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Summary

In this decision, the European Court of Justice (ECJ) held that in deciding whether someone has the right to reside on the basis of self-sufficiency with comprehensive sickness insurance, the mere fact that s/he has claimed a social assistance benefit is not enough to hold automatically that s/he is not self-sufficient.

The claimant was a German national in receipt of a German pension who lived in Austria and claimed an Austrian 'compensatory supplement' (ie, an Austrian means-tested benefit) to supplement that. He was refused on the basis that he did not satisfy the rules for the supplement, that a European national claimant has a right of residence under Article 7(1 )(b) of EC Directive 2004/38/EC - ie, that s/he has 'sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness cover in the host Member State'. This was despite the fact that he had been issued in Austria with a European Economic Area (EEA) citizen registration certificate.

The Court held that the fact that the Austrian supplement was a 'special non-contributory benefit' under EC Regulation 883/2004 (and so had characteristics not only of 'social assistance' but also of social security) was not in itself a barrier to Austrian law requiring the claimant to satisfy a right to reside test in order to get it. That was so even though the claimant had a certificate of residence under other law (paragraphs 26-44). The fact that a national of another member state who was not economically active to qualify for the supplement 'could ' be an indication he did not have sufficient resources to avoid becoming an unreasonable burden on the national social assistance system as a whole (paragraph 63). However, held the Court, 'the competent national authorities cannot draw such conclusions without first carrying out an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned' (paragraph 64). In taking such an approach, the following applied: recourse to social assistance in another member state was not automatically precluded; states must take account of the 'personal situation' of the claimant including ifs/he was experiencing temporary difficulties, the duration of her/his residence and the amount of aid granted to her/him; s/he must not impose a minimum income level to qualify; and the test of self-sufficiency in Article 7(1 )(b) must be construed narrowly (paragraphs 67- 70). This meant when applying the test taking into account among other things, the amount and regularity of the claimant's income, the period for which the benefit applied for is likely to be granted and, as in the case, the fact that the claimant had been granted a certificate of residence (paragraph 78).

Note: for more on this decision and its implications, see the article in Bulletin 236, p7.

Summary

In this decision, the High Court rejected an argument that the failure to include contributory employment and support allowance as a qualifying benefit for entitlement to a community care grant from the social fund was a breach of her human rights.

The claimant was entitled to contributory employment and support allowance (ESA) but not to income-related ESA. Her claim for a community care grant was refused on the basis that she was not, as required by Direction 25 of the Social Fund Directions, entitled to a qualifying benefit (which included income-related ESA, but not the contributory form). She argued that this was a breach of her human rights, in that it constituted unlawful discrimination against her under Article 14 of the European Convention of Human Rights (prohibition on discrimination) read together with Article 8 (right to respect for private and family life).

Dismissing the application, Deputy Judge Brennan QC noted that the Secretary of State conceded that the facts of the case fell within Article 8 (paragraph 17). However, he held that Article 14 was not engaged, as no discrimination under the Article was made out. Contrary to the claimant's argument, there was no discrimination against her on the basis of 'property', as her proprietary right to contributory ESA was not interfered with (paragraph 22). Further, there was no discrimination on the grounds of the claimant having 'other status' as referred to in Article 14. The claimant did not have a personal characteristic that formed such a status. Article 14 did not outlaw discrimination on any ground whatsoever, and the treatment of the claimant (ie, so that she was entitled only to contributory ESA) simply reflected her work record and national insurance contribution record, without sufficient personal characteristic to bring her within the Article (paragraphs 25-30). Even if there was unlawful discrimination, the deputy judge considered it justified. Applying the test of whether the discrimination was 'manifestly without reasonable foundation, that is to say irrational', as applied by the Court of Appeal in Humphreys v Commissioners for Her Majesty's Revenue and Customs [2010] EWCA Civ 56, he held that it did not meet that test (paragraphs 31-36).

This is the decision of the Supreme Court on appeal from the decision of the Court of Appeal in this case. The Court was asked to consider the same issues as the Court of Appeal; in essence, it upheld the Court of Appeal's decision. See the article on p7 of Bulletin 237.

In this decision, the High Court rejected an argument that the benefit cap is unlawful as unjustified discrimination, a breach of the right to family life and irrational and/or unreasonable.

See the article on p5 of Bulletin 237 for details.

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court. See our summary of the Court of Appeal's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions[2014] EWCA Civ 156, and of the Supreme Court's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16.

Summary

The claimant suffered from a heart condition called mitral stenosis, with associated pulmonary hypertension. She could walk over 100 metres in about 10 to 12 minutes before she had to stop due to breathlessness. She had been entitled to the high rate of the mobility component but this was not renewed on the renewal claim. Her appeal was dismissed by the First-tier Tribunal, who held that she failed to come within, as she had contended, regulation 12(1 )(a) of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890.

