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Summary

The claimant and his wife made a joint claim for tax credits. His wife was considered not to satisfy the national insurance number (NINO) requirement, and the claim was rejected. The claimant appealed, arguing that his wife had good reason for failing to attend NINO interviews. The appeal was rejected and, as part of that, the First-tier Tribunal found that there was no right of appeal against an HMRC decision to reject a tax credits claim.

Judge Mark allowed the claimant's further appeal, setting the decision aside and remitting the case for hearing by a new tribunal. The tribunal had been wrong to hold that there was no right of appeal against a decision such as this. The matter had been considered previously by Judge Ward in ZM and AB v HMRC [2013] UKUT 547 (AAC). However, in that decision, the judge held that although there was a right of appeal against matters of fact such as whether the claimant's wife was exempt from the NINO requirement, more generally there was no right of appeal against matters of discretion, such as whether a claim not made on the correct form could be accepted or whether there was reasonable excuse for not meeting the NINO requirement.

Judge Mark disagreed with that approach, and held that as long as it was clear that a claim was being made, a decision to reject it, for example, on the basis that it was not on the correct form or did not contain the required information, did carry the right of appeal (paragraph 22). The judge could draw no relevant distinction between social security caselaw (R(IS) 6/04) which had held there was such a right of appeal, and tax credit law (paragraph 19). For the judge, 'tax credits are benefits, like other social security benefits, which are provided to sustain members of the community through the welfare state and I should not approach the question of what is appealable in an over-technical way' (paragraph 21).

Comment from CPAG

There is a clear conflict in approach between ZM and AB v HMRC and the present decision. Both are of equal authority, but arguably Judge Mark's approach in CI v HMRC (TC) is to be preferred, as being the later decision and the one more consistent with caselaw on the very similar content and purpose of the benefit rules.

Summary

The claimant appealed against the decision of the First-tier Tribunal about whether she satisfied the work capability assessment. She was assisted at the tribunal and in her further appeal by a representative. In applying for permission for further appeal, the representative said that he had wished to give evidence at the tribunal on behalf of the claimant about the matters with which his organisation had felt it necessary to assist her, but had been told by the judge that he could only ask his client questions or make a submission.

Allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Gray commented on that, although she decided the case on another matter and did not have the benefit of argument on it (paragraph 3). The judge said that the tribunal would have been entitled to hear the representative's evidence as 'there is nothing to prevent a representative from giving factual evidence of matters within their knowledge'. It was of course a matter for the tribunal to assess the weight of such evidence, in the way that it weighs any evidence (paragraph 6).

In so commenting, the judge endorsed the decision of Commissioner (as he then was) Jacobs in CDLA/2462/2003.

Decision in brief

Mobilising - relevance of award of high rate DLA mobility component - where put in issue by claimant - ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33 right to say that mere fact of the DLA award does not necessarily mean a mobilising descriptor applies - but ML v SSWP is not authority for simply disregarding the DLA award - the evidence behind the award matters and may be relevant for the mobilising descriptors (paragraph 5)- in this case the evidence behind the DLA award was potentially relevant and the DWP ought to have produced it (or been directed to do so) under rule 24 of the Tribunal Procedure Rules (paragraph 7)

Decision in brief

'Normally living with' rule not unlawful: definition of who is responsible for a child, and so entitled to child amounts, lawfully limited to those with whom the child is normally living, meaning the person with whom the child spends more time than with anyone else - discrimination against men as 'substantial minority carers' caused by regulation 20(1) and (3) of Housing Benefit Regulations 2006 SI No.213 justified as not 'manifestly without reasonable foundation' - reasoning regarding similar effect in shared care cases set out in TD v SSWP and London Borough of Richmond-Upon-Thames (HB) [2013] UKUT 642 (AAC) also applies here

Decision in brief

A local authority's failure to ask all claimants a particular question on its standard HB claim form can amount to an official error - R v Islington London Borough Council Housing Benefit Review Board exp de Grey [1992] unreported 11 February QBD, which held to the contrary, should not have too much weight placed upon it (paragraph 26) - CH/4428/2006, which stated that failure to amend forms may amount to official error but will not do so in every case, is the correct statement of principle (paragraph 34) - onus is on the local authority to ask the right questions on an initial claim for benefit (paragraph 39) - in the present case, overpayment occurred due to payment of HB for a child to a mother where child spent more time with the father, the form was deficient in that it failed to establish whether child normally lived with his mother (paragraph 43) - that was about 'fundamental principles of eligibility' and not to ask about it was clearly an official error (paragraph 48)

