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Summary

The claimant became entitled to contributory ESA in 2009. That award was terminated from 26 August 2011 following a decision that she did not have limited capability for work. The claimant appealed against that decision, got an award of contributory ESA pending the appeal, and on 22 March 2012 a First-tier Tribunal (‘the first tribunal’) allowed that appeal, which held both that she had limited capability for work and limited capability for work-related activity – ie, was entitled to the support component of ESA. In April 2012 the DWP (apparently unaware of the decision of the first tribunal) notified the claimant that her award of contributory ESA would terminate on 30 April 2012, because of the time-limiting provisions. The claimant ‘claimed’ income-related ESA using the enclosed Form ESA 3 but, although her contributory ESA was reinstated when it was acknowledged that she was in the support group, arrears of income-related ESA were awarded only from 30 April 2012.

The claimant appealed, on the basis that ESA was one benefit, and that the requirement to make separate ‘claims’ of the income-related and contributory allowances was merely an administrative convenience. The First-tier Tribunal (‘the second tribunal’) dismissed that argument and held that entitlement to income-related ESA arose only from the date of the alleged ‘claim’ of 30 April 2012.

Judge Rowland allowed the claimant’s further appeal. The second tribunal had erred in law in holding that ESA was not a single benefit, holding that separate claims for income-related and contributory ESA were necessary, and in not recognising that the decision of the first tribunal meant that the claimant’s award of ESA should have been increased so as to award income-related ESA from 26 August 2011 (paragraphs 12–17). Specifically, held the judge, ‘if a claimant is entitled to both a contributory allowance and an income-related allowance, there is still only one amount of employment and support allowance payable…’ (paragraph 12); also, the practice of giving claimants an opportunity to ‘claim’ either both or only one allowances merely provided the opportunity (if only one were chosen) to waive the need to consider both allowances, and ‘the legislation does not actually contemplate there being a claim for only one element of the allowance’ (paragraph 13). In this case, the effect of the decision of the first tribunal on 22 March 2012 was that the claimant was entitled to the support component in both contributory and income-related ESA, and regarding the latter, that meant she was entitled to an enhanced disability premium (paragraph 20). As that decision was effective from 26 August 2011, the inclusion of the premium had the effect that she was entitled to income-related ESA as well as contributory ESA from that date (paragraphs 18 and 21).

Summary

The claimants were both subject to a reduction in their eligible rent under the so-called ‘bedroom tax’ – ie, for alleged ‘under-occupation’ of accommodation, as provided for by regulation B13 of the Housing Benefit Regulations 2006 No.213. Their appeals to the First-tier Tribunal were successful, on the grounds that the rooms that were the subject of the reduction could not be classified as bedrooms because their floor areas were not large enough. In particular, the tribunal accepted arguments based on the Housing (Scotland) Act 1987 relating to overcrowding, which on the facts would have meant that rooms were too small for occupation as a bedroom by an adult.

In the Upper Tribunal, a three-judge panel allowed the Secretary of State’s further appeals. The tribunal had erred in giving inadequate reasons for the decisions (paragraph 48). Also, however, the tribunal had erred in its use as a determinative test of the statutory overcrowding provisions of the Housing (Scotland) Act 1987 and Annex C of Housing Benefit Circular A4/2012 insofar as it allegedly supported such an approach. The tribunal had been wrong in law to hold that ‘under-occupancy’ could be seen as the ‘flipside of overcrowding’, as the 1987 Act and regulation B13 of the Housing Benefit Regulations were very different in intent and operation. The tribunal had also erred in holding that if parliament had intended that the overcrowding provisions be ignored, the legislation would have said so explicitly – that was counter to the well-established approach that when parliament uses familiar and ordinary English words (such as ‘bedroom’) it does not define them, and it intended to allow decision makers to take account of ‘all relevant circumstances on a case by case basis’ (paragraphs 50–54).

