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Decision in brief

Where the claimant’s husband received his category A pension before 17 March 2008, to get a category B pension based on her husband’s contributions, to top up her own category A pension, they had to (and have always had to) make a claim for that category B pension – where the husband received his category A pension on or after 17 March 2008, they do not need to make a claim for the latter benefit – the husband’s own post-2008 category A pension claim will itself trigger an award of the wife’s category B pension where appropriate – that arises from the context and language of the relevant rule at regulation 3(1)(cb)(i) of the Social Security (Claims and Payments) Regulations 1987 – regulation is not in breach of human rights anti-discrimination rules

Decision in brief

Claimant relied on Scots law of marriage by cohabitation with habit and repute – that was abolished by section 3(1) of the Family Law (Scotland) Act 2006, but an exception applies where the relationship began before 4 May 2006, as was the case here – however, it is still required that the parties had the legal capacity to marry and where, as in this case, one of the parties (the person now deceased) was still married to an ex-partner, that requirement was not satisfied – the claimant was therefore unable to be married by cohabitation and repute

Decision in brief

The claimant was in receipt of an Irish widow’s contributory pension (‘IWCP’) – the IWCP (which was not time limited) was correctly classified as ‘unearned income’ under regulation 66(1)(c) of the Universal Credit Regulations 2013, as analogous to a UK widow’s pension – no requirement for the claimant to be entitled to a UK widow’s pension for the IWCP to be ‘analogous’ to it – ‘analogous’ here means ‘similar or comparable in relevant respects’ but does not have to be identical – ‘the essential question is whether the two benefits are similar in terms of their nature and purpose’ – that was the case regarding IWCP and it therefore fell to be taken into account as income in the calculation of her UC

Decision in brief

Overpayment paid to landlord caused by incorrect information (that he was living in a flat and not a bedsit) about the property submitted by the claimant on a change of address form – the claimant was erroneously not listed as a party to the appeal – although the claimant had been accompanied by the landlord’s agent, that was not enough to found a decision that the overpayment was recoverable only from the landlord – on the facts, overpayment did not arise due to misrepresentation by landlord (but rather, by the claimant), so is not solely recoverable from him – landlord did fail to notify the claimant’s change of address, but that was not a ‘material’ change of circumstances that caused the overpayment – rather it was the claimant’s misrepresentation on the change of address form and therefore the overpayment was recoverable only from him

Summary

The claimant had been entitled to the high rate of both the care and the mobility components of DLA. On 17 February 2010, that was removed (with retrospective effect) by the Secretary of State, on the basis that her parttime work and appearance in a television programme (Come Dine with Me) showed that she was not sufficiently disabled. The claimant’s appeal against that was upheld by a First-tier Tribunal on 31 August 2011. In March 2018, the Secretary of State superseded the decision of the tribunal, apparently on the basis that it had been made on the basis of a mistake about or ignorance of a material fact – namely that the claimant was still doing some work on the date of the tribunal decision – ie, 31 August 2011. A second First-tier Tribunal upheld that decision. The claimant was therefore held to be not entitled to DLA from 31 August 2011 and liable to repay a substantial overpayment.

Judge Wright allowed the claimant’s further appeal and held that the claimant had remained entitled to DLA and had not been overpaid. The second First-tier Tribunal had erred in not properly investigating the alleged basis for the Secretary of State’s March 2018 supersession of the decision of the first tribunal. Moreover, there was no evidence that the ground of alleged error/mistake regarding a material fact by that tribunal was made out. That was because the 31 August 2011 tribunal was not considering the facts as at the date of the hearing. Rather, it was (and could be) only concerned with the facts at the date of the decision under appeal in that tribunal – ie, the decision of 17 February 2010.

