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Decision in brief

EU right to reside rules on family member retaining right to reside on death or departure from UK (Article 12 of EC Directive 2004/38/EC) – does not provide a simple continued right to reside for the surviving EEA national – it merely provides than any independent right to reside they still have is unaffected by the death/departure, and a permanent right to reside is dependent on such a right

Note from CPAG

See also GA v SSWP (SPC) [2018] UKUT 172 (AAC)

Decision in brief

Claimant may need prompting to take nutrition although (applying MM and BJ v SSWP (PIP) [2016] UKUT 490 (AAC)) that did not include a need for prompting to include a healthy or nutritious diet – but if claimant ‘prompted’ by felling weak due to lack of food, that might be indicative of not performing the activity to an acceptable standard – claimant may have difficulties with budgeting decisions even if there is sufficient intellectual ability and also an ability to motivate about other tasks

Decision in brief

Claimant already entitled to contributory ESA – awarded from date of PIP award, not from later date of award of income-related ESA – the ‘relevant benefits’ involved are ESA and PIP – regulations 6(2)(e) and 7(7)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991 apply

Decision in brief

Activity 12(c) ‘reduced awareness of everyday hazards’ leading to significant risk of injury or damage to property or possessions – claimant vulnerable in social situations and had been subject to exploitation for sex – such hazards are not ‘commonplace or ordinary’ and so are not within the ambit of the descriptor, which is concerned with commonplace hazards encountered when going about daily life such as when making hot drinks or chopping food, crossing roads or using electric plugs

Summary

In this decision of the Supreme Court, it is held that the rule denying entitlement to widowed parent's allowance (WPA) to a surviving partner who was unmarried to her partner at the time of his death is incompatible with human rights law. It is now up to the government to decide whether and how to change the law.

Summary

The claimant was in receipt of HB. When he refused to provide details of his bank account, the local authority made a decision ending entitlement on the basis that he ‘had not satisfied the conditions of entitlement in that he had not provided details of a bank account in which to receive payments of housing benefit’. The First-tier Tribunal dismissed the claimant’s appeal.

Allowing the claimant’s further appeal, Judge Jacobs substituted a decision that the local authority had no authority to supersede the claimant’s award on the basis that he would not provide details of his bank account, and that he remained entitled to his award. However, the judge noted that this left the claimant in an ‘impasse’ in that although he was entitled to benefit, he had decided not to provide the information that would allow the local authority to pay it (paragraph 21).

It was wrong for the local authority and tribunal to rely on provisions relating to entitlement in order to terminate the award, when in fact what was in dispute was the method of payment (paragraph 14). Regulation 86 of the Housing Benefit Regulations 2006, SI No.213 provides that a claimant must provide information and evidence that may be reasonably required regarding her/his ‘entitlement’ to HB – but that was separate from and prior to questions about payment (paragraph 11). Similarly, regulations 11 and 13 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, SI No.1002 provide that a local authority can suspend payment where an issue rises about entitlement, including where that is in connection with the information requirement, but is not about payment (paragraph 12). Although the tribunal was right that the local authority was entitled to change the method of payment and ask for information regarding that, it was wrong to decide that there was a power to terminate or suspend under these rules (paragraphs 15–16).

Comment from CPAG

The decision spells out the important distinction between questions of entitlement (which can give rise to termination and consequent right of appeal) and payment (which do not). However, as the judge noted, the claimant although entitled was now in the position of not being able to insist on being paid in the way he wished, and the resolution of that problem was not a matter for the Upper Tribunal.

Summary

In May 2015, the claimant wrote to the DWP saying she had been told she could get PIP as well as her current employment and support allowance (ESA), and if so could she be sent an application form. The claimant asked for more time to complete the PIP1 form and for confirmation that she could get PIP without it affecting her ESA, but never got a clear answer from the DWP. This was repeated when she was eventually sent the PIP2 form in December. The claimant never returned the PIP2 form and her claim was disallowed (for failure to supply further information) in January 2016. Her appeal to the First-tier Tribunal was refused.

