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Decision in brief

Where the HB had been paid directly to the landlord, that person must be added as a respondent to the appeal even if the decision is to recover from the claimant – such a landlord does not have the right against the entitlement decision, but is a party to the appeal concerning recovery of the overpayment – NSP v Stoke-on-Trent City Council and AT (HB) [2020] UKUT 311 (AAC) applied

Decision in brief

 To be treated the same as foster carers approved by the local authority: 

‘Payments made to foster carers by independent fostering agencies in respect of placements of looked-after children are payments made in respect of a person accommodated by virtue of arrangements made, in relation to England, by a local authority under section 22C of the Children Act 1989. As such, the payments are to be disregarded in calculating self-employed earnings for housing benefit purposes.’ 

Decision in brief

At a time before the introduction of universal credit (UC) into the claimant’s area, she telephoned HM Revenue and Customs (HMRC) to report new partner and new address but HMRC took no action until months later, by which time it said that information had not been provided previously, and a new claim could not be made as (by then) UC had to be claimed instead – tribunal was entitled to hold that claimant had provided information at the time of the telephone call and that it therefore fell to HMRC to make a decision as to whether that was sufficient to constitute a claim – tribunal had no jurisdiction to hold that a decision not to treat the information as sufficient was wrong (MK v HMRC (TC) [2018] UKUT 238 (AAC)), but any such decision still fell to be made

Decision in brief

Claimant was refused a funeral payment from the social fund on the basis that the ‘funeral’ took place outside the UK – tribunal did not err in refusing the claimant’s appeal, even though there is (since a change on 2 April 2018) no statutory definition of ‘funeral’ – ordinary and natural meaning of ‘funeral’ applies – ‘despite the revocation of the definition of “funeral”… a funeral is an event involving the final disposal of the deceased’s body and ceremonies closely related to that in nature, time and place. Given the way in which the scheme is drafted, in my opinion, it does not envisage a ceremony for the deceased taking place as one event separate from the event disposing of the deceased’s body.’

Decision in brief

Claimant entered into new tenancy agreement having found that the original agreement gave rise to less benefit than she expected – but in the event would not be actually entitled to more benefit even under the new agreement – it was true that the new agreement had been created to ‘abuse’ or take ‘improper advantage’ of the HB scheme (as per the test in CH/39/2007) – but as no increased benefit would have resulted, it was not right to treat the claimant as not liable

‘The point of the provision is to prevent a person from obtaining an improper advantage, rather than to prevent him or her from obtaining benefit to which he or she would have been entitled whether or not the particular liability in issue had been created.’

Decision in brief

Claimant had not worked for 26 weeks in relevant tax year and effect of that on contribution history meant fact she had received payment in lieu of notice (which, if attributed over the year, would have given her just over the required 26 weeks of earnings) did not assist her – section 2 of Jobseekers Act 1995 and regulation 34 of the Jobseeker’s Allowance Regulations 2013 applied

Summary

The claimant was aged over 80 when he claimed a Category D retirement pension in 2009. On the facts of his case, in order to satisfy the past presence test at regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979, requiring at least 10 years’ residence in Great Britain out of the last 20, it was required that his residence in Gibraltar (from 2003) be taken into account. The Upper Tribunal in SSWP v JG (RP) [2013] UKUT 300 (AAC) had held that it could be, as although Gibraltar was not part of Great Britain, reciprocal arrangements had the effect that residence in Gibraltar counted as residence in Great Britain.

The Court of Appeal unanimously disagreed with that, and held that on the facts the claimant’s residence in Gibraltar did not otherwise fall to be taken into account as residence in Great Britain, with the result that he failed the past presence test at regulation 10(a). Giving the lead decision, Lord Justice McCombe held that the reciprocal agreement only provided that a person shall have the same rights and liabilities in social security as he would have if the UK and Gibraltar had been separate states; it did not deem a person resident in Gibraltar to be resident in the UK (paragraph 33). Regarding the claimant’s rights, Article 45 of EC Regulation 1408/71 (which was in force at the relevant time, now replaced by EC Regulation 883/04), had the effect here that periods of residence ‘completed under the legislation of any other Member State…as an employed or self-employed person’ must be taken into account. But on the facts of the present case, the claimant had completed no relevant period of residence in Gibraltar as an employed or self-employed person. He had made no contributions to Gibraltar’s contributory insurance scheme. Therefore, there was no basis for taking the residence in Gibraltar into account (paragraphs 31–35).

The Court also rejected the claimant’s argument that the past presence test must be disapplied as in breach of European law, and instead a test of whether he had a ‘genuine link’ to the UK applied instead – a test which he would pass. The claimant relied on the decision of the European Court of Justice in Stewart v Secretary of State (EUECJ), Case C-503/09 (21 July 2011). It was accepted (and not questioned by the Court) that the requirement at regulation 10(b) that the claimant is ordinarily resident in Great Britain on his 80th birthday or on the date of claim fell foul of the decision in Stewart, and a ‘genuine link’ test applied there instead (paragraph 28). But regarding the past presence test for a Category B pension at regulation 10(a), the Court held ‘it is only in cases where the residence provisions are not permissible that it becomes necessary to examine whether the alternative qualifying criterion (of “genuine link” to the Member State concerned) is satisfied’. In the present case, however, Article 45 of EC 1408/71 allowed periods of residence or insurance as an employed or self-employed person to be taken into account, and therefore the past presence test was permitted (paragraphs 28–30).

