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Decision in brief

CPIP/1722/2016 held that for an effective waiver of the right to an oral hearing an appellant must not be misinformed or deprived of material facts or information – in the present case, the tribunal should have considered the history of the previous adjournment and the claimants’ correspondence before proceeding without a hearing

Decision in brief

Mental health descriptors – use of aids and appliances not taken into account – regulation 19(4) of the Employment and Support Allowance Regulations 2008, No.794 provides that they are taken into account only regarding the physical health descriptors – but aids and appliances in any case not relevant to the tests involved in the mental health descriptors

Summary

This decision of the Court of Appeal is on the Secretary of State’s appeal against the decision of the High Court in R (DA and others) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin). By a majority decision, the Court of Appeal allowed the Secretary of State’s further appeal, holding that the cap did not unlawfully discriminate against lone parents with children aged under two.

Giving the lead decision for the majority, Sir Patrick Elias considered (with particular reference to statistics on the effect of the cap) that the problems encountered by lone parents with children under two were not ‘sufficiently proportionately disabling…to make it unjust not to treat them differently’. As a consequence, there was no unlawful discrimination. Considering the position of the children themselves did not substantively alter that (paragraph 135). In the dissenting judgement, Lord Justice McCombe considered that the High Court had been entitled to find that there was an unjustified failure to treat lone parents with young children differently, and considered the witness evidence about the different position of such lone parents of equal significance with the statistical evidence (paragraphs 161–181).

Note: this decision will be the subject of a further appeal to the Supreme Court, where it will be heard with CPAG’s challenge regarding all one parents, R (DS and others) v Secretary of State for Work and Pensions (which has been ‘leapfrogged’ to the Supreme Court following dismissal in the High Court). 

See R (DA and others) and R (DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21 for the Supreme Court's judgment.

Summary

This decision of the Court of Appeal is on the Secretary of State’s appeal against the decision of the Upper Tribunal in SSWP v Carmichael and Sefton BC (HB) [2017] UKUT 174 (AAC) (Bulletin 259, p10). The issue was whether a First-tier or Upper Tribunal has the power to substitute its own remedy where it is established there has been a violation of the claimant’s human rights.

The Upper Tribunal had held that, in the case of secondary legislation, it had such a power. In this case therefore, where the claimant’s human rights had undoubtedly been breached by the ‘bedroom tax’ rules (regarding a couple unable to share a bedroom because of disability), the Upper Tribunal had ordered that his housing benefit be calculated without the reduction required. However, by a majority decision the Court of Appeal allowed the Secretary of State’s further appeal, holding that neither the First-tier nor the Upper Tribunal had the power somehow to disapply the bedroom tax rules. All they could do was make a ‘declaration’ of a breach of human rights, so that the claimant was able to pursue a claim for damages in the courts. Giving the lead decision for the majority, Lord Justice Flaux held that the Upper Tribunal had exceeded what was permissible and should have limited itself to making a declaration that the bedroom tax rules had violated the claimant’s human rights. That remedy was sufficiently effective as section 8 of the Human Rights Act clearly envisaged that, and in the present case the claimant had in any case received discretionary housing payments (paragraph 67).

In the dissenting judgement, Lord Justice Leggatt considered there was a distinction between violations by primary legislation, which could indeed only be subject to a declaration, and (as here) violations by subordinate legislation (and in which the violation was not inherent in the primary legislation). In such cases, there is no power to make a declaration and ‘no objection’ to declining to give effect to the offending rule, something which was indeed required under section 6 of the Human Rights Act (paragraphs 78–80).

Comment from CPAG

This decision does not doubt that the claimant’s human rights were violated (indeed the bedroom tax rules had already been amended in the light of the finding that they were). Rather, it holds that tribunals cannot actually remedy such a violation – even where that violation is not provided for in primary legislation. Arguably, this somewhat undermines the real value of the protection afforded by human rights rules, although the availability of discretionary housing payments also clearly influenced the court.

