Union legislation. It also suggests that 'economic or social integration' is a distinct route to a right to reside - ie, as an alternative to those specified in the rules.

The claimant was Latvian - ie, an 'AB' national. Following a short stay in 2004, she came with her husband to Northern Ireland in 2005 and shortly after commenced employment, in which (apart from a 17-day period) she remained. However, she was at no point working for an 'authorised worker' and so (under the rules then in operation, since discontinued) she could not be treated as a 'worker' for the purpose of right to reside. She claimed child benefit in 2006 and was refused on the basis that she did not have the right to reside. Her appeal to the appeal tribunal was rejected. Allowing the claimant's further appeal, Chief Commissioner Mullan held that, provided she satisfied the usual rules other than right to reside, the claimant was entitled to child benefit. As it applied to child benefit, the right-to-reside test (contained at regulation 27(3) of the Child Benefit (General) Regulations 2006, SI No.223, was directly discriminatory on grounds of nationality, and was therefore in breach of Article 3(1) of EC Regulation 1408/71 (since replaced by EC Regulation 883/04) (paragraph 59). The appeal tribunal had erred in failing to consider and apply that (paragraph 73).

The Chief Commissioner's reasoning was based on his analysis of the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 (16 March 2011) (Bulletin 221, p10). In that decision, the Supreme Court had rejected on the context of a claim for pension credit) an argument that the right-to-reside test constituted unlawful discrimination on grounds of nationality. The rationale was partly that in pension credit (and indeed in other means-tested benefits) the test was a 'composite' test, in that it was merely part of a wider 'habitual residence' test that was not in itself directly discriminatory. Although UK nationals would always have the right to reside, not all of them would pass the habitual residence test. But in the present decision, the Chief Commissioner distinguished that in the context of child benefit. Here, there was no wider 'habitual residence' test. Instead, the only wider test was the requirement to be 'ordinarily resident' in the UK That was a test of 'fact and degree rather than law', may be satisfied immediately on arrival in the UK and was the same for UK nationals and European nationals (paragraphs 44-54). Given the 'neutrality' of the ordinary residence requirement, it seemed to the Chief Commissioner that the right-to-reside test was the 'effective and sole residence test' for child benefit (paragraph 56). In the present case, it was the right-to-reside test that was the sole rule that prevented the claimant from being entitled to child benefit; as that test was automatically satisfied by UK nationals, it followed that in this context the right-to-reside test was directly (and so, unlawfully) discriminatory on the grounds of nationality (paragraph 59).

The Chief Commissioner went further. If he was wrong that the right-to-reside test for child benefit constituted direct discrimination, it fell to be considered whether it constituted unlawful (ie, unjustified) indirect discrimination. In Patmalniece, the Supreme Court held that it did not. The indirect discrimination was justified as a measure preventing exploitation of the UK benefits system. But, at least in the judgment of Lord Hope, the leading judgment in that case, that was founded on the principle that a person would be entitled to benefit were s/he to have 'economic integration' or a 'sufficient degree of social integration' (paragraphs 41-52 of the decision in Patmalniece). Emphasising that, in the present decision the Chief Commissioner considered that the 'tenor' of caselaw authority was that an 'exception must exist' to the standard right-to-reside categories, that this exception is for those who have achieved economic or social integration and that the apparent concession of the Secretary of State that economic or social integration was sufficient (as outlined at paragraph 42 of Lord Hope's judgment in Patmalniece) was 'in-many ways, remarkable ... ' (paragraph 68). For the Chief Commissioner, to avoid unlawful indirect discrimination, economic or social integration had to be an 'alternative' route to a right to reside. Although he could not be definitive on what might amount to such integration in the UK, on the facts of this case, which included continuous residence in Northern Ireland for 23 months immediately before the claim and almost continuous employment, the Chief Commissioner considered that the claimant niust have achieved social integration there (paragraph 72).

Comment from CPAG

Thanks to Patricia Carty of the Law Centre Northern Ireland, the claimant's representative, for sending us this decision. Being one of the Northern Ireland Commissioners, it is of persuasive but not formally binding authority in Great Britain. At time of writing, it was understood that the Secretary of State was seeking permission to appeal to the Northern Ireland Court of Appeal.

It remains to be seen whether, and to what extent, it will be followed by (for example) the Upper Tribunal. The finding regarding direct discrimination will in any case not apply to means-tested benefits (which include 'composite' tests involving a habitual residence test, and so are on all fours with Patmalniece), but arguably could be applied to child tax credit (which does not have a habitual residence test). The finding that 'economic or social integration' could constitute a distinct right to reside is potentially capable of general application, but may well need to be tested further, and it is undoubtedly a yet more difficult argument. For more details on both arguments, see the article in our Welfare Rights Bulletin 234, p11.

