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Decision in brief

Tribunal declined to consider lists of work-related activity to be used in assessment of ‘substantial risk’ in deciding whether claimant has limited capability for work-related activity (per regulation 35 of the Employment and Support Allowance Regulations 2008), as required by IM v SSWP (ESA) [2014] UKUT 412 (AAC) and other decisions of the Upper Tribunal, based on the tribunal’s opinion that that authority was not correct – that was an error of law by the tribunal

Decision in brief

Common ground that, in the light of the Supreme Court’s decision in re McLaughlin [2018] UKSC 48, reported as [2018] 1 WLR 4250, the relevant law was incompatible with the European Convention on Human Rights insofar as it precluded any entitlement to widowed parent’s allowance by a surviving unmarried partner of a person who had died – but First-tier Tribunal dismissed claimant’s appeal on basis that the incompatibility did not change the law – whether tribunal should have postponed a final decision pending finalisation of the remedial order dealing with that incompatibility, per NA v Secretary of State for Work and Pensions (BB) [2019] UKUT 144 (AAC) – appeal to Upper Tribunal not to be finally determined until remedial order finalised

Decision in brief

Enabling role of tribunal required the sending in of the letter to be an application under rule 37 – principle in AJ v Secretary of State for Work and Pensions (II) [2012] UKUT 209 (AAC) regarding being treated as having made an appeal also applies to post-hearing applications where it is not clear what, if any, application the claimant has made

Decision in brief

Error of law for judge from previous tribunal to have sat on new tribunal – tribunal wrongly refused claimant ability to withdraw her appeal – claimant suspected of dishonesty should be allowed to withdraw – findings of fact (as distinct from outcome decision) of previous tribunal not binding on new tribunal – tribunal’s behaviour to claimant created an impression that it was hostile to her and that is an error to be strenuously avoided – VS v SSWP [2017] UKUT 274 (AAC) cited

Decision in brief

Housing benefit and child tax credit awarded before discovery of fraudulent nature of asylum claim – decisions subsequently changed and overpayments raised – refugee status had been revoked by time claimant’s appeals heard by First-tier Tribunal, although not at the time of the decisions under appeal – tribunal refused claimant’s appeals on basis of the public policy principle that no one should take benefit from her/his own wrongdoing – on the facts of the case the tribunal had not erred in law, but that was in the unusual circumstances of the case including that refugee status had been revoked by the time the tribunal heard the appeal – if that had not been the case then (following countervailing public policy principles of consistency and certainty) the outcome may have been different

Decision in brief

May be such a responsibility (CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC), reported as [2019] AACR 11) - claimant with mental health problems refused personal independence payment (PIP) mobility component although had been award low rate disability living allowance (DLA) mobility component – overarching indication from CH and KN and other authority is that ‘the duty to explain divergence, where it arises, is not a demanding one and that a detailed analysis will not be called for… it does not matter that the claimant finds the explanation unpersuasive or disagrees with any reasoning or finding which underpins it. The only issue is whether the explanation is understandable’ – tribunal explained that it considered the evidence showed the claimant’s condition had improved (including becoming able to drive) and that was sufficient explanation, even though the claimant disagreed with the outcome

Decision in brief

Interests of justice -

‘it is not merely enough to consider whether there is sufficient evidence to make a decision. The tribunal must also consider more generally whether it is in the interests of justice to proceed with a paper determination, particularly in circumstances where it is unclear if the appellant was consenting to have his case determined on the papers alone. The question is whether an oral hearing is required in order to ensure a fair hearing – the purpose being to assist with decision making and to allow participation.’