Summary

In this judicial review decision, the High Court dismissed arguments that the ‘two-child limit’ in child tax credit (CTC – and universal credit although that was not discussed specifically) was in breach of human rights obligations. The claimants were three families in different circumstances but all in receipt of CTC with a third or subsequent child born on or after 6 April 2017 for whom no child element of CTC was payable. They argued that the limit was in breach of the European Convention on Human Rights (ECHR). This was on the basis that: (1) the legislation directly breached Article 8 (right to family life) and Article 12 (right to marry and found a family; (2) the legislation breached Article 14 (prohibition of discrimination) when read with those Articles, or Article 9 (right to freedom of thought, conscience and religion) and Article 1 of Protocol 1 (right to possessions).

Mr Justice Ouseley dismissed all of those arguments. The judge could see no ECHR authority that held that Article 8 was directly engaged by the absence of any particular social security benefit or level of it (paragraph 58). He accepted the government’s description of the legislation as being to ensure that welfare spending was sustainable and fair to the taxpayer while protecting the most vulnerable. There was little or no evidence of direct interference with family planning. Neither Article 8 nor Article 12 were engaged directly (paragraphs 70–79). Regarding Article 14 (discrimination) and Article 1 of Protocol 1, the judge did not consider that an expectation of an increase in CTC for a third or subsequent child was enough to constitute a ‘possession’ (paragraphs 92–93). Neither was there sufficient link with Article 12 and the right to found a family (paragraph 94). Regarding Article 8 and discrimination, the two-child limit did not come within the ambit of Article 8. The judge considered that there was no removal of an existing benefit with a direct and real effect on family life so as to establish a sufficient link with Article 8 (paragraph 105). Further, there was no basis for ignoring the other state support for third or subsequent children that continued unaffected (paragraph 106). In any case, the judge considered the undoubted indirect discrimination against women to be justified as, given the aims of the legislation, it was not ‘manifestly without reasonable foundation’. The judge did not consider that ‘children with multiple siblings’ constituted a ‘status’ for Article 14 purposes (paragraph 125). Even if it were such a status, the differential treatment against this group was justified, for the same reasons as in relation to women (paragraphs 132–160). Further, although the United Nations Convention on the Rights of the Child might be a relevant interpretative aid concerning alleged discrimination against children, it was plain that the best interests of children overall had been a primary consideration, and so regard to that Convention did not reveal unjustified discrimination (paragraphs 209–212).

The judge did consider that, in the rules about exception to the two-child limit for non-parental caring arrangements, there was an unlawful irrationality in the requirement – in effect, for the cared-for child to be the third or subsequent child. There was no rational justification for a parent’s decision as to whether to have a child of their own to be affected by the separate decision of whether or not they should care for someone else’s child. The rules determining the ordering of the children for this exception were therefore unlawful (paragraphs 215–217).

Note: CPAG, who were acting for the claimants, has been granted permission for a further appeal to the Court of Appeal. The government has announced that it is not appealing the finding about the rule on ordering children, and will amend the rules so as to apply the finding to the exceptions about both non-parental carers and adoptive parents.

Summary

The claimant’s appeal was on the basis that she should be placed in the support group as she was unable to ‘repeatedly mobilise more than 50 metres over level ground within a reasonable timescale’. The First-tier Tribunal held that the claimant scored an additional 9 points for inability to repeatedly mobilise more than 100 metres, but refused to award 15 points for mobilising and so placed in her in the work-related activity group instead. The tribunal adopted the claimant’s estimate that she could walk a ‘half normal speed’, and walked for three minutes before needing to stop. It then applied its own expertise to hold that as ‘normal’ walking pace was 100 metres per minute, at half this pace the claimant would cover 150 metres in three minutes before stopping. Allowing for the difficulties involved in approximating distance (and so reducing the distance by a third), the tribunal still reckoned the claimant could walk 100 metres before needing to stop.

Judge Mesher allowed the claimant’s further appeal and remitted the case to a new tribunal. Although the case was ‘very close to the margin’, he considered the basis of the tribunal’s calculations ‘problematic at several points’ (paragraphs 2 and 9). Firstly, the tribunal accepted the claimant’s estimate that she could walk at half normal speed. But it was unlikely that the claimant had explored what normal walking speed meant and the tribunal did not tell her its own understanding of what that meant. Secondly, the tribunal’s adoption of normal walking speed of 100 metres in a minute ‘seemed dubious’. That speed amounted to around four miles an hour, whereas in the judge’s experience around three miles an hour (5,000 metres an hour) was generally accepted as the norm (paragraph 9). Applying the tribunal’s reduction in distance of around a third to that, the distance the claimant could walk before needing to stop would be around 85 metres in three minutes (paragraph 9).