Decision in brief

Social fund sure start maternity grant - restriction to one child under 2011 amendment regulations - not in breach of public sector equality duty in Race Relations Act 1976 - principles regarding public sector equality duty in Bracking v SSWP [2013] EWCA Civ 1345 applied (paragraphs 11-13) - data on whether there was a discriminatory effect appeared to show a discriminatory effect (regarding Pakistani or Bangladeshi families) but was inconclusive (paragraph 47) - was 'legitimate to take account' of financial effect of delaying rule change to seek further data, and the choice to do so was one for government ministers, not a judge (paragraphs 49-50) - Secretary of State satisfied legal duties by carrying out equality impact statements, considering the available data and responding to Social Security Advisory Committee report (paragraph 51) - however, both First-tier and Upper Tribunal are able to consider if legal duty was satisfied - ie, if regulations are ultra vires, including on basis that they conflict with rights under other primary legislation (paragraphs 16, 20-21)

Summary

In this immigration case originating in Northern Ireland, the Court of Appeal considered whether, for the purpose of whether a student with Danish nationality had ‘comprehensive sickness insurance’ and so a right to reside, access to free treatment from the National Health Service (NHS) was sufficient. The claimant was the student’s husband, was not himself an EEA citizen, and needed to show that his wife had the right to reside in order to be entitled to acquire one himself.

In a unanimous decision, the Court held access to NHS treatment was not sufficient to count as comprehensive sickness insurance. Reviewing the relevant caselaw (including in particular W(China) v SSHD [2006] EWCA Civ 1494 [2007] 1 WLR 1514), the Court held that access to the NHS was ‘nothing to the point’ of whether the claimant’s wife had comprehensive sickness insurance so that she would have a right to reside as a student under Article 7(1)(c) of EC Directive 2004/38/EC. There was no basis from departing from the finding in W (China) that use of free state medical services in fact created a burden on the host state and that contribution towards it could not be a proxy for insurance designed to remove the burden of providing health care (paragraphs 20–28).

The Court did note that it was ‘common ground that if there were reciprocal arrangements with the EEA national’s own state that would be sufficient to constitute comprehensive sickness cover’ (paragraph 53). But here there was no evidence that she was entitled to healthcare in Denmark (paragraph 54). The requirement to have comprehensive sickness insurance was not discriminatory, disproportionate or otherwise unlawful (paragraphs 38–68).

Comment from CPAG

This decision is broadly consistent with the finding about comprehensive sickness insurance and self-sufficiency in VP v SSWP (JSA).

Summary

The claimant was a male to female transsexual. While still a man, she married a woman with whom she still lived. She underwent gender reassignment surgery. She did not apply for a ‘full gender recognition certificate’ under the provisions of the Gender Recognition Act 2004, as that required her first to annul her marriage, something she refused to do. Accordingly under the law she was still regarded as a man, and was therefore refused entitlement to state retirement pension when she subsequently applied for it at the age of 60, the age at which a woman was entitled. That decision was upheld in the First-tier and Upper Tribunals.

The Court of Appeal unanimously rejected the claimant’s further appeal, which was based on an argument that the refusal to grant her a retirement pension at age 60 was in contravention of EU law in the form of Council Directive 79/7/EEC on equal treatment for men and women in social security. The effect of the Gender Recognition Act 2004 had been to make relevant provision regarding the rights of transsexuals, and, as at the time of her retirement pension claim the claimant had not brought herself within it (ie, by declining to annul her marriage), she was lawfully not regarded as a woman. The Court noted that when the relevant provisions of the Marriage (Same Sex Couples) Act 2013 come into force the claimant will be able to obtain a full gender recognition certificate without having to annul her marriage; but those provisions are not retrospective and therefore will not give her any right to a pension from age 60 (paragraph 2).

In so holding, the Court considered previous decisions about transsexuals and retirement pension from age 60, namely that of the European Court of Justice in Richards v Secretary of State for Work and Pensions (C-423/04) [2006] ICR 1181, and that of the Court of Appeal in Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 [2010] ICR 1369. Both were about claims before the coming into effect of the Gender Recognition Act, and so both succeeded on the basis that there was at the relevant time no basis by which their acquired gender could be recognised in law. The Act had made ‘fundamental difference’ to this by providing that was no longer the case (paragraphs 7–12); and the requirement in the Act that any subsisting marriage be annulled prior to the issue of a full gender reassignment certificate was justifiable, with reference to the wide margin of appreciated to be afforded to the relevant State and the proportionality of the requirement (paragraphs 13–16).

