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Summary

The claimant’s appeal concerned whether he was capable of work-related activity – ie, whether he should be placed either in the ‘work-related activity group’ or the ‘limited capability for work-related activity group’ for UC. In particular, the tribunal was required to consider whether the ‘substantial risk’ provision at paragraph 4 of Schedule 9 of the Universal Credit Regulations 2013 (SI No.376), under which a claimant is treated as having limited capability for work-related activity if there is ‘substantial risk’ to health if the claimant is not so treated, applied.

Judge Wright allowed the claimant’s further appeal against the decision of the tribunal and remitted the case to a new tribunal. The tribunal had erred in basing its decision on ‘materially deficient evidence of work-related activity which did not include a work placement as a possible form of work-related activity’ (paragraph 1). As a result, the tribunal had failed to give proper consideration to the most onerous forms of work-related activity the claimant might be expected to undertake. The tribunal had no direct evidence of such work-related activity, and had in fact relied on statements in the decision maker’s submission to the tribunal. But, held Judge Wright: ‘The phrase in the appeal response, “Examples of the most demanding types of Work Related Activity (WRA) in the area where you live would be as per programmes provided by Remploy and Kennedy Scott”, is virtually useless as providing clear evidence to the reader of it of what in fact the most onerous work-related activity could actually involve the appellant in undertaking’ (paragraph 2).

The judge accepted the Secretary of State’s support for the claimant’s appeal, which included acceptance that the judge’s own decision in an ESA case, KC and MC v SSWP (ESA) [2017] UKUT 94 (AAC), applied to UC as well, so that a tribunal must have adequate or relevant evidence before it of the work-related activity the claimant might be expected to undertake, which identifies the most and least demanding such activity. That had been adopted in official guidance in DMG Memo 01/18, where it is confirmed that where the decision under appeal was made on or after 3 April 2017, the appropriate list of work-related activity should be under the Jobcentre Plus offer, included in the appendix to the memo. The judge re-stated previously expressed concern that such guidance was not being followed. The relevant UC rules were substantially the same as the relevant ESA rules. The judge said: ‘The evidence of the Secretary of State in MR v SSWP (ESA) [2020] UKUT 210 (AAC) was clear. By January 2018 the work-related activities list exhibited in all appeal responses should have included “work placements” (as set out in DMG Memo 01/18). That, as the Secretary of State now concedes, ought to have been the case in this universal credit appeal’ (paragraph 7).

Comment from CPAG

The judge’s confirmation that the relevant ESA caselaw should also apply to UC ‘substantial risk’ appeals, though useful, is not surprising. However, it should be surprising that the need for adequate and relevant evidence of work-related activity which the claimant might be expected to undertake is still not being properly observed. The judge’s concern on this matter (see also MR v SSWP (ESA)) clearly remains relevant.

Decision in brief

Secretary of State to come to a new decision based on other existing evidence or arrange for a new assessment.

Summary

The claimant had been entitled to income-related employment and support allowance (ESA). The award included the ‘severe disability premium’ (SDP). But in September 2019, the ESA award was ended as he had been remanded in custody. In December 2019, the claimant was released and (following advice from the job centre) he made a claim for UC. The claimant disputed the resulting UC award as the amount was less than his ESA had been. He eventually appealed, but the appeal was not considered by the First-tier Tribunal until March 2022. The tribunal allowed the claimant’s appeal, on the basis that at the time of the claim for UC the claimant was in fact still entitled to an award of housing benefit (HB) that included the SDP, and under the so-called ‘SDP gateway’ provision (at regulation 4A of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230) in force at that time, the claimant should therefore not have been allowed to claim UC. The tribunal further held that the Secretary of State should now treat the claim for UC as a claim for income-related ESA. 

Judge Wikeley allowed the Secretary of State’s appeal and substituted a decision that the claimant’s appeal to the First-tier Tribunal was dismissed. The tribunal had been entitled to hold that the claimant was entitled to HB that included the SDP at the time of the claim for UC, and (as the Secretary of State conceded) on that basis regulation 4A should have prevented the claim for UC. But the tribunal erred in holding that the Secretary of State was (somehow) to treat the UC claim as a claim for income-related ESA: there was simply no legal basis for that. Further, given the fact that a UC claim had been made and admitted, the error in allowing it did not render the UC award void but rather simply ‘left open the possibility of revision for official error, but no such steps have been taken in this case’ (paragraph 26). Regulation 4A (and so the ‘SDP gateway’) had been removed from 27 January 2021 and no new claim for income-related ESA could be made. If the claimant could show a loss caused by the DWP’s failure to apply the SDP gateway at the relevant time, that could amount to grounds for a claim for compensation for maladministration; but tribunals had no jurisdiction over such matters. 