Even then, the claimant might still be reckoned, as the tribunal found, to be able to walk ’50 metres in one go’. But her argument was that she could not ‘repeatedly do so within a reasonable timescale’ because of discomfort or exhaustion. Even the tribunal’s own terms did not clearly imply that might not be so. Using the judge’s own lower estimates of the distance the claimant could walk, the argument that the claimant could not achieve 50 metres repeatedly and within a reasonable timescale became stronger, and had not been investigated by the tribunal (paragraph 10). Finally, it was not clear that the tribunal had observed the finding in GL v SSWP (ESA) [2015] UKUT 503 (AAC) that a claimant’s ability to mobilise with significant discomfort or exhaustion should be disregarded (paragraph 12).

Thanks to Andy King of Bristol Law Centre, the claimant’s representative, for sending us this decision.

Summary

The claimant had learning difficulties. The First-tier Tribunal rejected his appeal against the decision that he failed the work capability assessment. The tribunal placed very considerable reliance on what the claimant was said to have told the examining healthcare professional about a typical day, and dismissed a supportive letter from a GP apparently on the basis that the GP was merely repeating what the claimant had told him.

Judge Gray allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal erred in giving inadequate reasons for not applying the ‘substantial risk’ exceptional circumstance at regulation 29 of the Employment and Support Allowance Regulations 2008 No.794. Potentially, the tribunal had also erred in relying on the claimant’s alleged insight into his own condition without offering an opportunity for him or his parents to attend the hearing. Depending on the level of difficulty, said the judge, ‘the possibility must always be considered in those with learning difficulties that they lack insight into their own condition… Tribunals should not be casual listeners’ (paragraph 10).

Also, the tribunal had apparently dismissed the GP’s letter on the basis that there was no indication it was based on anything other than what the claimant said. Given the letter was explicitly in support of the claimant’s appeal, it would be ‘perhaps unusual’ for a professional person to put forward such support if there was no element of independent knowledge or professional judgement (paragraph 13). The judge referred the fresh tribunal to the comments of Judge Wright in BH v SSWP (AA) [2013] UKUT 241 (AAC), where (at paragraph 14) he referred to the ‘regrettably overused mantra that the…GP’s letter’s explanation of the appellant’s restrictions…was of less evidential worth than the views expressed in the report because it was ‘just the GP reiterating what the appellant had told him’…A claimant’s GP is just as professional as any other doctor or healthcare professional who gives evidence to a tribunal, and save where a proper explanation is given as to why he or she would do this, should not be assumed to be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.’

Summary

The claimant had sustained an injury to her hands in 2006 and been on ESA since 2009. In 2016, she failed a repeat work capability assessment. There was no reason to suppose that the claimant’s condition had improved, but neither the claimant’s representative nor the First-tier Tribunal called for a history of the adjudication of the claimant’s ESA. The tribunal dismissed her appeal.

Judge Ward allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to call for the ‘missing’ history and evidence of the case. The tribunal had an inquisitorial jurisdiction, the ESA in this case was a long- standing award and the claimant’s condition did not appear to have changed much on the available evidence. Taking away someone’s ESA after they had been on it for seven years, in the absence of, for example, obviously ameliorating treatment was a significant step. To be able to explain its reasons for taking the award away, the tribunal needed to know the history and the relevant evidence behind it (paragraph 17).

