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Summary

The claimant was a ‘Zambrano carer’ – ie, a non-European national with care of a European national child (in this case, British children). It was common ground that the claimant had a right to reside as a Zambrano carer. It was also not in dispute that she was entitled to and was receiving support under section 17 of the Children Act 1989. However, under amendments introduced in November 2012, she was not also entitled to income-related benefits, child benefit, child tax credit and housing and homelessness assistance. Following an unsuccessful challenge to the legality of those amendments in the Court of Appeal, a further appeal was considered by the Supreme Court.

The Supreme Court held that amendments barring Zambrano carers from benefits and housing assistance were not unlawful. The court rejected the claimant’s arguments that the November 2012 amendments unlawfully discriminated against her. Giving the lead decision, Lord Carnwath noted that in the Zambrano case itself (Ruiz Zambrano v Office national de l’emploi, Case C-34/09 [2012] QB 265) there was no finding as to the nature of financial support required to Zambrano carers or of the extent of any right to benefits (paragraph 9). Once it was determined that European Union (EU) law did not require more for the children of a Zambrano carer than the practical support required to avoid their being obliged to leave the territory of the EU, any further support (eg, via benefits) was the exercise of choice under national law, not EU law (paragraph 28). Any discrimination was, held the judge, justified as not being (as per the relevant test) ‘manifestly without reasonable foundation’. Aims such as ‘reducing costs by allocating benefits to those with the greatest connection to this country’ were cited (paragraph 32).

That left the claimant and her children reliant on the section 17 support provided by the council. The judge agreed with the comments about section 17 made by Lady Hale (who was unimpressed by the justification argument, which to her seemed to relate to adults but not to children). Lady Hale said there were disadvantages with section 17 assistance in that it was discretionary and there was only a judicial review right of challenge, there were no standard rates for cash assistance and there was not an automatic right to passported benefit such as free school meals. Lady Hale said the council in reviewing the claimant’s section 17 entitlement would ‘no doubt’ take into account the fact that the children in this case were British and of the impact upon them of being denied a level of support equivalent to other British children (paragraphs 43–46).

Summary

The claimant was an Italian national, in receipt of a French state pension, who had come to live in the UK. His claim for carer’s allowance was refused on the basis that (due to the French pension) the UK was not the competent state. The claimant told the First-tier Tribunal that the French authorities told him that they would not pay French carer’s allowance regarding a disabled person in the UK. In the following Upper Tribunal, the DWP said that the French authorities refused to pay as the claimant did not live in France, but that the Secretary of State proposed to contact them to reach agreement. Judge Jacobs held that the Secretary of State must in the meantime make a provisional award of carer’s allowance, under Article 6(2) of EC Regulation 987/2009. The Secretary of State appealed, arguing that the ‘difference of view’ about competence referred to in the Article only arose in the event of a formal decision from the other member state that it did not consider itself competent.

The Court of Appeal unanimously rejected the Secretary of State’s appeal, and upheld Judge Jacobs’ approach. It was correct that the ‘difference in views’ had to be about competence not eligibility (paragraph 37). But the approach of the Secretary of State, if correct, would require the claimant to take steps to pursue both of the relevant member states for a formal decision and to suffer a likely considerable delay. Rather, the legislation presupposes the protection of the individual by payment of provisional benefit while issues of competence are resolved by the member states (paragraph 44).

Whether there was a difference of view was an evidential question for the case concerned. In the present case, the evidence was that the French authorities had refused to pay because the claimant does not live in France, and Judge Jacobs had been entitled, as a judge in a specialist chamber of the Upper Tribunal, to conclude that Article 6(2) applied (paragraphs 46–48).

Summary

The claimant occupied a three-bedroom house with her husband and two sons. The ‘bedroom tax’ was applied on the basis that the sons could share a bedroom. However, the First-tier Tribunal accepted that the sons could not share either of the two smaller bedrooms due to the unsuitability of a bunk bed for either of those rooms. The Secretary of State appealed, arguing that all that was required was that a bedroom be capable of accommodating a category of occupant, even though on the facts it was not suitable for the particular category (eg, in this case two boys) who would actually occupy it.

A three-judge panel of the Upper Tribunal (Mrs Justice Knowles, Judges Jacobs and Hemingway) rejected the Secretary of State’s appeal. In effect, the room in question must be capable of occupation by the actual category of occupant in the home. Firstly, the relevant rule (at regulation B13(5) of the Housing Benefit Regulations 2006, SI No.213), is that a bedroom be provided ‘for’ each category of occupant, and ‘the natural expectation of that language is that the room would be a bedroom for the persons bearing the characteristics of that category, not a room that ignored those characteristics’. Secondly, if the legislation were to produce the result contended for by the Secretary of State (ie, that characteristics of the categories of the actual occupants were to be ignored), it would need much clearer language (paragraph 12).