Comment from CPAG

This decision illustrates the predicament a claimant can be placed in where the DWP simply ignores the rules. If the claimant had been correctly prevented from claiming UC in 2019 by the SDP gateway, he could at that point have made a new claim for income-related ESA. As at the time of the UC claim the SDP was included in only in an HB claim, the UC award would not have included a transitional SDP element, and the claimant may indeed have been considerably worse off on UC.

Decision in brief 

Notification of requirement to attend an interview can be made orally in the course of face-to-face contact, as well as in writing or by telephone or by electronic means

Decision in brief

Exception where had an award in previous tax year and is making a claim for the next tax year – exception can only apply if it is the same party or parties making the new claim – claimant who had been part of a couple claim in the previous tax year but is now single cannot use this ground to make a new claim for the next tax year.

Summary

In this decision, the Court of Appeal upheld the challenge by the claimants to the decision in this case of the High Court (see R (Fratila and Tanase) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)). In a majority decision, the Court of Appeal held that regulations excluding ‘pre-settled status’ as a valid right to reside for benefit purposes were unlawful, and quashed those regulations.

The claimants were Romanian nationals who came to the UK in 2014 and 2019 respectively. In 2019, each was granted limited leave to remain in the UK under the European Union (EU) Settlement Scheme (also known as ‘pre-settled status’). Both claimants applied for universal credit (UC) but were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits, as a result of amendments made by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019.

The claimants argued that the exclusion of the pre-settled status right to reside was is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals, as at Article 18 of the Treaty on the Functioning of the European Union. That argument had been rejected by the High Court, on the basis that any discrimination against them was indirect and was justified. Departing from that, the court held that the regulations were unlawful and ordered that they be quashed. Firstly (and contrary to the argument of the Secretary of State), once a claimant had a right to reside under domestic law (as here, via the EU Settlement Scheme), then discrimination in breach of Article 18 was not permissible, and the separate European rules conferring right to reside (Directive 2004/38/EC, which did not provide the claimants with a right to reside) were not a complete set of rules for benefit entitlement.

Secondly, discrimination under Article 18, once established, was unlawful and (as direct discrimination) was not capable of justification. Article 18 was breached here as the regulations introduced discrimination on the basis of nationality, in that European nationals who had been granted a right to reside under domestic law were refused benefit on right to reside grounds. In the lead decision, Lord Justice McCombe, drawing on a line of authority from the Court of Justice of the European Union (CJEU), said: ‘Accordingly, by direct application of the CJEU decisions, as interpreted in our own courts, a discrimination of the present type is prohibited by EU law and the question of justification does not arise’ (paragraph 71 ). Lord Justice Dingemans, in the minority, considered the discrimination to be indirect and therefore capable of justification, and to be justified.

The Order of the court quashes both the legislation which provides that having ‘pre-settled status’ is not a sufficient right to reside for the purposing of accessing means-tested benefits and the decisions of the Secretary of State for Work and Pensions refusing the claimants UC. However, the court granted a short stay to 26 February 2021 (during which time the Secretary of State did not have to implement the judgment.)

Comment from CPAG

The Secretary of State has appealed to the Supreme Court, and also requested a further stay. Despite Brexit, the effect of the quashing of the legislation is that, once the stay is lifted (and subject to any further appeal), anyone with pre-settled status satisfies the ‘right to reside’ test for access to means-tested benefits. See also the legal test cases pages on CPAG’s website. 

For the Supreme Court's decision, see our caselaw summary Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Summary

The claimant was held to have been overpaid income support between dates in 2009 and 2013, due to excess capital in the form of money in bank accounts. Information about this had been obtained from the bank by the Department for Social Development (‘the Department’). However, this was in breach of authority from the claimant to obtain such evidence, which he had limited to a period from July 2013 onwards. The appeal tribunal dismissed the claimant’s appeal, holding that the evidence could be taken into account even though it had been unlawfully obtained.

Commissioner Stockman upheld the claimant’s further appeal and substituted a decision that the claimant’s human rights had been breached, that the unlawfully obtained evidence should not be admitted and, in the absence of any other evidence about the claimant’s capital in the relevant period, that the claimant had not been overpaid. The evidence was unlawfully obtained, as it was regarding a period excluded by the terms of the authority given by the claimant, and the Department was not exercising fraud investigation powers – ie, under which such evidence can lawfully be obtained without consent. The claimant’s right to private and family life under Article 8 of the European Convention on Human Rights ‘(the Convention’) had been breached.