Decision in brief

Claimant objected to extra requirements for evidence about his identity - his entitlement to credits was by virtue of regulation 8A of the Social Security (Credits) Regulations 1975 and he continued to satisfy the criteria in those – wrong to consider applying the Jobseeker’s Allowance Regulations 1996 – tribunal wrongly treated the claimant as if he was in receipt of JSA and failed to apply the correct law, which was the Credits Regulations – no provision for disapplying regulation 8A on the basis that the person concerned would not have been entitled to JSA because s/he had failed to attend an interview

Decision in brief

Upper Tribunal says: 

‘This is yet another case concerning the failure of the Secretary of State to put before the First-tier Tribunal an accurate list showing the least and most onerous forms of work-related activity that were available for the claimant to undertake...and the failure of the First-tier Tribunal to do anything to correct that (obvious) omission. The hope I expressed in MR v SSWP (ESA) [2020] UKUT 210 (AAC) that MR would be the last word on the provision of accurate lists of work-related activities in appeals concerning regulation 35(2) of the Employment and Support Allowance Regulations 2008 or its universal credit counterpart has proven to be a forlorn one’

Secretary of State gave assurance to Upper Tribunal judge that retraining had been provided to decision makers, but 

‘ …First-tier Tribunals may need to remain vigilant on universal credit appeals especially to ensure they have been provided with an accurate list of work-related activities. One I would have thought reasonably fail safe test is if the list does not include “work placements” then it is very likely that it is not an accurate list'

Summary

The claimant made a claim for new-style JSA on 8 August 2022. In the claim, she asked for backdating to 18 May 2022 as at that time she thought she would be starting a new job, but that had not transpired. The decision maker refused to backdate the claim. When requesting mandatory reconsideration, the claimant told the DWP that her mother had died at the beginning of May; however, the DWP refused to change its decision. The First-tier Tribunal dismissed the claimant’s appeal without holding a hearing (ie, on the papers), holding that none of the statutory grounds for backdating applied, specifically that the death of her mother did not constitute a ‘domestic emergency’ under those rules, and that even though her mother had died she could still reasonably have been expected to have claimed earlier than she did.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had not adequately explained why it had dealt with the case on the papers. Also, however, the tribunal had erred in the way it interpreted regulation 29 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380. That provided (via regulation 29(2) and (3)(e)) for backdating of up to three months where the claimant had been required to deal with a ‘domestic emergency’ and as a result ‘could not reasonably have been expected to make the claim earlier’. The tribunal seemed to have believed that because there was a separate backdating ground at regulation 29(5) which referred specifically to where ‘during the month before the claim was made a close relative of the claimant has died’, there could be no three-month backdating under regulation 29(3)(e) for a domestic emergency in the form of the death of the claimant’s mother. As the Secretary of State conceded, the fact that regulation 29(5) contained a separate and specific provision regarding the death of close relative ‘does not...require that regulation 29(3)(e) must be construed as not including the death of a close relative’ (paragraph 14). Judge Butler agreed with that.

The judge held that the specific rule at regulation 29(5) ‘does not prevent the death of a close relative also being considered under regulation 29(3)(e) in terms of whether it constitutes a domestic emergency. The concept of domestic emergency is not defined in the regulations and is to be given its ordinary meaning when considered by a tribunal’ (paragraph 16). The new tribunal would need to consider that and decide whether or not the claimant was entitled to backdating.

Summary

The appellant’s child was deaf. On application for CDP, Social Security Scotland awarded the care component at the low rate. On appeal to the First-tier Tribunal for Scotland, she argued that it should have been awarded at the middle rate. The tribunal rejected the appeal on the basis that, although the child required attention for a ‘significant portion’ of the day (thus qualifying for the low rate) and also ‘frequently throughout the day’ (as required for the middle rate), the total amount of time involved in providing the attention still did not amount to more than a ‘significant portion’ of the day; also that the concepts of attention for a ‘significant portion’ of the day and ‘frequent attention throughout the day’ were ‘mutually exclusive’, and so only the low rate could apply.

In the Upper Tribunal for Scotland, Lord Fairley allowed the appellant’s further appeal. Judgment as to whether to remit the case to a fresh tribunal or substitute a new decision was withheld, pending a further hearing. The relevant rule was regulation 11 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, SSI No.174. The tribunal’s written reasons were ‘in places, difficult to understand. They frequently depart from accepted conventions of grammar and syntax’ (paragraph 6). However, they seemed essentially to be that attention provided ‘frequently throughout the day’ (per regulation 11(1)(c)) would not give rise to an award of the middle rate of the care component of CDP if the attention provided on that basis was only for ‘small things’ and (per regulation 11(1)(a)) amounted only to a ‘significant portion of the day’.

