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Summary

The claimant had progressive spastic paraparesis. One effect of that was that his ability to walk was restricted. The claimant in effect contended that he could not mobilise more than 50 metres. That would have meant that he had ‘limited capability for work-related activity’ and so be placed in the support group. But neither the decision maker nor the First- tier Tribunal agreed. The tribunal did agree that the claimant could not walk for more than 50 metres, but considered that he could reasonably self-mobilise using a manual wheelchair. In its reasons, the tribunal relied on the fact that the claimant was likely to be assessed for wheelchair use in the near future. It found that, as it would be reasonable for him to use a wheelchair, he ‘therefore’ would be able to mobilise in it for more than 50 metres.

Judge Poynter allowed the claimant’s further appeal and substituted a decision that, on the available evidence, the claimant could not mobilise more than 50 metres and, therefore, satisfied Activity 1(a) in the work capability assessment and was to be placed in the support group. The tribunal erred either by making a finding of fact that was unsupported by the evidence or, if it was relying on the specialist knowledge of its members, by failing to give adequate reasons (paragraph 33). More widely, the judge observed that ‘it does not follow from the fact that it would be reasonable to expect a person to use a manual wheelchair, that that person can mobilise in such a wheelchair for any particular distance…’. The tribunal concentrated on the issue of whether a manual wheelchair could reasonably be used, to the ‘complete exclusion’ of how far the claimant could mobilise in such a wheelchair (paragraphs 22–23).

On whether a manual wheelchair can reasonably be used, the judge cited the guidance of the three-judge panel of the Upper Tribunal in SI v SSWP (ESA) [2014] UKUT 308 (AAC); [2015] AACR 5. On the facts the present case, the only indication that use was reasonable was a comment to the examining health professional that he could do so and that his upper limbs and chest function were unimpaired; but, for the judge, that ‘did not come close’ to satisfying the reasonableness test set out in SI (paragraph 40). Moreover, although SI found that the absence of an NHS assessment did not show that a wheelchair cannot reasonably be used, that did not mean that a forthcoming assessment would be likely to show that the claimant should use a wheelchair (paragraph 41). In the present case, the Secretary of State had not established that the claimant could reasonably use a wheelchair (paragraph 42).

Summary

The claimant was entitled to an award of PIP consisting of the standard rate of both components up to 20 June 2021. Following an application by the claimant to be awarded the enhanced rate of the mobility component, the Secretary of State arranged a new medical and eventually altered the award, but only so as to end the award at 6 June 2020 instead. On appeal, the First-tier Tribunal upheld the Secretary of State’s decision. But (with no decision-making history or grounds for supersession identified by the Secretary of State) the tribunal made no attempt to identify a supersession ground relating to the Secretary of State’s decision to interfere with the award so as to impose an earlier end date.

Judge Hemingway allowed the claimant’s further appeal. The tribunal had erred in failing to appreciate that the decision under appeal was a supersession decision, and consequently failing to identify any grounds permitting a supersession (paragraph 7). Following agreement between the parties that the correct level of the award remained at the standard rate for both components, the judge agreed and remade the decision to that effect.

However, he also reinstated the original end date of 20 June 2021. No ground for superseding the award to substitute an earlier end date had even been offered by the Secretary of State. The judge was aware that such a ground may have existed in particular the one relating to receipt of a new official medical report (at regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseekers Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381). But the judge decided not to do make such a finding. The Secretary of State had offered no argument as to why the period of the award should be altered, and the judge considered that even if he did formally identify a supersession ground, he would still have concluded that the original end date should not be altered (paragraphs 8–10).

Summary

The claimant was entitled to the high rate of the mobility component and the middle rate of the care component of DLA. On transfer to PIP, she was eventually awarded only four points regarding entitlement to PIP. On her further appeal, the claimant submitted (among other things) that she had been in receipt of DLA for approximately 23 years, but the First-tier Tribunal had not given a reasonable explanation for how its decision on PIP entitlement differed from her DLA award.

