CPAG search

Summary

The claimant was treated as possessing £7,000 of capital under the ‘notional capital’ rule. The circumstances were that the £7,000 had been withdrawn from the claimant’s account on the same day as a visit from a DWP customer compliance officer. In her appeal to the First-tier Tribunal, the claimant said that the money was used to repay her ex-partner money that she had borrowed from him, and that he had asked for the money to be returned because he had debts and his working hours had been reduced. She supplied evidence of this including a letter from her ex-partner. She said it was mere coincidence that the money had been withdrawn on the same day as the visit from the customer compliance officer. The tribunal dismissed the appeal, holding that the customer compliance officer had explained to the claimant the effect of the capital rules, and accepting the Secretary of State’s argument that the timing showed the claimant had deliberately deprived herself of the money in order to get more IS.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the £7,000 under the notional capital rule. On the facts and applying the relevant law, the judge considered that although the tribunal was entitled to find that the compliance officer’s visit precipitated the repayment of the debt, ‘the debt had to be paid and she had no legitimate choice but to pay it immediately’ (paragraph 16, emphasis in original). The judge pointed out that the claimant had provided the type of written evidence that had been held necessary in R(SB) 12/91, and the customer compliance officer had seen evidence of the building work that the claimant had said was financed by the loan. But it was worth emphasising that tribunals may need to investigate the facts in the thorough manner suggested in R(SB) 12/91, including (in cases involving repayment of a loan to a friend or relative) expecting the friend or relative to provide written and documentary evidence (paragraph 18).

The relevant law in this case was the notional capital rule at regulation 51 of the Income Support Regulations 1987 No.1967. In applying that, it was well established that the purpose of securing entitlement to a benefit or increasing the amount of that benefit need not be the dominant purpose behind the deprivation. In R(SB) 12/91, it was held that a person repaying debts that s/he was obliged to pay was not caught by the notional capital rule, but only where the relevant debt was ‘immediately payable’ (R(SB) 12/91 paragraphs 13 and 14, quoted at paragraph 8). In Jones v Secretary of State for Work and Pensions [2003] EWCA Civ 964, the Court of Appeal held that the question of why a person had deprived her/himself of capital was a question of fact, but that ‘if the payment is made in satisfaction of a debt, the fact-finder will not usually conclude’ that the purpose was to secure entitlement to benefit (Jones paragraph 52, cited at paragraph 10). In the present decision, Judge Rowland noted that the Court in Jones also made it clear that the fact that a debt was not immediately repayable did not automatically mean that the claimant was caught by the notional capital rule (paragraph 12). As a matter of ‘legal theory’, it was also true that even where the debt was immediately repayable the question of the purpose of the deprivation was still a matter of fact, but (noted Judge Rowland) the Court of Appeal did not suggest there was ‘any circumstance in which it would be reasonable to say that a person who had no choice but to repay a debt’ was caught by the notional capital rule (paragraph 13).

Summary

This decision of a three-judge panel of the Upper Tribunal is concerned with a number of issues arising out of the challenges about various work programmes and associated sanction rules, that ended up with the decision of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKDC 68; [2014] AC 453 (see the article in Welfare Rights Bulletin 237). That decision concerned the lawfulness of various work programmes under the Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011 No.917 (‘the 2011 Regulations’). In that decision, the 2011 regulations were held to be unlawful. In the present decision, Mr Justice Charles and Judges Rowland and Wright were concerned with whether the retrospective validation of the 2011 Regulations made in the Jobseekers (Back to Work Schemes) Act 2013 was lawful in all cases. Also, the judges were concerned with whether, following the decision of the Supreme Court, there was in any mandatory scheme a so-called ‘prior information requirement’, under which claimants were required to be sent information about work programmes before they could be required to participate.