Regarding the failure of the second tribunal to investigate the alleged grounds for a supersession, Judge Wright said: ‘The first two issues that therefore ought to have arisen on this appeal was, first, to identify the status of the decision that the Secretary of State had purported to supersede and, second, establish whether the Secretary of State’s basis for her supersession decision was one which was available to her under the law enacted under the Social Security Act 1998. It is matter of regret that the tribunal failed in any proper sense to confront and determine either of these key issues’ (paragraph 12). Regarding the irrelevance of the alleged work being done by the claimant on 31 August 2011, he said: ‘The first fundamental difficulty here is that the entitlement decision under appeal to the 31 August 2011 First-tier Tribunal was dated 17 February 2010. It is an axiomatic principle of social security law that the 31 August 2011 First-tier Tribunal could not take into account circumstances obtaining after 17 February 2010: see section 12(8)(b) of the Social Security Act 1998. For the purposes of these appeals that meant that the 31 August 2011 First-tier Tribunal was not interested in how the appellant was or what she may have been doing in August 2011, save where those August 2011 circumstances usefully and properly informed how the appellant was (in terms of her functioning relevant to DLA) on and before 17 February 2010’ (paragraph 24).

Comment from CPAG

The decision is a pertinent reminder to tribunals that where supersession is involved, the alleged grounds must be evaluated. That a tribunal is restricted to considering the facts as at the date of decision under appeal is not new but, alongside the reminder about evaluating supersession grounds, is clearly very important in cases such as this where the Secretary of State is purporting to revisit a decision of a tribunal.

Summary

The claimant’s 2008 claim for HB was refused on the basis that she did not have a right to reside that was effective for entitlement to that benefit. There was no dispute that the claimant had a ‘derivative’ right to reside as the primary carer of a child of a European Economic Area (EEA) national who had been employed in the UK. But the local authority considered that right was negated by the fact that she had ‘unexhausted’ right to reside as a jobseeker (which in itself is not effective for HB entitlement). The argument was that, because she was a jobseeker, the claimant was an ‘exempt person’ under regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), with the effect that derivative rights under that regulation could not apply. The First-tier Tribunal allowed the claimant’s appeal, although mainly on the alternative basis that she had a permanent right to reside.

Judge Wright allowed the further appeal of the local authority in so far as the tribunal had erred in not providing adequate opportunity for them to respond regarding the question of permanent right to reside. But that was not material in that he nevertheless also held that the claimant did indeed have a derivative right to reside that was not diminished or removed by the fact that she also had a right to reside as a jobseeker. In so holding, he agreed with, and applied a concession by, the Secretary of State that to hold otherwise was contrary to European law and so unlawful.

It was true that, straightforwardly, the wording of regulation 16 classified the claimant (as someone with a jobseeker right to reside) as an ‘exempt person’, and so apparently incapable of having a concurrent derivative right to reside. But that would not be a lawful result. In the decision of the Court of Justice of the European Union in Jobcenter Krefeld-Widerspruchsstelle v JD (Case C-181/19) [2020], it had been clearly held that a derivative right to reside, based as it was in rights under European rights in Article 10 of Regulation 492/2011, could not be diminished by the fact that a claimant also had a specific right to reside as a jobseeker. That was rightly accepted by the Secretary of State. The effect of that, as Judge Wright clarified, was that the EEA Regulations ‘could not, as a matter of then directly applicable EU law, have had the effect of excluding the claimant from relying on her derivative right to reside as a primary carer of a child in education on her June 2018 claim for housing benefit’ (paragraph 29).

Comment by CPAG

This very clear decision should be authoritative domestic authority that a jobseeker right to reside cannot diminish or otherwise negate a derivative right to reside. Its effect is not limited to HB (eg, it should also apply in universal credit). Concerned as it is with rights to reside under the EEA Regulations, it is of course limited to cases in which those rights may still apply.

