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Decision in brief

Tribunal in refusing the appeal provided an adequately reasoned conclusion for its finding that the claimant experienced work-aggravated asthma rather than work-caused occupational asthma - reference to ‘any other sensitising agent’ – any inadequacy in the tribunal’s explanation as to why coal dust was not a relevant ‘sensitising agent’ for the purposes of a PD D7 claim was not material to the outcome in this case

Decision in brief

Made findings about distance and about speed but not about distance and speed together – so findings about distance failed to include how long it took the claimant, and findings about how long the claimant could walk for failed to include how far the claimant walked

Decision in brief

Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provides for a set-aside of a decision which disposes of an appeal, but not for a set-aside of such a set-aside decision, because all that a set aside does is to remove the decision of the First-tier Tribunal so that the claimant’s appeal is ‘live’ again; it does not dispose of the appeal and so in itself is not capable of being set aside under rule 37 – neither is that possible under the case management powers in rule 5 – claimant’s application for permission to appeal against the original tribunal decision refused, as that had been set aside and his appeal remained to be determined by a new tribunal

Note from CPAG

This decision is a refusal of permission to appeal, but has been published as it raised a point of procedure regarding set-asides.

Decision in brief

Claimant was in receipt of personal independence payment, but due to Covid- related delays was still awaiting a work capability assessment by the time he started his course of study – consequently was no determination awarding limited capability for work (LCW) by that time under so could not be entitled (under regulation 14(1)(b) of the Universal Credit Regulations 2013) to UC as a disabled student – tribunal did not err in refusing the claimant’s appeal – ‘no way round’ the problem that the claimant did not have a LCW determination before he started his studies

Decision in brief

Where a claimant says that they have difficulty in doing activity due to pain, it is important to take account of that in particular regarding ability to do the activity repeatedly and within a reasonable time, and make relevant findings of fact

Decision in brief

Permission refused as essence of the application was a dispute over the facts and credibility findings of the First-tier Tribunal for Scotland (FTS) – need to show an arguable error of law – law restricts appeals to the UTS to points of law only (s46(2)(b) of the Tribunals (Scotland) Act 2014) – FTS is in a better position than the UTS to make judgements about factual matters and credibility – to be proper and adequate, the reasons of the FTS for its decision do not have to involve every aspect of the evidence before it – ‘The decision of the FTS has to be read as a whole, in a straightforward manner, and recognising it is addressed to parties well aware of the issues involved (AK v Social Security Scotland [2024] UT 5, para 8).’

Decision in brief

Need to consider whether ability to walk is to an acceptable standard (as explained in PS v SSWP [2016] UKUT 326 (AAC)) – ‘walking despite pain is not to an acceptable standard’

Decision in brief

In rejecting appeal, First-tier Tribunal made insufficient finding of fact and gave inadequate reasons – tribunal wrongly excluded cleaning and sterilising therapy equipment from consideration of managing therapy – Secretary of State conceded that any essential clearing and maintenance of the therapy device should be treated as part of the therapy regime – although, on the facts, the time taken would still not have led to an increased award of points for that

Summary

The claimant was entitled to child benefit for her son, and also got the care component of disability living allowance (DLA) for him. The claimant and her husband had worked in the UK. They ceased paid work and went to live in Spain in 2011. Entitlement to the care component of the DLA continued but (as eventually decided by HM Revenue and Customs (HMRC)) entitlement to child benefit was lost due to the national (UK) rules not being satisfied, and the UK no longer being considered the competent state for payment once residence had commenced in Spain. That was reversed by Judge Jacobs in the Upper Tribunal in WC v HMRC (CF) [2019] UKUT 289 (AAC), where it was decided that, under Article 7 (on waiving of residence rules) of EC Regulation 883/04, the UK had remained the competent state for payment of benefit, so that child benefit was ‘exportable’ to another member state of the EU. 

The Court of Appeal unanimously upheld the further appeal of HMRC. Child benefit was not exportable to the EU in this case and consequently the claimant’s entitlement had stopped when the domestic rules on residence ceased to be satisfied on the move to Spain. WF v HMRC had wrongly held that the competent state remained the UK under Article 7 of Regulation 883/04. Instead, the competent state had changed to being Spain, under the default provision (deeming the state of residence to be the responsible or ‘competent’ state for payment of benefit) at Article 11(2)(e). 

