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Summary

The claimant had appealed against a decision that he failed the work capability assessment. His case included that he should score points under the mobilising descriptor, although it was part of his argument that he used a wheelchair most of the time. In the hearing before the First-tier Tribunal, the tribunal asked the claimant to roll up his trouser leg so that the medical member of the tribunal could form a view as to whether muscle wasting had occurred as a result of wheelchair use. The tribunal concluded both that in fact the claimant did not reasonably require to use a wheelchair, but that he was able to use one to mobilise and did not score any points under the mobilising descriptor.

Judge Hemingway held that although the tribunal had erred in impermissibly conducting a medical examination, because of other factors in the appeal, including the fact that it considered he could mobilise using a wheelchair, that did not amount to a material error and so the claimant’s further appeal was dismissed. The tribunal had not erred in simultaneously holding that the claimant did not reasonably require to use a wheelchair, but that he could nevertheless mobilise using one. There was no evidence that there was any practical difficulty in the claimant obtaining or using the wheelchair or that using one was injurious to him; however, this was an unusual set of circumstances and it will be a more usual situation for a claimant to be denying that s/he can use a wheelchair (paragraphs 30–31).

The tribunal had erred in asking the claimant to roll up his trouser leg so that it could observe his lower leg. Under section 20(3)(a) of the Social Security Act 1998, a tribunal may not carry out a ‘physical examination’ (except in cases set out in the Tribunal Procedure Rules). Applying R1/01(IB)(T) (a Northern Ireland decision), the judge held that the tribunal breached that, because it was not merely relying on an observation it would have made anyway, it focused specifically upon a particular part of the claimant’s body, involved the tribunal asking the claimant to expose some part of the body covered by clothing and was directed towards a question of a medical nature regarding a physical consideration (paragraph 19).

Decision in brief

In light of decision in IM v SSWP (ESA) [2014] UKUT 412 (AAC), tribunal fell short in relying on assumption that the jobcentre would tailor work-related activity in light of claimant’s mental health problem – needed evidence of the types of work-related activity in the claimant’s area – claimant entitled to carer’s allowance and so could not legally be required to undertake work-related activity in any case – but that did not mean tribunal should not consider regulation 35 and substantial risk

Decision in brief

Such agreements in themselves do not count as a ‘loan’ – claimant who subsequently takes out a loan while on benefit to buy out the absent partner’s share may be caught by restriction on interest payments on loans taken out while on benefit, even where a disabled person lives in the house – that is not unlawful discrimination under Article 14 of the European Convention on Human Rights – the Secretary of State had ample justification for the general exclusion of interest on payments to buy out the absent partner on divorce, and had also shown justification for not making an exception in such cases

Decision in brief

Meaning of being ‘in receipt of’ a qualifying benefit – claimant incorrectly paid incapacity benefit – correct interpretation of regulation 9(1) and Case A of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is simply whether the claimant had been ‘in receipt of’ a qualifying benefit – therefore, in this context, the fact that payment was made incorrectly was immaterial – caselaw on meaning of ‘payable’, and interpretation of Case C requiring a qualifying benefit to be ‘payable’ distinguishable as about different wording

Decision in brief

‘Scrutiny process’ involved certain claimants not required to attend a medical – decision that claimant had limited capability for work made on papers only – but the decisions did not involve the decision maker actually scoring the claimants under the descriptors regarding limited capability for work – this was in breach of the fundamental requirement to undertake such a scoring exercise in regulation 19(2) of the Employment and Support Allowance Regulations 2008 – result was decisions were invalid and of no legal effect – to extent that AC v SSWP (ESA) [2013] UKUT 229 (AAC) decided otherwise, that is not followed (paragraphs 4, 91 and 104) – First-tier Tribunal was capable of deciding that the decision was of no legal effect and must be set aside (claimants having appealed on basis of not having been put in the support group) (paragraphs 5 and 92)

Comment from CPAG

If the Secretary of State accepts Judge Wright’s decision, then presumably he must remake such scrutiny decisions made before 4 December 2013 so as to provide a score.

