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Summary

The claimant (who had learning and language difficulties) submitted an online claim for UC. Eventually, he was informed via his online journal that his claim had been ‘closed’ as ‘you didn’t book your appointment’. The Firsttier Tribunal refused to admit the claimant’s appeal against that, on the grounds that the claimant had failed to provide a mandatory reconsideration notice regarding the decision to ‘close’ the claim.

Judge Wikeley allowed the claimant’s appeal against the refusal to admit the appeal, held that the appeal should be admitted and remitted the case to a First-tier Tribunal. The DWP had made a decision refusing entitlement to UC (confusingly couched as a ‘closure’ of the claim) and legitimately communicated that online (ie, via the journal). However, the decision made no reference to the claimant’s need to have a mandatory reconsideration before he could appeal. Therefore (under regulation 7 of the Universal Credit (etc) (Decisions and Appeals) Regulations 2013, SI 2013 No.381), the claimant did not have to have requested a mandatory reconsideration before he had the right of appeal, and the tribunal had therefore been wrong to refuse to admit the appeal (paragraphs 24–25, 30).

Regarding the ‘closure’ of the claim, the judge pointed out that this language had no basis in the legislation although – as conceded by the Secretary of State – official guidance frequently referred to this process. In law, it was a refusal of entitlement to UC (in this case because the claimant had failed to satisfy the income conditions by failing to provide further evidence of his self-employed income). The interview the claimant was required to attend was not in fact a condition of a claim, but an information requirement: as the judge said, ‘any interview regarding self-employment that is felt to be necessary is then requested as part of the Secretary of State’s investigation of the claimant’s entitlement under a claim that has already been properly made’ (paragraph 40). It was, therefore, said the judge, ‘overly simplistic to say that the appellant’s case was closed because he had failed to attend an interview about his self-employment. On a proper legal analysis, his universal credit claim was disallowed because he had not shown that he satisfied the financial condition of entitlement for a single person (see section 5(1)(b) of the Welfare Reform Act 2012)’ (paragraph 43). That was therefore an appealable decision about entitlement, the claimant had indicated in writing his disagreement with that within a month, and so (given the absence of a mandatory reconsideration requirement on the facts of this case) his appeal was validly made.

Comment from CPAG

Given the common DWP practice of ‘closing’ a claim for UC, this decision provides very helpful authority on the true legal nature of such a ‘closure’ and in particular of the right of challenge by appeal. Whether a mandatory reconsideration requirement applies will depend on whether such a requirement is stated on the ‘closure’ of the claim.

Decision in brief

What was said in PG v Commissioners for Her Majesty’s Revenue and Customs and NG [2016] UKUT 216 (AAC) about time spent with each parent not being determinative of who has main responsibility is correct – but it is equally an error in law to hold that in the current case the address which the dentist, GP and the school held for the children was as the tribunal put it ‘ultimately determinative as to who had the main responsibility for the children’ – this was particularly so given that the appellant’s evidence was that he was also the point of contact at the school, GP and dentist.

Summary

The claimant (a housing association tenant) became entitled to HB in December 2014. His mother was his appointee. In January 2015 he was detained under the Mental Health Act and admitted to hospital. His detention in hospital continued through 2015 and 2016, although he intended to return to his rented property. Although his mother visited the council in June 2016 and told them orally that her son was in hospital, she did not say that he had been absent since January 2015. The council did not learn of the length of the absence until May 2018, when a social worker informed it that the claimant was not resident at the property. The council decided that an overpayment had occurred and (allowing on the facts for temporary absence of 52 weeks) that a recoverable overpayment had been made between June 2016 and May 2018. That decision was upheld by the First-tier Tribunal, which also found that the housing association had been unaware of the claimant’s absence from the property and that the overpayment was recoverable solely from him, as he had caused it by failing to disclose the length of his stay in hospital. 