In so holding, the judge rejected a submission from the Secretary of State that the tribunal had not erred by failing to call for the evidence from the history of the case. The Secretary of State relied on the decision in JC v SSWP (ESA) [2015] UKUT 706 (AAC), which held it was not necessary to have the evidence of a claimant’s previous assessment ‘in each and every case’, and the endorsement there of a requirement for there to have been an ‘assertion’ that there has been no change in the claimant’s condition for the previous adjudication history to be called on. But the judge said it would be wrong to judge whether there had been such an ‘assertion’ by ‘abstract consideration of the semantics of the words used.’ In FN v SSWP (ESA) [2015] UKUT 670 (AAC); [2016] AACR 24, the panel expressly contemplated whether the tribunal ought to have ‘inferred for itself’ that a submission of no change was made. It was a job for the tribunal, said Judge Ward, ‘to listen to and interpret what it being told, orally and in writing. Context is very important’ (paragraph 12). Tribunals will understand that some conditions heal and others do not, and on the facts of this case the natural reading of the claimant’s letter of appeal, with its reference to her accident in 2006 and continuing need for help, was indeed that her condition had not changed (paragraphs 13 –16).

Comment from CPAG

This decision helpfully clarifies that it may well be evident from the context that the claimant is saying that her/his condition has not changed, and that may be sufficient to require the tribunal to seek the evidence of the previous assessment(s).

Summary

The claimant’s mother had a home in Berlin, but lived with the claimant in Bournemouth for various (prolonged) periods of time, staying with her daughter for approximately the first two weeks in each month. When in Bournemouth, the mother worked and claimed working tax credit and helped the claimant and her daughter around the house. But she rented her own flat in Berlin, had a long-term partner and other family in Berlin, and when in Bournemouth slept on a sofa bed and brought only sufficient clothes for her stay, not using a wardrobe. The local authority applied a non-dependant deduction for the mother to the claimant’s housing benefit. The First-tier Tribunal rejected her appeal, holding that the mother was normally residing both in Berlin and in Bournemouth – ie, with the claimant as her non-dependant.

Judge Wikeley allowed the claimant’s further appeal, substituting a decision that the claimant’s mother was not her non-dependant, as the mother did not normally reside with the claimant, because her normal home was in Berlin. The tribunal erred in failing to give proper consideration to whether Bournemouth was the mother’s usual home and in failing to give sufficient weight to her home in Berlin (paragraph 72). In particular, although a person can reside in more than one place, the tribunal was wrong as a matter of law in holding that the mother was (and was capable of) ‘normally’ residing in both places (paragraphs 7 and 32).

The relevant rule was at regulation 3(1) of the Housing Benefit Regulations 2006 No.213. That provided that (subject to exceptions) a non-dependant is someone who ‘normally resides with a claimant or with whom a claimant normally resides’. The judge accepted the Secretary of State’s submission that there was no valid distinction between normally residing with a claimant, normally occupying a home and having a normal home elsewhere. An adult, held the judge, ‘may well reside in more than one place but he or she can have only one ‘normal’ home or residence’ (paragraph 32). The tribunal had been entitled on the facts to conclude that the mother ‘resided’ in Bournemouth and that when she did so was residing ‘with’ the claimant; but the crucial question was whether she was ‘normally’ residing with her (paragraph 36). On the facts of the case, the judge was satisfied that the mother’s normal home was in Berlin. The fact that in Bournemouth she slept on the sofa and had no wardrobe were ‘especially telling’: this was a case ‘of a grandmother who is living out of a suitcase when she comes to stay – admittedly for lengthy periods – with her daughter and grandchildren’ (paragraphs 68 –71).

Note: given his conclusion that someone could only be a non-dependant if her/his normal home was with the claimant, the judge concluded that the provision at regulation 74(7)(a), providing there was no deduction for a non-dependant who although residing with the claimant has her/his normal home elsewhere is otiose, or at least a ‘statutory conundrum’.

Summary

When claiming IS as pregnant, the claimant did not disclose the existence of two bank accounts in her name amounting to about £13,300. Following a compliance interview in July 2015, the money was withdrawn and the accounts closed. The claimant said she returned the money to the family members apart from £2,000 to buy things for her baby. The claimant said she had been unaware of the accounts, which had been opened for her (in her name) by four family members when she was a child, with the intention that she used the money if she went into education. She was a member of the traveller community and now the family members disowned her and refused to give evidence, due to the ‘shame on family’. Both the decision maker and the First-tier Tribunal considered that the money in the accounts was the claimant’s. The tribunal held that she must have opened the accounts herself and considered she had at all times had control over the money in them.

