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Decision in brief

No right in 2021 to appeal again against the preceding decision of the First-tier Tribunal, even though the emergence of subsequent facts supported the claimant’s case – tribunal correctly held it had no jurisdiction – section 17(1) of the Social Security Act provides for finality of decisions, subject to revision, supersession or appeal – no right to revise a decision of a First-tier Tribunal – although there is a right to supersede a tribunal decision (for example, for error of fact), that could only have been effective from the date of the request, which meant a date after the end of the sanction the claimant was challenging and so could not avail him – never had been an onward appeal to the Court of Appeal

Decision in brief

Audio file recording of the telephone hearing showed (found the Upper Tribunal judge) that, throughout the medical, member spoke politely to the appellant, albeit she was ‘brisk and businesslike’ – was not (as alleged) sarcastic and did not use a sarcastic tone – the medical member conducted questioning in ‘an entirely appropriate inquisitorial style’ which could not fairly be described as cross-examination or oppressive – BK v SSWP (DLA) [2009] UKUT 258 (AAC), re questioning at disability living allowance appeals, quoted and applied to personal independence payment appeals: ‘While tribunals try to minimise distress by being tactful, they cannot always be successful. Questions cannot always be perfectly phrased in the pressured environment of a hearing…’

Decision in brief

Not in breach of human rights on ground of marital status in breach of Article 14, read with Article 8 and/or Article 1 of Protocol 1 European Convention on Human Rights – not in an analogous position to a person who had been married to, or in a civil partnership with, their deceased partner (SSWP v Akhtar [2021] EWCA Civ 135 applied – unmarried partner not in an analogous position to someone married or in civil partnership) – differential impact on women without children (compared to men) justified – clear basis needed for taking a different view to that of parliament when making the legislation – in cohabiting couples without children, nothing to establish that bereavement benefits cannot be a legitimate vehicle for promoting marriage and civil partnership, and are also issues of protecting the contributory principle and avoiding excessive administration – taken together, the Secretary of State has shown the very weighty reasons necessary for justification of the differential impact on women

Decision in brief

Decision of three-judge panel in HMRC v SSWP and SA (TC) followed – withdrawal of UC claim before issue of ‘stop notice’ to HM Revenue and Customs – made no difference to operation of regulation 8, so that tax credits were correctly terminated – JL v Calderdale MBC and SSWP [2022] UKUT 9 (AAC) followed and contrary decision in HMRC v AB [2021] UKUT 209 (AAC) not followed

Summary

Between 2000 and 2012, the housing benefit (HB) claimant (‘AB’) was overpaid HB amounting to over £67,000. The overpayment was caused by AB continuing to report that the property was rented when in fact he and his wife (‘CD’) were the owners of the property. From 2007, when AB suffered a stroke, CD dealt with his financial affairs (she had lasting power of attorney, but was not the claimant or a formal appointee for his HB claim) and continued to ask for reviews of the HB award after alleged ‘rent’ increases by the ‘landlord’. CD was subsequently convicted of fraud. In 2012, the local authority issued HB overpayment notices and sought recovery, without naming CD, although in correspondence the local authority claimed that both AB and CD were jointly and severally liable. The First-tier Tribunal held the overpayment was recoverable from CD, as she had made relevant misrepresentations and had been present at the appeal, although she was not a party to the appeal and repeatedly said she did not wish to be so. However, in 2022 the Upper Tribunal held that AB was liable for the overpayment but CD was not: she had not been the subject of a decision by the local authority, including about recoverability of the overpayment, and her attendance at the tribunal hearing had not cured that. 

The Court of Appeal rejected the further appeal by the local authority. The Upper Tribunal had not erred in holding that the overpayment was not recoverable from CD. A ‘fundamental difficulty’ for the local authority was that its own documentation indicated that the person against whom the claim for the overpayment was made was AB, and it had wrongly thought that AB and CD could be held jointly and severally liable (paragraph 49). The decision notices were addressed to CD but directed to AB. At the First-tier Tribunal, there had been no formal definition of CD’s status, and she did not have any express power to litigate on AB’s behalf. 

