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Summary

In this judicial review decision, the High Court held that, in the case of severely disabled claimants who were obliged to claim universal credit (UC) after moving house, the lack of transitional protection to the severe disability premium (and enhanced disability premium) in the former ‘legacy’ benefit was unlawful.

The claimants had both been entitled to income-related employment and support allowance (ESA) and housing benefit (HB) that included the severe disability premium (SDP) and enhanced disability premium (EDP). When they moved to a new local authority housing area, their HB ended and (since they had moved to a UC full service area) they were obliged to claim UC instead, so also terminating their income-related ESA. UC includes neither the SDP nor the EDP, and as there are no transitional protection rules in such ‘natural migration’ cases, the claimants were significantly worse off.

Mr Justice Lewis held that in these circumstances the lack of transitional protection was unlawful. The migration to UC of disabled claimants entitled to the SDP and EDP who move to another local authority housing area without considering the need for any transitional protection was ‘manifestly without reasonable foundation’ (paragraph 86). Further, although this unlawful discrimination was not simply on the basis of disability (as the severely disabled person who moved within the same local authority area did not naturally migrate to UC), there was discrimination between the severely disabled who moved to a new local authority area (the judge considered these to constitute a ‘status’ for the purpose of the discrimination rule at Article 14 of the European Convention on Human Rights) and those that did not. Therefore, the judge issued a declaration of a breach of the claimants’ human rights. It was now open to the Secretary of State to decide an appropriate remedy (paragraphs 88–92).

Note from CPAG

The Secretary of State is appealing. Despite that, a week in advance of this decision, the Secretary of State announced that, to support the transition for individuals with substantial care needs living alone and receiving SDP, ‘we are changing the system so that these claimants will not be moved to Universal Credit until they qualify for transitional protection’ as well as an ‘on-going payment’ to such claimants who had already migrated. Draft rules on transitional protection have now been issued. 

Summary

This decision of the Court of Justice of the European Union results from a referral by the UK Supreme Court of a challenge to the decision of the Court of Appeal in this case (MB v Secretary of State for Work and Pensions [2014] EWCA Civ 112). The Court of Justice holds that rules which had in effect required that a transsexual person must have annulled her/his existing marriage before s/he could become entitled to a retirement pension at an age applicable to her/his acquired gender were unlawful.

The Court of Appeal had held that the requirement (in place until 10 December 2014) for a transsexual person to have annulled her/his marriage before s/he could acquire a full gender recognition certificate resulted in a lawful decision that the claimant, who had not annulled her marriage, was not entitled to be treated as a woman for retirement pension purposes, and therefore could not acquire a pension at the age of 60. The claimant, a male to female transsexual who remained married to a woman, was therefore held to be not entitled to a pension at that age. The Court of Justice held that was wrong under European law. European provisions on sex discrimination (in Council Directive 79/7/EEC) must be interpreted as precluding rules that required a transsexual person who had changed gender not only to fulfil ‘physical, social and psychological criteria’ but also to satisfy a condition of not being married to a person of their acquired gender in order to be entitled to a state retirement pension.

The Court noted that EU member states, when exercising their competence regarding civil status and legal recognition of gender change, must comply with EU law in particular with rules about non-discrimination (paragraph 29). In the present case, the requirement for the claimant to have annulled her marriage before becoming entitled to a pension as a woman was in contrast, regarding someone who changed gender after marrying, with persons who had retained their birth gender and were married, and who could get a pension irrespective of their marital status (paragraphs 36–37). The Court held that constituted direct (ie, unlawful) discrimination on grounds of sex, and is prohibited by Directive 79/7 (paragraphs 48–52).

Note from CPAG

The coming into force of relevant parts of the Marriage (Same Sex Couples) Act 2013, on 10 December 2014, meant that from that date marriage annulment was no longer required as a condition of entitlement to a full gender recognition certificate.

Summary

The claimant had bipolar affective disorder with features of mania and depression. Having failed the work capability assessment, her appeal to the First-tier Tribunal included the argument that having to stop her current ‘therapeutic work’ and search for work for 16 hours a week was too stressful, and would risk the health of her and her children. The tribunal rejected her appeal, reasoning that the claimant could safely undertake some more hours of work a week in a ‘low-skilled occupation’ without incurring a risk.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not adequately considering, under the ‘substantial risk’ rule at regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 No.794, the risks to her health of a finding that she did not have limited capability for work. The tribunal had considered the kind of extra work that the claimant could do. But the judge held that ‘it may be necessary to consider not only the nature of the work which a claimant may be able to carry out, but also the effect on the claimant’s health of any compulsion to carry out that work’ (paragraph 8). More specifically, ‘I consider that in the case of claimants with fragile mental health the possible effects on a claimant of any compulsion to perform a particular type of work may have to be taken into account when considering regulation 29(2)(b)’ (paragraph 9).