Note: this decision was overturned by the Court of Appeal, see our caselaw summary The Commissioners for Her Majesty's Revenue and Customs v Spiridonova [2014] NICA 63.

Summary

The claimant was a child diagnosed with ADHD. She had behavioural problems, lack of understanding of danger, lack of concentration and underdeveloped basic living skills. The decision maker made no award of DLA On appeal, the evidence before the First-tier Tribunal included a psychiatrist's report stating that the claimant was liable to be at risk, a school report and letter saying that her behaviour was very challenging if she did not take her medication and that her condition had worsened due to exam pressures, and a letter from her support worker describing her behaviour at home since the birth of a baby sister as 'very demanding of attention and support'. The tribunal found that the claimant's condition had deteriorated since the date of the decision under appeal and refused the appeal.

In allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Bano held that the tribunal had failed to conduct a sufficiently detailed analysis of the risks to the claimant if she were left unsupervised. He made the following comment, 'As I pointed out in CDLA/3779/2004, children of school age are generally supervised for much of the time, so that their behaviour in those conditions may not provide an accurate indication of the risks to the child if that supervision is not given. In order to answer that question, the tribunal will need to consider the evidence available from all sources, including that of the school and those involved in caring for the child, for the purpose of assessing the risks to the claimant if continual supervision, or supervision when walking out of doors, were not provided' (paragraph 5).

Summary

The claimant was assessed as having limited capability for work, having scored 15 points in that part of the work capability assessment. However, he was not assessed as having limited capability for work-related activity- ie, and so was not put in the support group. The First-tier Tribunal upheld the decision that he scored no points in that part of the assessment, in particular that Activity 13 and its accompanying descriptor did not apply. That activity is 'coping with social engagement due to cognitive impairment or mental disorder'; the descriptor requires that, 'engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual'.

Judge Parker upheld the claimant's further appeal, holding that on a proper construction of the wording of the descriptor, the claimant satisfied the test. The claimant's representative had argued that, although the claimant was on occasion able to engage in social contact, the descriptor was nevertheless satisfied as regulation 34(2) of the Employment and Support Allowance Regulations 2008, Sr No. 794 applied throughout the work capability assessment and provided that a descriptor applied to a claimant, if it applied 'for the majority of the time...'. The Secretary of State argued by contrast that regulation 34(2) only applied where the wording of the descriptor concerned did not exclude that possibility, and that here the Activity 13 descriptor excluded it as it required that social contact was 'always' precluded.

The judge held that regulation 34(2) must be given some application, if that was possible without a strained construction. It was possible. That was because the word 'always' as defined in the Concise Oxford and other dictionaries had a primary meaning of 'every time', but also a secondary meaning of 'repeatedly, persistent' (paragraph 13). Applying that, the judge held that 'always precluded', as used in Activity 13 (and also in Activity 16 of the limited capability for work test), 'is not an all or nothing test; rather, it means "repeatedly" or "persistent" or "often"' (paragraph 14). Such a meaning, when combined with regulation 34(2), meant that for the descriptor to apply it had to apply with a greater frequency than a simple bare majority of the time. Whether it did in the individual case was a matter of fact and degree, and to be applied in a common sense way. On the facts of this case, where the claimant could only engage in very limited social contact when visiting his doctor and when attending the tribunal, it did apply (paragraph 14). However, the judge accepted the Secretary of State's argument that the social activity to be taken into account did have to include contact with people such as doctors and lawyers, and could not be restricted to voluntary, informal contact with people like friends and relatives (paragraph 17).

Summary

The claimant had chronic fatigue syndrome. He was assessed as having limited capability for work, but not as having limited capability for work-related activity - ie, he was not put in the support group. He appealed, arguing that the tribunal had misapplied Activity 1 of the assessment for limited capability for work-related activity. In particular, it had failed to deal with descriptor (b) of the activity, which applies where a claimant cannot 'repeatedly mobilise 50 metres with(n a reasonable timescale because of significant discomfort or exhaustion'. The claimant also argued that the tribunal had failed to deal with his argument that the exceptional circumstance rule at regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008, SI No.794 applied, so that he should be placed in the support group on the grounds of 'substantial risk' to his health if he were not.

Judge Jacobs allowed the claimant's appeal, setting the tribunal decision aside and remitting it to a new tribunal. The tribunal had erred in failing to make sufficiently detailed findings of fact regarding the claimant's ability to mobilise with regard to Activity 1 (paragraph 22). It had, for example, failed to explore what he meant when he said he could not mobilise 'repeatedly'. However, the judge refused to attempt to define what the words 'repeatedly', 'reasonable timescale' or 'significant discomfort', as they appear in the descriptor, meant. That would be the wrong approach to statutory interpretation and 'trespass impermissibly into the role of the First-tier Tribunal'. It was not for the Upper Tribunal to give more specific content to the law than the language in the legislation (paragraph 19). Rather, held the judge, 'The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows' (paragraph 20).