The tribunal had referred to the decision in C53/08(DLA) as authority for its finding that improperly obtained evidence can be taken into account. But that decision was made before the coming into force of the Human Rights Act 1998, which incorporated the Convention into UK law, and so created a different context. The tribunal had erred in failing to address whether the unlawfully obtained evidence would affect the fairness of the proceedings – ie, and so potentially to breach the claimant’s right to a fair trial under Article 6 of the Convention. Substituting a decision, the Commissioner held that the loss to the public purse at stake in this case was ‘relatively minor’, that there was no ‘deliberate fraudulent intent’ by the claimant, and that the public was ‘entitled to be protected from irregular access…to their private information’ (paragraph 83). Therefore, the unlawfully obtained evidence should not be admitted and, in the absence of other evidence, the result was that the claimant had not been overpaid.

Comment from CPAG

This decision of the Northern Ireland Commissioners is formally of persuasive rather than binding authority in Great Britain. However its reasoning, founded as it is in human rights considerations, will at least be capable of direct application, although the facts of the case were clearly important in forming the Commissioner’s conclusions.

Summary

In this decision, the Upper Tribunal held that the two-year past presence test in DLA was unlawful, in that it discriminated between children who had been living in the UK and those who had been living abroad (and were thus unable to satisfy the test). The past presence test itself was not unlawful, but instead should be applied as one requiring presence for 26 weeks in the last 52 weeks, rather than 104 in the last 156. 

The claimants were parents of disabled children who were British nationals. The parents had lived and worked in the UK, but the children had been born abroad. On return to the UK, the children’s claims for DLA were both refused for failure of the past presence test. On appeal, it was argued for them that this was in breach of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, and that the Upper Tribunal’s decision in FM v SSWP (DLA) [2017] UKUT 380 (AAC); [2018] PTSR 1036; [2019] AACR 8 was wrongly decided. The First-tier Tribunal rejected those arguments in both cases.

Judge Ward allowed the claimants’ further appeals and substituted a decision that the claimants were both entitled to DLA from the point that they satisfied the 26-week past presence test. The extension of the 26 weeks in the last 52-week period to one of 104 weeks in the last 156 involved an unjustified difference in treatment of the claimants (compared to children living in the UK throughout who would satisfy the increased period), and was therefore unlawful discrimination under the Article 14 read with Article 1 of Protocol 1 (right to property) of the Convention and was to be disapplied. The judge declined jurisdiction regarding the claimants’ separate argument that the increase in the period of the past presence test was in breach of the public sector equality duty. Although indicating a difference from FM, which held that the increased past presence test did not involve such a breach, adopting the obiter reasoning in A-K v SSWP (DLA) [2017] UKUT 420 (AAC); [2018] 1 WLR 2657, such arguments had to be raised on judicial review, which had not been done here.

Regarding discrimination, the judge held the different treatment of children coming from abroad could not be justified in the context of the increase of the past presence test. The aim of the increase, held the judge, was ‘driven by the need to save money…no coherent explanation has been put forward for extending the past presence test from six months to two years (the rationale put forward, somewhat tentatively, for a two-year period had previously been put forward as justifying the six-month period) and the lack of such explanation supports the view that the more onerous condition was set to save money by reducing the number of those who could qualify, by making them wait’ (paragraph 140). Saving money could be a legitimate aim but, applying R (DA) v SSWP [2019] UKSC 21, the measure could be discriminatory if ‘manifestly without reasonable foundation’, and deciding that involved a ‘proactive’ test of reasonableness (paragraph 143). Although children aged under three were exempt from the increase in the past presence test, those aged three to 16 were not, and the judge held that in the money-saving aim: ‘there was a lack of consideration of the interests of children aged three to 16 …These were complex and substantial, including by way of the knock-on effects on other benefits and the impact on the family in dealing with disability with a reduced level of assistance’. This lack of consideration was a breach of Article 3 of the United Nations Convention on the Rights of the Child, which although not formally binding in the UK contributed to the judge’s conclusion that the Secretary of State had failed to show that the increase was proportionate to the aim (paragraph 158). The result was that the increase in the past presence test to 156 weeks in the last 104 was to be disapplied, leaving intact the pre-existing period of 26 weeks in the last 52.

