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Summary

The claimant was a Romanian national living in Germany with her son since 2010. She was entitled to German child benefit and an advance of child support maintenance. She had not worked in Germany and neither was there any evidence that she was seeking work. She was without sufficient resources of her own. She was refused a German basic subsistence benefit on the grounds that she did not have the right to reside.

The claimant's appeal involved the argument that this refusal was unlawful discrimination against her on grounds of nationality, given that she was a European citizen and that European law (in particular Article 18 of the Treaty on the Functioning of the European Union ('TFEU') and Article 24 of Directive 2004/38/EC - ('the Directive') required equal treatment for European nationals with nationals of the host member state, including regarding the granting of social assistance. Rejecting that argument, the Court held that the equal treatment provision at Article 24(1) 'must be interpreted as not precluding legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain "special non-contributory cash benefits"... in so far as those nationals of other Member States do not have a right of residence under Directive 2004/38/EC in the host 'Member State'.'

Although all European citizens may rely on the equal treatment provisions, the primary rule in the TFEU prohibited discrimination on grounds of nationality that was subject to 'conditions and limits' laid down in the European treaties and in the law made to implement them. Article 24 of 2004/38/EC was such a provision, and capable of providing limitations. Article 24(2) did so regarding social assistance for those with an initial (three month) right to reside merely on the basis of being a Union citizen. But here the claimant had been living in Germany for more than three months, so instead the application of Article 24(1) was at issue. As that referred to the situation where a Union citizen was residing 'on the basis of this Directive', the court held that a Union citizen could only rely on the equal treatment provision for a longer period 'only if his residence... complies with the conditions of Directive 2004/38'. Those conditions (regarding residence for longer than three months) were set out in Article 7 of the Directive, with the possibility of a permanent right of residence after five years under Article 16. In the present case, the claimant was 'economically inactive' (ie, she was not a worker or self-employed or seeking work) and on the facts the court considered her only possible right to reside would be under Article 7(1)(b), as a person with 'sufficient resources ... not to become a burden on the social assistance of the host Member state... '. Again on the facts, she was not such a person. She, therefore, could not rely on the equal treatment rule at Article 24.

Summary

This decision of the Court of Appeal overturns the decision of the Northern Ireland Chief Commissioner in AS v HMRC (CB) [2013] NICom 15 (25 March 2013). The effect is that the right to reside test for child benefit is considered lawful.

The claimant was an AS national. At the time of her claim for child benefit she was not an 'authorised worker' and her claim was refused on the basis that she did not have the right to reside. The Chief Commissioner held that she was entitled as the right to reside test as it applied to child benefit was unlawful. That was because he considered it directly discriminatory on grounds of nationality, or if it was instead indirectly discriminatory, it was only justified if the claimant was held to satisfy the test having achieved a sufficient degree of 'economic or social integration' - ie, as an alternative to the standard right to reside categories.

The Court of Appeal held that both of the Chief Commissioner's findings were erroneous. There was no direct discrimination on grounds of nationality, the right to reside test was in fact part of a 'cumulative' approach in deciding whether the claimant was for child benefit purposes 'ordinarily resident' in the UK, and taking the test as a whole it was clear that may be complied with by both UK nationals and non-UK nationals (and so not directly discriminatory). The 'ordinary residence' test was in that sense not different in principle to the tests considered by the European Court of Justice in Bressol v Gouvernment de la Communatute Francaise [2010] 3 CMLR 559 (regarding access to free education in Belgium) and the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783 (regarding the right to reside test as part of the habitual residence test for pension credit). In the present case, the Court considered that it must follow the 'clear decisions' of both courts and hold that the right to reside test must be considered as part of a cumulative ordinary residence test, and therefore not direct discrimination on grounds of nationality (paragraphs 23-27).