Judge West refused the claimant’s further appeal, holding that the tribunal had not made a material error of law. The claimant argued that the overpayment was not recoverable, as it had been caused by official error and the claimant, (through his representative) could not have been expected to have realised that there was an overpayment. The official error was alleged to be that the council failed to respond properly to the visit of the claimant’s mother in June 2016, in particular by not pointing out to her that disclosure of a change of circumstances needed to be made in writing and, more generally, by failing to ask relevant questions about her son’s stay in hospital. The tribunal was then alleged to have erred by failing to consider the substantive cause of the overpayment, and failing to consider or make findings about whether there had been an official error. 

Judge West dismissed those arguments, holding that the substantial, common sense cause of the overpayment (as per the test set out in R (Sier) v Cambridge City Council Housing Benefit Review Board [2001] EWCA Civ 1523) was his failure to disclose the extent of his stay in hospital. The main relevant rule was at regulation 100 of the Housing Benefit Regulations, which provides that any overpayment of HB is recoverable, except those caused by an official error which the claimant had not caused or contributed to, and where the claimant could not reasonably have been expected to have realised there was an overpayment. 

Regarding the duty to disclose, the claimant had failed to comply with the duty under regulation 88 of the regulations to notify a relevant change of circumstance in writing. The claimant’s argument that the council had erroneously failed to advise of that need, so making the official error that had occurred in West Somerset District Council v JMA (HB) [2010] UKUT 190 (AAC), was rejected: it was accepted in this case that in fact the claimant had been clearly advised of that need when he was awarded HB. The judge did accept, however, that the council had nevertheless made an error. That was in June 2016, when it failed to ask the ‘obvious question’ arising from the mother’s partial disclosure, namely how long the claimant had been in hospital (paragraph 56). But, per the reasoning in MB v Christchurch BC (HB) [2014] UKUT 201 (AAC), the claimant still needed to show that he did not cause or materially contribute to that error – which in the present case he had. Regarding the cause of the overpayment, held the judge, ‘if a claimant (or a person acting on his behalf) has failed to disclose a material fact, the reality is that he has materially contributed to the mistake, act or omission on the part of the council’ (paragraph 70). Putting it slightly differently (with the focus more on the substantial cause of the overpayment), the judge also said: ‘... a claimant who has got benefit by not disclosing a relevant fact (as required by regulation 101(2)(b) as to the duration of his hospitalisation) is not able to turn the case into one of overpayment caused by official error by saying that, if only officialdom had been more vigilant, the problem would have been spotted’ (paragraph 71). 

Comment from CPAG

This decision, which applies existing authority, is a further illustration of the harsh environment for claimants where the rules do not provide an overall test of reasonableness regarding the duty to disclose. As the judge also said: 

‘I am bound to say, however, that the situation in which the appellant therefore finds himself is a very unfortunate and a very unhappy one, through no fault of his own. I am, nevertheless, satisfied that his lack of mental capacity is not a relevant factor for the purposes of the housing benefit legislation, although it may well be a relevant factor in the council’s consideration of what it should do in the light of this decision.’

Decision in brief

Claimant refused care component of disability living allowance as a family member of someone working in another member state, and so UK was not the competent authority for payment of sickness benefits – Belgium was the competent state, under Article 11 of EC Regulation 833/04 as claimant’s father was working there – Article 21 applies competence to ‘insured persons’ and their family members – ‘insured person’, ‘seems to be a convenient term to cover the full range of potential social security claimants under the new Regulation’ – Article 21 overrides the claimant’s entitlement in her own right and as a family member of her mother as an insured person.

Decision in brief

Claimant’s HB suspended in August 2017 following termination of income support – but subsequent decision removed entitlement (and raised an overpayment) from April 2017 – regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 only provides for termination from the date of suspension (CH/2995/2006 cited) – termination from an earlier date requires alternative grounds and tribunal was required to investigate that.