Summary

The claimant had been entitled to income-related employment and support allowance (ESA) (she was not entitled to contributory ESA because she did not satisfy the contribution conditions). She was assessed as having limited capability for work-related activity (LCWRA) – ie, she was in the support group. The income-related ESA award came to an end because her partner began full-time work. A claim for UC was made six months later. Although she was assessed as having LCWRA, it was decided that the standard three-month waiting period would apply before the LCWRA element could be included in the award. The claimant disputed that, on the basis that she had been assessed as having LCWRA in her ESA award, and that had only ended because her partner started work. The First-tier Tribunal dismissed the appeal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the LCWRA was to be included in the UC award from the start of the claim – ie, the standard three-month waiting period did not apply. That was because the exception to the waiting period in regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230) applied. That regulation was concerned with transition to UC from legacy benefits in ‘credits only’ cases such as the claimant’s – ie, where an award of UC was made to a claimant entitled to national insurance (NI) credits for limited capability for work (LCW) on the date of the claim for UC, but not to an award of ESA. Under subparagraphs (4) and (5) of the regulation, where the claimant had been determined to have LCWRA then on transfer to UC, she was treated as having LCWRA and the three-month waiting period was not to apply.

The tribunal had refused the appeal because it considered that the claimant was not entitled to credits following the termination of the award of ESA. But Judge Wikeley agreed (as did the Secretary of State) that in fact the claimant had remained entitled to credits for LCW, under regulation 8B(2)(a)(iv) of the Social Security (Credits) Regulations 1975 (SI No.556). This provides that if the only reason a claimant is not entitled to ESA is because she did not satisfy the contribution conditions, she can nonetheless receive NI credits equivalent to the lower earnings limit for the relevant period. The Secretary of State’s representative explained that in these circumstances there had been no need for a subsequent claim for credits, as, ‘any decision awarding ESA automatically awards credits, and if entitlement to ESA ends for a reason other than the basic condition of having LCW, as in the present case, the disallowance decision also automatically continues the award of credits’ (quoted in paragraph 20). Judge Wikeley held that the decision maker’s submission to the tribunal had failed to take account of regulation 21 of the Transitional Provisions Regulations: ‘In doing so, the original written response failed to address a key relevant statutory provision and set the tribunal on the wrong path’ (paragraph 28).

Comment from CPAG

The Universal Credit (Transitional Provisions) Regulations are a vital part of the arrangements for transition from legacy benefits to UC, and it is concerning that the decision maker was apparently ignorant of them. The explanation from the Secretary of State of how credits for limited capability for work may continue (ie, where ESA was not ended due to a finding of not having LCW) is helpful.

Decision in brief

Claimant had been entitled to personal independence payment including the mobility component after pension age (65 in the present case) – but that had been removed on review and that decision had not been challenged – although claimant had a deterioration in her mobility aged 68, could not start to get the mobility component again on supersession as that was not a part of the ‘original award’ (ie, her current award) – regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013

Summary

The main issue in this judicial review case was the lawfulness of the requirement, for bereavement support payment (BSP), that the claimant’s deceased spouse had paid sufficient class 1 or class 2 national insurance contributions, given that due to disablement she had been unable to work for her entire life. The claimant simply asked the judge to follow and apply the decision of the Northern Ireland Court of Appeal (NICA) in O’Donnell v Department for Communities [2020] NICA 36 (10 August 2020). There it was held that the requirement was in breach of human rights law as discrimination on grounds of disability, and held that the relevant Northern Ireland legislation must be read so as to deem the contribution condition to have been met in such circumstances. That had not been appealed, and post-O’Donnell official guidance in Northern Ireland instructed decision makers to consider whether the deceased spouse had been unable to work throughout her/his life due to disability. The Secretary of State argued that O’Donnell should be distinguished and was in any case wrongly decided. Mr Justice Kerr allowed the claimant’s application so as to make the same result as in O’Donnell – ie, that in such cases the national insurance condition must be deemed to be satisfied.

In the present case, the claimant’s late spouse had suffered from severe disability from birth and had never been able to undertake paid employment. The claimant was refused BSP on the grounds that his late spouse did not satisfy the requirement, in section 31 of the Pensions Act 2014, to have paid sufficient national insurance contributions. Neither party argued that O’Donnell was binding authority in Great Britain. However, Mr Justice Kerr did consider that: ‘Human rights should if possible have the same content throughout the UK. If O’Donnell is not distinguishable, I would not depart from it unless persuaded that is clearly wrong, which I would find only with great diffidence’ (paragraph 47).