Decision in brief

Where the family member was in a ‘waiting period’ for income-based jobseeker’s allowance on the date of death – still counts as having an award of a qualifying benefit – is not entitled to be paid but still has an award

Decision in brief

ESA does not constitute two benefits – amount a claimant entitled to on conversion must encompass consideration of both the contributory and income-related amount – where the support group criteria are satisfied, it is an official error for the decision-maker (or a decision maker considering a revision of that decision) not to consider entitlement to the enhanced disability premium – no requirement for a conversion process claimant to ‘claim’ either the premium or income-related ESA

Summary

Following completion of attendance on the Work Programme, the claimant was required to agree to an amendment to her jobseeker’s agreement, increasing the number of ‘steps’ she would take from three a week to 14. She was then told she was being referred to a mandatory two-week training scheme called Skills Conditionality. The claimant objected and eventually lodged an application for judicial review. Subsequently, the claimant was required to sign another amendment to her jobseeker’s agreement, increasing the number of weekly work-seeking steps to 20. Before that could be subject of a challenge, the claimant ceased claiming jobseeker’s allowance.

Judge Hickinbottom rejected arguments by the claimant that the Skills Conditionality scheme was not adequately described in the relevant regulations (the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 No.276), and that the requirement on her to participate failed to comply with the notice requirements in those regulations. Skills Conditionality was adequately (even if only quite generally) described in regulation 3(7), and the case was therefore distinguishable from the 2011 scheme that was the subject of decisions culminating in that of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 (30 October 2013) (paragraphs 74–75). The notice to participate sent to the claimant fulfilled the requirements of regulation 5(2)(c) to contain ‘details of what the claimant is required to do by way of participation in the Scheme’, even though it did not contain details of the required hours of attendance, given the surrounding circumstances which included that requirement was to attend a specific course at a college over an 11-day period, and the nature and content of the course had been explained to the claimant (paragraphs 79–83).

Regarding the jobseeker’s agreement, the claimant argued that under sections 1 and 7 of the Jobseekers Act 1995 and regulation 18 of the Jobseeker’s Allowance Regulations 1996 No.207, as applied by CJSA/1814/2007, the agreement could not require her to take more than three steps a week. Rejecting that, the judge held that although the agreement ‘may of course assist in identifying what a claimant needs to do to demonstrate that he is actively seeking work’, that was not the only purpose of the agreement, and that failure to fulfil commitments in the jobseeker’s agreement did not in themselves lead to loss of entitlement (paragraph 94). Rather, section 7 and regulation 18 defined the requirement to be actively seeking work, so that it was where they were breached that entitlement was affected. Regulation 18 requires that ‘a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week’. But the correct construction was that regulation 18 ‘set a presumptive norm for the minimum number of steps’ that could be required – ie, not a maximum of three. Consequently, a claimant could be required to take more than three steps per week to demonstrate that s/he is actively seeking work, and the adviser in the claimant's case had been entitled to increase the number of steps in the jobseeker's agreement (paragraphs 95–96).

Summary

The claimant had Parkinson’s disease, and was awarded DLA in 2010. In 2013, following a fraud investigation, the award was revised and a decision (the ‘entitlement decision’) that the claimant had not been entitled to DLA at all substituted. Shortly after, another decision (the ‘overpayment decision’) said that in the light of the entitlement decision, the claimant had been overpaid and that (as it had been caused by the claimant’s misrepresentation of a material fact) the overpayment was recoverable from him. The claimant appealed against the entitlement decision, but the tribunal treated that as against the overpayment decision too. However, the tribunal dismissed the claimant’s appeal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to consider whether there was a legitimate ground for revising the original award. It, therefore, failed to address the legal questions that the law required it to answer before it could properly uphold the Secretary of State’s decision (paragraphs 20–23).

In this case, revision was the requisite ground for changing the original award. The relevant rule was at regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991. On the facts of this case, it was too late for a revision within one month. That left revisions which may be carried out at any time on specified grounds, as provided for by regulation 3(5). As the judge pointed out, the ‘official error’ ground at subparagraph (5)(a) was not relevant (as that requires that there have been no contribution from the claimant, whereas the Secretary of State’s case was that the claimant actually caused the overpayment); that left grounds relating to ‘ignorance of or mistake about a material fact’ (paragraphs 13–16). Further, as this case concerned a ‘disability determination’ (ie, whether the disability grounds for DLA were satisfied) it was required under regulation 3(5)(c) to be shown that ‘the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision’. Unless that applied, there were no grounds for revision under regulation 3(5)(c) at all, and hence in this case no overpayment (ie, because the original award could not be changed) (paragraphs 17–22). As the tribunal had not considered that, there was no ground for upholding the decision under appeal; however the judge considered that that question, and the question of whether the claimant met the disability conditions for DLA when he first claimed, should be considered by a new tribunal.