That was wrong. Attention that only amounted to a significant portion of the day could still be provided frequently throughout the day and so qualify the claimant for the middle rate. The conditions in regulation 11(1)(a) and (c) were not necessarily mutually exclusive. Lord Fairley held that the tribunal ‘erred in concluding that the conditions in regulations 11(1)(a) and (c) are always mutually exclusive. Whilst there may be cases in which only one or other condition is satisfied, there may also be circumstances where both are met. That would be the case where a child required frequent attention throughout the day in connection with their bodily functions such that the aggregate period of attention amounted to a significant portion of the day’ (paragraph 10). Further, it was ‘difficult to understand’ how the provision of ‘small things’, such as attention, ‘could cumulatively account for a significant proportion of each day unless as a product of frequent attention’ (paragraph 11).

Summary

The claimant was in receipt of UC. On 17 April 2021, the claimant reported in her online journal that she had a health condition that affected her capacity for work and that she was a carer for her disabled daughter. The claimant asked if she needed to submit a ‘fit note’ but received no reply. She supplied a fit note on 24 February 2022, dated 15 April 2021. Having had a work capability assessment (WCA) applied and been assessed as having limited capability for work-related activity (LCWRA), it was decided that the three-month ‘relevant period’ before the LCWRA element could be included in the award started on 24 February – ie, the date she supplied the fit note. On appeal, the First-tier Tribunal upheld that decision, holding that the relevant rule (at regulation 28 of the Universal Credit Regulations 2013 No.376) provided that the relevant period only began when the fit note was provided.

Judge Church allowed the claimant’s further appeal and substituted a decision that the relevant period in this case began on 17 April 2021 – ie, the date on which the claimant reported her health problems on her online journal but received no response to her query about submitting a fit note. The tribunal had erred in its interpretation of the meaning of regulation 28. In fact, that did not preclude a self-certification from starting the three-month period. Further, given the fact that the DWP had not responded to the claimant’s query about a fit note, it was unreasonable (in terms of the legislation) to require her to have done so at that point, and, together with the later submission of a ‘backdated’ fit note, the claimant had bridged the gap between her report on the journal and the actual date on which the fit note was submitted.

Regulation 28 was the relevant rule for the relevant period. That provides that (except in cases concerning claimants earning above a certain threshold) the relevant period begins on ‘the first day on which the claimant provides evidence’ of their limited capability for work, ‘in accordance with the Medical Evidence Regulations’. Those regulations are the Social Security (Medical Evidence) Regulations 1976 No.615. Regulation 2 of those regulations provides by default that the medical evidence required is, in effect, a fit note. But an exception to that at subparagraph (1A) is that where it would be ‘unreasonable’ to require a fit note, the person shall provide ‘such other evidence as may be sufficient’. Another exception was at regulation 5, which provides for self-certification for the first seven days of sickness. The judge could see ‘no reason’ why the claimant’s report in her journal on 17 April should not be self-certification for the first seven days of her sickness (paragraph 22). Further, given that the claimant reported her sickness timeously and that her query about submitting a fit note was unanswered it was ‘unreasonable’ (per regulation 2(1A) of the Medical Evidence Regulations) to require her to provide a fit note for as long as that query went unanswered. The judge was satisfised that the claimant’s report on her journal together with the later submission of a backdated fit note amounted to ‘such other evidence as may be sufficient’, with the backdated fit note serving to ‘bridge the gap’ back to her initial self-certification (paragraph 26).

Comment from CPAG

It is common for the default requirement for a fit note to start the relevant period to be mistaken for an absolute rule with no exceptions. This decision is clear authority that such an interpretation is wrong. 

Thanks to Lee Kempson, Welfare Rights Officer at City of Wolverhampton Council and the claimant’s representative, for sending us this decision.