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Summary

The claimant had been entitled to PC including the severe disability premium (SDP) since 2004. Although she lived with her son and daughter-in-law, their presence was ignored for SDP purposes as the son was regarded as a ‘co-owner’ of the house. In 2006 the property was transferred into the son’s sole name, albeit with a deed of trust drawn up so that the claimant remained entitled to half the net profit of any sale. When the DWP discovered this in 2011, it issued a decision that there was no longer a ‘co-owner’ and so the claimant had been overpaid the SDP. The First-tier Tribunal held that the claimant remained a co-owner of the property by virtue of the deed of trust, and had not been overpaid.

Judge Mark held that the tribunal had not erred in law. Although the son had become the sole legal owner of the property, in the PC rules ‘co-owner’ had a wide meaning and was not confined to legal, as opposed to beneficial, ownership. The tribunal had correctly distinguished R(H) 7/05 on the definition of ‘owner’ in the housing benefit regulations, found that in the ordinary sense of the word ‘co-owner’ the claimant continued to own part of her home as under the PC rules the claimant remained a ‘co-owner’ (paragraphs 7–9).

Construing the term ‘co-owner’ in the State Pension Credit Regulations 2002 No.1792, Judge Mark held that the word was intended to have a wide meaning, not confined to legal ownership, and that on the facts of this case the claimant remained entitled to be considered a co-owner in the ordinary use of that word (paragraphs 13–14).

Summary

The claimant was found to have been overpaid PC because he had failed to disclose his occupational pension. On appeal, the tribunal held that although, on the balance of probabilities, he had telephoned the DWP to tell them about that, it was not sufficiently clear that he had telephoned the correct office (ie, that dealing with his PC) and that, therefore, he had failed to disclose and the overpayment was recoverable from him.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in giving inadequate reasons for holding that the office that the claimant had telephoned was not that dealing with the PC claim (paragraph 3).

The judge also cited R(SB) 6/85, in which it was held that for recovery of an overpayment it is for the Secretary of State to show on the balance of probabilities all the facts that are needed to justify recovery of an overpayment (paragraph 4). In the present decision, the judge added: ‘In an overpayment recoverability case based on a failure to disclose, the onus will be on the Secretary of State to establish a breach of duty consisting of a negative, that is, that the claimant has failed to comply with a duty to disclose under regulation 32(1A) or 32(1B) of the Claims and Payments Regulations… In the light of the onus of proof on the Secretary of State to satisfy the tribunal of all the facts needed to justify the recoverability decision, I accept the submission of the claimant’s representative that the tribunal failed to explain adequately why, on the balance of probabilities, the call made by the claimant was to the wrong office’ (paragraph 5).

Summary

The claimant was married and still living under the same roof as her husband, but was permanently separated from him. On the basis of a conversation with HMRC, she stopped claiming tax credits as a couple with him, and claimed instead as a single person. However, at a later stage HMRC decided that there was no entitlement to tax credits as a single person. The claimant appealed and in response to a letter from HMRC in December 2012 confirmed that she wished to continue with the appeal. The tribunal considered the appeal on the papers and upheld HMRC’s decision.

Judge Hemingway held that the tribunal erred by proceeding on the basis of ‘woefully inadequate documentation and a woefully inadequate submission which failed to indicate the decision making powers upon which the respondent [ie, HMRC] had sought to rely’ (paragraph 22). Detailing the inadequacies in the submission from HMRC, the judge observed that it made no reference ‘to any legislation at all’ (paragraph 8); that it ‘did not contain any documentation relating to the appellant’s single claim’ (paragraph 9); that it did not contain ‘any information about the previous tax credit claim history in relation to the appellant or her husband’ (paragraph 10); that it did not contain ‘any records of any telephone calls made by the appellant to HMRC’ (paragraph 11); that it did not contain ‘any copies of any documentary evidence which had triggered the review’; and, perhaps most concerning of all according to the judge, it claimed that the claimant had not responded to the HMRC letter of December 2012 when in fact she had done so (paragraph 13).