By a majority, the judges held that the 2013 Act did not apply (ie, so as to retrospectively validate the 2011 Regulations and sanctions applied under them) in cases where an appeal had already been brought before the First-tier Tribunal before the Act came into force on 26 March 2013 (paragraph 13(i) and (iii)). That was both as a matter of ordinary statutory construction and, if that was wrong, because the Act had to be read under the Human Rights Act 1998 as not applying in such cases, in order to preserve the right to a fair trial. On that last point, the judges had reference here to the decision of the High Court in Reilly (No.2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (4 July 2014), which although from a coordinate (not superior) jurisdiction to the Upper Tribunal, the judges considered they ought to follow (paragraph 37). However, the judges also immediately granted the Secretary of State leave to appeal on these points.

In an unanimous finding, the judges also held that in a scheme which is mandatory, both at referral stage and once actually on it (such as the Work Programme and the Community Action Programme), there is no ‘prior information requirement’ for information before requirement to participate, and the Supreme Court was considered to have decided this question wrongly (paragraph 13(vi)). The judges also held unanimously that the correct reading of the 2011 Regulations was that a claimant considered to have failed to participate had to have shown ‘good cause’ within five working days of being notified of her/his failure (paragraph 13(vii)).

Summary

The claimant was a Latvian national who came to the UK in 2008. She did agency work from 2009, which initially was not registered under the worker registration scheme (WRS), following the extension of the application of the WRS for the period 1 May 2009 to 30 April 2011. Her work was eventually registered in August 2010 (it was agreed before the judge that it is not possible for that to have had retrospective effect). Her eventual claim for PC in 2012 was refused on the basis that she did not have the right to reside. The First-tier Tribunal said it did not have jurisdiction to consider her appeal, which was based on an argument that the extension of the WRS scheme in 2009 to 2011 was unlawful.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to housing benefit. She had a right to reside on the basis that she was a ‘worker’ who had ‘ceased activity’ on reaching pension age or taking early retirement, having ‘resided’ the UK for at least three years, as provided for in regulations 5 and 15 of the Immigration (European Economic Area) Regulations 2006 No.1003. Firstly, the extension made to the WRS scheme in 2009 to 2011 was unlawful – so that when working in that period the claimant counted as a worker. The extension was not automatically unlawful, as the Treaty of Accession to the European Union of Latvia and the other so-called ‘A8’ states allowed for that ‘in case of serious disturbance’ of the labour market (paragraph 69). But the judge agreed that the restrictions on the labour market involved in such an extension must tackle the disturbance ‘proportionately’ (paragraphs 76–77), and considering the available evidence did not consider that test was met when the extension was made in 2009 (paragraphs 104–119).

Also, the three years’ ‘residence’ test in regulation 5 was, in the judge’s view, a test of ‘actual’ residence, not of ‘lawful’ residence (ie, as applies to the test for permanent right to reside after five years’ residence). It, therefore, did not actually matter whether the claimant had a right to reside in those years or not. In so holding, the judge declined to follow the decision to the contrary effect of Judge Jacobs in ID v SSWP (IS) [2011] UKUT 401 (AAC). But even if that was wrong, so that the three years’ residence had to be ‘lawful’, the judge considered that on the facts of the case in the relevant times the claimant in fact had a right to reside either as a worker (as above) or as a jobseeker, including having a ‘genuine chance of being engaged’ while a jobseeker (paragraphs 122–135).

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court, see our caselaw summaries Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751 and Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

The claimant was Greek and came to the UK in about 2006. He never worked in the UK and never paid national insurance here. He received a Greek retirement pension, but not a UK retirement pension. He got AA under the special rules. The claim was refused on the basis that the UK was not the competent state to pay sickness benefits; but the First-tier Tribunal allowed his appeal on the basis that the UK was the competent state.

