CPAG search

Decision in brief

Tribunal relied on medical report based on assessment in which (contrary to the claimant’s request) there was no interpreter – no procedural irregularity by the tribunal, and finding to the contrary in BF v SSWP [2019] UKUT 420 (AAC) not followed – First-tier Tribunal is not subject to the formal rules of evidence, and assessment of the report is a matter of fact, not procedure – ie, it needs to be weighed as evidence

Decision in brief

Claimant had an existing award and his submission of Form BI168, even though in respect of a different prescribed diseases, was an application for a supersession of that award and not a new claim - arrears were therefore limited by the relevant rule on date a supersession takes effect – ie, date the change of circumstances was notified)

Decision in brief

Deduction for capital allowance – the claimant had not made a valid claim for capital allowance by the time his appeal was decided – even if he had made such a claim, it could not have succeeded as a matter of law as he was not operating or carrying on any overseas property business at the time of the decision and expenditure on a property could not constitute a permissible capital allowance – therefore, his income was too high to be entitled to tax credits during the relevant period.

Decision in brief

Change of date of hearing notified to claimant at short notice, as a result of which her helper was unable to attend – rule 29 of the Tribunal Rules requires at least 14 days’ notice of the change of date, which was not observed – neither was there evidence that the claimant had consented to the change or that ‘urgent or exceptional circumstances’ applied (there had been an administrative error in setting the date), so no exception to the 14-day period applied – the lack of the supporter desired by the claimant meant the resulting procedural irregularity was material, and so the tribunal’s decision must be set aside.

Decision in brief

Where the Secretary of State has made a decision awarding or disallowing disablement pension in respect of a particular prescribed disease, the First-tier Tribunal can only consider that prescribed disease if the claimant has appealed against that decision or it can treat the claimant as having done so, which requires that the claimant had a right of appeal against that decision – that includes that there must have been a mandatory reconsideration of the decision.

Decision in brief

To be regarded as ‘voluntary payments’ and so ignored as income under regulation 16(1) of the Employment and Support Allowance Regulations 2008 – trust was correctly classified as a discretionary trust on its terms, and so the trustees were neither obliged to pay the claimant income at all nor received anything in return – LC v SSWP (ESA) UKUT 220 (AAC) applied.

Decision in brief

On the facts, tribunal was wrong to conclude that it did not – the First-tier Tribunal incorrectly applied the test of access to the room as contained in Nelson – the fact that a door cannot fully open into a room but touches the bed does not mean there is not reasonable access or that it is unsafe – a 50-degree angle of door opening on its own is not a sufficient reason to find that the arrangement of the room did not provide reasonable access or was too unsafe to use as a bedroom – on the facts, a 60-degree angle of opening was possible (working on the assumption of a 75-inch-long standard adult single bed) which was comfortable and safe.

Decision in brief

Not satisfied that the claimant unlawfully killed her late husband – therefore, no questions arise for determination as to whether the claimant obtained a benefit in consequence of an unlawful killing nor whether the effect of the forfeiture rule should be modified – sections 1 and 4 of the Forfeiture Act 1982 and rules 26 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Decision in brief

That was an error of law, although not a material error as it was agreed that the evidence was properly authorised – even in unredacted form, it should have been seen by all members of the tribunal – although the Secretary of State had been entitled to restrict sight of the unredacted authorisation to the tribunal, ‘excluding the appellant and her representative from any consideration of the surveillance authorisation evidence’ was a further error of law, although again immaterial – no different or higher standard of proof applies to the weighing of video surveillance evidence than it does to any other sort of evidence.

Decision in brief

Claimant accepted that she had a student loan (ie, for maintenance) – needed to use large part of it for paying tuition fees – but (contrary to argument of the claimant) this did not change the correct treatment of it as student loan income under regulation 68 of the Universal Credit Regulations 2013 – ‘the characterisation of the nature and amount of the financial payment made to a student is based on objective criteria relating to the source of the funds and their characterisation under the Student Support Regulations, rather than how each applicant intends to apply or actually uses the funds granted’

Decision in brief

Appellant was a severely disabled person on income-related employment and support allowance (ESA) and entitled to a severe disability premium – that was stopped when his mother claimed CA in respect of caring for him – claimant argued that he had not countersigned the CA claim form and did not consent to the claim being made and that therefore he should remain entitled to the premium – held that the claimant’s consent to the CA claim was not legally relevant to that claim and the absence of his countersignature on the claim form did not render the claim invalid

Summary

In this decision, the Court of Appeal rejected the Secretary of State’s challenge to the earlier decision of the High Court, Jwanczuk, R (On the Application Of) v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin). In that decision it had been held that the requirement for bereavement support payment (BSP) for the claimant’s deceased spouse to have paid sufficient national insurance contributions was in breach of human rights law as discrimination in the case of a late spouse who had been unable to work for their entire life. 

The claimant’s late wife had suffered from severe disability since birth and had never been able to undertake paid employment. The claimant had been refused BSP on the basis that section 31 of the Pensions Act 2014 required the late spouse to have met an NI contribution condition involving payment of class 1 or 2 NI contributions. In the High Court, Mr Justice Kerr accepted the claimant’s argument that the decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, although not binding in Great Britain, fell to be applied as it was not ‘clearly wrong’. In that decision, the similar Northern Ireland rule was held to be unlawful in such a case (ie, where the late spouse had been unable to work for their entire life), as it was in breach of the prohibition of discrimination at Article 14 of the European Convention on Human Rights (ECHR). The remedy for the breach was to read the legislation as if, in such a case, the NI condition did not apply. The Secretary of State appealed against the decision of the High Court. 

The Court of Appeal unanimously rejected the Secretary of State’s further appeal. All the Secretary of State’s arguments were dismissed, including that the High Court had wrongly followed the decision in O’Donnell, that the claimant did not have an ‘other status’ for the purpose of Article 14, that the alleged discrimination was not justified and that the only available remedy was a declaration of incompatibility between the Pensions Act and the ECHR. Giving the lead decision, Lord Justice Underhill said regarding the application of O’Donnell: ‘In my view a judge of the High Court should be even slower than this court to reach a different conclusion from an appellate court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation’ (paragraph 49). There was no difficulty with regarding the claimant’s late wife’s disability leading to a lifelong inability work (and so pay the requisite level of NI contributions) as a sufficient ‘other status’ for Article 14. On justification, applying the Bank Mellat questions set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39, reported as [2014] 1 AC 700, there was no doubt as to the legitimacy and rationality of the national insurance requirement. So the key issue in this case boiled down to that of proportionality between the measure and the severity of its effect. The Northern Ireland Court of Appeal in O’Donnell had considered the failure to make an exception for the situation at issue to fail the requirement for proportionality, and so was not justified. Although LJ Underhill considered some of the reasoning there debatable, he said: ‘I do not think it right to develop the points further, still less to express any concluded view, because I do not believe that this comes close to being a case of the exceptional kind where it would be right for this court to decline to follow O’Donnell’ (paragraph 105). On remedy, the Secretary of State’s essential point was that to permit a reading of the legislation that excluded the NI condition was to go against the grain of the legislation as a whole. Again, the court considered there was some force in that, but nevertheless (said LJ Underhill): ‘The Northern Ireland Court of Appeal has decided as a matter of ratio that the relevant statutory language can be read down in the way that Kerr J did, and I see no compelling reason which would justify our reaching a different conclusion’ (paragraph 110).