The court did not consider that CD had ever been a party to the appeal in her own right, before either the First-tier or the Upper Tribunal. The Upper Tribunal correctly identified that CD had never been a party to any of the proceedings. The court considered that although CD had taken an active part in the proceedings as a representative or litigation friend, that had not made her a party in them. Taken together with the absence of a single decision to recover the overpayment from her, ‘by reason of its own procedural and substantive failures’, the local authority had ‘failed to satisfy the court that it is legally entitled to claim overpayment of housing benefit from CD’ (paragraph 78).

Decision in brief

Tribunal hearing appeal against termination of tax credits only had jurisdiction to consider factual questions of whether a claim had been made and Secretary of State was ‘satisfied’ – not whether Secretary of State was ‘properly’ satisfied (eg, claimant who was subsequently refused UC on the basis of not having a qualifying right to reside) – previous decisions (eg, SK v Revenue and Customs Commissioner and another [2022] UKUT 10 (AAC), reported as [2022] PTSR 818) holding otherwise are formally obiter, but in any case SK was correct in holding that Secretary of State needed only to be ‘satisfied’ that claimant was actually in Great Britain, and the fact that the claimant was later refused UC for failing the right to reside test was not relevant here 

Note

As was noted by the Upper Tribunal, the regulation 8 requirement that the Secretary of State be ‘satisfied’ that claimant meant the basic conditions for UC was removed from 25 July 2022 (by the Universal Credit (Transitional Provisions) Amendment Regulations 2022, SI No.752) – so the present decision is of limited application. 

Summary

In or around May 2019, the claimant received around £27,000 under an ACAS settlement of her employment tribunal proceedings. That comprised sums for loss of employment, statutory redundancy pay and for injury to feelings arising from alleged discrimination. Her claim for UC was refused. She was later told by the DWP that the refusal was for excess capital and so ‘your claim was closed’. In November 2020, she made a new claim for UC and declared that her capital was now at £10,700. She was awarded UC but with the capital leading to assumed income of £82.65 for each monthly assessment period. Following mandatory reconsideration, the claimant appealed, with her substantive argument that, as the capital was not taxable, it should be disregarded. The First-tier Tribunal dismissed the appeal, holding that the decision on the 2020 claim not to disregard any of the capital and apply the stated assumed income from it was correct. The claimant appealed, additionally arguing that the tribunal had failed to investigate the 2019 claim. 

Judge Wikeley dismissed the claimant’s further appeal, holding that the tribunal had made no material error of law. Regarding the capital, the tribunal had agreed with the decision maker that, on the relevant law (in particular, regulations 7 and Schedule 10 of the Universal Credit Regulations 2013, SI No.376), none of the compensation awarded in the ACAS settlement fell to be disregarded. The fact that it was not taxable was irrelevant under that legislation, and none of the disregards that were provided applied. The tribunal was correct. The payment for loss of employment did not fall to be disregarded under Schedule 10, and neither did the redundancy payment. Regulation 75 provided a disregard for compensation for ‘personal injury’, but that term had to be given its ordinary meaning and, as the tribunal had held, ‘damages paid to compensate injury to feelings is distinct from an award of damages for actual injury to physical or mental health (by way of, for instance psychiatric injury)’ (paragraph 27). 

The tribunal had erred regarding its approach to the 2019 claim. The tribunal had held that it had no jurisdiction regarding that as it found that the claimant had not made a claim then. In fact (as accepted by the Secretary of State before the Upper Tribunal), there was DWP correspondence on file which confirmed that a claim had been made in 2019 (and that the claimant’s 2020 mandatory reconsideration was treated as outside the absolute time limit regarding that). So, the tribunal had made a decision not supported by the evidence on that point and was in error. The correspondence showed the claimant was told that she was not entitled to UC and so her claim was ‘closed’. That was wrong as it was not a concept that appeared in the legislation and may have effectively denied the claimant a right of appeal in 2019. However, in this case, none of that rendered the tribunal’s error material to the outcome of the appeal. The tribunal had in any case made a ‘clear and indisputable’ finding of fact that the claimant had capital in excess of the UC capital limit of £16,000 in 2019 and so even if the DWP had followed the correct notification procedure and the claimant had applied in time for a mandatory reconsideration and then appealed, the outcome would have been no different (paragraph 24). 