The judge concluded that in the circumstances, ‘and given the lack of any meaningful documentary evidence at all’, the tribunal should have adjourned for an oral hearing (paragraph 22). HMRC was simply unable to demonstrate that the original decision awarding tax credits for a single person was wrong without producing evidence: therefore, there was ‘simply no basis’ for the tribunal to find in HMRC’s favour (paragraph 23). On the basis of what evidence there was from the claimant, there was nothing to show that she accepted that she was not entitled as a single person. Taking all that together, the judge substituted a decision that there were no grounds for holding that the entitlement conditions as a single person were not satisfied (paragraph 23).

Summary

The claimant was (according to the local authority) sent decisions about his entitlement to council tax benefit in May 2012. The claimant said he never received them, and only became aware of them in September 2013. At that point he attempted to appeal against them, but the local authority said they were made outside the absolute time limit for appeals of 13 months, and passed it to the First-tier Tribunal. The tribunal decided, without further recourse to the parties, to strike out the appeal for being out of time. The tribunal said there was sufficient evidence to show that the claimant had been sent the decisions, and given that, the question of whether he had actually received them was immaterial.

Judge Hemingway held that, on the facts of the case, the tribunal had erred in not getting further oral evidence from the claimant before deciding whether to strike the appeal out, and so remitted the case to a new tribunal. The judge did not dispute that that, under rule 23(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685, no appeal may be made more than 12 months after the normal one-month time limit. Neither did he dispute that what was crucial was whether the claimant was sent the decisions. However, in this case the claimant’s oral evidence would have been relevant to the question of whether it was an exceptional case, such that Article 6 of the European Convention on Human Rights (right to a fair trial) required the exercise of discretion to accept the appeal beyond the absolute time limit (paragraph 14). The local authority and tribunal were both wrong to consider there was no such discretion. In Adesina v Nursing and Midwifery Council [2013] EWCA 818, the Court of Appeal held that Article 6 required the application of discretion to such an absolute time limit so as to achieve the minimum necessary required for compliance with the Convention (paragraph 15).

In Adesina, noted the judge, it was also held that in effect such discretion would arise only in exceptional circumstances and where an appellant had done everything they could to make the appeal within time. A number of subsequent decisions had illustrated ‘how sparingly the discretion should be exercised’, but the discretion is there (paragraph 15). On the facts of this case, the claimant’s oral evidence about non-receipt of the decisions might have been relevant to whether or not to strike out the appeal, in that it might have supported the proposition that the decisions had in fact not been sent, and also might have shown whether he had been otherwise unaware that the decisions had been made and whether he had acted promptly once he was aware (paragraph 14).

Comment from CPAG

This decision is not authority for an argument that the 13-month time limit is not ‘absolute’ in most cases. Satisfying at least that time limit remains vital in most cases. The decision is authority that discretion to admit an appeal made outside that time limit should be considered in ‘exceptional circumstances’. Even then, the judge did not go so far as to say that this was such a case; rather that the tribunal should have taken oral evidence before considering whether or not to exercise such discretion.

Summary

The claimant was entitled to disability living allowance lower rate mobility component and middle rate care component. When she renewed the claim, the award was reduced to one of lower rate mobility component only, and after mandatory reconsideration the claimant appealed. She indicated that she wished the appeal to be heard ‘on the papers’ ( ie, without an oral hearing), but also that that was because she did not feel she could attend the tribunal venue in person because she had panic attacks and did not like going to strange places. A GP report in the papers confirmed her severe agoraphobia and indicated (to the DWP) that a home visit may be better than making an appointment. The tribunal held a ‘paper hearing’ (ie, made a decision without an oral hearing), on the basis that it considered it had sufficient evidence to make a decision, and rejected the claimant’s appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal, with a direction to hold an oral hearing with the claimant given a reasonable opportunity to attend – eg, by considering holding a domiciliary hearing or one at a location familiar to the claimant. In so deciding, he endorsed the submission of the Secretary of State that the claimant had clearly indicated that she wished to take part in the proceedings but did not feel able to because of her mental health problems, and the tribunal should have considered adjourning and also that the claimant might be a ‘sensitive witness’ with particular consideration given to how to facilitate her/his giving evidence.