However, the judges did not go so far as to say that the size of a room was not relevant to the judgement of whether it was a bedroom, or that regard could not be had to the overcrowding provisions: they could act as ‘cross-checks’ or ‘warning bells’ that the room may be too small (paragraph 55). The judges considered that the correct approach was to consider use, or potential use, of the room as a bedroom by an adult or a child, that the choices of how the room should actually be used was unlikely to have an impact, and that the test was ‘essentially the assessment of a property when vacant; rather than how it is actually used from time to time’. However, issues could arise where a room had been converted into bathroom or wet-room and from questions like what should be the living/dining areas of a property (paragraphs 27–9). The starting point was the description by the original and later landlords of the room. Also, factors including size, access, natural and electric lighting, ventilation and privacy were all relevant. The argument advanced by the Secretary of State that a bedroom was any room big enough to accommodate a single bed even if it would touch a wall or an outward opening door was ‘absurd’ (paragraphs 30–33).

Summary

The claimant was separated from her son’s father. She lived in a council property with two bedrooms. The son spent equal time with the claimant and with his father under a shared residence order. At the relevant time the father was in receipt of child benefit and tax credit in respect of the son. The claimant’s eligible rent was subject to a 14 per cent reduction under the so-called ‘bedroom tax’ rules contained at regulation B13 of the Housing Benefit Regulations 2006 No.213, as she was regarded as entitled to have only one bedroom (ie, for herself) included. The claimant’s appeal was allowed by the First-tier Tribunal, on the basis that the son occupied as his home both the claimant’s dwelling and the father’s dwelling, and that there was nothing that provided he could not have more than one home or live in more than one household.

Judge Jacobs allowed the further appeal of the local authority, and substituted a decision that for the purpose of regulation B13 the claimant was entitled to only one bedroom, so that the 14 per cent reduction should be applied. The tribunal had erred in misinterpreting the relevant legislation. Specifically, the tribunal erred in regarding the words at subparagraph (5) of regulation B13, which gave entitlement to a bedroom for each person ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’ as freestanding. Rather, these words had to be read in the context of other provisions in the HB legislation. Specifically, regulation 7(1)(a) provides that a person shall be treated as occupying as his home, ‘the dwelling normally occupied as his home…by himself and by his family’; ‘family’ is defined by section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 as ‘a member of the same household for whom that person is responsible and who is a child’, and regarding responsibility regulation 20(2)(a) provides that where a child spends equal time in different households, they are treated as ‘normally living with the person who is receiving child benefit in respect of him’.

Applying that to the present case, given that the father was entitled to child benefit for the son, the claimant was not responsible for him by virtue of regulation 20(2)(a). As a result, the son did not qualify for a second bedroom under regulation B13 (paragraph 9).

Summary

The claimant was a Polish national who came to the UK to join her Polish father, who was here as a worker. She subsequently became estranged from him and was taken into care. After leaving care she claimed income support as a full-time student who was estranged, but was refused on the basis that she failed the right to reside test. She appealed on the basis that at the relevant time she had the right to reside as a family member of a European worker. She was too distressed to attend the appeal hearing but was represented. The First-tier Tribunal dismissed the appeal, holding that the representative could not give evidence (otherwise not before the tribunal) about the father’s last known address and place of work in the UK, and that the claimant was not a family member.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant did have the right to reside as a family member. The tribunal had erred in not observing its inquisitorial function. The judge agreed with the Secretary of State who submitted that the tribunal had not dealt with the issue of the family member argument adequately, as the tribunal could have directed the Secretary of State to provide the relevant information. That was especially so given the facts of the case, Judge Ward saying: ‘the circumstances of a young foreign national, estranged from her father, recently having left care and apparently too distressed to attend the hearing, were such as to make it incumbent on the tribunal to avoid unnecessary formality, respond flexibly and ensure her effective participation in the proceedings in her absence by obtaining the evidence necessary…’ (paragraph 5). Also, the tribunal was probably wrong in the way it approached the question of evidence from the representative, given that this was likely to be capable of objective verification and not one where there was any risk of the evidence being compromised if was mediated through a representative.

In the event, the Secretary of State had subsequently been able to obtain the father’s national insurance contribution record and conceded that the father was indeed a ‘worker’ at the relevant time. Therefore the judge substituted a decision that the claimant had a right to reside as a ‘family member’ (paragraph 6).