Regarding justification for indirect discrimination, the Chief Commissioner had focused on what he considered to be a 'concession' made on behalf of the Secretary of State in Patmalniece, to the effect that a sufficient degree of social and economic integration could in itself be a source of a right to reside, rather than a right to reside being an indication that the claimant had indeed achieved such integration. But the court considered that was based on a misunderstanding -of the relevant passage in Patmalniece. It was the right to reside test which indicated that a sufficient degree of integration had been achieved; the question was not whether an individual should be able to establish 'some undefined degree of economic and/or social integration as an exception to having to comply with the 'right to reside' requirement ... '. Therefore, the correct position, established in Patmalniece, was that the right to reside test was justified as a measure of determining sufficient integration (paragraphs 28-30).

Summary

The claimant was a six-year-old child with autistic spectrum disorder. He was awarded the high rate of the care component of DLA, but refused the mobility component. On appeal, it was argued that he should be awarded the high rate on the basis of the 'severe mental impairment' route. The First-tier Tribunal rejected the appeal, holding that although the claimant probably suffered from arrested or incomplete development of the brain, his impairment of intelligence and social functioning was not extreme, and the evidence showed that his social functioning was restricted but not severely impaired.

Judge Knowles QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in applying the evidence and the relevant law. Section 73(3)(a) of the Social Security Contributions and Benefits Act 1992 provided that the severe mental impairment route included the requirement that the claimant was 'severely mentally impaired'. That was defined by regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991 No.2890, as meaning 'a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.' In the relevant caselaw, the judge considered R(DLA) 1 /00 as authority for the proposition that evidence about a person's insight and sagacity can satisfy both the test of severe impairment of intelligence and severe impairment of social functioning (paragraph 17). In CDLA/2414/2012, insight and sagacity had been equated with 'the ability to function in real-life situations' (paragraph 18).

The tribunal had erred in applying a comment in the evidence that the claimant had 'good non-verbal problem solving skills' out of context, when the evidence also included that the claimant had very low understanding of language and expressive language skills, and also in not considering other evidence such as that from his school and his statement of special educational needs (paragraphs 21-23). The tribunal also erred in assuming that the claimant's poor language skills could not be evidence of impaired intelligence (paragraphs 24-25). Further, the poor language skills could be evidence of impaired social functioning, and in this case there was evidence that this was the case (paragraphs 29-30). Also, the tribunal had erroneously concentrated on the claimant's ability to get on with people known to him, without considering his ability to function socially 'outside a highly structured environment' and to interact with strangers. Ability to interact with strangers was a relevant consideration even where the claimant was a child (paragraphs 31-33). Overall, the tribunal had erred by failing to apply R(DLA) 1 /00 correctly: the judge held that 'what is required for the purpose of section 12(5) is a holistic assessment of both intelligence and social functioning together with a recognition that the same evidence may satisfy the test for severe impairment of intelligence and of social functioning' (paragraph 35).

Summary

The claimant argued that he should score 15 points in the mobilising descriptor of the work capability assessment. The evidence included that he had been awarded the high rate of the mobility component of disability living allowance for virtual inability to walk. The tribunal rejected that argument, holding that he could walk for 30 metres before 'pausing for a few seconds', then was able to continue walking at a reasonable pace and only needed to rest for more than a 'pause' after covering 100 metres. The tribunal considered that there was a difference between a 'pause' and a stop, in that the former was merely about pacing an activity, whereas the latter created a break in the activity. Thus, it considered that the requirement for 15 points that the claimant cannot mobilise for more than 50 metres 'without stopping in order to avoid significant discomfort or exhaustion' was not satisfied.

Judge Mark allowed the claimant's further appeal and remitted the case for a new tribunal. As was accepted by the Secretary of State, the tribunal had erred in the way it distinguished between a pause and a stop (paragraph 4). For the purpose of the test under consideration, it did not matter if the claimant had to stop for a few seconds or for several minutes. The judge cited at paragraph 21, with approval the decision of Judge Paines QC in GC v SSWP [2014] UKUT 117 (AAC), that in this test there was no distinction between 'stopping' and 'pauses'. In the present case, on its own findings of fact the proper conclusion for the tribunal to have come to was that the claimant would stop for a few seconds after 30 metres (paragraph 5). If that was to avoid significant discomfort or exhaustion (or if a stop for that was required after no more than 50 metres), the appropriate conclusion would be that he could not mobilise on foot for more than 50 metres without stopping for that reason.