Judge Ramshaw allowed the claimant’s further appeal, and substituted a decision that the disallowance of the claim be set aside, with the deemed date of her claim for PIP the date in May 2015 when she requested the claim form. She now (having had the reassurance she requested) had one month from the date that this decision of the Upper Tribunal was sent to her to complete and return the PIP2 form. The judge held that the appeal raised two issues: the ‘negative determination’ issue (ie, the disallowance of the claim) and the ‘extension of time’ issue – ie, what should be the date of claim. The tribunal erred on the former issue by wrongly finding that the claimant had been sent the information she had asked for, when in fact she had only been sent a ‘nonsense document’ with confusing information, ignoring what the claimant said about what she had been sent, and not taking into account the state of the claimant’s health, in particular her mental health problems (paragraphs 12– 18). The tribunal had not dealt with the ‘extension of time’ issue, something that it either should have done or at least made it clear that it had decided not to, given that it rejected the claimant’s appeal on the ‘negative determination’ issue (paragraph 19).

Although there was nothing to show the claimant actually needed more time to complete the form, she did have a reasonable concern that PIP might affect her ESA, and so easonably deferred returning the form. Therefore, regarding the ‘negative determination’ issue, she had ‘good reason’ for failure to provide information or evidence (under regulation 8 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377). For the same reason, regarding the ‘extension of time issue’, it was ‘reasonable’ (under regulation 12 of the Universal Credit [etc.] (Claims and Payments) Regulations 2013, SI No.380) to allow a longer period than the standard one month to complete the claim with regarding to setting the date of claim.

Comment from CPAG

On the facts, it was wrong to disallow the claim. However, the decision is not authority that any termination following refusal to return the PIP2 is unlawful: essentially, it will be a matter of the reasonableness of the claimant’s actions.

Summary

The claimant was in receipt of tax credits as a single person. But following HM Revenue and Customs enquiries, she was notified that she was not entitled as she was considered to be ‘living together as husband and wife’ with her allegedly former partner, and so should have been claiming with him jointly. The claimant acknowledged that she lived in the same house as her alleged partner and had had a child with him, but said the only reason they lived together was that he was ill and she was caring for him, and that they were not in a relationship. The First-tier Tribunal dismissed the claimant’s appeal, finding that they were living together, had a child together and shared finances, with the result that the arrangements were ‘similar to a family unit’.

Judge Wikeley allowed the claimant’s further appeal and, on the facts of the case, substituted a decision that the claimant was not living together as husband and wife with her former partner, even though she shared the same address, and was correctly claiming tax credits as a single person. Drawing on the extensive evidence on file, the judge found that the claimant and her ex-partner were originally a couple, were living together and had a daughter together. But that relationship ceased and the claimant and her daughter left the home. They lived away for about 18 months before returning there for financial reasons and staying longer term because of the ex-partner’s deteriorating health and wanting to provide care for him. The tenancy and bills were in the claimant’s sole name. There were separate rooms and separate finances, although a joint account was retained. With reference to authority on the living together as husband and wife test, the judge was satisfied that did not amount to counting as a couple under that test (paragraphs 45–46).

The tribunal had failed to explore the claimant’s explanation of what had happened and in doing so failed to make appropriate findings of fact or give adequate reasons for its decision. ‘The moral of this case’, said the judge, ‘is that in cases in which it is alleged that a man and a woman having been living together as husband and wife it may be necessary to “drill down” into the facts to arrive at a decision that can be properly sustained on all the evidence. It is not necessarily enough to ask: are they living together?...one must also ask: If they are living together, why are they living together?’ (paragraphs 1–4).

Comment from CPAG

Although the tribunal in this case did not err regarding the correct legal test and relevant authorities, it did err in its approach to fact finding. The latter is especially important in ‘living together’ decisions, in which there may be various explanations for the living arrangements.