The judge noted that a different approach had been taken by Judge Lane in MW v SSWP (ESA) [2015] UKUT 665 (AAC), where she held that – apart from risks arising from the decision itself and those arising from travelling to and from work – only the risks arising from the work itself were to be taken into account. Judge Bano did not consider it necessary to ‘reconcile the tension’ between that and other cases (notably IJ v SSWP (IB) [2010] UKUT 408 (AAC)) which did consider the risk from compulsion to look for work potentially relevant. However, the judge did say the necessary inquiry into substantial risk ‘can only be sensibly undertaken if full account is taken of risks to a particular claimant to resulting from any compulsion to under the work because of an element of ‘conditionality’ in the relevant benefits regime’ (paragraph 10).

Comment from CPAG

Although it does not explicitly disapprove MW v SSWP, the present decision is in very clear disagreement with it. The conflict may need to be resolved by a later decision of the Upper Tribunal. In the meantime at least, it is now arguable that the weight of authority is with the present decision and IJ v SSWP.

Summary

The claimant, on transfer from incapacity benefits to ESA, was held to score 0 points in the work capability assessment. Therefore, she was not entitled to ESA. Her appeal to the First-tier Tribunal was unsuccessful. Although the tribunal did award her 9 points in the mobilising descriptor, that was insufficient to result in her having limited capability for work. Her appeal to the Upper Tribunal included an argument that the tribunal erred in ignoring her award of personal independence payment (PIP), which was at both components at the enhanced rate.

Judge Poole QC refused the claimant’s appeal. On the facts of the case, the tribunal had not erred in proceeding without considering the evidence of the PIP award. Firstly, the judge noted that in AG v SSWP (ESA) [2017] UKUT 413 (AAC) it had been noted that there was in general no reason why a tribunal could not rely upon the absence of an adjournment request in order for further evidence to be obtained where the claimant had an experienced welfare benefits representative. In the present case, the claimant had such a representative, who made no request for an adjournment to get the PIP evidence, including when addressed at the start and end of the hearing, and despite the fact that the tribunal mentioned PIP and asked representatives if they had anything to say. In these circumstances, held the judge, the tribunal did not err in failing to adjourn (paragraphs 8–11).

Further, although the judge admitted that the PIP evidence ‘might have had some relevance’, that did not mean that the tribunal was unable to decide the case lawfully and fairly without obtaining it. The PIP evidence was just one type of potentially relevant further evidence. On the facts of the present case, the tribunal had a significant amount of medical and other evidence including previous medical reports. Overall, the judge considered that there was already sufficient evidence for the tribunal to support the facts it found and the conclusions it reached (paragraphs 13–17).

Comment from CPAG

Despite the judge’s reasoning, many will find it surprising that a First-tier Tribunal considering the work capability assessment could apparently be uninterested in the fact that a claimant is entitled to the enhanced rate of both components of PIP. Nevertheless, the findings about reliance on an experienced representative (as made in AG) again underline the need from representatives for clear requests for adjournment to get missing evidence which are considered relevant.

Summary

The claimant was found not to have limited capability for work, a decision upheld by the First-tier Tribunal. The claimant’s appeal rested in particular on the argument that, due to her latex allergy, there was a ‘substantial risk’ to her health should she be found not have limited capability for work, and that therefore she qualified under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 No.397.

Judge Poole QC refused the claimant’s further appeal. The tribunal had not erred in holding that the substantial risk provision did not apply to the claimant. Regulation 29(2)(b) had to be read with regulation 29(3), which provides that the exceptional circumstance does not apply where the risk ‘could be reduced by a significant amount by…reasonable adjustments being made in the claimant’s workplace; or the claimant taking medication to manage the claimant’s condition where such medication has been prescribed by a registered medical practitioner treating the claimant’.