Summary

This is the decision of the Court of Appeal against the decision of the Upper Tribunal in GK v SSWP (CA) [2019] UKUT 87 (AAC) (20 March 2019). There, Judge Jacobs had held that the claimant, who was habitually resident but not working in Cyprus at the time of his claim for carer’s allowance (CA), was not entitled to the benefit as the competent state for benefit was Cyprus not the UK. The fact that the person he cared for was entitled to UK attendance allowance (AA) did not alter that conclusion.

The Court unanimously upheld the substantive decision of the Upper Tribunal and so rejected the claimant’s further appeal. The competent state was, on the facts of this case (ie, which included that the claimant was not working), the member state of residence (ie, Cyprus, under Article 11(2)(e) of regulation (EC) 883/04). It was not, as argued for the claimant (via his entitlement to UK state pension), the UK under Article 21, which provides for cash benefits for an ‘insured person’ residing or staying in a member state other than the competent member state. In this case, the competent state, as determined by Article 11, was Cyprus and that was also the state of residence. The claimant was not an ‘insured person’ for the purpose of Article 21, there were material differences between the facts and legislation in this case and that in Tolley v Secretary of State for Work and Pensions (Case C-430/15) [2017] 1 WLR1201, and this case did not involve the ‘export’ of a benefit already acquired in the UK (paragraphs 36–45).

The claimant’s alternative ground, that AA and CA were so closely related as to mean that the competent state for the former must be the competent state for the latter, was not well founded. Although undoubtedly closely related, they were separate benefits with separate rules claimed by different people (paragraphs 52–53).

Summary

In this judicial review decision, the High Court rejected arguments that rules preventing new PC claims by most ‘mixed-age’ couples (ie, where one has reached state pension age but the other has not), instead necessitating a claim for UC, were unlawful. The claimants argued that the rules were unlawful by way either of a breach of the Secretary of State’s equality duties under the Equality Act 2010, or by way of a breach of their human rights as a mixed-age couple with disabilities under the Human Rights Act 1998.

The claimants were already on UC. Both were disabled. The female received carer’s allowance for caring for the male. No conditionality was applied to either of them as part of the UC claim. The male was due to reach pension age in July 2020. The female was not due to reach pension age until July 2026. Under rules introduced for such mixed-age couples, the couple would be obliged from July 2020 until July 2026 to remain on UC, and could not choose instead to move to a new claim PC in July 2020. Their challenge was to the Welfare Reform Act (Commencement No.31 and Savings and Transitional Provisions and Commencement No.21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019 No.37. That was the rule that brought into effect the provision, in primary legislation, in section 4(1A) of the State Pension Credit Act 2002, barring mixed-age couples from entitlement to PC. Overall, the effect was to prevent new claims for PC from mixed-aged couples (but not to terminate existing PC awards).

Regarding the alleged breach of Equality Act duties, the claimants argued that the effect that male pensioners in mixed-aged couples would never be able to qualify for PC were ignored, and that the substantial impact on mixed-aged couples with disabilities had not been assessed. In the High Court, Mrs Justice Elisabeth Laing rejected that, holding that parliamentary debates and policy documents showed that the Secretary of State and parliament were well aware of the effects complained of when making the rules. The Secretary of State had ‘the regard which was due’ to the listed equality needs (paragraphs 125–126). Regarding the alleged breach of the Human Rights Act, that was under Article 14 (read together with Article 1 of Protocol 1) of the European Convention on Human Rights, the judge rejected that, on the ground that any difference in treatment (be it on grounds of sex or disability) was justified as being not ‘manifestly without reasonable foundation’. She accepted the Secretary of State’s argument that disabled people and carers were not, in an unlawful way, treated in the same way as other claimants ‘because sums are paid under UC to help disabled people and carers’ (paragraph 30). More widely, in a ‘no-conditionality’ mixed-age couple, the structure of UC provides advantageous possibilities of help finding work for the under-pension-age carer able, as in this case, to take a ‘mini-job’, and provided components for the disabled and carers. The claimants had suffered ‘only a notional, not an actual’ loss of benefit and, to the extent that this was relevant to the question of justification, the Secretary of State and her officials had been aware of the ‘size of the hit’ throughout (paragraphs 128–135).