Judge Jacobs allowed the Secretary of State’s further appeal, and substituted a decision that the claimant was not entitled to AA, because that is a sickness benefit and, on the facts of this case, the UK was not the competent state. The Secretary of State was obliged to pass the claimant’s claim to the Greek authorities. As part of his decision, the judge rejected an argument that AA was an invalidity benefit rather than a sickness benefit for the purpose of EC Regulation 883/2004 (paragraphs 9–10). He also rejected argument that the fact that the claimant had a permanent right to reside in the UK meant the refusal of AA was disproportionate and discriminatory (paragraphs 11–12), and that a claim for AA under the special rules was exempt from the requirement that the UK was the competent state (paragraphs 13–20).

As to who was the competent state, the starting point in this case was Article 11(3)(e) of Regulation 883/2004 (the Article in effect ensures that there can only be one competent state). Subparagraph (3)(e) provides that where the preceding subparagraphs of the Article do not apply, the competent state was the state of residence. Judge Jacobs said that in his earlier decision in CG/4143/2012 he had wrongly treated Article 11(3)(e) as subject only to the following Articles 12–16, whereas now he agreed with Judge White who had held in SL v SSWP [2014] UKUT 108 (AAC) that it was also subject to subsequent Articles (paragraphs 21–24). Applying that, on the facts of the present case: (1) Article 29 provides that cash benefits for pensioners were to be paid by the state responsible for ‘the cost of benefits in kind’ to the claimant; that ‘essentially means health care’ (paragraph 24); (2) although the claimant was entitled to healthcare in the UK under the NHS, Article 25 provides that the cost of benefits in kind to someone getting a retirement pension shall be borne by the state competent for her/his pension; so that in this case, as Greece is paying the claimant a pension, Greece was also responsible for the costs of benefits in kind and, therefore, also for cash benefits including AA (paragraphs 24–26). However, although the Secretary of State was obliged to refuse the claim, he should also (under Article 81) forward the claim without delay to the correct competent state (paragraph 28). If there is evidence of a dispute from the other state about being the competent state, he should instead deal with it as described in the judge’s earlier decision in SSWP v HR (AA) [2014] UKUT 571 (AAC) (paragraph 30) – ie, under Article 6 of Regulation 987/2009, which provides for provisional entitlement pending resolution of the dispute.

Summary

The claimant was unable to walk but did have some ability to use a manual wheelchair, albeit not over uneven ground outdoors. However, in the mobilising descriptor for the work capability assessment, he scored only nine points (under descriptor 1(b)) for inability to mount or descend two steps. That was adopted by the First-tier Tribunal. The claimant’s further appeal included an argument that he should have scored 15 points under descriptor 1(a)(ii) for inability to ‘repeatedly mobilise 50 metres within a reasonable timescale…’, as that did not specify that the test only applied on level ground. The Secretary of State argued that the tribunal had not erred in reading into the test the condition that it applied on level ground, as the test at subparagraph (ii) followed on from that in subparagraph (i), and that did specifically refer to an inability to mobilise ‘on level ground’.

Although Judge White considered that the tribunal had erred for making inadequate findings of fact and giving inadequate reasons (and therefore remitted the case to a fresh tribunal), he held that it had not erred in its approach to descriptor 1(a)(ii). He held that the Secretary of State must be right that the test there applied on level ground, on the basis that the ‘only possible interpretation’ must be that it is on the same terms as the primary test at 1(a)(i), which does specify level ground (paragraph 30).

The judge also reproduced some evidence, submitted by the Secretary of State, about the provision of wheelchairs under the Access to Work scheme. Although not relevant on the facts of the current case (where the appellant already had his own wheelchair), the judge thought it worthwhile to do this, given the comments of the Upper Tribunal in SI v SSWP (ESA) [2014] UKUT 308 (AAC) [now reported as [2015] AACR 5] that if the Secretary of State was able to say that any claimant otherwise without access to a manual wheelchair could get one via the Access to Work scheme where necessary for employment, the question of availability of manual wheelchairs would cease to be an issue in most cases. However, in the present case the Secretary of State said: ‘The UT judges referred to the Access to Work Scheme as a possible source of assistance with a manual wheelchair. However, that is not the case…The Scheme would not normally be used to fund purchase of a manual wheelchair, as it is expected that this would be provided by the appropriate wheelchair services in the area…However it could fund the extra costs of a specialist wheelchair if appropriate. Where assistance with travel to work is required, and no other method of transport is available, the Scheme might assist with the cost of taxis.’