Applying that, the tribunal found both that the employer could make appropriate action to minimise the risk, and that the claimant had an epipen to deal with an incident, and both of those meant that the risk was significantly reduced. On the facts, the judge held that the tribunal had not erred in law (paragraphs15– 17). The judge accepted the Secretary of State’s submission that considering ‘reasonable adjustment’ meant considering measures which both employer and employee could take (paragraph 11). On the facts, the claimant possessed an epipen which in fact she had never had to use in 16 years. So, although the ‘magnitude of potential harm was great’, there was a ‘low likelihood’ of it occurring (paragraph 15). She was able further to minimise the risk by wearing latex-free gloves and avoiding latex, something which the employer could reasonably contribute to by making adjustments in the workplace (paragraph 16).

Comment from CPAG

Findings about reasonable adjustments are highly dependent on the individual facts of the case. Here, possession of an epipen and the apparent ease of employer adjustment were clearly important. Also, the remoteness of the risk clearly influenced the judge, although it remains very arguable that that should be of little weight where the harm is potentially great.

Summary

The claimant was single and had learning difficulties and autism. He rented his home from a housing trust. The property had two upstairs bedrooms, and downstairs the living quarters included two living rooms. The claimant had help from an overnight support worker (funded by the local authority) who slept in the second upstairs bedroom. The downstairs living rooms were shared with a day-time support worker which allowed them to chat and share meals but still to have some space of their own. The house was rented with that arrangement in mind, although was described in the tenancy agreement as a ‘three-bedroom house’. The local authority imposed a reduction under the so-called ‘bedroom tax’ rules, deciding that the one of the downstairs ‘living rooms’ was suitable for use as a third bedroom, when the claimant needed only two bedrooms. However, the First-tier Tribunal allowed the claimant’s appeal, holding that, on the facts of the case, the alleged downstairs bedroom was never used as such or intended to be.

Judge Rowland allowed the Secretary of State’s appeal and substituted a decision that the house was a three-bedroom property and so a reduction under the bedroom tax, under regulation B13 of the Housing Benefit Regulations 2006 No.213, was to be applied. The tribunal erred in law in having regard to the ‘irrelevant fact of the claimant’s actual use of the room’ (paragraph 26). Applying the reasoning of the (later) decisions in Secretary of State for Work and Pensions v Nelson (HB) [2014] UKUT 525 (AAC); [2015] AACR 21 and in particular Secretary of State for Work and Pensions v City of Glasgow Council [2017] CSIH 35; [2017] AACR 38, the claimant’s actual use of the room was immaterial. However, the physical characteristics of the room and its relationship to the other rooms in the house were relevant considerations (paragraphs 27–28).

In the present case, the judge accepted that the room concerned would generally have been used as a parlour or dining room. However, the removal of the gas fire from the room had made its use as a bedroom more realistic. It also had access to a downstairs bathroom, had privacy and was plainly big enough to be used as a bedroom. Moreover, there was no practical requirement for it to be used as a dining room or parlour. So, ‘looking at the property objectively as it would be in its vacant state’, it appeared to the judge that it could be used either as a two-bedroom or a three-bedroom house. For the purposes of regulation B13, in a ‘borderline’ case like this, the landlord’s designation can be determinative, and he considered that in this case the designation as a three-bedroom property should be regarded as so (paragraphs 29–33).

Comment from CPAG

Note that although the claimant's actual use of the room is immaterial, the relationship of the room to the other rooms in the house is not. So, if a claimant does not use the room as a bedroom, where that is because of its relationship to other rooms in the house (eg, it is not sufficiently private or does not have reasonable access to a toilet), that may well be relevant.

Summary

The claimant was in receipt of JSA with a current jobseeker’s agreement. He proposed variations to the agreement, which included elimination of all references to the steps he would take to find work and a statement that he was not obliged to give details of employers or websites that he had contacted or visited in order to maintain his claim. His employment adviser did not agree to the variation and made counter proposals, which the claimant did not agree to. The dispute was referred to a decision maker who issued a direction to the claimant to enter the agreement as varied by the employment officer. When the claimant did not do so within the prescribed time, his JSA was terminated. The First-tier Tribunal rejected his appeal.

Judge Lane held that although the tribunal had erred in one respect (treating the dispute as about availability for work rather than actively seeking work) that could not have affected the outcome of the appeal, and otherwise the tribunal had not erred and so the decision was to stand.

The claimant’s various arguments included that his existing jobseeker’s agreement was ‘perfectly reasonable’ and he had not admitted that it was unreasonable; that he had ‘good cause’ for not signing the varied agreement; that no one had explained why his proposals were unreasonable and that his existing agreement was a civil contract which, because it was reasonable, could not be terminated without his consent.