Turning to the exceptional circumstance rule and in particular that regarding 'substantial risk', the judge noted that the approach of the Court of Appeal in Charlton v Secretary of State for Work and Pensions, reported as R(IB) 2/09, applied to ESA. The Court's reasoning could be applied to regulation 35(2)(b) (ie, regarding the support component) in the context of the effect of the decision of not being placed in the support group and having to undertake work-related activity, including travel to it (paragraph 25). In terms of what work-related activity was under consideration, the effect was that, 'The decision maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others' (paragraph 26). Evidence about the work-related activity and about the claimant's health was key to that. Sometimes the claimant's disabilities will be such that only general information is required - eg, where the claimant's only disability is restricted mobility. it will be clear that s/he should be able to attend an interview or training course. But in other cases, such as this where there was also evidence of fatigue and an argument that work-related activity would impact on that, more specific evidence of the kind of work-related activity the claimant might be expected to undertake was required (paragraphs 27-32).

Summary

The claimant had vertigo. Having been refused ESA, she appealed. The First-tier Tribunal found that she did have limited capability for work, including on the grounds that if she was found not to there would be a 'substantial risk' to her health or someone else. In deciding this in the context of limited capability for work, the tribunal applied the exceptional circumstance rule, regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI No. 794. However, it decided that she did not also have limited capability for work-related activity - ie, she was not in the support group. In deciding that, it rejected an argument that the 'substantial risk' exceptional circumstance for the support group, at regulation 35(2)(b), also applied.

In refusing the claimant's further appeal, Judge Jacobs held that a claimant who satisfied regulation 29(2)(b) did not therefore automatically satisfy regulation 35(2). Rather, that depended on the nature of the claimant's condition and the work-related activity that she would be expected to undertake. With regard to the latter, however, claimants and tribunals had to be given sufficient information about work-related activity in order to allow the claimant's right of appeal to be effective (paragraph 2).

The provisions about the substantial risk exceptional circumstance used similar wording, but did so for different purposes. Regulation 29 was concerned with the risk of work; regulation 35 was concerned with the risk of work-related activity; and there was no reason why that should be determined by regulation 29 (paragraph 14). However, the Judge went on to say that, 'Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general, formulaic statements such as those I have quoted from the Secretary of State's argument...it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision... the existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision' (paragraph 15). In this case, however, there was sufficient information, as whatever work-related activity may involve, it was clear that the claimant should be able to undertake it, as she could travel, had attended an interview and examination for the medical and could go shopping, to the bank and to the post office.

Summary

In this decision, Judge Ward suggests that, depending on the individual facts, a failure by the Secretary of State to include evidence about a claimant's recent award of disability living allowance (DLA) in the information to the tribunal may lead to an error of law in the form of a breach of the rules of natural justice.

The claimant scored just six points in the work capability assessment and so did not have limited capability for work. The appeal tribunal, in hearing on the papers, upheld that decision. In the course of the claimant's further appeal to the Upper Tribunal, it became evident that at the time of the decision maker's decision, the claimant had recently been awarded DLA, including both the care and the mobility component. This information was not before the First-tier Tribunal.

Judge Ward allowed the further appeal and remitted the case to a new First-tier Tribunal. There was no criticism of the original First-tier Tribunal, which could not know about the award of DLA. But although the Secretary of State submitted that, due to internal arrangements in the Department, the decision maker for the work capability assessment would not have known about it as a matter of course, the judge also held that that did not mean he could not have ascertained it; and that, 'It would seem prudent once an appeal has been received, if not before, for the benefit systems to be interrogated to check for material of this type... ' (paragraph 10). Further, applying authority that evidence in relation to one benefit may be material, if cautiously applied, to another (LO v SSWP [2009] UKUT 208 (MC) and DR v SSWP [2010] UKUT 2010 (MC)), it was possible (depending on the relevance of the evidence) that a failure to supply such evidence could result in a breach of natural justice at the tribunal. Here, the judge adopted the findings of Judge Jacobs about the duties of a local authority in a housing benefit case in SC v LB Islington (HB) [2011] UKUT 490 (AAC) (paragraphs 6 and 7).

Comment from CPAG

The judge in the present case would appear to have considered the Secretary of State's failure to provide evidence about the DLA award an error of law. It is a welcome reminder that claimants in work capability assessment cases may benefit from DLA evidence as well as have it used against them. The findings about the duties of the decision maker are consistent with those regarding the need to submit previous medical reports in ST v SSWP [2012] UKUT 469 (AAC) (Bulletin 232, p14).