However, the judge also pointed out that the test also considered ability to mobilise using a manual wheelchair. So, the tribunal would also need to consider whether and for how far the claimant could reasonably use a manual wheelchair. The tribunal had made no reference to this (paragraph 6).

Summary

The claimant had physical and mental health problems. They included major depression and panic attacks. She was transferred from income support to employment and support allowance, and was placed in the work-related activity group. On appeal she argued that she should have been placed in the support group (ie, be regarded as having limited capability for work-related activity) due to there being a 'substantial risk' to her health if she were required to undertake work-related activity. She submitted evidence that receipt of the tribunal enquiry form had triggered a serious panic attack, and a letter from her doctor saying that she had severe generalised anxiety and depression and could not be left alone by her husband. The tribunal, in a paper hearing (the claimant having said she did not want to attend), dismissed the appeal, holding that she had in the company of her husband been able to attend a counselling session.

Judge Mark allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in its application of the substantial risk rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008, SI 2008 No.797. The tribunal had failed to refer to the evidence as to her reaction to the enquiry form, and more generally was 'woefully short of evidence to justify its findings' (paragraph 14). There was no evidence about how the claimant actually was when she attended the single counselling session cited by the tribunal, and that was insufficient to support a finding that she could safely undertake work-related activity (paragraph 15). The 'only sensible course' for the tribunal to have taken was to have adjourned and invited the claimant's husband to attend a hearing and considered getting medical evidence and directing a medical examination (paragraph 18).

Also, the tribunal's approach was wrong in the light of the decision of the three-judge panel of the Upper Tribunal in IM v SSWP (ESA) [2014] UKUT 412 (AAC). In the light of that decision, the tribunal erred in not adjourning to obtain the information referred to in that decision, being information from the Secretary of State as to the type of work-related activity in the area in which the claimant lived (paragraph 22). Also, the Secretary of State should now provide evidence of 'any general practical limitations on the extent to which work-related activity is required in the area, so that, for example, a practical decision not to ask anybody over 55 to undertake work-related activity would be relevant to the question of risk, the claimant having been born in 1956.' However, if the practical position was that she might be required to undertake activities potentially dangerous to her, that was something the tribunal must assess (paragraph 22). Finally, following IM it was for the tribunal to seek evidence and make findings of fact as to the likely extent to which a third party may be available to the claimant and to assess the risk to the claimant in the light of that: depending on the evidence, it may be that such support will always be available, or that it will be available rarely, or commonly but not reliably (paragraph 23).

Summary

The claimant had no use of her left arm, but her right arm was fully functional. On appeal (having been held to fail the work capability assessment) the claimant was awarded six points for descriptor 4(c) of the work capability assessment ('cannot transfer a light but bulky object such as an empty cardboard box'), but not other points. In particular, the tribunal refused to apply descriptor 5(d), which at the relevant time was 'cannot use a suitable keyboard or mouse' (and from 28 January 2013 became 'cannot single-handedly use a suitable keyboard or mouse').

Dismissing the claimant's further appeal, Judge Mark first held that (contrary to the argument of the Secretary of State) the tribunal was entitled on the facts to award descriptor 4(c). The Secretary of State submitted that exclusion of a former reference in the descriptor to using both hands meant that is was generally accepted that a person could manage to perform the activity by using one hand and supporting the box against another part of the body. The judge disagreed. There was no suggestion that the 'bulky' object had diminished. Also, held the judge, 'in my judgement the effect of the change of wording is that the use of both hands together is no longer essential. If it can be picked up and moved by the use of one arm and the upper body, presumably by wedging it under the arm, that will suffice. But not everybody is expected to be able to do that. It seems to me that the tribunal concluded, as it was entitled to, that this claimant would reasonably require both arms to perform the task' (paragraph 5).

