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Summary

In this decision the Court of Appeal rejected a challenge to the decision of the High Court in R (MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB). The result is that the lawfulness of the 'bedroom tax' as applied to disabled people has again by upheld by the courts.

The claimants were a number of disabled adults with varying circumstances, but who had been subject to the bedroom tax. The issues considered by the Court were: (1) whether the bedroom tax constituted unlawful discrimination against disabled people, as in breach of Article 14 of the European Convention on Human Rights ('the Convention) read with Article 1 of Protocol 1 (protection of property; and (2) whether the bedroom tax was made in breach of the Secretary of State's public sector equality duty under section 149 of the Equality Act 2010 to have 'due regard' to the need to eliminate discrimination and advance equality of opportunity for disabled people. The Court unanimously held that the bedroom tax breached neither Article 14 or the public sector equality duty.

Regarding Article 14, the Court held that the alleged discrimination was indirect discrimination (or so-called Thlimennos discrimination, the distinction between the two was unnecessary here) (paragraph 4 7) 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 49). Giving the lead decision, the Master of the Rolls said that, looked at in isolation, the relevant rule (regulation B 13 of the Housing Benefit Regulations 2006) plainly discriminates against disabled people who have a need for an additional bedroom by reason of their disability (paragraph 39). But it was not realistic to look at regulation 813 in isolation; it had to be considered as part of a 'package for dealing with the problem of under-occupation', that included certain exemptions from the bedroom tax and reliance on discretionary housing payments (DHPs) for others (paragraph 40). Looked at in this way, and taking into account the Secretary of State's stated reasons for the bedroom tax, the discrimination was justified (and so not unlawful) (paragraph 71). The Court accepted that the category all disabled people who needed an extra bedroom by reason of their disability 'may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring'. Also the DHP fund has been increased and the relevant guidance altered (paragraph 72). The Secretary of State was entitled to the view that it was not practical to add such a category of claimant to the exemptions from the bedroom tax, and the Court did not accept that exempting disabled children who needed an extra room but not disabled adults who needed an extra room was irrational or without objective or reasonable justification - the best interests of children were a primary consideration (paragraphs 73-79).

On the public sector equality duty, it was established that the principal question was not whether the decision was justifiable, but whether in the process leading to the making of the decision, the decision maker had 'due regard' to the relevant considerations (paragraph 83). The Court considered that the history of the evolution of the bedroom tax policy showed that the Secretary of State had 'well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers', and that the scheme had been considered 'in great detail' by the Secretary of State and by Parliament. Also, the adequacy of the DHP scheme had been considered and kept under review. The process did not breach the Secretary of State's public sector equality duty (paragraph 92).

Comment from CPAG

The Court's reasoning makes clear its view that the position of disabled adults who require an extra bedroom is not to be equated with that of disabled children who need an extra bedroom (provision regarding which is now made in regulation 813). At time of writing, a further appeal to the Supreme Court, was under consideration.

Note: for the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58.

Summary

The claimant was registered blind. She suffered from retinitis pigmentosa, and although she had some visual ability indoors with ambient lighting, her vision out of doors was extremely poor. She was awarded the low rate of the mobility component, but was refused the high rate on the grounds that she did not satisfy the blind or severely visually impaired criteria. That was because she did not satisfy the relevant criteria as set out on the 'Snellen scale', a test applied indoors with specific ambient lighting. The First-tier Tribunal allowed the claimant's appeal on the basis that she would pass the criteria when outdoors. The Secretary of State appealed.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the Secretary of State's appeal and substituted a decision that the claimant was not entitled to the high rate of the mobility component. The relevant rule was at regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991. The tribunal had erred in applying an out of doors test. It had been held in SSWP v MS (DLA) [2013] UKUT 267 (AAC) (file number CDLA/1899/2012) that the Snellen test was an objective test and that the claimant therefore either satisfied that test and qualified for the high rate, or did not. The judge agreed with that (paragraph 19), and as the claimant did not satisfy the Snellen test, she did not qualify.