Summary

In this judicial review decision, the High Court of Northern Ireland held that the requirement in the rules regarding terminal illness in personal independence payment (PIP) and universal credit (UC) for the claimant’s death to be reasonably expected in six months were unlawful, in that they breached the human rights of a claimant diagnosed with terminal illness who was unable to meet that ‘six-month’ requirement.

The claimant was diagnosed as terminally ill with motor neurone disease. But she was unable to satisfy the terminal illness rules in PIP so as to become immediately and automatically entitled to the enhanced rate of the daily living component and the standard rate of the mobility component, or the terminal illness rules in UC so as to become immediately and automatically entitled to the limited capability for work and work-related activity element. This was because her consultant was unable to state, as required in the rules, that the claimant’s death was reasonably to be expected in six months.

Judge McAlinden held that the claimant’s inability to satisfy the rules because of that was in breach of her human rights. She was treated differently to a claimant who was able to satisfy the six-month test, but who then lived on beyond that period without losing the entitlement gained under the rules. Therefore, there was a potential breach of her rights under Article 14 of the European Convention on Human Rights, read together with Article 8 (right to family life) and Article 1 of Protocol 1 (right to possessions). The difference in treatment was capable of justification (and so, lawful) if it was not (to apply the accepted test) ‘manifestly without reasonable foundation’. Reviewing the evidence, the judge considered that there was ‘no evidence, justification or rationale’ for the difference in treatment in either the PIP or UC rules, and so the claimant had been discriminated against (paragraphs 104–106). The judge considered that he could remedy the breach, but first invited the parties to agree an Order for the court (paragraph 106).

Comment from CPAG

The decision is not formally binding in Great Britain but is of persuasive authority. In applying the ‘manifestly without reasonable foundation test’, the judge took into account the role given to proportionality by the England and Wales Court of Appeal in TD, AD and Reynolds v Secretary of State for Work and Pensions [2020] EWCA Civ 618. Specifically, the judge considered whether ‘the difference in treatment is manifestly disproportionate to the legitimate aims pursued’ (paragraph 91). The result, as in Reynolds, is a more proactive and rigorous consideration of the test that in some older authority. See also the decision in O’Donnell v Department for Communities.

Summary

The claimant’s deceased spouse had suffered from a substantial neurological disease. She had been unable, because of disability, to work throughout her working life and therefore could not and did not pay any class 1 or class 2 NI contributions (although she was credited with contributions). Following her death, the claimant’s claim for bereavement support payment was refused on the basis that his late wife had not actually paid sufficient NI contributions for him to qualify, as required (in Northern Ireland) by sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (‘the 2015 Act’). The claimant argued that this was a breach of human rights via discrimination under Article 14 of the European Convention on Human Rights (ECHR) read together with Article 1 of Protocol 1 of the Convention.

The Northern Ireland Court of Appeal held that, on the facts of this case, there had been a breach of Article 14 (and therefore unlawful discrimination). The court preferred to classify the Article 14 breach as one of the principle, established by the European Court of Human Rights in Thlimmenos v Greece (2001) 31 EHRR 15, that to avoid discrimination there may be a duty to treat differently a claimant whose situation is significantly different. In this case, the claimant and the children from the marriage had been treated similarly to those whose situation is relevantly different – ie, a surviving spouse where the deceased partner had not been so disabled as not to be able to pay contributions. Such treatment (like different treatment of people whose situations are similar) would not amount to discrimination if the treatment was justified. Regarding justification, the court applied the finding of the Supreme Court in R (DA and DS) v Secretary of State for Work and Pensions [2019] 1 WLR 3289 that the test is whether the treatment is ‘manifestly without reasonable foundation.’ However, the court emphasised the finding (at paragraph 66) in that decision that a ‘proactive’ examination of whether the foundation is ‘reasonable’ is involved, and that it would be ‘fanciful’ to hold that where the Secretary of State had failed to convince that court that the treatment was reasonable, there could still be a failure by the claimant to show that it was ‘manifestly unreasonable’ (paragraph 63). The four-stage test for judging proportionality, as set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700 (and which includes consideration of whether the impact of the measure is disproportionate), was a relevant tool in this test.