Regarding descriptor 5(c), the judge referred to the disagreement with his own previous decision in CL v SSWP [2013] UKUT 434 (AAC) by Judge Wright in DG v SSWP [2014] UKUT 100 (AAC) (see Bulletin 239, p6). Judge Wright disagreed with the finding in CL v SSWP that the context for the descriptor was using a computer, so that inability to use either keyboard or a mouse would be sufficient to score points. In the present decision, Judge Ward made it clear that what is being tested is physical ability to use a keyboard or mouse (paragraph 10). But he continued to believe that 'when the descriptor speaks of using a keyboard or mouse, as Judge Wright's examples make clear, the use can only be to achieve results on a computer. It follows that in assessing whether hands are so lacking in dexterity as to score points on this descriptor it must be in relation to the operation of a computer' (paragraph 11 ). On the facts of this case, however, that did not assist the claimant: she had no problems with her right hand, and suitable keyboards with standard facilities like StickyKeys can be operated with one hand (and the introduction of 'single-handedly' did no more than confirm what the case was already). Even though there might be some things the claimant could not do, 'provided her dexterity was such as to enable her to use the keyboard so as to have a significant ability to use a computer', that did not mean she could not use a keyboard or mouse (paragraphs 12-14).

Summary

In this decision Judge Jacobs decided that a self-employed person does not have a right to reside as a primary carer of a child in education. In so deciding, he applied the decision of the European Court of Justice (ECJ) in Secretary of State for Work and Pensions v Czop and Punakova [2012] EUECJ C-14 7 /11 and C-148/11 (6 September 2012) (Bulletin 230, p11).

The claimant was Norwegian. She came to the UK with her children who entered school on her arrival. She worked as a cleaner for a shop owner and, on the advice of HMRC, was registered as self-employed. Her claim for IS as a lone parent was refused on the basis that she did not have a right to reside. Her appeal to the First-tier Tribunal was dismissed.

Judge Jacobs dismissed the claimant's further appeal. If the claimant had been a 'worker' (ie, an employed person), she would have had a right to reside as the primary carer of her children who were in education (paragraph 11 ). But on the facts of this case (which were somewhat equivocal as to whether the claimant was a worker or a self-employed person), the claimant was self-employed (paragraph 19). Regarding that situation, the judge considered himself bound by the decision in Czop and Punakova. The ECJ in that case had not actually answered the question of whether the claimants had a right to reside because of concessions made by the United Kingdom regarding their cases. But the Court did decide that the child of a self-employed person did not have a right to education in the UK, as the relevant provision, at Article 12 of EC Regulation 1612/68, granted such a right only to the child of a worker. It therefore followed that the claimant in the present case could not have a right to reside based on such a right, meaning she could not have a right to reside as a primary carer of a child in education (paragraphs 30-31). The judge considered, but could not accept, arguments that this result was unlawful as it would deter the freedom of movement of self-employed people, and that it constituted discrimination against the self-employed. That was primarily because he considered that to accept such arguments would be 'contrary to the reasoning in Czop' and to 'bypass the clear and precise wording of Article 12 of Regulation 1612/68. I am bound by Czop to decide that that is not permissible' (paragraphs 36-37).

Note: permission to appeal to the Court of Appeal has been applied for. 
 

Decision in brief

Tribunal obliged to explain in its reasons why it decided to proceed in those circumstances (paragraph 14) - absence of ESA 50 from papers did not necessarily prevent tribunal from considering appeal given tribunal's explanation that it could use the medical report and question the claimant at the hearing (paragraph 18)- delay of 15 months between date of decision and date of hearing did not give a real cause for concern and so no breach of Article 6 European Convention on Human Rights (HJ v SSWP [2009] UKUT 4 7 (AAC) applied) (paragraphs 25-26)

Decision in brief

This does not apply to incorrect/misleading general information on the official (GOV.UK) website - claimant thought on basis of information there that she could only claim online or by telephone and could not do so - but the requirement that the incorrect information was provided 'by an officer of' the DWP is to refer to 'the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances' (paragraph 17)

Summary

The claimant reached pensionable age on 20 August 2021. He did not claim state pension at that point and carried on working. He made an online claim for state pension on 17 August 2022. In that claim, he clearly indicated that he wished to claim from his 67th birthday, which was on 20 August 2022. He was awarded state pension, including an increase for deferring entitlement, from that date. However, the claimant had made a mistake and had intended to ask for backdating to 20 August 2021. Having been refused that, the First-tier Tribunal (FTT) allowed his subsequent appeal on the basis that the decision starting entitlement from August 2022 was capable of revision on any ground to correct that mistake.