Summary

The claimant claimed UC on 27 March 2020 (ie, the day after the first Covid-19 national lockdown began) and was awarded it from that date. The claimant was told that his identity was verified under the ‘Trust and Protect’ policy introduced during the pandemic, and that his identity would be verified again at some later date. He was given an appointment for that in May 2021. On 17 June 2021, it was decided that he had ‘failed to provide sufficient evidence to validate his claim’ (by failing to upload travel documents regarding his absence from the UK in December 2020) and so had been overpaid UC between 27 March 2020 and 26 April 2021, with the overpayment being recoverable from him. The First-tier Tribunal rejected the claimant’s appeal, holding that the claimant had failed to provide information to validate his claim when asked to do so. 

Judge Wright allowed the claimant’s further appeal and substituted a decision that he remained entitled to UC from 27 March 2020 (and so was not overpaid from then until 26 April 2021). No revision or supersession ground for altering the claimant’s award had been identified by the tribunal. Indeed, the tribunal erred, ‘by failing to engage sufficiently, in truth at all, with the underpinning statutory bases for the two decisions under appeal to it. In particular, the [First-tier Tribunal] failed to identify the correct legal basis for removing the appellant’s entitlement to universal credit from 27 March 2020’ (paragraph 16). The only provisions relied on by the tribunal related to provision of evidence and suspension and did not in themselves permit revision or supersession. That error also ran through the Secretary of State’s responses to the tribunal. The language adopted by the tribunal and the Secretary of State of the ‘closure’ of the ‘claim’ by the June 2021 decision was a ‘legal nonsense’, as (per section 8(2) of the Social Security Act 1998) once decided, a ‘claim’ ceased to exist (paragraphs 20–21). Further, per section 17(1) of the Act, the award of UC was a final decision and so the claimant’s award of UC could not be removed simply because he had failed to verify his identity (or not evidenced the date he was abroad in December 2020)’ (paragraph 22). Rather, the only legal way the award could be changed was by revision or supersession, something neither the tribunal nor the Secretary of State had identified or addressed. 

Before the Upper Tribunal, the Secretary of State argued that there had been a relevant revision ground, namely that of mistake of material fact, as at regulation 9(b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI No.381). Judge Wright rejected that. ‘What fact,’ asked the judge, ‘was the awarding decision of 1 May 2020 mistaken about?’ (paragraph 30). The claimant’s identity had been verified under the Trust and Protect policy and UC had been paid to him. The judge was also critical of the failure by the Secretary of State to place the ‘Trust and Protect’ policy and what that meant for the claimant before either the First-tier Tribunal or the Upper Tribunal. In any case, the judge remained unable to identify any fact which the awarding decision was mistaken about. There was ‘no mistake about the appellant being who he says [he] is and was accepted as being... The need to verify something (ie, demonstrate or confirm that something is true) and the absence of such verification does not necessarily show the something is not true.’ (paragraph 37). 

Comment from CPAG

The dismaying fundamental errors and omissions in this case attracted explicit censure from Judge Wright. He opened his decision by citing the decision of Judge Wikeley in FO v SSWP (UC) [2022] UKUT 56 (AAC) where it was observed that First-tier Tribunals ‘may sometimes need to be wary about taking at face value’ DWP written submissions, and commented that this was another such case and another in the context of UC.

Summary

This is the decision of the Court of Appeal on the appeal of the Secretary of State against the decision of the High Court in this case. The High Court had held that where (due, for example, to the normal payday falling on a weekend or bank holiday) a claimant paid monthly received a ‘double payment’ of wages in one UC monthly assessment period, existing rules allowed the wages to be attributed to successive assessment periods. This was rather than (as per the Secretary of State’s approach) the single assessment period in which they were actually received. The Court of Appeal agreed with the Secretary of State that the rules required the double payment to be attributed to the single assessment period in which they were received. However, in a unanimous decision the Court nevertheless allowed the claimants’ application for judicial review on the basis that the failure of the Secretary of State to provide for alternative arrangements was so irrational as to be unlawful.

The issue arose because, under regulation 54 of the Universal Credit Regulations 2013 No.376, earned income for any given UC monthly assessment period is to be ‘based on the actual amounts received in that period’. Where a claimant is usually paid on a particular day each month (eg, the last day of the month) s/he may in fact be paid on a different day if that day falls on, for example, a weekend or bank holiday, resulting in the possibility of a ‘double’ payment of wages in the same assessment period if the claimant’s pay date and assessment period start and end dates fall around the same time (and so possibly lose entitlement to UC completely). Giving the lead judgment for the Court, Lady Justice Rose agreed with the Secretary of State that the High Court had wrongly construed regulation 54 as meaning that double payments could be attributed to successive assessment periods rather than the single assessment period in which they were received. In the context of the purpose of the regulation and the provisions in other regulations, in particular regulation 55, such an interpretation was too wide (paragraphs 35–45).