Comment from CPAG

The Secretary of State’s evidence about the Access to Work scheme would appear to make it more likely that the availability of manual wheelchairs may be an issue in appropriate cases, where there is no evidence of the wheelchair being provided via other schemes.

Summary

In these joined cases before a three-judge panel of the Upper Tribunal, the main issue concerned the weight to be given to an official medical report about the work capability assessment, where that report was written by a physiotherapist but concerned the mental health descriptors. In particular, the judges considered the correctness of the approach taken by Judge Mark in JH v SSWP (ESA) [2013] UKUT 269, where he held that in such a case the opinions of the physiotherapist had ‘no probative value whatsoever’ – ie, were automatically to be accorded little or no weight by the First-tier Tribunal.

Mr Justice Charles, Judge Lane and Judge Knowles QC held that those comments of Judge Mark in JH v SSWP were actually obiter (not necessary to the main reasoning of the decision) but that, in any case, they were wrong to the extent that they purported to create a rule of law or a starting point that official evidence from physiotherapists in a mental health case were of no probative value or likely to have little probative value and were to be accorded little or no weight (paragraph 33). In their reasons, the judges referred to the fact that the statutory scheme authorised ‘healthcare professionals’, which include physiotherapists, to carry out assessments, and that tribunals had to be free to evaluate evidence without being fettered in the way that the comments in JH v SSWP had suggested (paragraphs 34 and 37). Also, the training provided to all healthcare professionals included mental health assessment, and although that training was subject to review, the independent reviews of the work capability assessment had not criticised the performance of physiotherapists in mental health cases (paragraph 36).

More generally, the judges said that in assessing the weight of any medical report, the First-tier Tribunal should consider the level of the author’s expertise and the knowledge of the claimant possessed by the author (paragraph 38). In the present cases, the tribunal had erred in giving no reasons for explaining why it had attached no weight to evidence from the GP of one of the claimants, and in failing to consider the case ‘in the round’ – ie, by considering how an award of points in one descriptor might suggest that points should also be scored in other descriptor (paragraphs 44–47). Also, the tribunal had erred in treating the claimant’s engagement in the ESA claim process and the tribunal hearing as evidence in itself that she could cope with social engagement: that ‘snapshot approach’ ignored evidence other evidence and whether the claimant could cope with social engagement with ‘reasonable regularity’ (paragraph 56).

Summary

The claimant had various health conditions including significant visual impairment. He failed the work capability assessment, having been scored nil points. The First-tier Tribunal allowed him nine points under Activity 8(c). In his further appeal to the Upper Tribunal, the claimant argued that he should be scored 15 points under Activity 8(b) – ie, ‘cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment’. The tribunal had not applied that descriptor, based on its conclusions from the claimant’s evidence that he was able to cross the road using a zebra crossing but would not go somewhere unfamiliar.

Judge Wikeley allowed the claimant’s appeal and remitted the case to a new tribunal for more findings of fact. The tribunal had erred in two respects. Firstly, it had failed to make findings about the variability of the claimant’s problems with vision under different lighting conditions (bearing in mind the overall test of ability to perform the specified activity with ‘reasonable regularity’), an issue which was indicated in the evidence before the tribunal. Secondly, the tribunal had concentrated exclusively on the claimant’s ability to cross the road using a zebra crossing, and in so doing had not applied the wording of descriptor 8(b) correctly (paragraphs 17–18).