Judge Wright allowed the further appeal of the Secretary of State and substituted a decision that the First-tier Tribunal had erred in law and that the claimant’s appeal to it was dismissed – ie, with the effect that the date of claim was 20 August 2022. The tribunal had erred in considering that the Secretary of State’s decision could have been revised so as to backdate the claim for a year. Even though the claimant had indeed made a mistake in asking for his claim to start in August 2022, he had clearly indicated that date on his claim and the structure of the state pension rules did not permit that to be changed once the claim had been decided upon. There was no parallel with the rules on extending the time to claim (in effect, backdating) universal credit (UC), as adjudicated on by the Court of Appeal in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186, reported as [2024] 1 WLR 3012, which were quite different.

The claim was decided on 17 August 2022. Judge Wright agreed with the Secretary of State that after the claimant’s having chosen his date of claim and the claim having been decided on that basis, there was ‘no proper basis’ for the Secretary of State, or the tribunal, to have then decided differently (paragraph 33). Although under regulation 5(1) of the Social Security (Claims and Payments) Regulations 1987 the claimant had been able to amend his claim (ie, to ask for backdating) at any time before it was decided, he had not done so. The claim form had been very clear, and there was no dispute that the claim had been correctly decided. Having been decided, the claim no longer existed and could no longer be amended. ‘Given all this,’ said the judge, ‘I can identify no lawful basis for the Secretary of State or the FTT on appeal changing the start date of entitlement to the state pension, as to do so would be to amend the claim after it had been decided and after it had ceased to exist’ (paragraph 37). It was important to note that the rules on the state pension placed in the hands of the claimant the choice between claiming on reaching pensionable age or deferring until a later date. The tribunal was not permitted to act on the wish of the claimant, subsequent to the decision adopting that choice, to change it. Nor did anything in Miah alter that. The issue in Miah was whether a UC claim had been made within the time and (in the judge’s words) ‘where there was an absence of evidence about the date from when Mr Miah wished to claim his universal credit.’ The ‘essence’ of the court’s decision was the conclusion that whether UC had been claimed in time ‘could be determined (on revision or on appeal) like any other issue going to entitlement’. That was different to the present case, which was about state pension where the claimant had clearly indicated he wanted to defer his claim and his entitlement until his 67th birthday (paragraph 48).

Comment from CPAG

This decision, as the judge makes clear, is predicated on the very particular arrangements regarding date of claim and deferral on entitlement in the state pension rules. As the judge (and the Secretary of State in her submission) also makes clear, that is very different from the UC context and Miah, where there is no requirement on claimants to indicate a wish for backdating and it is for the Secretary of State to consider that when making the decision.

Summary

The claimant was entitled to both components of personal independence payment (PIP) at the standard rate. On 7 November 2020, due to the Covid-19 pandemic, the duration of those awards was extended to 16 July 2022 (‘the extension decision’). On 18 May 2022, following a DWP ‘planned review’, the awards were superseded to award the claimant both components at the enhanced rate for the period 16 July 2021 to 17 May 2025 (‘the enhanced rate decision’). However, on 22 July 2021, the claimant had also been sent a letter from the DWP (‘the 22 July letter’) thanking the claimant for being asked to look at her award again and saying it had been decided to award her the standard rate of both components for the period 18 July 2018 to 16 June 2022. The claimant appealed against the 22 July letter, but the tribunal struck it out. It held there was no jurisdiction to consider the appeal as, on the facts (which included that the clamant had not requested a review and the DWP could find no record of a decision or of a mandatory reconsideration concerning it), the 22 July letter was not a decision.

Judge Church upheld the decision of the tribunal. The tribunal had been entitled to find that the 22 July letter was not itself a decision and did not establish that the decision it purported to describe had been made. The tribunal was therefore entitled to conclude that there was no decision for the claimant to have appealed against and was accordingly bound to strike out the proceedings for lack of jurisdiction.