Analysing the bereavement support payment requirement for the deceased spouse/civil partner to actually have paid sufficient contributions, the court considered ‘…that the policy in its application to those who through disability are unable to work throughout their working life is manifestly without reasonable foundation. It is just not reasonable to suggest that one can incentivise a severely disabled person to work if through their disability they cannot work. Alternatively, to put it another way, that is manifestly without reasonable foundation’ (paragraph 98). Further, the court held: ‘We consider that the adverse impact is disproportionate…the respondent has failed to justify the similarity in treatment of those with and those without severe disabilities so that the contributory principle in so far as it effects those individuals who through disability cannot work throughout their working life is manifestly without reasonable foundation’ (paragraph 100). Regarding remedy, the court concluded that: ‘We can reach no other conclusion than that section 29(1)(d) of the 2015 Act should be read and given effect so that the contribution condition is to be treated as met if the deceased was unable to comply with section 30(1) throughout her working life due to disability’ (paragraph 103).

Comment from CPAG

This decision is of persuasive authority in Great Britain. However, the court’s remedy was based on a finding that (as the primary legislation was in fact the Northern Ireland Act 1998) a declaration of incompatibility was not possible. But the equivalent bereavement support payment rule in Great Britain is at sections 30 and 31 of the Pensions Act 2014, which would appear to be the relevant primary legislation in that context, with the result that a declaration of incompatibility would appear to be possible in Great Britain. The decision is also notable for its insistence on a proactive approach, involving questions of reasonableness and proportionality, to the ‘manifestly without reasonable foundation’ test.

In a separate decision (Lennon v Department for Social Development [2020] NICA 15 (26 February 2020), the Northern Ireland Court of Appeal dismissed a human rights challenge to the rules, under which an award of widowed parent’s allowance is suspended if the claimant begins cohabiting and terminated if they marry. There was no discrimination against the claimant and her children: there was no valid comparison with a claimant who remained single, and any difference in treatment was in any case justified as objectively and reasonably founded and not manifestly without reasonable foundation.

Summary 

The claimant was entitled to employment and support allowance (ESA). In 2018, following a reapplication of the work capability assessment, he was found not to have limited capability for work and so not entitled. He requested a mandatory reconsideration of that decision. Due to error at the DWP, that was not dealt with for around four months. By the time it was dealt with (and the refusal of ESA upheld), the claimant was on a combination of income support and carer’s allowance instead, and he chose not to appeal. Instead, he challenged the legality of the so-called ‘mandatory reconsideration requirement’ at regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, No.991 (the ‘Decisions and Appeals Regulations’). Under that rule, a right to appeal only arises where the Secretary of State has first considered, following a request, whether or not to revise the decision. That was important in the claimant’s case as, although a claimant such as he could have been entitled to ESA pending appeal (under regulation 30(3) of the Employment and Support Allowance Regulations 2008), there was no such entitlement pending mandatory reconsideration.

In the High Court, Mr Justice Swift allowed one of the claimant’s arguments, that in cases such as his the mandatory reconsideration requirement at regulation 3ZA was in breach of his human right to a fair trial under Article 6 of the European Convention on Human Rights. Specifically, held the judge, ‘regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations’ (paragraph 28). The remedy was ‘a declaration to the effect that regulation 3ZA of the Decisions and Appeals Regulations is unlawful in so far as it is applied to ESA claimants who would, if pursuing an appeal to the First-tier Tribunal, subject to compliance with the condition at regulation 30(2) of the ESA Regulations, be entitled to receive payment pending appeal pursuant to regulation 30(3)’ (paragraph 35).