Specifically, the tribunal erred in not taking into account the appellant’s wish to participate in the proceedings but for her illness. It also did not appear to consider alternative ways of proceeding – eg, a domiciliary hearing or a hearing at a location familiar to the claimant, or an adjournment to allow her participation by telephone. Further, the tribunal did not consider the possibility that the claimant might fall within the definition of a ‘sensitive witness’ such that it would be appropriate to consider possibilities such as evidence being given by telephone or video link or other means. Finally, it gave undue prominence to its view that it had sufficient evidence to proceed. That did not of itself mean that proceeding on the papers was fair and just, or that other factors in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 had been properly taken into account (paragraphs 13–14).

Comment from CPAG

This decision is a helpful reminder that the mere fact that a tribunal feels able to proceed without a claimant’s presence is not necessarily sufficient: a claimant who wants to participate should be facilitated to do so, whatever the tribunal thinks about what it already has in the appeal papers.

Summary

The claimant’s appeal was against a finding that she was not a single person and was in fact still living as a couple with her partner. The tribunal determined that the claimant’s account of her domestic circumstances was improbable, by comparing it to what the tribunal would have expected a reasonable person in the claimant’s situation to have done, and rejected her appeal.

Judge Markus QC allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to assessing the claimant’s evidence. It was ‘generally inappropriate’ for a tribunal to appraise evidence by reference to what a reasonable person would have done, or what some other or hypothetical person would have done. Rather, the tribunal should consider what the individual in question is likely to have done. The tribunal erred in failing to consider whether the claimant’s account was true, rather than improbable; it should have assessed what was likely that she would have done, and asked her to provide an explanation of her actions and choices (paragraphs 9–10).

In so holding, the judge had (at paragraph 6) reference to HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, which held that rejection of an account on grounds of implausibility must be one on ‘reasonably drawn inferences and not simply on conjecture or speculation’, and (at paragraph 7) to Gheisari v Secretary of State for the Home Department [2004] EWCA Civ 1854, which held that an account that is unlikely may nonetheless be true. The court also held that faced with an account considered improbable, the tribunal should go on to decide whether it is true

Comment from CPAG

This decision does not prohibit a tribunal from considering a claimant’s (or indeed any other evidence) to be improbable, or from going on to reject it. But it does hold that the context must be an assessment of what the individual claimant would have done, and decide whether her/his account is actually true or not.

Summary

The claimant’s appeal was against three decisions regarding overpayment of pension credit. The Secretary of State had supplied ‘a great deal’ of evidence and a ‘reasonably complete’ submission. However, the First-tier Tribunal judge twice issued directions requiring the Secretary of State to attend an oral hearing (ie, send a presenting officer) and warned that failure to do so may lead to exercise of powers under the tribunal procedure rules. The Secretary of State did not attend the oral hearing, and the tribunal judge allowed all the claimant’s appeals ‘without further ado’. The written reasons stated that the failure of the Secretary of State to attend prevented the tribunal from properly carrying out its function, that the tribunal ‘was not prepared to accept’ the evidence of the Secretary of State and had ‘disregarded’ the evidence of the Secretary of State.

Allowing the Secretary of State’s further appeal, Judge Lane remitted the appeal to a new tribunal. The tribunal had erred in failing to carry out a complete rehearing of the matter on the merits, failing to perform its inquisitorial function when hearing an appeal and failing to provide a fair hearing for both parties (paragraph 2). The First-tier Tribunal judge had ‘ample time’ to have given ‘meaningful directions’ to ensure an effective hearing; instead, however, the tribunal’s directions merely ‘fretted vaguely about unspecified possibilities that might or might not occur’ (paragraph 6).

Judge Lane reviewed some principles which the tribunal had failed properly to apply. As applied to social security appeals by R(IS) 17/04, the tribunal must carry out a complete reconsideration of the decision and perform an inquisitorial role. R(IS) 17/04 had involved some similar facts to the present appeal, but the tribunal had replicated the errors identified there (paragraphs 7–10). In ‘disregarding’ the Secretary of State’s evidence, the tribunal failed to provide the Secretary of State with a fair hearing. Insofar as the tribunal instead considered the evidence but ‘did not accept it’, the tribunal failed to give adequate reasons (paragraphs 14–15). The tribunal failed to state the exact rules in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 it relied upon. But if it had rule 8(8) in mind, which allows barring a respondent from participating in further proceedings, it had been established in SL v SSWP and KL-D [2014] UKUT 128 (AAC) that the bar was only on the respondent taking a further part; it did not permit the disregard of evidence already submitted and submissions made. The tribunal also failed to issue an appropriate warning of this and to explain how its actions complied with the overriding objective at rule 2 to deal with a case ‘fairly and justly’ (paragraphs 16–22). For all those reasons, it had also failed to exercise the discretion required to exclude evidence under rule 15 (paragraph 23).