Judge Ward allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The judge also considered that the tribunal errors included not explaining the inconsistency between the DLA award and its decision about PIP. The Secretary of State argued that as DLA was a different benefit to PIP, a recent line of authority on the need to explain differences from previous PIP awards, relying on still earlier authority in R(M) 1/96, did not apply. But the judge disagreed. R(M) 1/96 established a generalised principle about the adequacy of reasons where there was genuine inconsistency between awards (paragraph 10). It was not enough merely to point to a change in the law and to ‘claim that as a result an earlier decision is of no consequence and need not be addressed’. However, it was also not enough to say that any decision that a benefit is not qualified for must be inconsistent with the previous award of a different benefit. Instead, what is required of the tribunal ‘is a degree of analysis as to the potential for a genuine inconsistency’ (paragraph 12).

The judge went on to outline a number of potential overlaps between DLA and PIP, including inability to walk for the mobility components and supervision for the care component of DLA and daily living component in PIP. But this was not an attempt to provide a definitive list. Rather, the judge intended to point to a situation where ‘the conditions on which a previous award of a different benefit was made are reasonably capable of being material to whether the conditions for the award of a subsequent benefit are met…’. Where there was an ‘apparently divergent decision on the subsequent benefit’, then R(M) 1/96 should be applied (paragraph 21).

Summary

The claimant had originally been awarded the enhanced rate of the daily living component and the enhanced rate of the mobility component of personal independence payment. The award was time limited because of an issue about the claimant’s immigration status. That issue was resolved, but the claimant had to make a new claim the day after the expiry of his original award. On that new claim, he was awarded only the standard rate of the daily living component. The First-tier Tribunal did not have details of the original award, including the rate and expiry date or the official medical evidence, before it when considering the claimant’s appeal. However, the tribunal was untroubled by that, holding that it was a new claim not supersession that was the subject of the appeal, and dismissed the appeal.

Judge Hemingway set the decision aside and remitted the case to a fresh tribunal. The tribunal had erred in making insufficient findings of fact and in failing at the very least to consider adjourning to clarify the terms of the original award and get the relevant medical evidence regarding that award. It also erred in failing to explain why it was reaching a decision which differed from the previous award (paragraph 3).

The judge acknowledged that the tribunal was dealing with a fresh claim rather than a supersession of the original award. But that ‘did not mean what had gone before was inevitably irrelevant or that it was not worth properly finding out about it’. Although the Upper Tribunal has mainly been concerned with this problem in the context of supersessions of current awards, the judge cited with approval the decision in SF v SSWP (PIP) [2016] UKUT 481 (AAC) (Bulletin 256, p11), and said that the requirement to provide an explanation for the difference from the previous award (unless it is otherwise obvious) applies ‘squarely and even more obviously to situations where a previous award is expiring and a new award (a renewal) is sought’ (paragraph 6).

Comment from CPAG

This decision is helpful clarification that the need for a tribunal to explain the difference between its award and the previous one applies to appeals stemming from new claims as well as supersessions. The judge also pointedly criticised the Secretary of State for failure to provide the tribunal with details of the previous award and the ‘unacceptable’ qualify of the appeal submission. For where the previous award was for disability living allowance, see YM v SSWP (PIP).

Summary

The claimant was entitled to the enhanced rate of mobility component of personal independence payment but had appealed about the refusal to award the daily living component. The First-tier Tribunal adjourned the hearing, warning the claimant that ‘there was a risk’ that the mobility component would be reduced or removed, and when it reconvened, eventually decided to confirm the refusal of the daily living component and to reduce the mobility component to the standard rate.