Specifically, in descriptor 8(b) crossing the road was (because of the use of the words ‘such as’) ‘simply one illustration’ of a potentially hazardous task, and ‘not an exclusive and exhaustive definition’ (paragraph 18). Therefore, the tribunal had erred in treating the test of crossing the road as the sole context, to the exclusion of others – the judge suggested other potential illustrations might include walking alone on a country lane where there is no footpath, walking round a shop or workplace where there may be boxes or other obstacles at floor level, or perhaps even a busy pedestrian route with bustling crowds (paragraph 5).

Even in the context of crossing road, the tribunal had erred in focusing on the claimant’s ability to use a zebra crossing. The test was whether the claimant could ‘safely cross the road without being accompanied’, not ‘cross the road by a zebra crossing without being accompanied’. A zebra crossing could not be regarded as an ‘aid’ which could be taken into account for this purpose, as such an aid must be something which the claimant can take about with him (paragraph 20).

Summary

The claimant suffered from a prolapsed disc in her back and irritable bowel syndrome. She had mobility problems and reported that she could soil herself as she was sometimes unable to reach a toilet in time. Her appeal to the First-tier Tribunal was dismissed, the tribunal upholding the decision that she scored no points in the work capability assessment. Her further appeal included the question as to whether the tribunal had erred in the way in which it dealt with the relationship between her mobility problems and the application of descriptor 9(b) of the assessment, for being at risk of loss of control ‘if not able to reach a toilet quickly’.

Judge Grey allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in the way that treated the claimant’s possible entitlement to points under descriptor 9. Specifically, it had erred in adopting the report of the qualified medical practitioner which was either based on a view that the claimant’s difficulties should be discounted because of their link to restricted mobility, or failed to elicit sufficient evidence of the claimant’s difficulties (paragraphs 24–27).

In applying descriptor 9, it was wrong to discount any mobilising difficulties that the claimant has. As held by Judge Mark in EM v SSWP [2014] UKUT 34 (AAC), the effect of the loss of control set out in the descriptor had to be considered in the light of the claimant’s personal circumstances. If limited mobility meant that the claimant is more adversely affected, then that should be taken account of. Judge Grey said: ‘It should make no difference whether soiling may occur because an individual’s restricted mobility slows down the process of reaching a toilet, or because the loss of control is relatively rapid. The effect on the individual and their ability is the same’ (paragraph 19). The judge also noted that this is now accepted in official guidance in the DWP’s Medical Services Handbook (paragraph 21).

Summary

The claimant was a Polish national who came to the UK in December 2008. She started work in January 2009 and worked in agency work until March 2011. She claimed (and received) jobseeker’s allowance (JSA) from May 2011, and got maternity allowance from June 2011 until March 2012, her daughter being born in September 2011. In March 2012, she claimed IS on the basis of being a lone parent, but was refused as she was considered not to have the right to reside. The First-tier Tribunal allowed her appeal, and the Secretary of State made a further appeal.

Judge White held that the tribunal had erred in law, but substituted his own decision that the claimant in any case did have the right to reside, as a person with retained worker status when she made her IS claim. The tribunal had erred in holding that the mere fact that the ending of the Worker Registration Scheme, which applied (among others) to Polish nationals meant in itself that the claimant was entitled to IS, without considering whether, as a European national, she had a right to reside (paragraph 16).

However, the claimant did have a right to reside, as that of someone who retained worker status. The claimant became involuntarily unemployed when her work came to an end in April 2011, and subsequently was awarded JSA. The judge considered this meant she retained her status as a worker under Article 7(3)(b) of EC Regulation 2004/38/EC (the ‘Citizenship Directive’) – ie, on the basis of being involuntarily unemployed after being employed for more than one year. This was despite gaps of around two weeks and of around four days between some of her agency jobs, and a delay of around five weeks between the work ending and the claim for jobseeker’s allowance. These did not amount to any undue delay (paragraphs 45–52). Article 7(3)(b) imposed no indication of the period for which worker status could be retained; the judge considered the period to be ‘open-ended though not forever more’ (paragraph 53). It was ‘eminently reasonable’ that there was no difficulty in retaining it for a year ‘in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely’ (paragraph 54). Claiming maternity allowance and, ‘in the claimant’s circumstances’ (which included remaining registered with employment agencies once her circumstances allowed), claiming IS did not constitute abandonment of worker status. The claimant, therefore, enjoyed retained worker status when she claimed IS in March 2012 (paragraphs 55–58).