The judge held that the mandatory reconsideration requirement at regulation 3ZA was not in itself a breach of Article 6. But it was an ‘impediment or hindrance’ to the right of access to a court, and so it fell to be considered (in the context of the claimant’s case) whether that was proportionate (paragraph 19). The regulation had a legitimate objective. What remained were the questions identified by Lord Sumption and Lord Reed in their judgments in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700: could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public interest? The judge took into account that there was no time limit for making a decision on mandatory reconsideration, and during that time payment of ESA ceases. Further, considered the judge, it was ‘anomalous’ that the payment of ESA pending appeal rule at regulation 30(3) did not apply to mandatory reconsideration (paragraph 25). The judge did not consider that the Secretary of State had provided an answer as to why this was. He therefore held that regulation 3ZA of the Decisions and Appeals Regulations was disproportionate in cases where ESA pending appeal would apply (paragraph 31).

Comment from CPAG

This decision is authority that claimants who would be entitled to ESA pending appeal should (if they so choose) be able to appeal directly against ESA refusal following a work capability assessment failure, rather than being required first to go through mandatory reconsideration.

Summary

In this judicial review decision, the High Court held that universal credit (UC) rules resulting in the claimant being subject to the benefit cap solely because she was paid four-weekly rather than monthly were irrational and unlawful.

The claimant was single with three children. She worked 16 hours a week, paid at the ‘national living wage’ (‘NLW’) rate. She was paid on a four-weekly cycle. When she claimed UC, she found that she was subject to the benefit cap. Despite her work, the exception to the cap for earnings at regulation 82(1)(a) of the Universal Credit Regulations 2013, No.376 (‘the UC Regulations’) did not assist her, apart from in one of her 12 monthly assessment periods. This was because the rule on earned income at regulation 54 of the UC Regulations only has reference to earnings received during the monthly assessment period concerned. That meant that in 11 out of 12 assessment periods, the claimant was assessed on the basis only of 28 days’ pay, despite the fact that she worked for the full calendar month.

In the High Court, Mr Justice Garnham held that the failure to provide the claimant with an exception to benefit cap on the basis of her 16-hour NLW earnings paid four-weekly rather than monthly was irrational and unlawful. Applying the decision (regarding the treatment of those paid monthly but who receive a ‘double payment’ of wages in one assessment period) in R (Johnson and others) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (22 June 2020), he held: ‘The question to be addressed is whether the decision of the Secretary of State, as to the drafting of the Regulations was outside the range of reasonable decisions open to the decision maker. The particular decision in issue here is the decision not to include in the Regulations an additional express adjustment to ensure that a claimant working 16 hours per week at NLW level, but paid on a four-weekly basis, receives the same UC as those who earn the same amount but are paid on a monthly basis’ (paragraph 47). Applying the analysis in Johnson, the judge could not see that the problem for those paid four-weekly had been considered by the Secretary of State, or a possible solution considered. He concluded that: ‘In those circumstances, it seems to me that the outcome of the balance is obvious and irresistible. I cannot see how any reasonable Secretary of State could have struck the balance in the way the SSWP has done in this case’ (paragraph 81). The order made by the court holds that the combined effect of regulations 82(1)(a) and 54 ‘is irrational and unlawful in so far as employees who are paid on a four-weekly basis (as opposed to a calendar-monthly basis) are treated as having earned income of only 28 days’ earnings in 11 out of 12 assessment periods a year.’

Comment from CPAG

Again, following the decision in Johnson, the judge did not consider it necessary to deal with an additional argument for the claimant that her human rights had been breached. The Secretary of State’s request for permission to appeal was refused, but may be renewed to the Court of Appeal. For more, see our legal test case page: Universal credit, benefit cap and those paid 4 agai . 

Note: the Court of Appeal allowed the Secretary of State's appeal against this decision, see our summary of the Court of Appeal's decision: Pantellerisco and others v Secretary of State for Work and Pensions [2021] EWCA Civ 1454.  For further information see our test case update: Universal credit, benefit cap and those paid 4 weekly.

