CPAG search

Decision in brief

Applying R(IS) 8/06, residence in Gibraltar does not count as residence in Great Britain - applying decision of European Court of Justice in Case-503/09 Lucy Stewart (21 July 2011 ), claimant able to benefit from European law cannot be denied entitlement on basis of residence requirement, if can show a genuine and sufficient link to Great Britain (paragraphs 41-48)- claimant had a British passport, lived in UK for a few years, had an employment history with connection to UK and was in receipt of a UK contributory pension and was entitled to a Christmas bonus - but had not lived in UK since 1964 and had no current family connections with UK, and lived in the Isle of Man and then Gibraltar from 1998 - balancing this, claimant did have a genuine and sufficient connection with Great Britain in relation to his retirement pension, as he was in receipt of a category A retirement pension and was entitled to a Christmas bonus, but test must be applied taking account of the particular benefit being claimed (paragraphs 52-58).

Decision in brief

Does not end automatically after 13 weeks where no limited capability for work determination has been made.

Decision in brief

'Social engagement' is not the same as contact for business or professional purposes - contrary finding in KB v SSWP [2013] UKUT 0152 (AAC) (Bulletin 234, p15) disapproved (paragraphs 16-18) - the view of what is taken to be social contact in KB (ie, that contact attending professional appointments such as medical examinations can suffice) has the effect of rendering the words virtually otiose (paragraph 24) - in this contact 'social' must include the kind of things referred to in the Oxford English Dictionary, which defines it as 'marked or characterised by friendliness, geniality or companionship with others; enjoyed, taken, carried out etc., in the company of others' (paragraphs 25-8).

Decision in brief

Meaning of 'daily basis' - use of those words exclude application of the general rule at regulation 34(2) of ESA Regulations 2008 that a descriptor applies if satisfied 'the majority of the time' (paragraph 36)- daily basis means more than majority of the time or frequently, but does not mean literally every day or every working day- essence it what is happening regularly, constantly or continually.

Decision in brief

Test pre-28 January 2013 amendment - at this time, although the test did require inability to remain at a work station by standing and by sitting, it did not consider ability to remain at a work station by means of alternately standing and sitting - MC v SSWP [2012] UKUT 324 (AAC) disapproved in that regard - but from 25 July 2013, wording of test amended so as also to consider a combination of standing and sitting.

Decision in brief

It is now a special non-contributory cash benefit, and before that it did not qualify as a cash sickness benefit - therefore, did not provide basis for entitlement to UK long-term incapacity benefit

Decision in brief

Tribunal placed too much evidential weight on statutory declaration in holding that there had been a previous marriage- erred in adopting generalised assumption that the contents of such a declaration are presumptively true and require a high degree of rebuttal - on facts of this case, evidence that there actually had been a previous marriage was weak and was evidence that it was a fiction.

Decision in brief

No request for reasons or further appeal at the time - September 2008 attempt to get decision changed caught by being outside the absolute time limit for further appeal that applied at the time - no breach of European Union law principle of effectiveness.

Summary

The claimant had been entitled to income support, housing benefit (HB) and council tax benefit (CTB) as a lone parent. She was the subject of overpayment recovery decisions and a fraud prosecution on the basis that she had been living together as husband and wife with another person, with whom she had made an application for a mortgage on the basis that they had been living together for several years. Before the criminal court in the fraud prosecution, the claimant pleaded guilty (although there were two charges and she only pleaded guilty to one of them). She was convicted. Before the tribunal that considered the recoverability of the HB and CTB overpayments, she argued that she only pleaded guilty because of legal advice that to argue otherwise might have led to action from the mortgage lender. The tribunal allowed her appeal, holding on the balance of probabilities that she was not living together with someone else at the relevant time

Judge Mark allowed the local authority's further appeal and remitted the case to a new tribunal. The tribunal had erred in not properly investigating the effect of the conviction. In so holding, he had extensive reference to his decision in AM v SSWP (DLA) [2013] UKUT 94 (AAC) (CDLA/759/2012). There, he had held that a conviction itself was no more than the opinion of the criminal court that the person was guilty as charged. That was not expert opinion and had no probative value (ie, so as to be sufficiently useful to amount to prove something). However, a guilty plea was of probative value (paragraph 13). Further, there was a general rule of public policy that a convicted person was precluded from challenging her/his conviction in a civil action-- to allow that would be to allow an abuse of process. But in social security tribunals there was an exception in so far as the tribunal should be able, in appropriate cases, to substitute its own legal findings regarding the application of social security law, and draw its own inferences and conclusions from the primary facts with regard to that law. But it remained that a claimant could not change (or resile from) a guilty plea, and the tribunal could not be used to challenge the primary findings of fact made by the criminal court.