In the Upper Tribunal, after considering evidence from the claimant and the DWP, the judge remarked that ‘the genesis of the 22 July letter remains something of a mystery’ (paragraph 21). There was no evidence that the claimant had requested a review (ie, by revision or supersession) of her PIP award, and there was no record or obvious reason why the Secretary of State would have done so on her own initiative. The tribunal had therefore been entitled to find that the letter was issued in error and was not a decision. It followed inexorably from that that the tribunal was bound to conclude that it had no jurisdiction and so to strike out the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. Further, even if the 22 July letter could somehow be considered a decision, it was not a decision either to revise or to supersede the extension decision, but rather ‘...to leave the extension decision exactly in place as it was. As such, the only decision against which a right of appeal lay was the extension decision, and that was not the decision under appeal in the proceedings before the tribunal.’

Comment from CPAG

It is disappointing that the Secretary of State seems to have been at a loss to explain her own letter to the claimant. The judge is correct in holding that, even if the letter could have been considered to be a decision, a decision refusing to revise means that it is the original decision that must be appealed against. But it should be remembered that (although this did not arise from the unusual facts of the present case) a refusal to revise that follows a mandatory reconsideration will make such an appeal possible. Under rule 22(2)(d)(i) of the Tribunal Rules, a refusal to revise following a mandatory reconsideration means that the time limit for making the appeal does not start until the date the claimant was sent the mandatory reconsideration notice. Also, a refusal to revise a decision on the ground of official error could, depending on the case, still constitute a mandatory reconsideration even outside the usual absolute time limit for mandatory reconsideration (PH v SSWP (DLA) [2018] UKUT 404 (AAC), reported as 2019 AACR 14).

Summary

The claimant applied for new-style employment and support allowance (ESA) – ie, contributory ESA under the universal credit system. He was refused after failing the work capability assessment. The First-tier Tribunal refused his appeal. The claimant’s application for permission to appeal was eventually granted by the Upper Tribunal on a number of grounds. A ground identified by the Upper Tribunal was that, in the tribunal’s decision notices and statement of reasons, the tribunal had referred to the Employment and Support Allowance Regulations 2008, SI No.794 (ie, relating to old-style ESA), when in fact the regulations relevant to new-style ESA are the ESA Regulations 2013, SI No.379. That was primarily due to use of the judicial case manager (JCM) software to generate decision notices, and which (at least at the time of the appeal in July 2023) automatically generated references to the 2008 regulations in all ESA appeals and could not be removed by the tribunal. The tribunal had repeated that in its statement of reasons.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by not explaining its approach to the ‘substantial risk’ provisions, by not ensuring that the claimant had been given an adequate opportunity to refer to its questions at the hearing, and by not explaining why it did not investigate the claimant’s argument that he was due to have an operation. The judge also considered that the use of references to the 2008 ESA regulations rather than the 2013 ESA regulations (which were the ones that were about new-style ESA) was indeed wrong. However, on the facts of this case that was not of itself a material misdirection of law. Given the way the JCM worked, that was certainly the case regarding the decision notice. The judge was more troubled by the tribunal’s own replication of that error in the statement of reasons, but accepted that although the tribunal had misdirected itself in law, that was not material given that the differences in the wording in the relevant parts of the regulations (ie, regarding the work capability assessment) were slight.

However, the judge was at pains to clarify that this finding did not mean that other tribunals were immune from material error. ‘It should not be assumed,’ said that judge, ‘that my decision on this issue represents a statement of position generally for FTTs that fail to correctly identify whether they are deciding a new-style ESA appeal or an “old-style” ESA appeal. Any FTT that does not check whether it has applied the correct legislation in deciding an appeal puts its decision at clear risk of being set aside for material misdirection in law’ (paragraph 57). The judge encouraged tribunals using the JCM decision notice tool to make clear in their statement of reasons that they have correctly identified the correct ESA legislation; the DWP was strongly encouraged to indicate in its response to ESA appeals whether the benefit in question is new-style ESA, and refer to the relevant (ie, correct) regulations.

Comment from CPAG

The judge would seem to accept that, due to the JCM, the tribunal could do nothing about adoption of the wrong regulations in decision notices and therefore had not made a material error of law there. But the decision is not authority that repetition of that error by the tribunal in a statement of reasons will never be material.