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Summary

The claimant failed the work capability assessment and appealed. Dismissing his appeal, the First-tier Tribunal dealt with whether or not he should be treated as satisfying the assessment by virtue of the ‘substantial risk’ exceptional circumstance at regulation 29 of the Employment and Support Allowance Regulations 2008 No.794. In holding that he should not, the tribunal said: ‘We note he is computer literate, it may be that working from home most of the time would be a suitable option for him.’

Allowing the claimant’s further appeal and remitting the case to be heard by a new tribunal, Judge Wikeley held that the tribunal had erred in not considering regulation 29 properly and in particular by ‘relying on the possible prospect of a job with home-working’ (paragraph 8). The proper consideration of regulation 29 required following the procedure set out in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (reported as R(IB) 2/09). That involved considering the process of getting to and from work (paragraph 4). The Secretary of State submitted that the tribunal had erred as Charlton did not envisage considering home working in this context, and Judge Wikeley agreed (paragraphs 6 and 7).

For the judge, ‘to say that a claimant cannot take advantage of regulation 29(2)(b) because they could always be able to do a job working from home would simply be to deprive the statutory provision of any real purpose for large number of claimants’; that this was not intended was supported by the amendment to the regulation from 28 January 2013 to provide that it did not apply where the risk ‘could be reduced by a significant amount by… reasonable adjustments being made in the claimant’s workplace’ (paragraphs 8 and 9).

Summary

The claimant was in a relationship and had a tenancy agreement with his partner. But subsequently the female partner moved to London to work for at least two years, where she had a tenancy in another property, was on the electoral roll and paid rent, council tax and utility bills. The partners visited each other at weekends. The claimant was refused HB on the basis that he and his partner counted as a ‘couple’, and that following aggregation of their resources his income was too high. His appeal on the basis that he was not a member of a couple for benefit purposes was upheld by the First-tier Tribunal; the local authority appealed to the Upper Tribunal.

Dismissing the further appeal, Judge Levenson held that the claimant was to be treated as a single person, on the basis that he was living in a separate household to his partner. The local authority argued that they were merely temporarily living in different households as they spent the weekends together and so there was no absence that was likely to exceed 52 weeks (regulation 21 of the Housing Benefit Regulations 2006, SI 2006 No.213). But the judge dismissed that argument, as regulation 21 ‘does not even begin to apply’ unless (in the absence of polygamy) there is a couple, and here there was no couple as the partners were now in different households: ‘regulation 21 is about how long the status of being in the same household last, but only once it has been established that people are in fact in the same household’ (paragraph 25).

The relevant rule regarding the definition of a couple for housing benefit was at section 123(1)(b) of the Social Security Contributions and Benefit Act 1992, which provides that a ‘couple’ means (for unmarried couples of different sexes) ‘a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances’. Regarding living together as husband and wife, the traditional starting point was the decision in Crake v Supplementary Benefits Commission [1982] 1 All ER 498, which set out ‘admirable signposts’, including whether they are members of the same household (paragraphs 14–15). Reviewing subsequent authority, Judge Levenson noted that ‘it has never really been doubted that a man and a woman who are not married to each other cannot be living together as husband and wife unless they are at least together in the same household’ (paragraph 16, underlining in the original). The subsequent authority included the consensus that a person cannot at the same time be a member of more than one household; on the facts of the present case, as the partners were not living in the same household, they were not a couple for the purposes of HB (paragraph 26).

Comment from CPAG

This decision does not refer to recent caselaw about the importance of the emotional aspect of the relationship, in addition to the Crake v Supplementary Benefits Commission signposts (see the article in Bulletin 240, p4); however, given the absence of a shared household in this case (which on the facts seems to have arisen at the point the female partner left to live elsewhere for over 52 weeks), that will not have altered the outcome.

Summary

The claimant was subject to a 14 per cent reduction in her eligible rent on the basis of alleged under-occupation of her home – ie, because she was considered to have too many bedrooms under the so-called ‘bedroom tax’ rule at regulation B13 of the Housing Benefit Regulations 2006 (SI 2006 No.213). Her argument that the alleged spare bedroom should in fact be allowed because she required overnight care was rejected by the First-tier Tribunal. That was because the tribunal considered that she did not satisfy the requirement in the definition of a ‘person who requires overnight care’ at regulation 2(1) that the overnight carer was someone who stayed ‘regularly’ at her house, because the evidence was the stays were not at reasonably even intervals: the evidence was that the overnight carer was needed ‘on occasion’ and ‘when needed’.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that her eligible rent was not to be reduced under regulation B13. The tribunal had erred in its definition of the word ‘regularly’ as it applied in this context. Rather than meaning at reasonably even intervals, the judge considered that ‘the word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision…’ (paragraph 13). Further, the judge said the test was whether the need for an overnight carer ‘arises often and steadily enough to require a bedroom to be kept for the purpose’, and that there was no requirement that the carer must be required on the majority of nights. That may be why the word ‘regularly’ was used: ‘it does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights’ (paragraph 14).