Judge Turnbull rejected the claimant's further appeal. It was accepted that she was not unable or virtually unable to walk and so did not come within subparagraphs (i) or (ii) of regulation 12(1 )(a). However, it was contended that she came within subparagraph (iii) on the basis that the 'exertion required to walk would constitute a danger to [her] life or would be likely to lead to a serious deterioration in [her] health'. Rejecting that, the judge held that 'the only sensible construction of limb (iii) is that it is implicit that the constraint on the claimant's walking imposed by the danger to life or health must be such as to render him unable or virtually unable to walk' (paragraph 17). On that approach, the claimant did not satisfy the test.

In so holding, he rejected alternative constructions to the effect that the danger is that which would occur were the claimant to walk what would be for a person of the claimant's age and sex normal distances at normal speeds (a construction which had been adopted in CDLA/3420/2005), or that the danger is that which would occur in such walking as the claimant could achieve without severe discomfort. Either of these constructions, held the judge, could lead to anomalies in which a claimant who could walk several hundred yards before experiencing severe discomfort could qualify, via subparagraph (iii), for the high rate of the mobility component (paragraphs 11-15).

Summary

This decision of a three-judge panel of the Upper Tribunal resolves a split in the caselaw regarding the treatment of dyslexia for DLA, in particular about which 'bodily function' is impaired and whether attention provided in school is outside the scope of DLA, as otherwise there would be unintended 'double provision' from public funds. The decision holds that it could be considered that it is the function of the brain that is impaired, and that attention provided in school can count towards entitlement.

A three-judge panel was convened because of divergent views taken in previous caselaw. On the one hand, Judge May had held in CDLA/427/2006 that no bodily function had been identified as impaired, as the interpretation of writing had nothing to do with the bodily function of seeing, and that educational provision at school is out of the scope of the DLA rules as the cost of such provision, as for DLA, is derived from public funds and Parliament cannot have intended such double provision. On the other hand, in CDLA/1983/2006, Judge Jupp had held at paragraph 18 of the decision (approving another decision in CDLA/3204/2006) that 'ultimately, it may not matter whether dyslexia is considered as part of the bodily function of seeing or alternatively as part of the bodily function of the brain and what matters is substance, not labels... the functions of the brain are included within the term "bodily function".' In the present decision, Judges Charles, Stacey and Gamble agreed with that and disapproved the approach in CDLA/427/2006 (paragraphs 37-8).

Regarding public provision, the judges also disapproved the approach of Judge May in CDLA/427 /2006 and the similar approach he took regarding medical attention provided by a district nurse in CDLA/2349/2010. The judges held instead that 'Parliament did not intend that, of itself, and so without relevant regulations or other statutory provision being made, that publicly funded relevant attention, care or assistance should be discounted when entitlement is being determined' (paragraphs 30- 1 ). With regard to assistance given at school, which the present decision was specifically concerned with, the correct approach focused 'on all of the assistance relied on and thus that given to a child at home and at school' (paragraph 51).

Summary

In this Northern Ireland decision, the tribunal had dismissed the claimant's appeal against his failure of the work capability assessment, holding that he did not score points in Activity 1 (mobilising). Its findings included that the claimant could repeatedly walk in excess of 200 metres without 'severe discomfort or exhaustion'.

Allowing the claimant's further appeal, Commissioner Stockman held that the tribunal had applied the wrong test. The descriptors for mobilising refer, in their post-28 March 2011 form, to 'significant' discomfort, not to 'severe discomfort'. For the commissioner, there was a 'qualitative difference' between the two: 'it appears to me that "significant discomfort" denotes a degree of discomfort which does not necessarily reach the threshold of "severe discomfort'", and the tribunal had applied the wrong test (paragraph 12).

Comment from CPAG

Although, as a decision of the Northern Ireland Commissioner, this decision is formally of persuasive rather than binding authority in Great Britain, it has been highlighted on the Upper Tribunal website, and it is strongly arguable that its finding that 'significant' may be less than 'severe' is plainly correct.

Summary

The claimant had been entitled both to income support (IS) and (via the 'passporting' provisions) to HB. Following a revision at the DWP, it was held that in fact she was not entitled to IS between 2003 and 2010 as in that period she was living together as husband and wife with someone in full-time work. The local authority adopted that decision (ie, without conducting its own investigation into whether the claimant was part of a couple and entitled to HB) and held that she was not entitled to HB in the same period and had to repay the overpaid benefit. The claimant appealed against both decisions. The IS appeal was heard first and was rejected; with regard to the HB, First-tier Tribunal rejected the appeal because it considered that the claimant's entitlement was dependent on IS entitlement and that it was 'bound' by the finding that she was living together as husband and wife.