Decision in brief

Client had a hearing problem and misheard the verbal instruction to attend a CV writing course, in that he misheard the time – instruction was confirmed in a letter which made it a jobseeker’s direction, but claimant did not read the letter – when he turned up 10 minutes late for the course, he was told he was too late, and he immediately reported that to the jobcentre and rebooked the course – claimant had a past record of compliance with attending appointments – in the circumstances, this was not a ‘failure’ to carry out a jobseeker’s direction and tribunal erred in not considering whether there was a failure – no sanction was therefore applicable

Summary

The claimants were Swedish nationals (mother and children) living in Germany. The mother and one of her daughters worked in temporary jobs lasting less than a year, then received Arbeitslosengeld II, a benefit (referred to by the Court as a ‘subsistence allowance’) for the long-term unemployed. But that was terminated on the basis that they had been unemployed for more than six months.

The precise legal basis for the termination was that the benefit was social assistance, the claimants’ only right to reside was now only as jobseekers, and that under Article 24(2) of EC Directive 2004/38/EC (‘the residence Directive’) there was no obligation to provide such assistance to nationals of other European Union (EU) member states, other than to workers and their family members. The claimants challenged that, arguing that the termination was in breach of Article 4 of EC Regulation 883/2004 on equality of treatment for nationals of member states, read in conjunction with Article 70 on provision of ‘special non-contributory cash benefits’.

The European Court of Justice held the termination of the benefit to be lawful. The benefit concerned was correctly classified as ‘social assistance’ within the meaning of Article 24(2) of the residence Directive. The Court considered that ‘the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity’. It followed that they were not ‘benefits of a financial nature which are intended to facilitate access to the labour market’ – ie, so Article 24(2) could be applied (paragraphs 45– 46). Regarding equal treatment, the Court referred to its decision in Vatsouras and Koupatantze (EUECJ C-22/08 and C-23/08), in which it held that EU citizens with a right to reside on the basis of retained worker status under Article 7(3)(b) of the residence Directive (ie, as former workers now seeking employment) have the right to social assistance for ‘at least six months’ (paragraph 54). However, in the present case, the Court held that it was not disputed that the claimants no longer enjoyed retained worker status at the point the benefit was terminated (ie, their only right to reside now was as jobseekers with a genuine change of being engaged in employment – ie, under Article 14(4)(b) of the residence Directive) (paragraph 55). It followed that although the claimants may still have a right to reside, that was not as workers, and so ‘social assistance’ could be refused under Article 24(2) of the Directive (paragraphs 57–58).

Comment from CPAG

The Court’s classification of the German benefit concerned as a ‘social assistance’ benefit is crucial to the reasoning of the decision. Disappointingly, the Court’s explanation for not regarding the benefit as one to facilitate access to the labour market is not very clear, and neither does it explain why it considered that the claimants no had longer retained worker status after six months (given that Vatsouras merely said that such status applied for ‘at least’ that period).

Summary

The claimant’s son had been diagnosed with ‘high-functioning autism/Asperger’s syndrome’. He attended school until age 18, but after he turned 18 the local authority agreed to cover the cost of a home learning programme, under which the son worked at home with an information technology tutor for five hours a day, five days a week, for 39 weeks a year. HMRC decided that this was not ‘approved education’ for child benefit purposes and terminated the claimant’s entitlement. Her appeal was refused by the First-tier Tribunal.

Judge Levenson allowed the claimant’s appeal and substituted a decision that the claimant was entitled to child benefit. The relevant rule breached human rights law as it unlawfully discriminated against the claimant as the parent of a child with special educational needs who required a home education programme after the age of 16 (paragraph 15(i)). The relevant rule was at regulation 3(2)(a) of the Child Benefit (General) Regulations 2006, SI No.223. That requires that to count as a ‘qualifying young person’ for child benefit, the young person must be in full-time non-advanced education either at school or college or elsewhere but ‘approved by the Commissioners’. However, under subparagraph (3), a person cannot be a qualifying young person other than at school or college unless that had started before s/he turned 16. Thus, on the facts of this case, the regulation prevented the claimant from being entitled.