Summary

The claimant’s appeal to the First-tier Tribunal was signed by her solicitor. In the appeal letter, the solicitor also said that a copy of the letter had been sent to the claimant for her to sign and forward to the local authority. Although the claimant said that she did so, the local authority said that it never received the copy signed by the claimant, and by the time it received such a copy, the appeal was outside of the maximum 13-month time limit allowed for an appeal. The local authority submitted to the tribunal that the appeal signed by the solicitor was not sufficient for the appeal to have been duly made, and the one actually signed by the claimant was made too late. The tribunal accepted that and in an interlocutory decision struck out the appeal.

Judge Wikeley allowed the claimant’s further appeal, holding that the appeal signed by the solicitor was duly made, and remitted the substantial matter of the appeal to a new First-tier Tribunal. The tribunal had erred in holding that an appeal signed by a solicitor was not duly made (paragraph 3). The relevant statutory requirement was at rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That requires, among other things, that the notice of appeal ‘must be signed by the appellant’. But the tribunal erred in failing to apply the finding in General Legal Council ex parte Basil Whitter v Frankston [2006] UKPC 42 that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, ‘he may either do so in person or authorise someone else to do it on his behalf’ (cited at paragraph 25 of the present decision). Judge Wikeley went on to say that, given the code of professional responsibilities and ethics imposed upon solicitors, ‘one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as an agent for their client’ (paragraph 28). This point had also been made by Judge Rowland at paragraph 11 of Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC), where he said, ‘the requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions’.

Where a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides written authority from their client, then they are in practical terms ‘in the same position as a solicitor who writes on the instructions of their client’. However, where such a representative lodges an appeal but does not provide such authority, the situation is less clear, and it cannot always be assumed that s/he is acting on her/his client’s instructions (paragraph 30).

Decision in brief

Swedish claimant in receipt of Swedish pension moved to UK and claimed attendance allowance – Article 6 of EC Regulation 987/2009 deals with procedure – claimant is to be provisionally entitled to benefit from one of the states – where the claimant is not working, provisional entitlement arises under the legislation of the state of residence – states may refer the matter to the Administrative Commission – in present decision, Judge Jacobs does not decide who is competent state as the issue arises in other cases currently before him

Decision in brief

Where a separated parent who has been held not to be responsible for the child is refused child tax credit (CTC) and appeals, the parent awarded CTC is not a party to the appeal, has no right to be heard as a non-party, or to adduce evidence or argue the case, and is not bound by the result – if the tribunal awards CTC to the other parent, HMRC must then see if it has the power to revisit the initial decision, but otherwise there will be awards to both parents when only one award can be made – under rule 9(2) of the Tribunal Procedure Rules, a tribunal can now add a person to the proceedings as a respondent – the result would be to determine the appeal so as to bind both parents (ie, result in only one award) – a tribunal satisfied that a decision under appeal should be revisited should add the other parent as a respondent to the appeal, even if the initially successful parent does not want to be so added

Summary

In this decision, the Court of Appeal considered the entitlement to social security benefits of a number of so-called ‘Zambrano carers’ – ie, non-European (third country) nationals responsible for the care of a child who was a citizen of the European Union (eg, a British child). The Court held that under domestic legislation introduced following a decision of the European Court of Justice, although Zambrano carers had a right to reside and were entitled to support, that did not (following the introduction of domestic amendment rules) extend to social security benefits.

The question arose firstly because the European Court of Justice had decided in Case-34/09 Zambrano v Office national de l’emploi [2012] QB 265 that such carers had to be granted a right to reside in an EU member state, if the consequence of a refusal of the right to reside would be that the child would be deprived of the benefit of their EU rights by having to leave the territory of the European Union. The Court of Appeal referred to this as the ‘effective citizenship principle’. Secondly, in response to the decision in Zambrano, the government had on 8 November 2012 introduced a number of statutory instruments (‘the amendment regulations’) in which the right to reside of ‘Zambrano carers’ was recognised, but also making it impossible for them to become entitled to various benefits (and housing assistance under homelessness legislation). For example, the amendment regulations for entitlement to DWP-paid benefits was The Social Security (Habitual Residence) (Amendment) Regulations 2012 No.2587.