Judge Wright allowed the claimant's further appeal against the decision of the H B tribunal. The tribunal had erred in holding that it was bound to decide the appeal against a claimant where another First-tier Tribunal had decided that she was not entitled to IS in the same period. He remitted the matter to a new First-tier Tribunal, which was to decide, for HB purposes, whether the claimant was living together as husband and wife with the other person, whether in consequence she was overpaid HB and, if so, whether and from whom the overpayment was recoverable.

The tribunal had erred because it had misapplied the decision in R v HBRB Penwith District Council ex parte Menear (1991) 24 HLR115, in that it considered that decision meant that it was bound by the IS decision. Menear, held the judge, 'is authority for the proposition that where a claimant for housing benefit (or council tax benefit) is on income support all of her and her partner's (if she has one) earnings, income and capital is to be disregarded'; but 'there is nothing in the law (statutory or caselaw) that lays down that a local authority is similarly bound to follow the Secretary of State where he has decided that a claimant is not entitled to income support' (paragraphs 16-17). Further, even if the tribunal had been correct in considering that it was bound by the living together decision, for HB, an assessment would still have needed to have been made of their possible entitlement as a couple to HB (paragraph 19). The only thing the tribunal was bound by was the finding that the claimant was not entitled to IS (paragraph 21). In R(H) 9/04 it had been clarified that Menear was limited to cases where the claimant was on IS [or income-based jobseeker's allowance (JSA)], and even then, limited to findings about income and capital, not to any issue of fact common to a JSA or IS decision, and that where the claimant was not on IS or income-based JSA, the local authority had to make its own decision, including on income and capital (paragraph 30-37).

Summary

An overpayment of HB arose because the claimant left the property. He did not notify the local authority of that. The HB had been paid direct to the landlord. The local authority decided that the overpayment was recoverable both from the claimant and the landlord. The landlords appealed, arguing that they were unaware that the claimant had left, and that consequently the overpayment was not also recoverable from them. The First-tier Tribunal allowed the landlords' appeal.

Judge Rowland rejected the further appeal of the local authority, holding that on the facts as found by the tribunal, the decision was not wrong in law. The local authority's attempt to argue about the facts found by the tribunal was misplaced: appeals to the Upper Tribunal could be founded only upon errors of law, not upon attempts to reargue the factual issues in the case (paragraphs 8-14). The local authority also argued that the tribunal had misapplied regulation 82 of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006, SI No.214. Firstly, it was argued that the tribunal had erred in that exemption from recovery for landlords was provided for only in subparagraph (1), whereas the tribunal had exempted them under subparagraph (2)(b). That subparagraph provides that where an overpayment arose due to misrepresentation or failure to disclose a material fact, it is 'only' recoverable from 'any' person who misrepresented or failed to disclose. But that, held the judge, would be to construe the law in a way already rejected in R(H) 6/06 (paragraph 16). The judge accepted that on the facts found by the tribunal, regulation 82(2)(b) did apply in this case (paragraph 17).

The local authority alternatively argued that subparagraph (2) should be read in such a way that a landlord could be regarded as having contributed to the overpayment via negligently not checking whether the claimant was still resident. That, held the judge, was not permissible, as it would involve 'considerable violence' to the language of the subparagraph, would contradict the natural construction given to it in (for example) MP v London Borough of Greenwich (HB) [2012] UKUT 88 (AAC) and, in any case, it was not clear how such a reading could work (paragraph 23). Nor was there any basis for holding that the landlords had in fact failed to disclose the fact that the claimant had left, as it was found that they did not know that, and in law a person cannot fail to disclose something that they do not know, and there was no duty on a landlord to take steps to discover facts (paragraphs 25-29).

Summary

The claimant bought his home under the right to buy scheme. But at completion date he could not pay the last £10,000; it was agreed that would be left outstanding, and he would pay that at a rate of £100 a month 'without interest'. The claimant was refused the inclusion of housing costs in his IS on the outstanding £10,000 (which on the facts had the result of meaning he was not entitled to IS at all). The First-tier Tribunal rejected his appeal, holding that only interest payments could be covered under housing costs, and as he was not paying interest, he was not entitled to any housing costs.

Judge West dismissed the claimant's further appeal, holding that there was no error of law in the tribunal 's decision. He accepted the submission of the Secretary of State that although the payments were an eligible housing cost under Schedule 3 of the Income Support (General) Regulations 1987, SI No.1967, that provision had to be read alongside regulation 17(1). That provided that the housing costs to be included were those 'in respect of mortgage interest payments or such other housing costs as are prescribed' in Schedule 3. The judge held that impliedly excluded mortgage capital payments, as it was not a natural construction to include such payments as 'other housing costs' (paragraph 29). Even where an interest-bearing loan would have had a rate of interest below the standard rate of interest used in the calculation of housing costs, so that the effect would be to pay off the outstanding capital sum, that did not remove the fundamental distinction in the law between an interest-bearing loan and a non-interest-bearing one (paragraph 30).