Summary

The claimant was refused bereavement benefit on the basis that her marriage to the deceased husband in 1986 (in the UK) was not valid. That was because he was considered by the First-tier Tribunal to have already been validly married sometime between 1956 and 1960, and that his subsequent attempt to divorce that first spouse was invalid, with the result that he remained married to her and therefore could not lawfully have married the claimant. At the time both of his alleged first marriage and purported talaq divorce, the now deceased husband was resident in the UK, while his first wife was resident in Pakistan. Both procedures had been conducted over the telephone.

Judge West allowed the claimant’s further appeal, substituting a decision that she was validly married to the deceased in 1986, and was entitled to bereavement benefit on his death. The tribunal had erred in holding that the deceased had been lawfully married to someone else between 1956 and 1960.

The Secretary of State conceded that the purported earlier marriage, made by a transnational telephone call, was not valid and so that the deceased was consequently free in 1986 to marry the claimant, and that she was entitled to bereavement benefit (paragraph 11). The judge considered that concession rightly made. His full reasons were to include that the purported marriage ceremony between the deceased and the alleged spouse in Pakistan was ‘not valid under English law’ and even supposing it were valid under the law of Pakistan, ‘a marriage conducted in two countries would have to be valid under the law of both countries to be valid under English law’ (paragraph 13). It was common ground that the formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated (the lex loci celebrationis). The judge considered that the formal validity of a telephone marriage was to be determined according to the laws of the countries of which both parties are physically present ‘with the result that a telephone marriage celebrated whilst one of the parties was in England will not be valid since telephone marriages are not valid in this country’ (paragraph 29). In so holding, he considered that a decision by the Scottish Court of Session, A v K [2011] CSOH 101, 2011 SLT 873, which held that on the facts a telephone marriage between parties in Scotland and Pakistan and which was lawful in Pakistan was therefore lawful in Scotland, was wrong (paragraphs 34–40). Whether the purported marriage in the present case was lawfully terminated by a telephone talaq divorce did not strictly speaking arise, but for the sake of completeness the judge held that on the facts the divorce was invalid for the purposes of English law – ie, had the marriage been lawful in the first place. The correct position, as set out in the Home Office Visas and Immigration Guidance 2013 SET 13.5, was that if a husband pronounces talaq divorce in the UK alone (ie, he is not actually in Pakistan or Bangladesh), the divorce will not be recognised (paragraphs 47–48).

Summary

The claimant was in receipt of child benefit. She had been instructed in the payment advice notes that she needed to advise HMRC when her son left full-time education. However, when her son left full-time education in January 2012 she did not do so, as she had subsequently been told by an ‘under 18s adviser’ at her local Jobcentre Plus office that she did not need to, as she would remain entitled to child benefit until May 2012. HMRC eventually decided that she had been overpaid child benefit in March and April 2012, and that the overpayment was recoverable from her as it was caused by her failure to disclose to it the fact of her son leaving education. The First-tier Tribunal dismissed the claimant’s appeal, holding that the payment advice letter required disclosure to HMRC, and disclosure to Jobcentre Plus did not suffice.

Judge Wright upheld the claimant’s further appeal, substituting a decision that the overpayment was not recoverable from the claimant, as she had not failed to disclose. That was because, as erroneously overlooked by the tribunal, the instruction to disclose to HMRC had been qualified by the subsequent advice from the under 18s adviser at the Jobcentre. On the facts of this case, which included that HMRC did not dispute that the adviser was a person with authority to make such a qualification, that was sufficient to remove the duty to disclose to HMRC.

Regarding the possibility of qualification of the instructions in the payment advice notes, the judge had in mind R(A) 2/06 and the decision of Upper Tribunal Judge Ward in WW v HMRC (CHB) [2011] UKUT 11 (AAC). The tribunal had erred in failing to consider this. The claimant, having been given the instructions in the payment advice notes, had originally been under an obligation to disclose to HMRC, under regulation 23(2) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003 No.492. The judge accepted that that obligation required disclosure to HMRC, and ordinarily failure to comply with that would lead to a failure to disclose (paragraph 13). However (as pointed out in WW v HMRC (CHB)), that obligation could be varied by oral representations by those with authority, or the apparent authority, to do so (paragraph 15). On the facts of this case, which included HMRC not disputing that the under 18s adviser had the authority to advise the claimant about her child benefit entitlement and when disclosure to HMRC need not be made, the judge accepted that the advice at the jobcentre acted to qualify the instruction given to the claimant in the payment advice notes, to one that she did not need to notify HMRC of her son leaving full time education until the end of May 2012 – which she did do. Consequently, she did not breach the modified obligation she was under, and the overpayment was not recoverable from her (paragraph 16).