The Court held that the amendment regulations were not unlawful. However, Zambrano carers became entitled to a right to reside from the moment that they became such a carer, as opposed to any later date on which action to remove them would be taken (paragraphs 23–25). Also, for the EU citizenship rights of the EU child to be effective, then member states must ‘make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves in order to be the carer for the EU citizen children in their care within the EU’ (paragraph 26). But the Zambrano carer did not have an entitlement to the same level of social assistance as EU citizens entitled to reside in the member state under non- discrimination principles. Only EU citizens (ie, not Zambrano carers themselves) can rely on the nationality non-discrimination principle under EU law, and EU law had no application when a member state treated some people (eg, EU children with Zambrano carers) within its jurisdiction less favourably than others. The only restrictions on that were under domestic law, and in the UK denying Zambrano carers benefits was not in violation of Article 14 of the European Convention of Human Rights (as incorporated by the Human Rights Act), as the UK government had ‘policy reasons for making distinctions between Zambrano carers and others, and this court cannot say that those reasons are clearly without foundation’ (paragraphs 27–29). The Zambrano carer and the EU child were not left destitute: they could have recourse to assistance under section 17 of the Children Act 1989, and the carer could apply for long-term leave to remain under the Immigration Rules (paragraph 115).

Summary

In this case, the High Court considered an application for judicial review of the so-called ‘bedroom tax’ restriction on housing benefit (HB) to a claimant whose house had been adapted under the local authority’s ‘Sanctuary Scheme’ arrangements, to provide a secure space in the accommodation for people at risk of domestic violence. The Court held that the bedroom tax was not unlawful.

The claimant lived with her son in a three-bedroom house. The claimant had been the victim of domestic violence and was still at risk. The local authority had carried out adaptations to the house under its Sanctuary Scheme, to provide a secure place within the house. As a consequence of the ‘bedroom tax’ rule (introduced by the Housing Benefit (Amendment) Regulations 2012 No.3040), she was subject to a reduction in her eligible rent on account of having an ‘extra’ bedroom – ie, in this case a third bedroom. She had been award a discretionary housing payment (DHP) which had covered the consequent shortfall in rent, although was now in the position of having to re-apply for one.

For the claimant, it was argued that the 2012 regulations were unlawful in that they failed to provide an appropriate exception from the bedroom tax for victims of domestic violence on HB in accommodation adapted under Sanctuary Scheme arrangements. In particular, it was argued that the regulations were in breach of Article 14 of the European Convention on Human Rights (prohibition of discrimination) read together with, among other provisions, Article 1of Protocol 1 (right to possessions). Also, it was argued that in making the regulations the Secretary of State had failed to comply with his public sector equality duty under the Equality Act 2010 (by failing to address the position of victims of domestic violence), and also that the regulations breached Article 8 of the Convention (right to family life).

In the High Court, HHJ Worster rejected all of those arguments. There was indirect discrimination against women, as the majority of victims of domestic violence are women, and the evidence showed that the overwhelming number of those protected by Sanctuary Schemes are women (paragraph 15). However, the discrimination was justified (and so not unlawful) as applying the relevant test for justification, the difference in treatment was not ‘manifestly without reasonable foundation’. Although the judge accepted that there was good reason for the claimant to be able to remain in her home, that was not the relevant test (paragraphs 62–63). The judge considered that the discrimination was not manifestly without reasonable foundation because (with particular reference to the decision of the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584) the bedroom tax had been vigorously debated in parliament, and although people in the claimant’s position were not specifically referred to, it was expressly recognised that there would be ‘other hard cases’; the DHP fund was there for such cases and had been reviewed and ‘apparently adequately funded (so far)…’ (paragraphs 64–65). Regarding the public sector equality duty, the Secretary of State had considered gender in an Equality Impact Statement, recognition had been made that there would be other ‘hard cases’ and it was not a requirement to list every consequence of a major government policy (paragraph 80). Regarding Article 8 of the Convention, the judge considered that any effect on the claimant was ‘plainly well short’ of the high level required for a breach of the Article, alternatively any breach was justified, for the reasons given regarding Article 14 (paragraph 83).