Although the judge accepted that he did have to consider the arguments afresh, he held that (contrary to the Secretary of State’s arguments) O’Donnell was neither distinguishable nor clearly wrong. He agreed with the NICA that for the purposes of the discrimination rule in Article 14 of the European Convention on Human Rights, the claimant had an ‘other status’ – ie, ‘the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay class 1 or class 2 national insurance contributions’ (paragraph 80). He also agreed with the NICA that the discrimination in this case was the failure to treat the claimant differently from those where the late spouse had been able to work. That left the issue of whether the treatment of the claimant was nevertheless justified. It was not, for the same reasons as given in O’Donnell, namely that a ‘less intrusive measure’ could have been adopted without compromising the objective of the rule, and that the ‘severity of the measure’ outweighed the importance of the objective (paragraphs 86–88). There was nothing in the fact that the NICA was considering subordinate legislation, namely the Pensions Act (Northern Ireland) 2015: it was still an Act of the Northern Ireland Assembly and any effect of its being subordinate was ‘theoretical rather than real’ (paragraph 98). In conclusion, the judge said: ‘The NICA’s decision was not appealed. If it is departed from, that is likely to be by a higher court than mine. I find that the claim succeeds and I will make a declaration in the same words as the declaration made in O’Donnell…’ (paragraph 100).

Note: the Secretary of State appealed to the Court of Appeal. For the Court of Appeal's decision, see Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156.

Summary

The claimant was entitled to childcare costs (ie, a £175 a week earnings disregard) as part of her HB. During the COVID ‘lockdown’, the actual provision of childcare ceased from 23 March 2020; however, the claimant’s contractual liability to pay the childcare provider continued. The local authority stopped including the childcare costs disregard from 1 April 2020, on the basis that the childcare was no longer being provided. As a result, the claimant had to terminate the childcare arrangement. The First-tier Tribunal allowed the claimant’s appeal, holding that given that the contractual arrangement with the childcare provider continued to subsist, and liability incurred, it was incorrect to stop childcare costs.

Judge Hemingway allowed the local authority’s further appeal. The tribunal had erred in not investigating and making findings as to whether, given the facts of the case and the context of ‘lockdown’, it could correctly be said that the relevant childcare arrangements had continued. However, the local authority’s argument that the mere fact of an interruption of the childcare meant that entitlement to costs was lost was incorrect, and the judge did not go so far as to substitute a decision that the claimant had indeed lost her entitlement. Instead, the case was remitted to a new tribunal to decide whether on the facts the childcare arrangements could be said to have continued.

The judge considered the application of the HB childcare costs rule, at regulation 26 of the Housing Benefit Regulations 2006. That begins (at subparagraph (1)) with the wording, ‘This regulation applies where a claimant is incurring relevant child care charges…’, and (at subparagraph (6)) refers to where ‘charges are paid by the claimant for care which is provided…’. The local authority argument was that childcare costs can only ever be applied in circumstances where actual physical childcare is being provided, and that the subparagraph (6) wording was relevant to that argument. But the judge rejected that. The reference to ‘incurring relevant childcare charges’ in the rule was: ‘simply used as a prelude to the specification of the relevant period in the child’s life when the childcare charges must be incurred in order to be relevant charges and in order for the disregard to potentially apply. So, regulation 28(6) is not to be interpreted as supporting the proposition that actual physical childcare must always be provided on any given day or week for the disregard to apply’ (paragraph 15). There was in fact nothing in regulation 26 which required such continual provision. If it were to be interpreted in the way the local authority wanted, then even clearly routine interruptions, such as holidays and illness, would have to be reported and adjustment made, leading to ‘substantial’ and unintended administrative burdens. Rather, ‘…what is required when deciding whether charges amount to relevant childcare charges is an overall assessment as to the circumstances as a whole and the purpose for which payments are being made rather than an unduly restrictive one based solely upon whether there has been provision of actual care on each and every day in respect of which a payment has been made’ (paragraphs 19–20).