Summary

The claimant had chronic fatigue syndrome and was entitled to the high rate of disability living allowance (DLA) mobility component. She lived in a privately rented studio flat. The local authority limited her HB to the one-bedroom shared accommodation rate of the local housing allowance (LHA), as mandated by regulation 13D(2) of the Housing Benefit Regulations 2006, SI No.213. She was paid discretionary housing payments (DHPs) for the shortfall in her rent. On appeal, she argued that the limitation on her HB discriminated against her on the grounds of disability, in particular as a wheelchair user with greater difficulty finding shared accommodation. That was contrary to Article 14 of the European Convention on Human Rights in conjunction with Article 1 of Protocol 1, and the principle (requirement to treat a person differently in order to avoid discrimination) in Thlimmenos v Greece [2001] 31 EHRR 411. The First-tier Tribunal dismissed her appeal, holding that her treatment was justified as ‘not manifestly without reasonable foundation’.

Judge Najib rejected the claimant’s further appeal, holding that the tribunal had not erred in law. Following the decision in R (DA) and R (DS) v Secretary of State for Work and Pensions [2019] UKSC 21, the ‘manifestly without reasonable foundation’ test remained the correct test of justification in alleged discrimination cases, and not the ‘objective and reasonable justification test’ identified by the European Court of Human Rights in JD and A v the United Kingdom [2020] HLR 5. A number of subsequent decisions had reaffirmed that. However, subsequent authorities (eg, R (TD, AD and Reynolds) v Secretary of State for Work and Pensions [2020] EWCA Civ 618) had identified the relevance of proportionality to the test. The judge considered that, in the light of these authorities, ‘… whilst the sole legal question is whether the difference in treatment is “manifestly without reasonable foundation”, the answer to that question is to be found by considering whether the difference in treatment arising from the relevant measure is “manifestly disproportionate to its legitimate aim”. If it is manifestly disproportionate, it is manifestly without reasonable foundation, and vice versa’ (paragraph 75).

The official aims for introducing the shared accommodation rate were legitimate. Applying the approach taken by the Supreme Court to justification issues regarding the ‘bedroom tax’ in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the judge considered that: ‘the key issue is whether the need of a disabled person in the Appellant’s position (ie, a wheelchair user) to remain in an existing property is connected to (i) a transparent medical need for single-occupancy one-bedroom accommodation (ie, a transparent medical need which prevents them from sharing a bedroom); or (ii) some other reason which requires “individual evaluation” on a case-by-case basis. In the Appellant’s case, I am satisfied that it is the latter’ (paragraph 83). That indicated the suitability of DHPs as a solution, rather than unlawfulness. The judge was therefore satisfied that ‘…in the context of the scheme as a whole and, in particular, in light of the availability of DHPs on case-by-case basis, the adverse impact of regulation 13D(2) on the Appellant and those in her position is not “manifestly disproportionate to its legitimate aim”. It is therefore not “manifestly without reasonable foundation”’ (paragraph 85).

Summary

The local authority decided that an overpayment had occurred and it was to be recovered from the person to whom it had been paid, which in this case was the landlord. The overpayment arose because the claimant was awarded HB at the self-contained bedroom rate, when it should have been awarded at the (lower) shared accommodation rate. This was because of incorrect information given by the claimant on his claim form. The landlord appealed and his appeal was dismissed by the First-tier Tribunal, who arranged and conducted the appeal as if it were solely between the landlord and the local authority – ie, with no attempt to include the claimant as a second respondent to the appeal.

Judge Poynter (having formally joined the claimant as a second respondent) allowed the landlord’s further appeal and substituted a decision that the overpayment was not recoverable from him and was instead recoverable from the claimant (AT), as the person who had caused the overpayment by misrepresenting a material fact. The tribunal had gone wrong in not realising that the claimant should have been listed as a second respondent, and in consequently failing to consider regulation 101 of the Housing Benefit Regulations 2006, SI No.213, which makes provision as to from whom an overpayment of HB is recoverable. Subject to a rare exception regarding computer error, all HB overpayment decisions involve a decision that the claimant was not entitled in some way, decisions on entitlement must be formally notified, and once that is realised, ‘it becomes obvious that the claimant – to whom that award was, after all, made – needs to have a right of appeal against it’ (paragraph 47). Regulation 101(2) may (depending on the facts) mean that the overpayment is recoverable both from the landlord and the claimant or, in cases of failure to disclose or misrepresentation of a material fact, the person who so failed to disclose or misrepresented, and all those from whom the overpayment were recoverable must be given a decision about that (R(H) 6/06 applied and approved). The tribunal had erred in failing to apply this.