However, the judge considered that regulation 12(1A) breached Article 14 (prohibition of discrimination) of the European Convention on Human Rights ('the Convention'). He considered the regulation clearly discriminatory in that it discriminated 'between persons who have a visual acuity that is the same in the consulting room taking the Snellen test as it is outdoors and persons that have a particular Snellen test reading in the consulting room, but whose visual acuity outside is significantly worse' (paragraphs 22-23). The judge accepted the test for whether such discrimination was unlawful (ie, not justified) was whether it was 'manifestly without reasonable foundation'. But there was nothing to suggest that the Secretary of State had really addressed the situation where a person might have better visual acuity indoors than s/he did outdoors; he held therefore that regulation 12(1A) 'has no reasonable or objective justification and is accordingly ultra vires' (paragraph 37). For the same reasons, the Secretary of State had failed in his equality duty that then existed under the Equality Act 2006 (paragraphs 40-42). However, the outcome of the appeal was still that the claimant was not entitled to the high rate. That was because the judge considered he could not construe regulation 12(1A) in a way that was compatible with the Convention (paragraph 39), and that he did not have jurisdiction to reduce or set the regulation aside; besides which there were claimants who did satisfy the regulation and needed it to get the high rate. Therefore, he had 'not made a formal decision that the regulation is a nullity', and it was 'for the Secretary of State to consider what action should be taken to amend the regulations so as not to discriminate against persons such as the claimant in this case' (paragraph 44).

Comment from CPAG

The outcome of this decision is that regulation 12(1A) stands, despite the judge's clear view that it contravenes the Convention. It would seem that the next step is up to the Secretary of State, and it is very much hoped that the decision will be to alter the regulation so as to make it compliant. Thanks to David Hornell of North Ayrshire Council, the claimant's representative, for sending us this decision.

Summary

The claimant had a number of conditions, including depression and panic attacks. She was held to have failed the work capability assessment, and appealed. The evidence before the First-tier Tribunal included a report from the claimant's NHS cognitive behavioural psychotherapist, which included the statements that the claimant had been advised to as far as possible reduce her contact with stressful situations as this has aggravated her depression, and that before returning to work, 'coping skills and support networks' would first have to be in place. The tribunal held that she did have limited capability for work, but held that she did not have limited capability for work-related activity. Its reasons were that the claimant's evidence was considered vague and contradicted by other evidence, and that she could attend interviews because she had been able to meet the tribunal, her NHS psychotherapist and the approved healthcare professional who had examined her.

Judge Mark allowed the claimant's further appeal, and substituted a decision that she was to be treated as having limited capability for work-related activity, as she satisfied the 'substantial risk' rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008. The tribunal had erred in its reasoning in that on the facts there was nothing vague about the claimant's evidence and it was not clearly contradicted. Regarding the finding that the claimant's ability to meet her psychotherapist indicated she was capable (without substantial risk) of work-related activity, the judge said: 'I am wholly unable to understand the rationality of this conclusion. There is a world of difference between attending regular therapy sessions with a psychotherapist and having to attend interviews with DWP employees at the jobcentre' (paragraph 18). Further, there was no evidence from the DWP about the ability of its jobcentre staff to deal with somebody with the claimant's mental health problems and no evidence that steps would be taken to provide the sort of coping skills and support networks referred to by her psychotherapist. Therefore, the tribunal had no facts on which to base its opinion that the claimant was capable (without substantial risk) of work-related activity (paragraph 21).