Summary

In this decision, the Supreme Court dismissed an appeal against the decision of the Court of Appeal (R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2014] EWCA Civ 156). The appeal was based on arguments that the benefit cap breaches discrimination law in the European Convention on Human Rights (ECHR). The result is that the benefit cap remains lawful. However, judges in the court also considered that the cap nevertheless fails to comply with the UN Convention on the Rights of the Child (UNCRC).

The argument made for the claimants was that the benefit cap unlawfully discriminated against them as women who were lone parents and victims of domestic violence. Specifically, as women, especially those with larger families, were more likely to be subject to the cap and yet also find it more difficult to move into work so as to escape the cap, it was argued that the cap was in breach of Article 14 of the ECHR (prohibition of discrimination), read together with Article 1 of Protocol 1 (right to possessions). It was also argued that in deciding whether there was unlawful discrimination here, it was required to take account of the position of the children of lone parents and, in particular, the requirement in Article 3(1) of the UNCRC to treat the ‘best interests of the child’ as a ‘primary consideration’.

The Court held by a 3:2 majority (Lords Reed, Hughes and Carnwath in the majority) that the cap did not unlawfully discriminate against women. Giving the lead judgement, Lord Reed said that the discrimination here was indirect discrimination, and (consistent with previous authority) that the test for deciding whether that was unlawful was whether it was ‘manifestly without reasonable foundation’ (paragraph 11). Lord Reed said that the government’s stated policy aims in introducing the cap were legitimate, and giving due weight to the assessment of the relevant law in parliament, was not persuaded that the rules breached Article 14, despite the fact that they did affect a greater number of women than men (paragraph 96). Regarding Article 3(1) of the UNCRC, as an unincorporated international treaty, the UNCRC was not part of UK law.

Although it was true that the UNCRC had in European caselaw been taken into account in considering human rights arguments, that did not apply to the present context which was about alleged discrimination between men and women, and the judge considered that separable from the question of children’s rights (paragraphs 78–89).

In dissenting judgements, Lady Hale and Lord Kerr both considered that the cap was unlawfully in breach of Article 14 read with Article 1 of Protocol 1 – ie, as unlawful discrimination against women. Both considered that the international obligations about the rights of the child under the UNCRC should inform the judgement of whether indirect discrimination was justified. Lady Hale said that she agreed with both Lord Carnwath and Lord Kerr in considering that the best interests of children were not treated as a primary consideration in the benefit cap rules, and said ‘it cannot possibly be in the best interests of children affected by the cap to deprive them of the means to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life’ (paragraphs 225–56). However, although Lord Carnwath was of the view that ‘the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration’ (paragraph 128), he also agreed ‘with considerable reluctance’ that, as the discrimination in this case was against the mother of the child rather than the child, the UNCRC did not have a role to play in deciding whether that was unlawful (paragraph 129). His judgement was, therefore, to dismiss the appeal. However, he expressed the hope that the government would consider the UNCRC in its review of the cap (paragraph 133).

See also the article in our Welfare Rights Bulletin 245 p5.

Summary

The claimant was at the relevant time a child aged 7. He had learning difficulties, speech and communication problems and hyper-extensible knees and elbows. His claim for DLA (made by his mother) was refused. On appeal to the First-tier Tribunal he argued that he was entitled to the care component of at least the lower rate, and to the mobility component at the lower rate. In refusing the appeal, the tribunal held that he did not need substantially more care than that required by a child of his age who did not have a disability and, regarding the mobility component, that a child of his age would always require attention from a supervising parent or adult when crossing the road.

Judge Markus QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred firstly in holding that as the claimant was not dyslexic, the decision in KM v SSWP (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2 (Bulletin 237, p12) did not apply. The tribunal was wrong to do this, held the judge, as ‘it is clear that KM is not limited to cases of dyslexia but applies to other cases of learning disability’ (paragraph 16). Further, KM gave guidance as to the correct approach to decision making for the care component rules (including for children) under section 72(1) of the Social Security Contributions and Benefits Act 1992. The tribunal had therefore not approached its task correctly. It did not identify what functional disability or impairment the claimant had, did not determine what bodily function that related to [KM refers to ‘the bodily function of the brain’], what assistance he required for that (including when at school), whether that counted as ‘attention’ and if so whether it was required for a significant portion of the day or frequently throughout the day (paragraph 18).