Judge Wright held that the tribunal had erred in law and set the decision aside. On the evidence, he remade the decision so as to refuse the daily living component but to restore entitlement to the enhanced rate of the mobility component. The tribunal had erred in its decision notice (on adjourning and also when reconvened) in not making it clear whether entitlement to the mobility component was an issue raised by the appeal or alternatively was an issue which as a matter of discretion it considered should be addressed (paragraph 5). If it was the latter, there was no consideration (as required by R(IB) 2/04) as to whether it should exercise its discretion in that way (paragraph 6). If the tribunal considered the matter to be raised by the appeal, it failed to give reasons why that was so (paragraph 7).

Moreover, the tribunal erred in the warning given to the claimant, so that it acted in an unlawful and unfair manner. The most directly relevant caselaw here was BTC v SSWP [2015] UKUT 155 (AAC). Following BTC, the tribunal should have identified to the claimant what it was in the evidence that may have questioned his award of the mobility component. It had to be borne in mind that had the Secretary of State wished the tribunal to alter that award, he would have needed to have set out his reasons why, on the evidence, in advance of the hearing (paragraphs 2 and 8).

Comment from CPAG

The Upper Tribunal takes a broadly consistent approach to this subject – see, for example, the recent decision of Judge Hemingway in LJ v SSWP (PIP) [2017] UKUT 455 (AAC). Evidently, however, some First-tier Tribunals are still minded to interfere with uncontested awards without proper attention to matters like adequate warnings and exercise of discretion.

Summary

The claimant had a number of health conditions including depression. He indicated that he did not want an oral hearing of the appeal. The First-tier Tribunal decided it could proceed and make a decision on the basis of the papers – ie, without a hearing. In its statement of reasons, the tribunal said that it considered relevant tribunal procedure rules and determined that it could make a decision on the papers, as it had before it ‘adequate information to come to a reasoned decision’.

Judge Hemingway set the decision aside and remitted the case to a fresh tribunal. The tribunal had erred in its reasoning about making a decision without a hearing, in particular by not paying sufficient attention to the duty to decide cases fairly and justly. The judge said he had put his decision on the Upper Tribunal website ‘because I have come across a number of cases recently where it seems to me that tribunals have relied overly or even exclusively (and therefore wrongly) upon a view that there is sufficient material available to make a reasoned decision when deciding whether to proceed on the papers’ (paragraph 12).

The tribunal said it had considered rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685. Rule 2 requires tribunals to decide cases ‘fairly and justly’. Rule 27 permits tribunals to decide a case without a hearing where the parties have consented (or at least not objected) to that and the tribunal ‘considers that it is able to decide the matter without a hearing…’. The judge allowed that tribunals will often be able to offer only a relatively brief explanation for not holding a hearing. However, the tribunal must show in particular that it has had proper regard ‘to what is fair and just in all the circumstances’. Further, it ‘must not allow its ability to arrive at a reasoned decision…to be determinative or overly influential’. As had been held in CE/2784/2016, there is not necessarily a connection between having sufficient material to make a reasoned decision and having sufficient information to decide an appeal fairly (paragraph 9).

Summary

The claimant received a number of sanctions for failure to undertake ‘all reasonable’ work search action. Specifically, he failed to apply for a number of vacancies (for cleaning work) which the work coach considered suitable for the claimant. On appeal, the claimant in oral evidence said that the vacancies were unsuitable for him because they were all zero- hours contracts and would adversely affect his benefit, and that part-time work was no use as he could get more on UC. His representative submitted that the claimant misunderstood what was mean by a ‘suitable’ vacancy and that he misunderstood the effect of work on his UC. The First-tier Tribunal rejected the appeal, holding that ignorance of the law was no defence and could not amount to ‘good reason’ for failing to undertake all reasonable work search.