The Secretary of State should, held the judge, have provided evidence about the sort of activity that the claimant could have undertaken without substantial risk. The scope of the evidence will depend on the facts of the case, but where a claimant has mental health problems and risk was clearly at issue, 'the Secretary of State has a duty under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal)(SEC) Regulations 2008 to provide evidence' about that (paragraph 24-the rule concerns the duty of parties to the appeal to assist with dealing with a case fairly and justly and co-operating with the tribunal). Previous authority on the duty of the Secretary of State to provide sufficient evidence in such cases (AH v SSWP [2013] UKUT 118 (AAC); ML v SSWP [2013] UKUT 174; MT v SSWP [2013] UKUT 545) was cited and approved (paragraphs 27-29). Finally, on the facts of this case there was no evidence supplied about the relevant training or qualifications of the staff at the jobcentre or the arrangements that would be put in place to provide the required 'coping skills and support network'. The judge concluded that it was 'more likely than not' that 'the likely approach of the DWP to the claimant, if she were found not to have limited capability for work-related activity, would have posed a substantial risk to her mental health at a time which was plainly a crisis time for her'. There was, therefore, no point in remitting the case to a new tribunal, and the judge substituted a decision that the claimant satisfied regulation 35(2) and so was to be treated as having limited capability for work-related activity (paragraphs 32-36).

Comment from CPAG

In another recent decision, RV v SSWP (ESA) [2014] UKUT 56 (AAC) (4 February 2014), the same judge found (at paragraph 11) that in that case, which concerned a claimant with deep vein thrombosis, the tribunal was able, in the absence of evidence from the Secretary of State, to 'rely on its own knowledge, if adequate', provided that it told the claimant what that knowledge was and gave her an opportunity to comment on it. See also the article in Bulletin 293, p5.

Summary

The claimant lived in rented accommodation with another person (who happened to be his ex-partner) as joint tenants. The property consisted of one living room, two bedrooms, two bathrooms and a kitchen. The local authority having decided (eventually) that the claimant and his partner maintained separate households, nevertheless decided that as they shared a kitchen and the claimant did not have 'exclusive use' of at least two rooms, the maximum rent for HB had to be assessed under the one-bedroom shared accommodation criteria. The claimant appealed, arguing that he did have exclusive use of rooms and that therefore the one-bedroom self-contained criteria should apply instead (ie, with the result of an increased amount of benefit). The First-tier Tribunal dismissed the appeal.

Judge Wright dismissed the claimant's further appeal. The tribunal had not erred in law in deciding that the claimant did not have 'exclusive use' of rooms. In so holding, the judge was required to decide what 'exclusive use' meant in this context- ie, in the context of regulation 13D(2) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006. But, as the judge made clear, the equivalent regulation (also 13D) in the Housing Benefit Regulations 2006, was in the same form, so the decision will also apply in that context. In particular, the judge was required to decide if 'exclusive use' meant exclusive use in the practical sense of rooms that the claimant had control over and sole use of (as contended for by the claimant) or if it meant a legal right to exclude others from the rooms (as applied by the tribunal).

The judge held that 'exclusive use' meant a legal right to exclude others from the rooms, and not just the practical situation of being able to exclude all others (paragraph 4). In so holding, he applied and approved the identical finding of Judge Wikeley in M v Chesterfield Borough Council v SSWP (HB) [2011] UKUT 156 (AAC) (Bulletin 224, p17). Although the finding in that case was obiter (ie, not necessary to the decision and so not formally binding), Judge Wright considered it correct (paragraph 25). In this case, the claimant was a joint tenant and did not have the legal right to exclude all others from the rooms, and so (in the absence of any of the exceptions applying) the one-bedroom shared accommodation criteria applied.

Summary

The claimant was entitled to income support (IS), HB and council tax benefit (CTB). After starting full-time work, she notified the change promptly to the Jobcentre that administered her IS; she also said that she had informed the local authority at the same time (both by telephone and completing a form). Complications then arose because of the failure of both the DWP and the local authority to act, and an overpayment arose. The claimant appealed , arguing that the HB and CTB overpayment were not recoverable from her, as they had been caused by official error and she could not reasonably be expected to have realised that an overpayment was occurring. The First-tierTribunal allowed the appeal, the judge accepting that she was a credible witness and accepting her evidence that she had notified the local authority, even though the local authority said that it had no record of that.

Although finding that, on the facts of the case, the tribunal's decision was in error in failing to identify that the appeal had at one point lapsed, Judge Poynter re-made the decision and held that the overpayments were not recoverable from the claimant. They had been caused by official error and the claimant could not reasonably have been expected to realise that she was being overpaid. The tribunal judge had not erred in law in deciding that, on the facts of this case, it was probable that the claimant had notified the local authority.