The judge set out some basic principles regarding appeals in which HB has been held to be recoverable from the landlord (paragraph 3), which (here in summary form) are:

‘(a) The claimant is always the second respondent to an appeal made by a landlord… It is not necessary for the First-tier Tribunal to give a direction…to bring it about.

(b) Although the circumstances in which a landlord can appeal against a HB decision are limited, where those circumstances exist, the landlord’s right of appeal is not limited and he is entitled to raise all relevant issues of fact and law. In particular, a landlord appealing against a decision that an overpayment is recoverable from him is not restricted to arguing that the overpayment is not recoverable, or is not recoverable from him…

(c) In an appropriate case, a landlord who brings such an appeal is entitled to a decision that a recoverable overpayment is recoverable from him and the claimant jointly rather than from him alone.

(d) If the circumstances specified in regulation 101(2)(b) or (c) of the Housing Benefit Regulations 2006 (the HB Regulations) exist, a landlord who brings such an appeal is potentially entitled to a decision that a recoverable overpayment is not recoverable from him but is solely recoverable from the claimant (or some other person).

(e) In the absence of a specific direction…the First-tier Tribunal has no power to refuse to consider relevant evidence merely because it confidential information about people who are not parties to the appeal. All relevant evidence is admissible and, in the absence of such a direction, must be taken into account… .’

Comment from CPAG

As noted by the judge, there is nothing actually novel in the legal principles and requirements identified in this decision. However, those principles and requirements are set out with great clarity in a context in which it seems that confusion can easily arise, and the decision will therefore be key in appeals concerning recovery of overpaid HB from a landlord.

Summary

The appellant was entitled to HB and employment and support allowance, and to tax credits with his partner. Following receipt of a notice to quit their rented accommodation, the couple moved on 24 September 2018 to a new local authority area, and later (as instructed by their new local authority) made a claim for UC. The claim was made on 22 October 2018. Their request for backdating to 24 September was refused. The First-tier Tribunal refused the subsequent appeal.

Judge Jacobs allowed the claimant’s further appeal, and substituted a decision that the UC claim should be ‘backdated’ to 24 September. That was because, under regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, a claim can be ‘backdated’ (ie, the time for claiming formally extended) where the claimant could not reasonably be expected to have claimed earlier, one or more specified circumstances applies, and the judge considered that one of those circumstances applied.

Specifically, at subparagraph (3)(aa) of regulation 26, one of those circumstances is where ‘the claimant was previously in receipt of an existing benefit (as defined in the Universal Credit (Transitional Provisions) Regulations 2014) and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant's entitlement expired’ (paragraph 4).

HB was an ‘existing benefit’. The judge accepted a submission made by the Secretary of State that notification of the expiry of ‘entitlement to housing benefit’ should be taken only to have been when the claimant’s new local authority told them that they would need to claim UC rather than HB. The date of that notification was after their actual entitlement (ie, as paid by their old local authority) had ended, following their move to the new local authority area on 24 September. Therefore the terms of regulation 26(3)(aa) were satisfied. Further (as per the Secretary of State’s submission): ‘The couple could not reasonably be expected to claim universal credit until the appellant had been made aware that he could no longer claim housing benefit, and they he [sic] did not unreasonably delay his claim for universal credit once they became aware of their position’ (paragraph 8).

Comment from CPAG

Backdating of UC is on very limited grounds, but this decision contains (via the Secretary of State’s own submission) a helpful application of one of those grounds that should apply in many cases where a claimant has moved to new local authority and has lost entitlement to HB.

Decision in brief

Tribunal relied on official medical report when that was based on assessment in which (contrary to the claimant’s request) there was no interpreter – sending out the tribunal clerk to speak to the claimant about his objection to the judge (on grounds of alleged bias), with the judge refusing to recuse himself, was an irregular procedure: it made it more likely that the claimant would not enter the hearing room at all, and could be perceived as a ‘shot across the bows’ of the claimant – unnecessarily formal language was used, there was no interpreter for the exchange with the clerk, and no indication was made that the claimant had the option of choosing a ‘hearing’ just on the papers.

Note from CPAG

Regarding procedural irregularity where a medical report was produced without an interpreter, this decision has not been followed (by a different judge) in the claimant’s personal independence payment case: see BF v SSWP [2020] UKUT 300 (AAC).