Applying that to the present case, the claimant had pleaded guilty to one of the charges to avoid the risk of admitting to lying on her mortgage application form. For Judge Mark, it was 'wrong that the claimant should be able to take that course, and then seek to avoid the consequences by arguing that it was the mortgagee that she misled all along...". There was a public policy concern that prevented the claimant from mounting an attack on her conviction, and she should not be allowed to resile from her guilty plea before the tribunal (paragraphs 17-18). However, the new tribunal would need to establish exactly what charge the claimant pleaded guilty to. For example, if her guilty plea related only to a particular year, it may be that she can argue to the tribunal that she was not living together with someone else in other, different years covered by the overpayment decisions (paragraph 19).

Summary

The claimant had her entitlement to disability living allowance removed following a reassessment. Her appeal to the First-tier Tribunal was dismissed. Her representative applied for a statement of reasons, then wrote requesting permission to appeal. The tribunal judge (a fee-paid judge) then provided additional reasons for the decision, which were sent to a district tribunal judge (the salaried judge) as part of the district tribunal judge's consideration of the request for permission to appeal. That judge sent a decision saying that the tribunal had decided to review its decision on the basis of an error of law and as a consequence had amended its reasons. Those reasons were sent with the decision, and parties were informed of their ability to appeal to the Upper Tribunal within a month of the date of the amended reasons.

In a three-judge panel of the Upper Tribunal, Chamber President Charles and Judges Jacobs and Wright allowed the claimant's further appeal, and remitted the case to a new tribunal. On appeal, the Upper Tribunal's jurisdiction included considering whether additional reasons were properly added under the review power. The original (ie, unamended) reasons in this case contained an error of law in that they were too general in their analysis of the facts, and the additional reasons were improperly added on review, as they improperly provided a commentary on the grounds of appeal and attempted to provide a better, clearer explanation than the original reasons (paragraphs 60-63).

In so holding, the Upper Tribunal provided a commentary on the power, under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007, by which a tribunal that reviews a decision may ‘amend reasons given for the decision. Firstly, the combined effect of section 9 and of rules 39 and 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2010, was that the First-tier Tribunal may only review a decision on an application for permission to appeal and where there was an error of law (paragraph 22). Secondly, if the salaried judge that must exercise the power of review considers that it may be appropriate to amend the tribunal's reasons, the proper course is to invite the presiding judge of the tribunal On this case, a fee-paid judge) to prepare them and then apply the review powers fairly and justly, including giving every party to the appeal notice before taking action or at least giving them the option of applying for a set-aside of the review (paragraphs 26-27). Regarding the whole purpose of review, that was 'to allow the First-tier Tribunal to avoid the need for an appeal to the Upper Tribunal in the case of clear errors' and must not be .used in a way that 'subverts the appeal process and bypasses the proper function of the Upper Tribunal' (paragraph 28). The power to give additional reasqns 'is only to be exercised exceptionally and with safeguards' (paragraph 34). The purpose of amended reasons was the same as the original ones (to explain the decision of the tribunaO so as to avoid the need for an appeal to the Upper Tribunal (paragraphs 40-42). Permissible amendments may be, for example, to include something explored at the hearing but missed by oversight in the original reasons, or clarifying an ambiguous or unclear passage; an example of an impermissible amendment would be one that bolstered or supplemented a passage that gave a poot explanation of the tribunal's analysis of a piece of evidence (paragraphs 47-50). A salaried judge considering an amendment of the reasons should consider if there is an error of law in the tribunal decision, then give notice of that and a possible amendment of the 'reasons to the parties to the appeal (paragraphs 52-58).

Summary

In this case, the European Court of Justice (ECJ) considered the right to reside of dependent 'family members' of Union citizens, and in particular considered the question of whether a claimant could be a 'dependant' of a Union citizen where s/he had not tried to seek employment or support in her/his country of origin, and whether the fact that s/he was well placed to obtain employment in the host EU state meant s/he could not be a dependant.

The claimant was a Philippines citizen. She had grown up in the Philippines in the care of her grandmother, her mother having moved to Germany to work. Her mother obtained German citizenship, and eventually moved to Sweden to live there with a Norwegian man whom she married. The claimant's mother and her step-father had both remained in contact with her, and regularly sent money to her in the Philippines to support her. The claimant never worked or received social assistance in the Philippines, where she eventually qualified as a nursing assistant. The claimant came to Sweden and applied for the right to reside (via an application for a residence permit) - on the basis that she was a family member of her mother and step-father, on whom she was dependent. That was refused by the Swedish authorities on the basis that she could have supported herself in her country of origin (ie, the Philippines).

The ECJ considered whether the claimant had a right to reside under Article 2(2)(c) of EC Directive 2004/38/EC - ie, the provision including within the definition of 'family member' those who are 'the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)'. Specifically, the Court was asked to consider if a member state could require a direct descendant who is 21 years or older to have tried to obtain employment or help with supporting her/himself from the authorities of her/his country of origin or otherwise support her/himself. It was also asked if in interpreting 'dependant', could the fact that the claimant was well placed to obtain employment and intended to work in the member state could mean that s/he would no longer be regarded as a dependant?