That was, held the judge, in breach of the provisions of the European Convention on Human Rights preventing discrimination regarding property (Article 14 read with Protocol 1 of Article 1). Where, agreed the judge, there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable, there was no difference between people who had required such a programme to start before their 16th birthday and those who required it to start after their 16th birthday, and the difference in treatment could not be justified (paragraph 15(j) and (k)). The judge assumed that consideration will now be given to amending the regulations (paragraph 16).

Summary

The claimant was living and working in Britain, but his wife and children were in Poland. Although it was accepted that under European law the children counted as his family members, he was held not to be entitled to child benefit for them as they were not living with him and it was considered unlikely that he was contributing to the cost of providing for them. That decision was upheld by the First-tier Tribunal.

Judge Ward allowed the claimant's appeal and substituted a decision that, based on the facts and evidence, the claimant was contributing to the cost of providing for the children. That evidence included bank statements from a period later than that at issue in the appeal, and that the claimant transferred money using an online payment system as well as by other means. The First-tier Tribunal had erred in giving a ‘bald assertion’ that the claimant’s income was insufficient to make the payments he should be making towards the upkeep of the children, without analysing the evidence submitted by the claimant. Judge Ward’s analysis showed that the claimant’s earned income would have accommodated a weekly payment of a sufficient level (paragraph 24).The tribunal had also erred in deciding that his living costs would not allow adequate expenditure on his children while not realising that the claimant’s statement as to his expenditure on living costs was for joint living costs – ie, including those incurred by his partner in Poland (paragraph 21). It was permitted to take account of evidence of earnings that post-dated the date of the decision; but the tribunal had overlooked the evidence of the amounts leaving the claimant’s bank account and being sent to Poland to support his family (paragraph 22).

Also, the judge rejected an argument by HMRC that, even though the claimant was sending sufficient money overall, the claimant was not making weekly payments at the required rate, and so did not count as making adequate provision. The judge did not read section 143(1)(b) of the Social Security Contributions and Benefits Act 1992 as requiring the making of weekly payments, holding that, ‘It matters not whether the contribution is made monthly or fortnightly or even more sporadically and unpredictably than that. As long as there is evidence of contributions at the relevant child benefit rate towards the upkeep/cost of a child or children during the period under scrutiny, the statutory test will be satisfied’ (paragraph 32).

Summary

The claimant was a single person and a foster carer for the local authority. Until July 2013, she qualified for IS as such a person, under paragraph 2 of Schedule IB of the Income Support Regulations 1987, SI No.1967, – ie, as ‘a single clamant or a lone parent with whom a child is placed…by a local authority or voluntary organisation within the meaning of the Children Act 1989.’ However, in September 2013 it came to light that the child the claimant had been fostering left her home in July 2013, and the claimant had had no placement since. Instead, she remained on call as a foster carer, and provided paid respite and day care to support other foster carers. The DWP terminated her entitlement (‘the entitlement decision’), and made a decision that there was a recoverable overpayment caused by the claimant’s failure to disclose (‘the overpayment decision’). The First-tier Tribunal dismissed the claimant’s appeal against both the entitlement decision and the overpayment decision.

Judge Perez dismissed the claimant’s further appeal. The tribunal had not erred in law. The claimant had ceased to be entitled to IS as a single foster carer when her foster child left her home and, applying the wording of the law, she was not entitled while supplying respite and day care support, even though both she and the local authority still regarded her as a foster carer. The overpayment was recoverable as the claimant had been sent sufficient notice by the DWP to impose on her a duty to report that her child had left her home, and she was in breach of that duty.

Construing the wording of paragraph 2 of Schedule IB, the judge held that the tribunal was correct to find that the claimant did not have a child ‘placed’ with her after July. The test was not whether the claimant was a foster carer, but rather whether she had a child placed with her within the meaning of the Children Act 1989 (paragraph 47). That meant that, ‘the claimant must actually have a child living with her, or accommodated by her, in discharge of the local authority’s functions under that Act’ (paragraph 49). On the facts of the present case, it was accepted that the claimant no longer had a ‘placement’ with her in the period in issue.