Also, the judge rejected arguments by the local authority that an additional bedroom was not required because the carer could sleep in a room other than a bedroom, and that the fact that the claimant was entitled only to the middle rate of the care component of DLA showed that overnight care was not required.

On the facts, the carer slept in a bedroom and that the fact that portable beds could be erected elsewhere did not mean that there was not an additional bedroom, and the possibility of conversion of another room did not mean it was unreasonable for the carer to use the existing bedroom (paragraph 12). Regarding the rate of the DLA care component award, that could not be determinative of whether overnight care was required. There were several reasons why someone who regularly needed overnight care might not be getting the high rate, and the basis of the DLA award ‘may therefore be relevant evidence’ but cannot be conclusive’ (paragraph 18).

Summary

The claimant lived in England, but in 2009 (having taken advice from the HMRC helpline about temporary absence) she took up self-employed work in Spain. Two of her children, aged 18 and 20, remained in her home. The claimant returned frequently from Spain so as to ensure that she was not absent for more than eight weeks, staying in her house for a couple of days each time, or longer at Christmas and Easter. She eventually returned to the UK, started work here in August 2010, and stayed thereafter. However, although she was awarded child tax credit for the whole of the tax year 2010/11, she was refused working tax credit (WTC) for the period that she was working in Spain. The First-tier Tribunal dismissed her appeal on the basis that she could not be treated as resident in the UK while living and working in Spain – although the judge was unaware of the claimant’s returns to the UK during that period.

Judge Rowland allowed the claimant’s further appeal, and remitted the case to a new tribunal. It was arguable that the claimant remained ordinarily resident in the UK while she was working in Spain, and that she remained so under a rule (at regulation 4(1)(a) of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654) that allowed such a person to be treated as being in the UK during the first eight weeks of a temporary absence (paragraph 5). Also, regarding HMRC’s submission to the First-tier Tribunal that for WTC employment had to be in the UK, the judge could see nothing in the relevant rule (at regulation 4 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005) that the work had to be in the UK.

While working in Spain, the claimant was ‘doubtless resident in Spain and quite probably ordinarily resident there’, but it did not follow that she therefore could not also have been ordinarily resident in the UK (paragraph 15). The judge did not accept HMRC’s argument that because the claimant’s periods of presence in the UK appear to have been only ‘visits’ and were for holidays and meeting the requirements of regulation 4(1)(a), they cannot be treated (as required as part of the accepted approach to ordinary residence) as having been for the ‘settled purposes’ of her life. The point that it did meet this requirement was, for the judge, at least arguable (paragraph 16). Had the First-tier Tribunal judge been provided with all the relevant documents relating to the case in their possession (as required under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685) he may not have fallen into the error of treating the claimant’s case as hopeless. That he did not have all the relevant information was a procedural defect that gave rise to unfairness, especially as the claimant was unrepresented (paragraph 20).

Summary

In this tax credits case, HMRC failed over a period of several months to provide a submission for the appeal. The First-tier Tribunal directed it to do so, and to ensure the attendance of a presenting officer at the oral hearing. HMRC complied with neither of those directions. The Regional Tribunal Judge (acting under delegated powers) referred the matter to the Upper Tribunal for consideration of a penalty for contempt of court (under section 25 of the Tribunals, Courts and Enforcement Act 2007) for failure to ‘produce a document’ under a requirement imposed by a tribunal.

Judge May declined to do so and remitted the matter back to the First-tier Tribunal to proceed with the appeal. The Upper Tribunal did not have the power to act under section 25 where the complaint was that a party had failed to provide a submission. References to the Upper Tribunal to act under section 25 were to be made under rule 7(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685. That did not refer to failure to provide a submission; rather it referred, at subparagraph (e), to failure to ‘produce a document’. Judge May did not consider that in this context ‘document’ included a submission. The rules, which elsewhere did refer specifically to a submission, made a distinction between a submission and a document, and when rule 7(3) was read as a whole it was clear that ‘the emphasis is on evidence whether oral or documentary’ (paragraph 9).