The Court answered both questions in the negative. The fact that, in circumstances such as those in this case, a Union citizen regularly and for a significant period sent money to the claimant to support herself in the state of origin, showed a real dependence, and in those circumstances the claimant could not be required to show that she had tried to obtain employment or subsistence support from the authorities in the state of origin (paragraphs 24 and 25). On the second question, the fact that a relative was deemed to be well placed to obtain employment and start work in the member state did not affect the interpretation of the requirement that she is a 'dependant' (paragraphs 29-33).

Comment from CPAG

The Court assumed throughout that in Article 2(2)(c) the dependence of the claimant on the Union citizen 'must exist in the State of origin', that is 'the country from which the family member concerned comes' (paragraphs 22 and 30). Very arguably that is wrong, as the Article makes no such requirement. Indeed, in Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 (14 December 2009), the Court of Appeal held, regarding the very similarly worded Article 2(2)(d), that Article 2(2) does not 'require that the relative must be dependent in the country of origin... taking Article (2)(2)(d) together with Article 8(5)(d) suggests that dependency in the state of origin need not be proved for family members' (paragraph 67). See the article in Bulletin 214, p4, for more on this reasoning in Pedro, which very arguably remains good law.

Summary

In this decision the Court of Appeal rejected a challenge to the decision of the High Court in JS and others v Secretary of State for Work and Pensions [2013] EWHC 3350 (QB) (see the article in our Welfare Rights Bulletin 237, p5). The result is that the lawfulness of the 'benefit cap' has again been upheld by the courts.

The main issue considered by the Court was whether the benefit cap unlawfully discriminates against women (including victims of domestic violence) and families, in breach of Article 14 (prohibition of discrimination) read with Article 1 of Protocol 1 (right to possessions) of the European Convention of Human Rights ('the Convention'). The Court, upholding the decision of the High Court, held that it did not unlawfully discriminate. The alleged discrimination was indirect discrimination, and so was capable of justification. The relevant test for deciding if it was not justified was if the measure is 'manifestly without reasonable foundation' (paragraph 27). The Court held the benefit cap was not manifestly without reasonable foundation. The aims of the cap as identified by the Secretary of State (to introduce 'greater fairness' between those receiving out-of-work benefits and tax credits and those who were in employment, to make financial savings and incentivise behaviour that 'reduces long-term dependency on benefits' and to 'increase incentives to work') were legitimate aims for. the government to set out as to how to distribute state benefits (paragraphs 30 and 57). Exemptions from the cap had been the subject of much debate in Parliament, and the justification for the cap, said the Court, 'lies in the Government's fundamental objective of changing the welfare dependency culture' (paragraphs 34-55). The result was that the cap did not unlawfully discriminate against women or families in general.

Regarding victims of domestic violence, the Court noted the government's stated intention to change the rules to make better provision to classify accommodation such as certain refuges and hostels as 'exempt accommodation' and considered that sufficient reason not to make a ruling about that (paragraphs 65-66).

Other arguments made by the claimants, and rejected by the Court, were that the cap infringed article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC), unlawfully discriminated against families in breach of Article 8 of the Convention (right to family life), both on its own and read with Article 14, and was unlawful at common law on grounds of irrationality. On the alleged breach of the UNCRC, the Court agreed with the High Court that there was no breach, with it being plain that the rights of children were throughout 'at the forefront' of the decision maker's mind (paragraph 75). On Article 8 of the Convention, the Court accepted that 'some tenants' may find that due to the cap they were unable to pay their rent, and were evicted and became homeless. But it remained that 'the bottom line is that the local authority will retain an obligation to find some accommodation which the family can afford' (paragraphs 79-81). Although Article 8 was engaged by the cap, the Article 14 argument failed for the same reasons (ie, justification) as did the argument about that when read with Article 1 of Protocol 1 (paragraphs 85-6). Again agreeing with the High Court, the Court considered it 'a premature and pessimistic assumption' to conclude that in some instances the cap would mean family life could not continue (paragraph 100). Although, 'some families will suffer hardship as a result of the application of the cap', the circumstances of the families involved in this case did not approach the level of destitution required for a breach of Article 8 to be shown (paragraph 105). On irrationality, the argument was that Secretary of State had not been properly informed about the effect of the cap on those fleeing domestic violence and those living in temporary accommodation. But the Court accepted that the cap had been subject to detailed parliamentary scrutiny and considered there was no room in the circumstances for holding that the Secretary of State had not been properly informed (paragraphs 107-9).

Note: at the time of writing an application for a further appeal to the Supreme Court had been granted. Meanwhile, certain refuges and hostels have now been included in the definition of 'specified' accommodation - see SI 2014 No. 771 in Bulletin 239, p9. 

For our summary of the Supreme Court's decision on this case, see R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16.