Summary

In this decision the High Court held that the two years’ residence requirement that was part of Sandwell’s council tax reduction scheme was unlawful, on numerous grounds. See the article in Bulletin 242, p4.

Summary

The claimant had severe brain injury following a road traffic accident which occurred when he was aged 32. He was refused the high rate of the mobility component of DLA. His entitlement depended on him satisfying the ‘severe mental impairment route’. The tribunal held that he did not satisfy the necessary condition of ‘arrested or incomplete physical development of the brain’ as applying the standard authority in R(DLA) 2/96, the human brain was fully developed before an adult reaches the age of 30.

Judge Wikeley held that the tribunal erred in law because it applied what he called the ‘age 30 cut-off rule’ (paragraph 3). The conditions for satisfying the severe mental impairment route to the high rate of the mobility component are set out in regulation 12(5) of the Social Security Disability Living Allowance Regulations 1991, SI 1991 No.2890. The requirement is that the claimant ‘suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.’ R(DLA) 2/96 had established the ‘age 30 cut-off rule’ and been accepted as the standard authority; but Judge Wikeley held that in the light of more recent scientific advice, that was no longer good law, and specifically that in his view ‘R(DLA) 2/96 should no longer be followed in so far as it holds or implies that regulation 12(5) embodies the age 30 cut-off rule’ (paragraph 41).

The reason for that was expert evidence in the form of a report (‘Human brain development: When does the human brain stop developing?’) by Professor Sarah-Jayne Blakemore, Royal Society Research Fellow and Professor of Cognitive Neuroscience at University College London. Her report was accepted as authoritative and expert by the Secretary of State (paragraph 30). The report holds (contrary to the evidence on which R(DLA) 2/06 was based) that the human brain retains a degree of ‘experience dependent plasticity throughout adulthood’ (eg, through learning of new skills) which may involve ‘physical development of the brain well into adulthood’ (paragraphs 34–6). Also, Professor Blakemore’s report provided evidence that ‘the physical volume of the brain is changing at least into the fourth decade of life, and perhaps into the 50s, with an increase in white matter and a decrease in grey matter’. As a result, the proposition that the brain attained full development before the age of 30 could no longer be maintained (paragraph 37). Professor Blakemore’s evidence was that the brain will have ceased developing in terms of grey and white matter ‘by the thirties or early forties in most people’ (paragraph 40). Attempting to summarise, the judge said, ‘it may not be unreasonable to say that experience-dependent plasticity occurs at the margins, and so a tribunal may reasonably focus on physical development of the brain in terms of white and grey matter. Obviously it will be wholly unrealistic to identify the specific age at which such changes cease in a particular individual…however a tribunal is entitled to apply the balance of probabilities’. In the present case the claimant was aged 32 at the time of his accident, which fell ‘very much toward the bottom end’ of the age range identified by Professor Blakemore, and so ‘it would be reasonable to say that the Appellant’s brain had not completely developed’ (paragraph 41).

Comment from CPAG

Previous refusals of the high rate based on the age 30 cut-off rule in R(DLA) 2/06 could now be revisited on supersession (where some DLA is in payment). Any arrears are likely to be limited by application of the ‘anti-test case rule’ at s27 Social Security Act 1998. An added complication is that in PIP transfer areas, a request to revisit a DLA award on this basis may well trigger transfer to PIP.

Summary

This decision of a three-judge panel of the Upper Tribunal arises from a split in the caselaw about the interpretation of ‘social engagement’ in the mental health test of the work capability assessment (WCA). Ability regarding ‘social engagement’ is a feature of Activity 16 of the test for limited capability for work, and of Activity 13 of the test for limited capability for work-related activity. In KB v SSWP [2013] UKUT 152 (AAC), Judge Parker had held that ‘social engagement’ referred to any social engagement, including that with, for example, doctors and lawyers – ie, in business or professional contact. However, in the later AR v SSWP (ESA) [2013] UKUT 446 (AAC), Judge Ward disagreed with that, holding that ‘social engagement’ did not refer to contact for business or professional purposes, but rather was limited to that which was characterized by friendliness, geniality or companionship with others.