Comment from CPAG

Judge White does not comment upon the fact that the domestic rules (ie, the Immigration (European Economic Area) Regulations 2006) now provide that to retain worker status after having worked for a year or more, after six months there must be ‘compelling’ evidence of seeking work and of a genuine chance of getting it. This requirement is not in Article 7(3)(b) of the Citizenship Directive, and is difficult to square with the judge’s finding that at least for a year the test should be whether the claimant has ‘withdrawn from the labour market entirely’.

Summary

The claimant was a German national who came to the UK in December 2011 to be nearer her daughter. The daughter was a Canadian national who was working in the UK, who was married to ‘Mr H’, a UK national and self-employed in the UK, but who had also, on three separate occasions, done some unpaid work in Greece and Germany, as a plumber and heating engineer for the International Bible Students Association. The claimant was financially dependent on her daughter and son-in-law (Mr H). The claimant’s right to reside for PC purposes was mainly reliant on an argument that she was the family member of a UK national who could be treated as if he were a European Economic Area (EEA) national, on the basis that he was ‘residing in a EEA state as a worker or self-employed person’ before returning to the UK. If that applied, then the claimant had a right to reside under regulation 9(2)(a)of the Immigration (European Economic Area) Regulations 2006 No.1003. The argument was rejected by the First-tier Tribunal.

Judge Ward rejected the claimant’s further appeal, holding that the tribunal had not materially erred in law. On the facts of the case, and with reference to the decision of the European Court of Justice (EUECJ) in Case C-456/12 O and B v Minister voor Immigratie, Integratie en Asiel (12 March 2014), he considered that the family member (Mr H) had not been ‘resident’ in Greece or Germany. He also considered that the tribunal had not erred in considering Mr H not to have been a ‘worker’ at the relevant times. Although it was not absolutely necessary to have been paid money, the fact that he was not in any sense better off as a result of performing the services, the brevity of the work and the fact that Mr H saw himself as a volunteer all suggested that his arrangements were not such as to make him a ‘worker’ (paragraphs 44–49). The judge also held that given that Mr H was a UK national, he did not count as an EEA national regarding his work in the UK, that there was no ‘lacuna’ in the law which required filling in this case, and that to accept that the denial of a right to reside to the claimant was somehow disproportionate would be ‘a large scale tearing-up’ of the relevant limitations in the law (paragraphs 54– 62). Although it was perfectly understandable that the claimant wished to be near her family, ‘that is not an unusual situation and it is not one for which the legislator has seen fit to provide’ (paragraph 62).

On the question of whether Mr H had been ‘resident’ in Greece or Germany, the facts included that he had only been in Greece or Germany for two or four weeks at a time, and was unpaid. In O and B, the EUECJ had looked at principles governing claims by ‘third-country’ nationals based on being family members of an European Union national who had exercised rights of freedom of movement and then sought to enforce her/his rights against her/his own member state. Although in the present case the claimant was German and so not a third-country national, O and B was relevant in that it held that such rights only arose where the ‘residence’ in another Member State had been ‘sufficiently genuine so as to enable the citizen to create or strengthen family life in that member state’ (paragraph 26). In the present case, the judge did not consider that Mr H’s brief periods in Germany and Greece ‘amounted to “residence” at all’ (paragraph 27). The judge rejected an argument that merely being present in the member state was sufficient, although it was not necessary to go as far as requiring ‘habitual residence’ (paragraph 32); rather, what was required was ‘a judgement of fact and degree as to whether the individual has lived in the EEA State in question with sufficient permanence, continuity, or at least some expectation of continuity, to warrant the conclusion that he “resided” there within the ordinary meaning of that word’ (paragraph 40).