Judge Mitchell rejected the claimant’s further appeal, holding that the tribunal had not substantively erred in law. Section 27(2) of the Welfare Reform Act 2012 provides that a sanction could be applied for failure ‘for no good reason’ to comply with a work-related requirement. The tribunal was in fact wrong in holding that ignorance of the law could never amount to good reason. There was long- standing caselaw to the effect that ignorance of the law, where that ignorance is itself reasonable, can amount to ‘good cause’, and that caselaw applies to the concept of ‘no good reason’ (paragraphs 55–57). But, held the judge, ‘any old reason is not sufficient’ to count as ‘good reason’. On this (substantive) point, the tribunal arrived at the right result. The claimant did not give evidence that he had sought clarification from the DWP about the implications of different types of work, such as part-time work, on his UC. He could reasonably have been expected to have done that and raised is concerns or confusion with them. On the evidence, he was in regular contact with his work coach and there was no evidence that he was incapable of raising these simple queries. Therefore, his ignorance of the law could not amount to good reason (paragraphs 57–58).

Summary

The claimant was the father of a child. When the child started college, she began living with her godparents as their house was close to the college. But the claimant supported her financially (he got child benefit for her) and in other ways, and she stayed with him on alternate weekends. However, the claimant was refused the child element on the basis that, applying the relevant rule (at regulation 4 of the Universal Credit Regulations 2013, No.376), the claimant was not ‘responsible’ for the child as she did not ‘normally live’ with him. That was upheld by the First-tier Tribunal on the basis that the claimant lived most of the time with her godparents.

Judge Wikeley set aside the tribunal’s decision and held that the child ‘normally lived’ both with the godparents and the claimant, but, in this situation, applying regulation 6(4), the claimant should be regarded as responsible as he had ‘main responsibility’ for her (paragraphs 52–63). He remitted the case to a new tribunal for more findings on whether the child still counted as a child or qualifying young person. The tribunal had adopted a ‘fatally flawed’ approach to the test in regulation 6, including failing to appreciate the nuances of meaning in ‘normally lives with’ and eliding the statutory test (paragraph 46).

Regarding ‘normally living with’, the official guidance (at Advice for Decision Makers, Chapter F1, paragraph F1060) stated that it was a test of whether the child spend more time with the person than anyone else. That was wrong and based on a misunderstanding (paragraph 42). It drew on caselaw (CFC/1537/1995) about the ‘normally living with’ test for family credit (now child tax credit). But that considered a very differently worded rule and does not apply to UC (paragraphs 37–38). The UC rule presupposed that a child may normally live with a ‘minority carer’, and the ‘main responsibility’ test at regulation 6(4) provided a mechanism for resolving disputes in such situations. The expression ‘normally lives with’ should be applied ‘with a focus on the quality rather than the quantification’ of the normality, and the amount of time may be a factor ‘but cannot be the exclusive or determinative factor’ (paragraph 41). On the facts of the present case, the child ‘normally lived with’ both the godparents and the claimants. In such situations, responsibility was then a case of who had the ‘main responsibility’. On the facts, it was clear that the claimant had the ‘main responsibility’ for her (paragraph 60).

Decision in brief

So wrongful advice given by the A4e provider to end jobseeker’s allowance claim does not provide basis for backdating of the subsequent new claim under regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987, No.1968

Decision in brief

Claimant was a French national who lived with a self-employed British citizen in France but did not marry him until after returning to the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016, as interpreted in light of relevant European caselaw, requires that the claimant was the family member of (ie, in this case, married to) the British citizen in the other European member state before the return to the UK – as that did not apply, claimant did not have the right to reside as a family member of a British citizen in the UK

Decision in brief

The money was not the subject of a court order and the claimant was free to deal with it as he wished – nothing in the separation agreement compelled the claimant to deploy the pension to maintain his wife – it was therefore properly regarded as the claimant’s income

Decision in brief

Definition requires physical ‘intervention’ and is not involved where someone undertakes the whole task for the claimant (SSWP v GM [2017] UKUT 268 (AAC) – see below) – but can involve someone intervening to undertake a discreet or number of discreet parts of an overall process – for example, handling of hot pans but otherwise allowing claimant to cook – with result that points for ‘assistance’, but not for complete inability to cook, would result