The judge rejected the local authority's argument that to have accepted the claimant's account was 'perverse' as no tribunal could reasonably have concluded as it did, and it was based on an unjustified assumption that the claimant acted as she said she had. Although it was true there was a tension between the claimant's account and that of the local authority, resolution of such conflicts was 'quintessentially a matter of fact' for the First-tier Tribunal (paragraph 52). Although it was indeed an error of law to make a perverse decision, the decision in this case was not perverse. The local authority's argument here 'amounted to an assertion that no tribunal could reasonably have come to the view that Islington's procedures ever worked less than perfectly. That is not the case. Islington's procedures.sometimes fail to operate correctly ... the same is true of every other local authority; and of the DWP and HMRC; and indeed of the FTT, the Upper Tribunal and of every other human institution' (paragraph 53). It was up to the judge to decide what had happened. It was true, as argued by the local authority, that it was not uncommon for claimants to omit to notify the local authority of changes that they had told the DWP about. But it was also the case 'that many claimants do notify both the DWP and the local authority of changes in circumstances as soon as reasonably possible after those changes occur. The question in this case was whether it was more probable than not that the claimant had done so' (paragraph 56).

Summary

The claimant was considered to be living together with another person 'as if they were civil partners' (ie, cohabiting as a couple with someone of the same sex) and, as the alleged partner was in full time work, not entitled to IS. The claimant was a woman who owned her home jointly with another woman, 'Ms R'. They had a joint mortgage and a joint account for that. They both lived in the house. However, the claimant said she was not in a couple with Ms R, and had not had a relationship since the death (in 1976) of her husband. She described Ms R as a friend and companion. Ms R said that she had become more of a carer for the claimant as her health had deteriorated. The First-tier Tribunal rejected the claimant's appeal, on the basis that there was evidence of a shared household and a degree of financial interdependence which went far beyond friendship.

Judge Levenson allowed the claimant's further appeal and substituted a decision that the claimant was not a member of a couple. The tribunal, as the Secretary of State conceded, had not given adequate reasons for not accepting the claimant's explanations as to why she was living in the same house as Ms R (paragraph  16). Also, the tribunal had not approached the question of whether the claimant was cohabiting correctly. He noted the recent decision of Judge Jacobs in PP v Basildon District Council [2013] UKUT 505 (AAC), which had pointed to problems with the traditional 'signposts' of cohabitation, and emphasised the importance of an emotional relationship to the concept.

Judge Levenson did not disagree with that, but said: 'However, the very fact that a party denies that there is an emotional relationship in itself severely undermines the notion that there is such a relationship and in my opinion it would requirevery strong evidence indeed (and more than just disbelieving the claimant or witness) to displace that denial' (paragraph 31 ). Furthermore, the judge considered that public acknowledgement of the relationship was essential. For cohabitation to be shown, 'a committed emotional loving relationship must be established and publicly acknowledged ... an unacknowledged relationship cannot be the equivalent of marriage or a registered civil partnership which are, in their very nature, public acknowledgement of an emotional relationship ... it is for those alleging [cohabitation] to prove that there is a publicly acknowledged committed emotional loving relationship' (paragraph 33).

Summary

The claimant was a Lithuanian national. He came to the UK in May 2005. He worked for varying amounts of time between then and 2010, sometimes in short-term work and self-employment, but did not work in registered employment for a year or more - ie, he remained subject to the restrictions that applied to AS nationals until 30 April 2011. In February 2011, he claimed JSA and was refused on right to reside grounds. His appeal to the First-tier Tribunal included arguments that the restriction on AB nationals retaining worker status unless they had completed a year's registered work (the 'derogation' from the retained worker status provision) was unlawful, and that he had completed five years with a right to reside as a self-sufficient person with comprehensive sickness insurance, and so acquired a permanent right to reside. The tribunal rejected his appeal.