Summary

The claimant had a number of health conditions including asthma, plantar fasciitis and plantar fibromatosis. She was awarded the mobility component of personal independence payment at the standard rate, but was refused the daily living component. Her appeal to the First-tier Tribunal disputed the refusal of the daily living component and argued that she should have been awarded the mobility component at the enhanced rate. The tribunal warned the claimant that the existing award of the mobility component ‘may be at risk’ and suggested that she may wish to consider withdrawing or obtaining representation; she declined to do either and the tribunal decided both to remove the award of the mobility component and to uphold the refusal of the daily living component.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in making inadequate findings of fact and giving inadequate reasons for its decision.

The judge also commented on the tribunal’s making of a less favourable decision. The ‘pitfalls’ of doing this had been pointed out in a number of disability living allowance decisions. For the judge, the problems could arise even where, as here, the issue was raised by the appeal and the claimant is given an opportunity to consider whether to proceed. The claimant will ‘not have had advance notice of the issue’, and in R(IB) 2/04 it was held that claimant had to be given sufficient notice so as to enable her/him to prepare a case on the new issue. In the present case, the judge referred in particular to CDLA/884/2008 where it was held that there was ‘powerful reason’ for tribunals not to make a less favourable decision than that being challenged, ‘except in the most obvious cases…or after an appropriate adjournment’ (cited at paragraph 7). In the present case, the judge could see ‘no reason’ why the tribunal would have wanted to consider if the award of the mobility component was over generous: the claimant’s case for an increase was reasonable and the healthcare professional report was fully reasoned, so that the tribunal’s decision to consider on its own initiative whether to remove the mobility award ‘led to precisely the kind of unprompted error envisaged in CDLA/884/2008’ (paragraph 8).

Comment from CPAG

This decision adds to the weight of argument that tribunals should be very cautious before making a less-favourable decision. Where so minded, an offer of an adjournment may be very important except in the ‘most obvious’ cases. But it should be borne in mind that other decisions have emphasised the tribunal’s basic discretionary right to consider any part of a decision under appeal – see, for example, AP-H v SSWP (DLA) [2010] UKUT 183 (AAC).

Summary

The claimant was refused PIP. In upholding that decision, the First-tier Tribunal said that it ‘adopted a broad axe approach to all of the evidence as required in the case of Moyna.’ That was a reference to the decision of the House of Lords in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 6/03, a Disability Living Allowance (DLA) case which held that for the DLA ‘cooking test’ an overall judgement was required rather than an arithmetical test. That approach was extended to all aspects of the care component of DLA in R(DLA) 5/05. In the present case, the claimant appealed, arguing that it was incorrect to apply the test in Moyna to PIP, as that was a different benefit and, in particular, the ‘50 per cent’ rule to assessing variability (contained at regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 No.377) should be used instead.

Judge Gamble agreed with that, allowing the claimant’s further appeal and remitting the case to a new tribunal. Moyna should not be applied to PIP. It is a replacement for DLA, with different and distinct statutory criteria of entitlement. In the judge’s view, it was ‘entirely consistent with the differences between the statutory conditions of entitlement to disability living allowance and those to personal independence payment to hold that the test laid down in Moyna as extended by R(DLA) 5/05 has been replace by the fifty per cent rule for variability’ contained in regulation 7 of the PIP regulations. That clearly provided for an “arithmetical formula”’ (paragraph 9).

Comment from CPAG

This first Upper Tribunal decision about PIP is a reminder that, despite some similarities, PIP is a different benefit to DLA, and where (as here) the statutory schemes differ substantially, it is the PIP rules that must be followed. However, where more general principles are involved, DLA caselaw may still be relevant – see, for example, BTC v SSWP.