Summary

The claimant’s health problems included severe chronic depression and anxiety, post-traumatic stress disorder and chronic diarrhoea. He was held not to have limited capability for work. The First-tier Tribunal allowed his appeal against that decision, but declined to place him in the ‘support group’, holding that he did not also have ‘limited capability for work-related activity’. In particular, it did not consider that regulation 35(2) of the Employment and Support Allowance Regulations 2008 applied, as it did not consider there was a ‘substantial risk’ to health arising from any appropriate work-related activity he might be required to undertake. Regarding that, the tribunal relied on a ‘soft skills’ list of potential work-related activity, submitted by the Secretary of State.

Judge Wright allowed the claimant’s further appeal and substituted a decision that the claimant had limited capability for work-related activity on the basis of ‘substantial risk’. The ‘soft skills’ list (which included activities such as setting an alarm clock) did not, as it ought to have shown following IM v SSWP [2014] UKUT 412 (AAC), reported as [2015] AACR, set out the most onerous forms of work-related activity available in the appellant’s area. But even assuming that the list of work-related activities was complete, the tribunal’s reasoning could still be criticised on the basis that ‘it did not sufficiently address the likelihood of the appellant having to participate in the minority of the soft skills activities which, on the face of it, the tribunal considered the appellant could not do without substantial risk to health’. Further, the tribunal’s reliance on the appellant’s ability to learn to get to places of work-related activity and being accompanied in that period of learning failed to take into account the likelihood of the appellant being able to have a companion to accompany him on the first few instances when he was required to undertake work-related activities that required him to travel (PD v SSWP (ESA) [2016] UKUT 148 (AAC), MP v SSWP (ESA) [2016] UKUT 502 (AAC) and KN v SSWP (ESA) [2016] UKUT 521 (AAC) cited). The tribunal also erred more fundamentally in law in proceeding on the basis that all relevant forms of work-related activity appeared in the ‘soft skills’ list put before it by the Secretary of State. It ought to have doubted this, given the absence of work placements from the list. As conceded by the Secretary of State, the tribunal was ‘materially misled by her failure to put before it an accurate and complete list evidencing the most (and least) onerous forms of work-related activity the appellant may have been required to undertake’ (paragraphs 15–18).

Regarding use of the ‘soft skills’ lists more generally, the Secretary of State told the judge that the practice of making them the list of work-related activities submitted to tribunals had now ceased, and accepted that ‘this was always an inaccurate list, lacking as it did the more and most onerous forms of available work-related activity (including work placements)’ (paragraph 37) The ‘soft skills’ list ought not in fact have appeared in any ESA work capability appeal after January 2018, but the judge was not satisfied that the practice had ceased then and remarked that: ‘First-tier Tribunals will need to investigate with conspicuous care any work capability assessment appeals in which the ‘soft skills’ list is put forward as evidence of the available work-related activity’ (paragraph 42).

Comment from CPAG

The judge took evidence from the claimant’s representative that lists of work-related activity submitted by the Secretary of State often remained incomplete or (regarding identical rules for universal credit) not submitted at all. This despite authority on what is required now stretching back years. With evident restraint, the judge commented: ‘It is sincerely hoped that this decision will mark the end of the Upper Tribunal needing to examine the adequacy of the information the Secretary of State provides to First-tier Tribunals in appeals in which regulation 35(2) of the ESA Regulations (or its universal credit counterpart) may be in issue’ (paragraph 3).

Decision in brief

Supersession in light of MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 – supersession for error of law - anti-test case rule applies so as to limit date of altered decision to date of MH (ie, 28 November 2016) – although MH was made within a month of original decision in claimant’s case, so that revision on any ground could have been applied within that month, no revision was made and there was no basis for that failure itself to have been the basis for a revision on the ground of ‘official error’.