Judge Ward allowed the claimant's further appeal, but substituted a decision that the claimant did not have a right to reside. The tribunal had erred in holding that it had no jurisdiction to consider the validity of derogation point, and in not property explaining its reasoning on the self-sufficiency point. However, the judge did not decide the derogation issue, as on the facts he considered that the claimant could not in any case have retained the status of worker, primarily because there was too long a gap between ceasing work and the JSA claim under consideration.

On the self-sufficiency point, the test under Article 7 of the Directive was whether the claimant had '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'. For the judge, that meant that the claimant must have 'resources' and, where he intended to rely on the acquisition of permanent residence after a period of five years of self-sufficiency, those resources would need to be adequate for the five years. The judge said: 'In my view the question, whenever asked, remains: was the person at the beginning of year 1 - and in principle at any other times in the period able to show sufficient resources to meet the test? I do not accept that a person who could not meet the test on that basis could simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout the resources to be self-sufficient' (paragraph 84). As to 'resources', that could mean, for example, an occupational pension, maintenance payments or capital. In the claimant's case, apart from the limited periods when he was in employment under a worker's registration certificate, he was reliant on uncertified short-term employment and 'unproven' self-employment. For the judge, that was 'inconsistent with the degree of reliability necessary to represent resources to see him through the five-year period needed to achieve the right of permanent residence' (paragraph 89). Further, work gave rise to a right to reside as a worker, and a worker could not 'assert that his earnings as a worker entitle him to be treated as a self-sufficient person' (paragraph 92). For comprehensive sickness insurance, the claimant relied on his access to free NHS treatment. But the judge considered that insufficient (except in cases where the cost of NHS treatment was met so that the UK did not bear the cost). He considered himself bound (and in any case agreed with) the Court of Appeal in FK (Kenya) v SSHD [2010] EWCA Civ 1302, which held that NHS treatment was not sufficient, as itself constituting a burden on the social assistance system (paragraph 101-5).

Note: regarding comprehensive sickness insurance, this decision is followed in SSWP v LL (SPC) [2014] UKUT 136 (AAC). But in SA (Pakistan) v SSHD (an immigration case), leave to appeal to the Court of Appeal has been granted so that the Court may consider whether to make a reference to the ECJ on this point.

Decision in brief

Ends after 13 weeks or when the limited capability for work determination is made, whichever is the later, does not end automatically after 13 weeks where no limited capability for work determination has been made - SSWP v NC (ESA) not in error

Decision in brief

Full evacuation or voiding not required - sanitary pads are aids that may result in their being no need for a change of clothing - almost any change of clothing would count (but pads are not clothing) - fact that claimant loses control because of mobility problems in getting to the toilet does not preclude application of the continence descriptor.

Decision in brief

Although apparently provided for under section 9(2)(a) of the Tribunals, Courts. and Enforcement Act 2007, it is prevented by rule 40(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (which allows review only on an application for permission to appeal).

Decision in brief

'Cannot either... or' wording means cannot carry out 'one or other of (a) or (b)' - so unless a claimant cannot both mobilise 50 metres and do so repeatedly within a reasonable time they should be placed in the support group (paragraphs 4-6)

Note from CPAG

See also DG v SSWP (ESA), and the article in Bulletin 239, p5.

Decision in brief

Limited capability for work - manual dexterity (Activity 5) - inability to use 'a suitable keyboard or a mouse' - points not scored if claimant either can use a keyboard or can use a mouse - contrary finding in CL v SSWP (ESA) [2013] UKUT 4345 (AAC), which held that a claimant needs to use both a keyboard and a mouse, disapproved - to the extent that it implies the same as CL, OW v SSWA (ESA) [2010] UKUT 245 (AAC) also disapproved - functional approach is the correct broad starting point (GS v SSWP (ESA) [2010] UKUT 244 (AAC) approved) - overall structure of Activity 5 suggests intention was to require inability to use both keyboard and mouse - HD v SSWP (ESA) takes a different approach to use of 'or' in support group mobilising descriptor, but that makes sense in that particular context