However, the First-tier Tribunal had erred in not undertaking a properly overall assessment. Contractual obligations were relevant in that, but not determinative. It could not be assumed that the ‘lockdown’ restrictions were necessarily the same as temporary interruptions in childcare caused by holidays or illness. The judge held: ‘The position regarding lockdown and its prospective lifting was uncertain. There was arguably no immediate expectation of a speedy return to normality.

That being so there was a requirement upon the [First-tier Tribunal], in my view, to consider whether the payments which were being made and had been made by the claimant since the imposition of the restrictions had taken on a different nature and could no longer be regarded, when taking an overall view, as relevant childcare costs’ (paragraph 22). The judge thought it viable for him to substitute a decision, but that fairness at least required giving the claimant a chance to argue why the payments she continued to make after lockdown were relevant childcare charge.

Comment from CPAG

The absence of clear provision regarding childcare costs during lockdown inevitably gives rise to disputes. This decision is authority that the mere interruption of childcare did not (and does not) mean that relevant childcare arrangements ceased. However, there is a clear implication that cessation in the context of lockdown arrangements may have brought that about in an individual case; nevertheless, the particular facts will be crucial.

Summary

The claimant was paid industrial injuries disablement benefit from July 2010 until March 2018, on the basis of spinal and associated injury caused by an accident at work in March 2010. However, in February 2018 a DWP doctor had, in effect, changed her mind in relation to previous assessments, and found that (although the claimant undoubtedly had ongoing loss of faculty) any continuing disablement was unlikely to have been caused by the accident at work. The doctor had learned from the claimant that he had an old fracture in his spine, dating from before the accident. Therefore, a decision was made terminating his entitlement from March 2018. The First-tier Tribunal refused the claimant’s appeal, concluding that ‘the appellant’s impairment arose from a constitutional condition which existed prior to the incident even though giving rise to few symptoms at that time’. The claimant appealed, arguing that the tribunal had given inadequate reasons for its decision, in particular in allegedly not explaining why it had rejected previous decisions awarding him entitlement.

Deputy Judge Rowland dismissed the claimant’s appeal. The tribunal had explained its decision adequately. The tribunal had been entitled to consider the issue of causation afresh. And not relying on the earlier decisions had been explained: ‘The reasons given for not placing weight on the decisions were essentially that causation had not explicitly been considered in them – because it was not considered a live issue at the time – and that the medical advisors had not had the medical evidence that was before the First-tier Tribunal and caused the First-tier Tribunal to consider that the assessment decisions had been based on mistakes of material fact (see paragraphs 71 and 72 of the statement of reasons). That is perfectly proper reasoning.’ The tribunal had then gone on to set out its reasons for concluding that ongoing disability was not caused by the accident in 2010.

The deputy judge also rejected arguments (made by the Secretary of State) that the tribunal had erred in not explaining its findings that the injury had caused only soft-tissue damage and that the degenerative disc disease showing in a December 2010 MRI scan was unlikely to have been caused by that. The deputy judge pointed to the presence on the tribunal of a medically qualified member: ‘Where a tribunal includes a registered medical practitioner as a member and so has its own expertise, it is required to give reasons for its conclusion but is generally entitled to rely on its own expertise. I do not accept that the First-tier Tribunal is obliged to give reasons for its reasons in the absence of reasoned evidence that contradicts its opinion. It may be that, on an appeal to the Upper Tribunal, a party is entitled to adduce evidence for the purpose of showing that there is a contradictory body of medical opinion and that, in the circumstances of a particular case, the First-tier Tribunal’s reliance on its unexplained opinion is inadequate, but that has not been done here…’ (paragraph 17).

Comment from CPAG

The involvement of the issue of causality and that that had not been the subject of enquiry in previous decisions were important factors in this case. However, the emphasis on the ability of a tribunal to rely on its own expertise in the absence of evidence to the contrary is of wider relevance.