Summary

The claimant was a Dutch national. He was employed in the UK but his employment ended in February 2007. He claimed jobseeker's allowance from 25 May 2007 ie, after a delay of around three months), and received that until 31 August 2008. Having become ill, he claimed IS from September 2008. His claim was refused on the basis that he did not have the right to reside. His appeal was allowed on the basis that he had retained his worker status and was now temporarily incapable of work.

Judge White allowed the Secretary of State's further appeal on the basis that the tribunal had made insufficient enquiry into whether the claimant had retained his worker status, in particular what he did in the period between becoming unemployed in February 2007 and claiming jobseeker's allowance in May 2007. The case was remitted to a new tribunal for findings of fact. The judge also made some more general findings about, 'the issue of delay' (ie, the timeliness within which a claimant must have 'registered as a jobseeker with the relevant employment office'), which is one of the conditions under which worker status can be retained as set out in Article 7(3)(b) of the so-called Citizenship Directive, EC Directive 2004/38/EC. All parties were agreed that 'registering' as a jobseeker was a distinct requirement from that of being in 'duly recorded unemployment', which was another requirement of Article 7(3)(b) (paragraphs 48-49). As far as being in duly recorded unemployment was concerned, that might be achieved simply by that being recorded or confirmed on receipt of a claim; but that did not apply to the separate act of actually registering with an employment office (paragraph 56).

Regarding the permissibility of delay in doing that, the judge concluded that, 'Where there is a delay of more than a very few days between the end of employment and the completion of the formalities required to take the benefit of Article 7(3)(b) of the Citizenship Directive, the proper approach is to ask whether, having regard to all the circumstances of the case, there has been undue delay in meeting the requirements of the Citizenship Directive' (paragraph 69). Whether or not there had been 'undue delay' required a full enquiry into the reasons for the delay. For the judge, 'Decision makers and tribunals are required to exercise a judgement as to whether there are reasonable grounds for the delay such that it is not right to regard it as an undue delay... it follows that the longer the delay, the more compelling must be the reasons for it. I do not specify any outer limit beyond which a delay will necessarily be regarded as an undue delay' (paragraphs 71-72).

Summary

This decision of a three-judge panel of the Upper Tribunal arises from the different approaches taken to the hearing of joined employment and support allowance (ESA) and disability living allowance (DLA) appeals taken in WS v SSWP (DLA) (Bulletin 230, p14) and PJ v SSWP (ESA) (Bulletin 224, p17). In the present decision, the three-judge panel held that where a claimant has current appeals concerning ESA and DLA, the hearings are to be held on completely separate sessions and by entirely differently constituted tribunals. The advocacy of 'concurrent' hearings in WS v SSWP (DLA) and 'consecutive' hearings in PJ v SSWP (ESA) were both rejected.

The issue before the Upper Tribunal was whether it was permissible for the First-tier Tribunal to hear joined ESA and DLA appeals (current appeals by the same claimant) either concurrently (ie, without a formal break in proceedings) or consecutively on the same day, without the membership of the tribunal being entirely different. In the Upper Tribunal, Mr Justice Charles and Judges Masher and Ward held, by a majority decision, that neither approach was permissible and that entirely separate hearings by different tribunals were required. The essential background to this issue is the rule on composition on membership of tribunals in the Practice Statement, 'Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008', issued by the Senior President of Tribunals. Under that, an ESA First-tier Tribunal is to consist of a legally qualified member and a medically qualified member, while a DLA First-tier Tribunal is to consist of those plus a disability qualified member.

Judges Masher and Ward considered that Judge Williams had been correct in PJ when he held that the Practice Statement referred to 'the whole decision-making process of a tribunal', including reading the papers and hearing evidence as well as making the final decision (paragraph 33). It followed from that that if there was a 'concurrent' hearing of both an ESA and a DLA appeal, there is an error of law in relation to the ESA appeal, in the 'knowing taking part' of the disability qualified member in the function of the making of the decision in the ESA appeal (paragraphs 34-5). Having established that the rule on tribunal membership applied to all parts of the hearing, it could not be accepted that participation of the disability qualified member in a concurrent hearing did not amount to participation in the ESA appeal - so Judge Lane in WS was wrong to hold otherwise. But, held Judges Masher and Ward, that meant that Judge Williams was also wrong in PS to hold that a tribunal could hear the appeals consecutively- ie, in the same session but with a break (paragraphs 37-9). Even if the DLA appeal was considered first, 'the claimant and any representative would be put in an impossibly unfair position in relation to the ESA appeal' (paragraph 49). In particular, in the event of an adverse decision on the DLA appeal, the short break afforded to the claimant in a 'consecutive' hearing would not give them time to property respond before the ESA part of the hearing began. By contrast, with completely separated hearings, the claimant would be able to property consider the decision and what further evidence or submissions could be made. Accordingly, holding entirely separate hearings of the appeals was the correct approach (paragraphs 48-51).