Mr Justice Charles, Judge Warren and Judge Rowland held that Judge Parker was correct in holding that in this context the word ‘social’ was simply a reference to ‘with other human beings’ (paragraph 28) – ie, that the engagement under consideration could include that for business and professional context. However, the nature and extent of the ‘engagement’ then had to be assessed and correctly applied. By way of background, it was accepted that the words involved were ordinary ones in common usage without precise meanings, and that it was important in such cases to look at the whole of a statutory definition with regard to the ‘underlying legislative purpose’ (paragraphs 5-9). That involved an assessment for the statutory purposes of the WCA, which was ‘to assess whether a person is able to engage with others for the purposes of work’. The panel agreed with comment of Judge Wikeley at paragraph19 of AS v SSWP (ESA) [2013] UKUT 587 (AAC) that the WCA activities and descriptors ‘do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace’ (paragraph 16). Thus, in the present decision, the test of social engagement introduced ‘elements of reciprocity, give and take, initiation and response’ (paragraph 32).

In applying that, it was open to a decision maker to base his decision on an example or examples chosen from a wide range of situations (paragraph 34). The decision-making process will involve the finding of relevant facts (ie, regarding the social engagement which can or cannot be undertaken) and then the application of ‘value judgements’ which involve ‘addressing whether the contact with other people has the necessary nature and quality’, considering in each case ‘how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working’ (paragraphs 38-39). In the individual cases in the present decision, in one the First-tier Tribunal was considered to have erred in ‘not sufficiently addressing the quality of contact’ (paragraph 45); whereas in the other case, although the tribunal should have expressed itself in different terms, it was entitled to reach the conclusion it did ‘by reference to the claimant’s evidence to them and the manner in which he gave it’ (paragraph 58).

Summary

This decision of a three-judge panel of the Upper Tribunal arises from different approaches in the caselaw to the question of what evidence is required when making a decision on whether a claimant is to be treated as having limited capability for work-related activity (ie, in the support group for ESA) due to there being a ‘substantial risk’ to her/his or someone else’s health were s/he not to be so treated, as provided for at regulation 35(2) of the Employment and Support Allowance (General) Regulations 2008, SI 2008 No.797. In MT v SSWP (ESA) [2013] UKUT 545 (AAC), Judge Gray had held that the Secretary of State was under an obligation to supply the relevant information to the First-tier Tribunal and that, generally speaking, without that the tribunal could not rely on its own knowledge; she disagreed with the finding by Judge White in AK v SSWP (ESA) [2013] UKUT 435 (AAC), who held that in the absence of the Secretary of State’s evidence generally the tribunal could rely on typical examples that were within its own knowledge.

In the present decision, Mr Justice Charles and Judges Warren and Rowland held that: (1) the Secretary of State should provide evidence of the ‘types’ of work-related activity available in the area in which the claimant lives and by reference to that ‘what the particular claimant may be required to undertake and those which he considers it would be reasonable for the provider for the claimant to undertake’ (paragraph 106); (2) however, the Secretary of State’s obligation is merely to indicate the activity the claimant ‘might’ be required to do, not that which s/he actually would be required to do (paragraph 118); (3) such evidence should be provided even in cases where the claimant has been considered not even to have limited capability for work (paragraph 108); (4) in some cases it may be sufficiently obvious to the tribunal that there is no substantial risk from any work-related activity, but in some cases (especially because information from the decision is not then passed to the decision maker who decides what work-related activity the claimant is actually then required to undertake) the tribunal cannot be sure and so will be entitled to decide that there is substantial risk (paragraphs 111–112); (5) if the Secretary of State fails to provide the relevant evidence, the tribunal is entitled to use its own knowledge ‘if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity’, or it may adjourn to get more evidence, or it may decide that it can decide the case without the extra evidence – it will depend on the particular facts and, in particular, ‘how vulnerable the claimant is’ (paragraph 117).

Comment from CPAG

Despite the comment that the panel ‘broadly prefer the approach of Judge Gray in MT to that of Judge White in AK’ (paragraph 118), the decision is in effect a blending of the approaches from both decisions. However, although tribunals may use their own knowledge, that clearly must be more detailed than the general categories of ‘interviews, retraining or therapy’ referred to in AK.