Judge Wikeley allowed the claimant’s further appeal, but remitted the case back to a fresh tribunal for findings of fact about (1) whether the claimant was in fact the beneficial owner of the capital and (2) if so, whether the money allegedly returned to the family members should be treated as her notional capital. The tribunal had erred in finding that the claimant opened the accounts herself when there was no evidence for or explanation of that. Also the tribunal had erred in failing to distinguish between the periods before and after they were closed and the money withdrawn: for the latter period, the tribunal should have made findings about whether the claimant still had the money or, if not, whether it was to be treated as her notional capital (paragraphs 23 and 31).

The judge set out some considerations about capital allegedly impressed with a trust from a family member. It was for the claimant to show that although undoubtedly the legal owner she was not the beneficial owner of the capital (paragraph 40). The central issue in this case was whether there was a ‘Quistclose’ trust – ie, where the money was transferred for a stated purpose that did not leave it at the free disposal of the transferee, and the intention to create the trust was via the transferer’s words or conduct, not their innermost thoughts (paragraphs 41– 42). Evidential difficulties may well often arise in the context of family arrangements, but ‘the absence of a paper trail is not necessarily determinative’ (paragraph 44). It was important that the evidence is considered ‘in its wider social context’. Informal family arrangements (in the traveller community or not) are not usually evidenced in writing. If the appellant’s account of being cast out by the community was accepted, that may explain the failure of witnesses to attend the oral hearing to support her (paragraph 47). Identification of a Quistclose trust cannot be relaxed in some way because the claimant comes from a traveller background. But the tribunal, in doubting the claimant’s credibility, seemed to have applied ‘some objective criterion of reasonableness’, whereas the question was what the individual in question, given her own circumstances, is likely to have done (paragraphs 58 – 62).

Comment from CPAG

This decision underlines the difficulty of testing for a ‘Quistclose’ trust in family arrangements, but clarifies that documentary evidence is not essential. Further, a claimant’s credibility is to be assessed with regard to her/his social context, not an objective view of reasonableness.

Summary

The claimant had been entitled to the higher rate of disability living allowance (DLA) mobility component. But on transfer to PIP, he was not awarded even the standard rate of the mobility component. The claimant’s appeal to the First-tier Tribunal was refused.

Judge Wright allowed the claimant’s further appeal and substituted a decision that he was entitled to the standard rate of the mobility component of PIP, by virtue of satisfying descriptor 2(c) ‘can stand and then move unaided more than 20 metres but no more than 50 metres’. The tribunal erred in failing to make sufficient findings of fact or given adequate reasons (paragraph 3). On the facts and balance of the evidence, which included that the award of the high rate of the mobility component made it more likely than not that the claimant could not walk more than 50 metres, and inadequate reasoning by the tribunal on the claimant’s walking ability, the judge was satisfied that entitlement to the standard rate was made out (paragraphs 3, 8 and 23).

Although not part of the judge’s reasoning, he also said that the tribunal may also have erred in failing to address the evidence behind the award of the higher rate of DLA mobility component and, given the absence of that evidence from the papers, failing to address whether that evidence should have been before it (paragraphs 5 and 10). The Secretary of State accepted, applying AP v SSWP [2016] UKUT 416 (AAC), that such DLA evidence may be relevant. The Secretary of State told the judge that the Secretary of State gave claimants ‘the option to rely on the older DLA evidence in support of their PIP claim’. If the answer was yes, the evidence was put into the appeal bundle. Otherwise, some basic information about the amount of dates of the DLA award was included, and the Secretary of State intended to extend that so as to include the date of the last DLA decision (paragraphs 12–13). The judge noted that these issues were to be explored in two other appeals currently before the Upper Tribunal (CPIP/2307/2017 and CPIP/2386/2017) (paragraph 16).

Comment from CPAG

Clearly, as this decision envisages, a tribunal that proceeds without reference to the evidence behind the previous DLA award may – but will not necessarily – err in law. All will depend on the individual facts – eg, how recent the DLA decision was and whether the claimant’s condition has changed.

Decision in brief

Terms of regulation 16 of the Immigration (European Economic Area) Regulations 2016 not unlawful in requiring this