However, the Court nevertheless held that the attribution of double payments to a single assessment period was unlawful. The claimants had correctly focussed, in their own arguments to the High Court, on the irrationality of such treatment. The initial and ongoing failure of the Secretary of State to avoid an arbitrary outcome by making further rules was at the basis of this irrationality. In considering irrationality, the focus in this case was to consider if whether a ‘reasonable balance’ had been struck, or rather whether it was possible to say that no ‘reasonable’ Secretary of State would have struck the balance in the way that had been done (paragraph 50). Having considered the evidence, which included that a ‘very substantial’ number of claimants were likely to conclude with the claimants that, given pay day fluctuations, it would in many ways be preferable not to work so as to ensure a regularity of UC entitlement, Lady Justice Rose said:

‘The threshold for establishing irrationality is very high, but it is not insuperable. This case is, in my judgment, one of the rare instances where the SSWP’s refusal to put in place a solution to this very specific problem is so irrational that I have concluded that the threshold is met because no reasonable SSWP would have struck the balance in that way’ (paragraph 107). 

The claimants’ application for judicial review should therefore succeed on grounds of irrationality. A declaration was made to this effect and the Secretary of State was to consider what changes should be made.

Comment from CPAG

Subsequently, the Secretary of State has said that she does not intend to appeal against this decision and will consider what adjustments to the rules should be made. The Court did not think it necessary to consider an alternative argument of the claimants that (as monthly paid workers) they had been discriminated against, in breach of Article 14 of the European Convention on Human Rights. For more, see the article on p4 of Bulletin 277.

Summary

The claimant appealed against a decision that, for the purposes of his universal credit (UC), he did not have limited capability for work-related activity, or limited capability for work. He opted to have his appeal determined on the papers. The First-tier Tribunal refused his appeal. The claimant appealed further, arguing that the tribunal had erred in making assumptions about the evidence, in particular that before getting a Blue Badge he must have been parking some distance away from the shop he normally used, and walking, and that therefore his evidence about his abilities was not credible. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a fresh tribunal at an oral hearing. Firstly, the tribunal had erred in failing to give adequate reasons for its decision, as it simply stated that it had considered the relevant law and was satisfied that it had been able to proceed without an oral hearing. That was merely a statement of the rules rather than giving reasons, and so made the error identified by Judge Poynter in JP v SSWP [2011] UKUT 459 (AAC). 

Moreover, the tribunal also erred in failing to adjourn to an oral hearing, so he could respond to matters that fairness required would be put to him in such a hearing. In CC v SSWP (ESA) [2019] UKUT 14 (AAC), Judge Poole had held that in general matters natural justice did not require that matters of inference or credibility must be put to a claimant at an oral hearing. However, the caveat to that was that it would be contrary to natural justice if a case was decided on a basis which the claimant had no chance to address; so, if the matter was new and not foreshadowed in the papers, then specific matters may need to be put to the claimant for comment. Judge Stout considered that applied in the present case. The tribunal said the claimant had ‘considerably exaggerated’ his walking problems in part because of the assumptions it made about his abilities prior to getting his Blue Badge. But the tribunal had ‘just made an assumption about a matter that was not foreshadowed in the papers’ and which the claimant did not have a fair opportunity to address. Additionally, the tribunal had also inferred the claimant was exaggerating because he was not receiving the treatment it expected he would be receiving if his condition were as bad as he claimed. The risks of such an inference without further information had been pointed out by Judge Poynter in MM v SSWP (ESA) [2018] UKUT 446. In the present case, the judge again considered the tribunal had erred ‘...because it was unfair for the tribunal to draw the inferences it did...without giving the appellant an opportunity to respond to its concerns’ (paragraph 13).

Comment from CPAG

Making assumptions and drawing adverse inferences about a claimant’s evidence is especially problematic in the context of a determination on the papers, where there is no opportunity for discussion. For a wider discussion, see the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).