To the extent that they suggested otherwise (by reference to use by ‘any’ category), the decision of the Scottish Court of Session in Secretary of State for Work and Pensions v Glasgow City Council and IB [2017] CSIH 35 and the Upper Tribunal in SSWP v Nelson and Fife Council [2014] UKUT 525 (AAC), reported as [2015] AACR 21, were not followed. Among other things, these decisions were not primarily concerned with the ‘connection’ issue of the relevance of the characteristics of the categories of occupants, but rather with the way in which the property was classified by the landlord and used by the claimant (paragraphs 23–24 and 28).

Summary

The claimant was a Spanish national. She formed a relationship with a British national (they remained unmarried) and moved to the UK with him. They had two children together. Following the break-up of the relationship, the family court refused the claimant permission to take the children to live in Spain. Her claim for IS as a lone parent was refused as she did not have a right to reside. The First-tier Tribunal upheld that decision, holding that the right to freedom of movement in the EU could not confer rights that went beyond the ‘residence’ Directive, 2004/38/EC, unless it could be shown that there was a lacuna in the Directive, and that there was no such lacuna in this case.

Judge Ward refused the claimant’s further appeal, holding that the tribunal had not erred in law. He agreed with what the tribunal had said about the need in a case like this (ie, where there was no entitlement under the rules) to identify a lacuna in the Directive, and said that in the absence of any restriction on the children’s rights as EU citizens, there was no basis of a right to reside for IS purposes (paragraphs 70 and 99). There was no question that the claimant had any right to reside as set out in the domestic rules or the Directive. The claimant was therefore ‘dependant on a proportionality argument’ – ie, that the limitations created by the Directive did not deprive her of a right she had under the Treaty on the Functioning of the European Union (paragraph 40).

The judge reviewed the position on proportionality in the light of decisions subsequent to that of the Supreme Court in Mirga v Secretary of State for Work and Pensions [2016] UKSC 1. That had referred to the possibility of ‘exceptional cases where proportionality could come into play’. He held that it was still possible, even after Mirga, to rely on proportionality by identifying a ‘lacuna’ in the Directive (paragraph 49), and that although such a case had to be ‘exceptional’, that did not confine the exceptionality to a ‘near miss’ of having a right to reside (paragraph 50). But proportionality had to be considered ‘with a full awareness of the importance of the Directive to the budgets of Member States’ (paragraph 53). It could not (in the judge’s view) be said that a court order such as the one in the present case was not considered in the legislature: Article 13 of the Directive restricted the rights of ex-partners to those following divorce or termination of a registered partnership, and not to the children of unmarried partners in unregistered partnerships (paragraph 61). Finally, the judge could see no reason to conclude that it was the children’s rights under European law that were being impeded by the family court, and so there was no form of derivative right through them (paragraphs 72–90).

Comment from CPAG

The judge’s findings confirm that so-called ‘lacuna-filling’ in interpreting the Directive can still found arguments about proportionality. But it remains difficult to be clear about exactly what cases may be sufficiently exceptional to qualify.

Summary

The claimant appealed against sanction decisions regarding failure to comply with requirements to attend appointments with Work Programme providers. There were two cases involved. In both, the First-tier Tribunal directed the Secretary of State to provide copies of the letters sent to the claimant regarding the appointments, and warned that it may draw adverse inferences if that was not complied with. In both cases, the tribunal considered the Secretary of State failed to provide the necessary evidence, and allowed the claimant’s appeal.

In the first case, the First-tier Tribunal decided the case on the basis that there was insufficient evidence that the claimant had been properly instructed. Judge Rowland dismissed the Secretary of State’s further appeal. The Secretary of State relied on the judge’s decision in SSWP v HS (JSA) [2016] UKUT 272 (AAC), reported as [2017] AACR 29, where he held that a tribunal was not entitled to draw an adverse inference merely as a punishment. But in the present case, the judge said the tribunal had not in fact drawn an adverse inference. Rather, it decided the case on the basis that there was no evidence as to the appointment letter’s content and that the Secretary of State had therefore failed to satisfy the burden of proof (paragraph 27). The judge considered that the tribunal was right to say that a copy of the letter should have been in the bundle; he further considered that ‘…the Secretary of State ought generally to provide, and ensure that he is able to provide, a copy of the appointment letter in every case where a claimant is appealing against a sanction imposed for not keeping an appointment’ (paragraph 36).