Summary

The claimant had mental health problems. She failed the work capability assessment for employment and support allowance (ESA). The First-tier Tribunal refused to adjourn to allow the claimant to seek representation, relying on the number of previous requests for adjournment the claimant had made, and the fact that she had taken no steps to obtain representation until about 10 days before the hearing.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the claimant’s further appeal and referred the case for rehearing by a new tribunal. The tribunal had erred in incorrectly approaching the question of whether there should have been an adjournment to allow the claimant to obtain representation. Although at the time of the decision it was correct that, as held in CSIB/848/1997, there was no obligation to adjourn for this reason the situation had been changed by the decision of the Court of Appeal in Secretary of State for Work and Pensions v MM and another [2013] EWCA Civ 1565 (4 December 2012). The judge considered that that decision required the approach to the issue of whether to offer such an adjournment to a claimant with mental health issues (ie, in the context of an appeal about the assessment for ESA) to be reconsidered (paragraph 3).

In MM, said the judge, the court ‘accepted that in the ESA process, including attending for the ESA assessment [the ESA85] and in the tribunal hearing that claimants with mental health problems suffered disadvantage. If there is a disadvantage to a person with a protected characteristic under the Equalities Act 2010, then a public authority, which includes a tribunal, has to consider whether a reasonable adjustment is required. Against that background, I am of the opinion that the law as expressed in CSIB/848/97, and the general discretion of a tribunal as to whether or not to allow an adjournment requires to be considered’ (paragraph 5). Further, the judge held that, ‘where a claimant with mental health problems asked for an adjournment in order to instruct a representative or for some other reason, that the tribunal in considering that request is required to have regard to the fact that such a claimant is at a disadvantage for one or more of the reasons found in MM and to assess the scope of that disadvantage for the particular claimant before making a decision on whether or not to grant the adjournment’ (paragraph 6). He also noted that one of the grounds of disadvantage noted in MM was ‘problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance, and that might explain why the claimant had not sought representation until shortly before the hearing’ (paragraph 7). The new tribunal was to have regard to MM and also consider whether or not to seek further medical evidence if additional evidence has not been produced (paragraph 8).

Comment from CPAG

The ultimate outcome of MM, which may involve the Secretary of State making adjustments to the ESA assessment process for people with mental health problems, is still awaited. The present decision is not authority that tribunals in mental health cases must always adjourn to allow representation or to get further evidence; however, it is authority that they must consider that in the light of the claimant’s disadvantage in the current ESA process.

Summary

The claimant had a mental health condition. She failed the work capability assessment (WCA). On appeal, it was argued that the ‘substantial risk’ provision should apply – ie, so that she should be treated as passing the WCA because of ‘substantial risk’ to her health or someone else’s health were she held not to pass the assessment. The First-tier Tribunal dismissed the claimant’s appeal, holding that there would not be such a risk, as under the Equality Act 2010 an employer is required (among other things) to make ‘reasonable adjustments’ in the workplace to accommodate a ‘disabled person’.

Judge Wright allowed the claimant’s further appeal, and remitted to a new tribunal the question of whether the substantial risk provision, at regulation 29(2)(b) of the Employment and Support Allowance Regulations No.794, applied to the claimant. The tribunal had erred in relying on the Equality Act. Specifically, held the judge, ‘the assessment of risk under regulation 29(2)(b) of the ESA regulations does not require or involve the decision maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision…’ (paragraph 5).

The judge accepted the Secretary of State’s argument that the analysis of the risk under regulation 29(2)(b) is ‘not an assessment of the application of the EA 2010’ (paragraphs 44–5). The judge’s reasons for that were: (1) the Equality Act 2010 and ESA schemes have different statutory aims and materially different statutory contents; (2) the Equality Act 2010 test ‘sits uneasily’ with the fundamental approach to regulation 29(2)(b) set out by the Court of Appeal in Charlton v SSWP [2009] EWCA Civ 42; R(IB) 2/09; (3) the First-tier Tribunal is ‘ill equipped’ to make proper assessments under the Equality Act 2010; and (4) recourse to the Equality Act 2010 is unnecessary, because regulation 29(2)(b) already allowed for sufficient regard to be paid to actual steps that may reasonably be taken to reduce the risk to health (paragraphs 46– 59). In so deciding, Judge Wright declined to follow, as wrongly decided, the decision of Judge Mark in JB v SSWP [2013] UKUT 518 (AAC), where in an obiter comment the judge said that a tribunal was bound, if relevant to an issue before it, to determine whether a person would be owed a duty by a potential or actual employer under the Equality Act 2010 (paragraph 74).

Comment from CPAG

This decision is properly to be regarded as concerning the relevance of the Equality Act 2010 to the substantial risk provision; for a decision on the issue of the relevance of the Act to ESA appeals and tribunal representation, see DC v Secretary of State.