Summary

In this joined appeal one claimant (AT) was profoundly deaf but had no sight impairment, the other claimant (VC) had impaired vision but no hearing difficulty. The issue in both cases was the interpretation of activity 7 of the work capability assessment (understanding communication), and in particular whether a claimant must be unable to understand or have difficulty in understanding communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only of those means is sufficient.

Judge Markus QC held that inability/ difficulty by only one of those means was sufficient, so that it was not required to have such problems with both verbal and non-verbal communication. The relevant legislation was set out in Schedules 2 and 3 of the Employment and Support Allowance Regulations 2008 No.794. Activity 7 of Schedule 2, concerning limited capability for work, was at issue in AT’s case; activity 7 of Schedule 3, concerning limited capability for work-related activity, was at issue in VC’s case. In both cases, the judge noted that while some previous caselaw had held that difficulty in either verbal or non-verbal communication was sufficient, doubt had been cast on that by Judge Turnbull in both CE/2942/2013 and CE/1539/2014 [it is not clear why neutral citation numbers are not cited here] (paragraphs 13–14). In the present decision, the judge also considered that the statutory wording was ambiguous as to the correct approach (paragraphs 36–42).

Given the ambiguity, the judge turned to the legislative history of the provisions, which could include both explanatory memoranda and exchanges between the DWP and the Social Security Advisory Committee, as an aid to interpretation. The materials submitted by the Secretary of State in the present cases were therefore admissible (paragraphs 43–45). Using those, the judge concluded that ‘it is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both)’ (paragraph 48). The judge then applied that principle to the claimants’ entitlement in both cases. However, regarding AT, the judge referred the case to a new tribunal, as there was a dispute concerning the claimant’s ability to lip read about which the tribunal had given inadequate reasons, and consequently it was not settled exactly which descriptor in activity 7 of Schedule 2 should apply (paragraphs 55–68).

Summary

The claimant had a brain tumour, epilepsy and a back problem, and had difficulties with tiredness, concentration and failing to finish tasks. However, he was scored no points under activity 13 of the work capability assessment – ie, for ‘initiating and completing personal action’ (which means ‘planning, organisation, problem solving, prioritisation or switching tasks)’. Upholding that, the First-tier Tribunal held that the claimant could perform actions such as brushing his teeth and washing for the majority of the time and was able to go out by himself and get to the shops.

Judge Jacobs held that the tribunal had erred in failing to explain what it made of the detailed arguments put for the claimant and leaving it unclear how it approached activity 13 (paragraph 42). However, that did not mean tribunal had necessarily erred in that approach, and a new tribunal would have to decide the matter again. It was ‘neither necessary nor appropriate to define “personal action”.’ They were ordinary words that had to be given their normal meaning (paragraph 23). But applying those involved consideration of the context of the legislation, which under section 8(1) of the Welfare Reform Act 2007 was to determine, ‘whether it is not reasonable to require [the claimant] to work’ (paragraphs 25–26).

Tribunals ‘must apply common sense in deciding what constitutes an action’ (paragraph 28). Actions undertaken merely out of habit were not to be considered as their performance does not demonstrate mental, cognitive or intellectual function (paragraph 30). Action must be ‘effective’, so that the purpose of carrying out and completing the action was achieved – eg, someone with obsessive compulsive disorder might carry out particular actions, but not so as to make them effective (paragraph 31). Personal action means ‘planning, organisation, problem solving prioritising or switching tasks’: here the word ‘or’ must be read conjunctively, as meaning ‘and’ (paragraph 33). Although only actions that involved all of those should be considered, it was not required to identify a particular action (eg, dressing) in which all those tasks could not be completed: it may be that one action illustrates inability to plan, whereas another (eg, cooking) showed inability to prioritise tasks (paragraphs 33–34). It is wrong to prejudice a claimant by considering only a limited lifestyle: ‘It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated’ (paragraph 36). Splitting an action into its component parts could render the legislation redundant: bearing in mind the foregoing, tribunals were wrong to have treated cleaning teeth and washing as ‘separate and sequential’ personal actions (paragraphs 28 and 37 – the judge’s implication seems to be that although these are not distinct actions, they can be taken together as component parts of a of a personal action).

Summary

This decision concerns the scope of the decision of the European Court of Justice in Saint Prix v Secretary of State for Work and Pensions. See the article Upper Tribunal extends pregnancy right to reside in Welfare Rights Bulletin 248, p4.