Rejecting all those arguments, the judge said that the claimant had himself started the variation process, and that once started the variation could legitimately be disputed and ultimately referred to the decision maker, all under section 10 of the Jobseekers Act 1995. The claimant had therefore ‘set in train a statutory procedure’ and could not necessarily stop it by unilateral action (paragraphs 8–9). Although the employment adviser, decision maker and tribunal had mistakenly treated the claimant’s proposals as about his availability for work, there ‘could be no real doubt’ that they were insufficient to show that he was actively seeking work. ‘That’, said the judge, ‘was fatal to the appellant’s case and no tribunal could reasonably have come to any other conclusion’ (paragraph 27). To have to explain why it was reasonable for the claimant to comply with (his own) proposals that were in fact considered inadequate would have been absurd (paragraph 30). The claimant’s referral to good cause was misplaced as that related to sanctions (paragraph 34). His argument about contracts was misplaced as a jobseeker’s agreement is not a civil contract (paragraph 38).

Comment from CPAG

Many of the findings here originate in what some may consider a somewhat unusual manoeuvre by the claimant. In simpler cases, where it is the employment officer who has proposed changes to the agreement that the claimant considers onerous, it remains that the claimant can object (under section 10(5)(b)) that it is not reasonable to expect her/him to have to comply.

Summary

The claimant’s appeal to the First-tier Tribunal included an argument that she had problems with her neck and shoulders, and that the examining health care professional had failed to consider whether she could wash her back. The tribunal decided that Activity 4(f) ‘needs assistance to be able to wash her/his body between the shoulders and waist’ was not satisfied. That was because, said the tribunal, most people are unable to access their upper spinal region, and in the light of that points could not be scored for an inability to wash the upper back.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred by misdirecting itself as to the law. Although people without physical limitation are probably unable to access their upper spinal region, that is not the test, and the tribunal had gone wrong by not considering the key issue (paragraphs 1–2).

Activity 4 is about ability to ‘wash and bathe’ and descriptor (f) about ability to wash ‘between the shoulders and the waist’. ‘In my view’, said the judge, ‘people without a physical limitation are able to get sufficiently close to the upper spinal area to enable them to wash their upper back effectively without having to use an aid by, for example, rubbing a soapy sponge above that area and then rinsing off…that is why the majority of the population would score zero points’ (para 12(a)–(c)). The tribunal had failed to consider whether the claimant could wash her back using an aid or appliance and, if not, whether she needed assistance to wash her upper back. ‘By focussing on ability to reach the upper spinal area, rather than ability to wash the body between shoulders and waist, the Tribunal misconstrued descriptor 4(f)’ (paragraph 12(d)–(e)).

Decision in brief

Work capability assessment descriptor 4(c) ‘cannot transfer a light but bulky object such as an empty cardboard box’ – although may be achieved with one arm by wedging the object under the arm (KH v SSWP (ESA) [2014] UKUT 455) test still involves use of the upper body, and so ‘the effect on a back condition of picking up and moving a light, bulky object, using the one arm wedging technique, must be taken into account’

Decision in brief

A ‘wide range of simple meals for one person can be prepare and cooked in 20 to 30 minutes without needing the cook to be standing over it or perching next to it during the process’ – logic of CW v SSWP [2016] UKUT 197 applies to Activity 1 as it does to dressing and cooking – unless a claimant ‘is unable to stand safely for more than a few minutes’ he is ‘unlikely’ to require a perching stool – the way in which the need for using a perching stool is assessed ‘needs to be revisited’

Comment from CPAG

This decision, on the judge’s own comments, is obiter (not formally binding) on this point. In any case, it seems to focus on the idea that food often does not need to be watched over while it is cooking. Arguably, it neglects the absolute need to be watched over food while it is being prepared. Also, it fails to take into account, or at least to mention, the decision in EG v SSWP (PIP) [2015] UKUT 275 (AAC), which did find that perching stools can be an aid for preparing food.

Decision in brief

EU right to reside rules on family member retaining right to reside on divorce (Article 13 of EC Directive 2004/38/EC) can only apply if the British citizen had exercised European freedom of movement rights – even where it does apply, Article 13 does not provide a simple continued right to reside for the now divorced EEA national – it merely provides that any independent right to reside they still have is unaffected by the divorce, and a permanent right to reside is dependent on such a right

Note from CPAG

See also JP v SSWP (ESA) [2018] UKUT 161 (AAC)