Giving the lead decision for the court, Sir Launcelot Henderson accepted that Article 7 had a narrower application than that adopted in WF v HMRC, so it applied only in order to prevent the competent state from avoiding payment on the sole basis that the claimant did not reside in the state. It did not in itself provide that for a family benefit the competent state would not change following the start of residence in another state. In this case, Article 11(2)(e) applied so that the competent state for payment of the family benefit was the state of residence. The judge considered that the language of Article 7: 

‘…presupposes the existence of an entitlement to the cash benefits in question, and that its purpose is merely to prevent any reduction etc in those benefits because the beneficiary or members of his or her family “reside in a Member State other than that in which the institution responsible for providing benefits is situated.” That appears to me to be a reference to the competent institution, in a situation where there has been no change in the applicable legislation referred to in the first limb of the article... But if there is a change in the applicable legislation, I agree with HMRC that Article 7 cannot be invoked to provide an independent basis for the continued payment of UK child benefit. The correct analysis in such a case is that the UK child benefit ceases to be payable as a result of national law, and its cessation is not overridden by Article 7 because the underlying reason for the cessation is not the change of residence, but the change in applicable law’ (paragraph 99). 

This was distinguishable from the position regarding the DLA care component, which was exportable as a cash sickness benefit. That position was originally established by the European Court of Justice in Secretary of State for Work and Pensions v Tolley (Case C430/15, reported as [2017] 1 WLR 1261); but that was a case about a sickness benefit, not a family benefit, that turned on the specific provisions of Article 22 of EC Regulation 1408/71, the predecessor of EC Regulation 883/04.

Decision in brief

Tribunal had been sufficiently persuaded of adverse effects of claimant’s mental health problems to award 10 points in mobility descriptor, and that indicated that a mental health issued could have had more of an effect on daily living than the tribunal found – tribunal needed to explain more about that

Decision in brief

Application of Court of Appeal decision in Harrington v Secretary of State for Work and Pensions [2023] 1 WLR 3477 – under Article 11(2)(e) of Regulation (EC) No.883/2004, on the facts the claimant’s competent state was her state of residence (ie, the UK) – that was not displaced by Article 29 (‘cash benefits for pensioners’) as that merely ensured that the claimant, as the family member of a pensioner, may be entitled to cash sickness benefits by the state responsible for the pension – but it did not have the effect of removing entitlement to cash benefits from the family member’s state of residence (ie, the UK, in this case) where they were otherwise entitled – claimant’s competent state was therefore the UK and she was entitled to carer’s allowance

Summary

The Supreme Court unanimously held that amendment regulations providing that pre-settled status under the European Union (EU) Settlement Scheme was excluded from conferring an effective right to reside for entitlement to universal credit (UC) were not unlawful on grounds of discrimination under European law. In so holding, it allowed the appeal of the Secretary of State against the contrary decision of the Court of Appeal in this case (Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741, 18 December 2020).

The claimants were Romanian nationals whose only right to reside in the UK was by virtue of their pre-settled status, and had been refused UC. The Court of Appeal had accepted their argument that the exclusion of that right to reside in the context of entitlement to UC was discrimination on grounds of nationality, in breach of Article 18 of the Treaty on the Functioning of the European Union (TFEU), and quashed the amendment regulations introducing that exclusion. The Supreme Court reversed that, in the light of the decision of the Court of Justice of the European Union (CJEU) in CG v Department for Communities in Northern Ireland, Case C-709/20, reported as [2021] WLR 5919 (15 July 2021). That in effect held, in a separate case but with identical arguments, that in such a case whether the EU citizen had been subject to discrimination on grounds of nationality fell to be assessed not under Article 18 of the TFEU, but under Article 24 of the ‘Residence Directive’ (2004/38/EC). For that to apply, the claimant had first to reside in compliance with the Directive – ie, to have a right to reside in the first place.

In the Supreme Court, the parties agreed that (by virtue of Articles 86(2) and 89(1) of the Withdrawal Agreement, which has domestic effect by virtue of section 7A of the European Union (Withdrawal) Act 2018), the judgment of the CJEU in CG ‘will have binding force in its entirety on and in the United Kingdom’ (paragraph 8). Further, it was a common ground that the claimants did not reside in the UK in accordance with the Directive at the time of their claims for UC – ie, they did not have a right to reside under the Directive. ‘They cannot therefore,’ said Lord Lloyd-Jones in the judgment for the court, ‘rely on the EU principle of non-discrimination to claim a right to equal treatment in respect of entitlement to universal credit’ (paragraph 12).

The court refused to consider a new argument for the claimants, submitted in the light of the decision of the CJEU in CG, that before refusing entitlement the Secretary of State was obliged to consider whether the claimants’ rights under the Charter of Fundamental Rights of the European Union (including the right to live in ‘dignified conditions’) would be breached. Lord Lloyd-Jones said: ‘While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined… I would add that while the CJEU in CG drew attention to the possible relevance of the Charter to the particular circumstances of that case, it is immediately apparent from paragraph 92 of the judgment of the CJEU that CG’s situation was materially different from that of the respondents to the present appeal’ (paragraph 14)

Comment from CPAG

The court held, conclusively as domestic authority, that the claimants had not been discriminated against under the TFEU or the Directive. However, arguments based on the reference in CG to rights under the Charter of Fundamental Rights of the European Union and on discrimination under the Human Rights Act remain possible, although as yet untested. See the article in Bulletin 286, p8.