In the second case, the tribunal required evidence that the service provider had been delegated with powers to require the claimant to attend appointments, again on pain of adverse inferences. The Secretary of State asserted that it had been but was unable to provide a relevant letter. Judge Rowland allowed the Secretary of State’s appeal in this case, because the tribunal erred in failing to appreciate it already had some evidence before it (even if not the letter requested) in the form of the Secretary of State’s assertion about that and the provider having been acting accordingly (paragraphs 45 and 50). The tribunal in the first case had made a similar finding (without having actually requested the letter of authorisation) and Judge Rowland also found that the tribunal erred there, pointing out his own distinction in HS between an appointment letter to the claimant, which was of ‘central importance’ to the appeal, and evidence of delegated powers, which was not required in every case if the Secretary of State could properly assert that this had been done and that was not actually challenged (paragraph 40).

Comment from CPAG

This decision is authority that where there is an appeal for failing to attend an appointment, the appointment letter should be before the tribunal; but further evidence that a provider has been delegated powers in order to issue such letters will usually not be required.

Summary

The claimant had psychosis and was entitled to disability living allowance (DLA) including the high rate of the care component. His wife was his appointee. As part of the transfer of his award to a claim for PIP, he was required to attend a medical. A home visit was requested on the basis of his difficulty mixing with people outside the home, but refused (by Atos) on the grounds that the claimant had a ‘history of aggression’. The claimant’s wife and representative attempted to get Atos’s decision changed, and the DWP apparently agreed that a home visit should be made. But despite some confusion, Atos’s requirement that the claimant attend a medical centre was not changed. When the claimant failed to attend, it was decided he did not have good reason for not attending, and consequently his DLA was terminated and PIP refused. The First-tier Tribunal refused the appeal, holding on the facts that the claimant was capable of attending the medical centre.

Judge Mesher allowed the claimant’s further appeal and substituted a decision that the claimant did have good reason for failing to attend the medical. The fundamental error of the tribunal had been to exclude consideration of the suitability of the requirement to attend a centre, in the context that, on the facts, a telephone consultation could have been more suitable. The tribunal wrongly considered only whether the claimant was actually capable of attending the centre, and so failed to take into account the potentially more suitable telephone consultation as a factor in deciding whether the claimant had good reason (paragraph 29).

The judge considered the application of regulation 9 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377. That expressly provides (at subparagraph (1)(b)) that participation by telephone consultation is an option for the Secretary of State to consider. The judge pointed out that under regulation 9 a medical was not compulsory, and the Secretary of State could decide the claim on available evidence, if sufficient (paragraph 16). He expressed a provisional view that on appeal it was necessary at least to provide a copy of the standard letter sent to the claimant requiring him to attend (paragraph 18). It must be open to the Secretary of State to lift a requirement imposed by Atos, and any confusion about whether this has been done is a factor in considering good reason (paragraph 20). Regarding ‘good reason’ for not attending, that should not be artificially limited, and the discretionary nature of requiring a medical indicated that the claimant could raise the issue of suitability on any appeal against an adverse decision under regulation 9 (paragraph 23).

Summary

The claimant was entitled to disability living allowance. On transfer to personal independence payment, she was held not to score enough points, although she was awarded an additional two points in respect of daily living descriptor 2(b)(i). The First-tier Tribunal dismissed the claimant’s appeal, holding that she did not score sufficient points. However, the tribunal both awarded some extra points under descriptor 4(b) and removed the points already awarded under descriptor 2(b)(i). In its reasons, the tribunal asserted that the claimant had an experienced representative who must have been aware that the tribunal had the power to remove points as well as to award them.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to indicate the possibility of its removing previously awarded points, notwithstanding the presence of the claimant’s representative (paragraph 7). The tribunal’s reasons said nothing about its use of discretion as to whether to consider entitlement to the points already awarded (paragraph 9). Even assuming this was something raised by the appeal (ie, because the award did not seem to be supported by the evidence), it was still necessary for the tribunal to comply with its duty to act fairly (paragraph 10).

The judge appreciated that there were circumstances where a tribunal could rely on a representative which it knew to be competent and experienced. But, said the judge, ‘it simply goes too far to say that the duty to act fairly is complied with without some form of indication being given, once the risk is crystallised in the tribunal’s mind, regarding the taking away of points which have previously been awarded’ (paragraph 12).

Comment from CPAG

A tribunal does have the power to make a less favourable decision, including removing points already awarded. But this decision (another in a lengthening line of such decisions) reminds tribunals that they must show that they exercised proper discretion in doing so, and in particular must issue an adequate warning to the claimant that they are actively considering that.

Summary

The claimant was a social housing tenant in the three-bedroom house she lived in with her partner and son, aged under one. In her claim for UC, the housing element was subject to the so-called ‘bedroom tax' – ie, it was decided that the claimant was entitled to two bedrooms with a consequent 14 per cent reduction in her eligible rent. Her appeal to the First-tier Tribunal was refused.