Further, the tribunal had erred in the approach to the extra test for children at section 72(1A)(b). That required that for a child there were either (under subsection (i)) care needs ‘substantially in excess of the normal requirements’ of a child of the same age, or (under subsection (ii)) substantial care needs ‘which younger persons in normal physical or mental health may also have’ but which persons of the claimant’s age in normal physical or mental health would not have. Endorsing comments in R(DLA) 1/05, the judge held that the tests were different in that subparagraph (ii) might apply where a claimant has substantial requirements which were ‘different to those of normally healthy children’, even though subparagraph (i) did not apply because the claimant’s requirements ‘are not substantially in excess of the requirements of those other children’ (paragraph 30). Applying that principle to a child claimant with developmental delay who needed help with reading, the judge said that ‘all young children require assistance with reading’, but ‘a child with developmental delay may require help of a type which is required by younger children in normal health’ but which was substantial and ‘different from the help required by children of the same age but is not substantially in excess of that help’. There might be cases therefore in which subparagraph (ii) applied to a child, even though subparagraph (i) did not (paragraphs 32–33). Similarly, the tribunal erred regarding the mobility component as KM held that a generally similar fact finding approach was required there. The extra test for children was at section 73(4A). The assistance required by the claimant may not have been limited to guidance in crossing the road. Also, the tribunal should then have identified the nature and degree of any guidance or supervision that was required, and whether it was ‘substantially more’ than that required by children of the same age in normal health, or whether such children ‘would not require such guidance or supervision’ (paragraphs 42–43).

See also our article on Universal credit, mental health and reasonable adjustments

Summary

The claimant had various health problems including panic attacks out of doors, alcohol dependency and chronic back pain. Her claim for DLA was refused, a decision that was upheld by the First-tier Tribunal (‘the DLA tribunal’), who had been asked to consider her entitlement to the low rates of both the mobility and the care components. On the day of the tribunal hearing, the DLA tribunal had been given a copy of a decision notice dated the day before, indicating that she had successfully appealed an employment and support allowance (ESA) decision. The First-tier Tribunal dealing with that appeal (‘the ESA tribunal’) had awarded her 9 points under descriptor 15(b) for ‘getting about’, and 9 points under descriptor 16(b) for ‘coping with social engagement due to cognitive impairment or mental disorder’. However, the DLA tribunal made no reference to that.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case for consideration by a fresh tribunal. The DLA tribunal had erred in failing to take into account a relevant matter, namely the decision of the ESA tribunal (paragraph 35). The judge accepted submissions from the Secretary of State that the DLA tribunal was not bound in any way by the decision of the ESA tribunal, that different tests were in issue, and that there was no obligation on the DLA tribunal to follow any of the ESA tribunal’s reasoning (paragraph 33).

Nevertheless, the DLA tribunal did not make any reference at all to the decision of the ESA tribunal and there was therefore no evidence that it received any ‘meaningful consideration’ at all (paragraph 31). In this case, the ESA tribunal decision was relevant, especially its finding that descriptor 15(b) applied. That is satisfied where the claimant ‘is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person’. While it did not necessarily follow that such a finding meant that the test for entitlement to the lower rate of the mobility component is satisfied, the judge said: ‘…I would take the view that it certainly suggests it might be. There is, it seems to me, a considerable interrelationship between the two statutory tests. So, potentially, the award made by the ESA tribunal was a matter of some significance. It merited the paying of some attention to it…’ (paragraph 34).

Comment from CPAG

Although concerned in particular with the relevance of an ESA award to DLA entitlement for mobility, it is strongly arguable that, depending on the facts, similar reasoning should apply to the relevance of an ESA award to personal independence payment. However, the relevance will depend on the facts, and claimants should be aware that adverse ESA decisions might also be considered relevant.