Decision in brief

Comparator accommodation – applying R(IS) 12/08 and Ahmed v Secretary of State for Work and Pensions [2011] EWCA Civ 1186, a strict approach was needed to construe what was the accommodation which was occupied before the acquisition by the claimant – in this case, a period of 22 months before leaving unsuitable rented accommodation and buying the purchased property could not be ignored, and so the tribunal was right to use that as the comparator property (paragraphs 35–41) – that property was physically much the same as the purchased property – although moving in to their own home gave the family more independence and some psychological benefits, that was a universal feature of all people including non-disabled people, and so could not render the purchased property more suitable to the special needs of a disabled person (paragraph 42)

Decision in brief

Fact that previous certificates had been issued showing nil recoverable benefit did not prevent another one being issued showing recoverable benefit after the previous ones had expired – certificates of recoverable benefits are time limited and cease to have any legal force on the date stated in them for their expiry

Decision in brief

Entitlement to carer’s allowance does not constitute worker or self-employed status for purposes of Article 7(1)(a) EC Directive 2004/38/EC – although ‘worker’ has an autonomous EU meaning and must be interpreted broadly, the concept is not without limits and in particular only covers those who ‘pursue or are desirous of pursuing an economic activity (paragraph 12) – claimant was not by virtue of CA entitlement ‘a person performing services in return for which he receives remuneration’, with regard to the CA qualifying conditions, other conditions of entitlement and amount of payment (paragraphs 15–19)

Decision in brief

The Netherlands scheme available only to Dutch nationals who were victims of persecution in 1940–45, is not funded by the German or Japanese authorities – Australian and US rules include Netherlands scheme in the same way as the German and Austrian schemes are included – claimant within the scope of Article 14 on the basis either of nationality or ‘other status’ and housing benefit within Article 1 of Protocol 1 (paragraphs 32–40) – test of whether justification is justified is if it is ‘manifestly without reasonable foundation’ – no evidence of original policy of not including the Netherlands scheme of in depth analysis of the schemes and no evidence of ‘floodgates’ problem or of inability to draw ‘bright lines’ (paragraphs 45–50) – remedy is for council to include the Netherlands WUV scheme as if it were the German or Austrian scheme, and for Secretary of State to consider appropriate rule changes (paragraphs 51–53)

Decision in brief

Rules in the Pension Schemes Act 1993 provide for GMP to be paid on ‘pensionable age’ which in 1993 meant aged 60 for a woman – that has, by an admitted oversight by the DWP, not been amended to reflect progressive equalisation of pension ages for men and women – but the law as it stands must be applied – effect in this case was that a woman claimant had her additional pension reduced at age 60, which meant that the additional retirement pension she inherited from her husband when he died was reduced over a year before she became entitled to state retirement pension

Decision in brief

Earnings payable in arrears falls to be attributed forward from the date of receipt rather than backwards over the period in respect of which it was earned (paragraph 15) - local authority approach to the contrary is wrong

Note from CPAG

Guidance in Housing Benefit General Information Bulletin HB G8/2014 (13 August 2014) says the decision must be followed but that ‘ministers have decided that the best approach would be to clarify the situation by an amendment to regulations to state that earnings should be attributed over the period they are earned. We aid to do this as soon as possible in the autumn.’

Summary

The claimants were all parents with shared care of their children, having separated from their partners. The children alternated between living with each parent, on a roughly equal basis. The claimants were subject to the 'bedroom tax' reduction in their eligible rent. All were in receipt of discretionary housing payments (DHPs) although it was not clear they would continue in all cases. The claimants argued that the application of the bedroom tax to them was unlawful as: (1) it breached Article 8 (right to family life) of the European Convention on Human Rights (ECHR); (2) unlawful discrimination against separated parents under Article 14 ECHR read with Article 8; (3) irrationality, under public law principles.

In the High Court, Mr Justice Males dismissed the claimant's claim for judicial review. The 'short answer' to the claimants' arguments was that the payment of DHPs to the claimants 'completely compensated' for their reduced housing benefit, so that 'none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8' (paragraph 30).

But given that it was possible that payment of DHPs might not continue to the claimants, the judge went on to consider the claimants' argument in the context of DHPs not being paid. He was clear that the withdrawal of DHPs in these cases would mean that the claimants could not continue to live in their current homes, and that their children would no longer be able to live with them on a regular basis (paragraph 36). Also, Article 8 was engaged (paragraph 39). However, there was no unlawful interference with the claimant's right to family life. The judge referred to the decision of the Court of Appeal (regarding the benefit cap, but involving a similar argument regarding Article 8) in R (SG and others) (previously JS and others) v Secretary of State for Work and Pensions [2014] EWCA civ 156. There it was held that in was only in truly exceptional cases that Article 8 would impose a duty to provide housing and benefits. Parliament had been alive to the impact of the bedroom tax on separated parents with shared care, and the judge concluded that even if the bedroom tax resulted in the parents having to move to a smaller property where their children could not live with them, that would not in itself be a breach of Article 8 (paragraphs 43-51).

Regarding the other arguments, although separated parents with shared care probably did constitute an 'other status' with the meaning of Article 14, it was common ground that any discrimination was justified, for the same reasons as why Article 8 was not breached (paragraphs 60-61). Regarding irrationality, it was accepted that if the claims under ECHR failed, the argument for irrationality was unlikely to succeed, and the judge confirmed that the policy objectives and regulations regarding the benefit cap were not irrational as that term is used in public law (paragraph 62).