Summary

The claimant was entitled to an occupational pension amounting to £465.94 a week. He was refused contribution-based JSA on the basis that, applying the rule by which the benefit may be reduced in respect of earnings, certain pension payments etc, his entitlement was reduced to zero. He appealed to the First-tier Tribunal and argued that the rule, provided for by section 4(1 )(b) of the Jobseekers Act 1995, was indirectly discriminatory on age grounds and not justified, and so in breach of the European Convention on Human Rights. The appeal was dismissed on the grounds that the tribunal considered the rule justified.

The claimant renewed the challenge to the Upper Tribunal, arguing that the discrimination was against claimants aged over 50 compared to those aged under 50, as statistics showed that the latter group was far less likely to be in receipt of an occupational pension. Judge Wikeley dismissed the claimant's further appeal. That, however, was simply because the judge accepted that the Upper Tribunal was in a 'jurisprudential straightjacket' as regards remedy (in the event that the claimant's argument was correct). That was because, as the challenge was in effect that a provision of an Act of Parliament was unlawful, the only remedy was a declaration of incompatibility under section 4 of the Human Rights Act. But under section 4, the Upper Tribunal (as well as the First-tier Tribunal) was not empowered to make such a declaration - that could only be done by a higher court - ie, the Court of Appeal in this instance (paragraph 15).

To resolve that, the judge decided to hold that the First-tier Tribunal 's decision involved no material error of law, as section 4(1)(b) of the Jobseekers Act meant that it had been able to come only to one conclusion, that being that the claimant was not entitled to contribution-based JSA. Therefore, the claimant's further appeal was dismissed (paragraphs 17-20). That left the possibility for a further appeal by the claimant to the Court of Appeal. The judge also decided to refuse permission to appeal to the Court of Appeal (with the result that any application for permission now had to be made directly to the Court). There was 'no doubt' that the claimant's case raised a matter of principle. However, the judge considered it was for the Court of Appeal itself to decide whether the case raised an important point of principle.

Summary

The claimant was subject to conversion of her claim for incapacity benefits to one for employment and support allowance. She failed the work capability assessment and appealed. The First-tier Tribunal dismissed the appeal. The record of proceedings showed that after about 35 minutes, after being asked about conflicting remarks in her evidence, the claimant left the tribunal room quickly without the aid of her walking stick which she threw to the ground. The claimant's representative was recorded as telling the judge that 'you did not treat her badly', and did not ask for an adjournment. The hearing proceeded. On the claimant's appeal to the Upper Tribunal, the representative said that the record of proceedings was disingenuous and accused the judge of bias by making offensive remarks. The Secretary of State referred to the claimant's actions as 'an adrenaline fuelled departure'.

Dismissing the further appeal, Judge Lane held that the tribunal did not err in law. The claimant was not denied a fair hearing. The basic principles of that were: (i) the tribunal must be independent and impartial; (ii) the parties must be afforded a broadly equal opportunity to present their case in circumstances which do not put them at a substantial disadvantage as regards the other party; and (iii) there must be compliance with the overriding objective at rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, (paragraph 9). Given the different descriptions of the incident, all Judge Lane felt able to conclude was that 'the appellant got het up and walked out'. She was unable to accept the representative's contention that the only explanation was that the claimant was not mentally strong enough to continue (paragraph 8).

The representative appeared to be arguing that the tribunal had shown bias and that it had behaved unjudicially. On bias, that was allegedly because the tribunal rejected an occupational therapist's report submitted by the claimant, and used the word 'bizarre' to describe the claimant's evidence about the problems she had with her hands. Judge Lane could not see that was made out. Firstly, 'a tribunal cannot be said to be biased because it rejects evidence, even if it does so robustly' (paragraph 13). Also, the tribunal gave extensive reasons for rejecting the evidence, which did include that the tribunal considered the report overly influenced by the claimant's own perceptions and that the claimant had exaggerated her problems to the therapist. For the judge, that was not irrational although could have been left unsaid; but, 'tactlessness s not, however, the equivalent of error' (paragraphs 13-14). Regarding the use of the word 'bizarre', that was a word often used by medics to describe symptomology which is 'physiologically improbable', and was a judgement the tribunal was entitled to make (paragraph 16). Regarding alleged unjudicial behaviour, the tribunal was inquisitorial and had to ask questions. The test of unfairness was not judged subjectively from the claimant's point of view, and the judge was satisfied that a fair-minded , independent observer (which is the correct viewpoint) would not consider that the tribunal had breached the rules of fairness (paragraphs 17-19). Neither was thefailureto adjourn unfair: the tribunal could not hear further evidence because the claimant left 'unjustifiably'; in the circumstances, it would have been a 'disproportionate use of judicial time and public money' to hold a further hearing (paragraphs 21-23).