Judge Mitchell refused the claimant’s further appeal. On the facts of the case, the tribunal did not err in treating the allegedly spare room as a bedroom. The claimant argued that the room in question should not be treated as a bedroom, on account of its small size (43 square feet) and that it could not accommodate (in addition to a single bed) a separate bedside table and clothes storage furniture. Reference was made in particular to indications that there should be room for both a bedside table and clothes storage furniture in SSWP v Nelson and Fife Council DN (HB) [2014] UKUT 525 (AAC), reported as [2015] AACR 21 and Stevenage Borough Council v ML (HB) [2016] UKUT 164 (AAC) (Bulletin 252, p11).

The judge held that ‘a separate bedside table and clothes storage furniture is not required. A bedside cabinet that serves both purposes will do. In this case, the room, while undoubtedly small at 43 sq. ft, was of regular shape and could accommodate a single bed and bedside cabinet. The same result might not be expected for small rooms of regular shape’ (paragraph 1). For the judge, Nelson established that a bedroom’s function was more than merely a place to sleep. It must also provide for ‘clothes storage, a flat surface of some sort on which to place necessary items and avoid obvious safety risks as well as sufficient free space for dressing and undressing’ (paragraph 65). There was no finding in Nelson that the clothes storage and flat surface had to be separate and to the extent that the decision in Stevenage Borough Council v ML said that was the case, Nelson was to be followed (paragraphs 66–68).

Comment from CPAG

As made clear, whether a room that only has space for a bed and (for example) a chest of drawers which must also serve as a bedside table is indeed sufficiently functional to count as a bedroom is dependent on the facts.

Summary

The claimant was subject to all work-related requirements and her claimant commitment included recognition that she was usually to spend 35 hours a week looking for and preparing for work. Following a fractious meeting with a work coach who declared himself not satisfied that the claimant had met the 35-hour work search requirement for a particular fortnight, the claimant received a medium-level sanction. The claimant said that she had not updated her job search activity due to a family crisis (which it emerged included having to attend the family court). The First-tier Tribunal rejected the claimant’s appeal, finding that the claimant’s admission that she had not updated the activity section on her UC account amounted to an admission that what she had done had not been adequate.

Judge Wikeley upheld the claimant’s further appeal and substituted a decision that the claimant took all reasonable work search action, and that the sanctioned UC should therefore be repaid to the claimant with all reasonable speed. The First-tier Tribunal’s ‘fundamental error of law…was to proceed on the basis that the 35-hour work search requirement was immutable’, when in fact it was not (paragraph 24). Regulation 95 of the Universal Credit Regulations 2013, SI No.376, included that there were ‘relevant deductions’ from the usual expected hours, including regarding a ‘domestic emergency’. Also, a claimant who had not met her/his expected hours but had taken ‘all reasonable action’ was not to be treated as not having complied with a work search requirement. The decision maker and First-tier Tribunal had overlooked that the claimant commitment said that the claimant would ‘normally’ look for work for 35 hours a week and neither had looked at the ‘bigger picture’ of the claimant’s history of compliance (paragraphs 25–29). On the facts, the claimant had taken all reasonable action, and the tribunal had erroneously failed to take regulation 95 into account (paragraphs 31 and 36).

For good measure, Judge Wikeley also made reference to regulation 99, which provided ‘another way of arriving at the same end point’ (paragraph 32). That deals with circumstances in which requirements (including work search) must not be imposed. That includes (among other things) where the claimant ‘is dealing with a domestic emergency’. Although there was a potential overlap between regulations 95 and 99, the former seemed to be about allowing exceptions where a work search requirement applied, the latter about not imposing the requirement in the first place (paragraph 35).

Comment from CPAG

This decision helpfully makes clear that the 35-hour-a-week work search requirement is not an iron rule in each and every week. Various circumstances, including domestic emergency and having taken all reasonable action, could mean that in a particular week or weeks the claimant either will have met the work search requirement or should not have one imposed at all.

Decision in brief

Appeal in Great Britain is the responsibility of HM Courts and Tribunals Service and the First-tier Tribunal

Decision in brief

A person can be continuously present with the purpose of ensuring a claimant’s safety without needing to be in a one-to-one relationship with the claimant – the First-tier Tribunal had erred in holding that a child who needed supervising while cooking at school could not meet the requirement in Activity 1(e) of needing supervision to prepare or cook a simple meal because the supervision was provided by two teachers in a class of eight students

Decision in brief

Is there a relationship between these descriptors, and the tribunal may need to show that the higher scoring descriptors were considered and why they were not chosen