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Summary

In 2010, the claimant entered into a religious marriage ceremony (Nikah) with her partner in accordance with Islamic principles. Believing themselves to be legally married, the marriage was not, as required in order to be recognised as a matter of English law, registered with the Registrar General at the General Register Office. The couple had children. Subsequently, the partner died. The claimant’s application for bereavement payment and widowed parent’s allowance was refused, on the basis that the Nikah did not comply with the formal requirements of the Marriage Act 1949 and the presumption of marriage did not apply, so the she did not satisfy the requirement that she was a surviving ‘spouse’ or ‘civil partner’. Her appeal to the First-tier Tribunal was refused.

On further appeal, the claimant argued that both her and her children’s rights under the European Convention on Human Rights would be breached on an ordinary construction of the term ‘spouse’ in section 39A of the Social Security Contributions and Benefits Act 1992, because such a construction would result in discrimination against them contrary to Article 14 read with Article 8 of the Convention. Further, applying section 3 of the Human Rights Act 1998, the definition of ‘spouse’ must be read as including someone living with her partner having participated in a religious marriage ceremony according to the rites of that religion and subjectively believing herself (on objectively reasonable grounds) to be thereby married. A three-judge panel of the Upper Tribunal (Mrs Justice Farbey, Judge Ward and Judge Church) rejected that argument.

The Secretary of State accepted that, in the light of the decision of the Supreme Court in re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250, that there was discrimination against the appellant on the grounds that she was not married, contrary to Article 14 read with Article 8 of the Convention. But regarding construing section 39A as the claimant argued (ie, so as to conclude that as a matter of law she was married), the Upper Tribunal’s view was that ‘the grain of section 39A is that benefits should only be paid to a spouse married under English law, even where the benefit is indeed (following McLaughlin) to diminish the financial loss caused to families by the death of a parent’ (paragraph 28). Further, the tribunal said: ‘In the field of social security law, it is a matter for Parliament to decide who receives benefits and who does not. This Tribunal will ensure the fair and proper allocation of benefits within the law but will not grant socio-economic benefits that Parliament has decided to withhold. We have been directed to nothing in the legislative scheme which would persuade us that, by adopting the term “spouse” in the 1999 Act, Parliament intended to grant bereavement benefit to those not validly married as opposed to intending to remedy historic discrimination between men and women’ (paragraph 31).

Comment from CPAG

The Upper Tribunal did not dispute that the claimant (as, in English law, an unmarried surviving partner) was subject to McClaughlin-like discrimination. But it did not accept that on the facts the claimant could avoid that by in fact being treated as a ‘spouse’.

For further information see our test case update: Widowed Parent's Allowance where there has been a religious ceremony.

Summary

The claimant had a prosthetic eye and other difficulties with her vision, as well as anxiety and depression. Her appeal against the decision that she was not entitled to personal independence payment (PIP) was dismissed by the First-tier Tribunal. The tribunal made findings of fact that the claimant would have been able, over time, to adjust to having had an eye removed, on selected information from the RNIB website but without putting that to the claimant or giving her a chance to comment. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to make adequate findings of fact regarding the claimant’s visual ability and not observing fairness in the way it used the website information. That arose from having made selective use of the information on the RNIB website and in not having given her a chance to comment on it. 

In its statement of reasons, the tribunal presented the information taken from the website as the expert view of the medical member. Judge Stout said: ‘It is well established that where a tribunal uses its specialist knowledge or expertise to decide an issue, fairness will normally require it to give the parties an opportunity to comment on its thinking and to challenge it: R (L) v London Borough of Waltham Forest [2003] EWHC 2907 (Admin), [2004] ELR 161. See also MB v Department for Social Development (II) [2010] NICom 133, C1/10-11(II) at [14] and Harrow LBC v AM [2013] UKUT 0157 (AAC), [2013] ELR 351. That, it seems to me, is even more important where, as appears to have happened in this case, the specialist tribunal is not truly using its own expertise but material from a website that it has not shared with the appellant. The fact that the tribunal has made selective use of the website material, ignoring the passages from the website that support the appellant’s case as to her need for assistance, increases the unfairness in this case’ (paragraph 11). 

Comment from CPAG

The tribunal’s error in the way it used information taken from the website is clear enough. It might have been described more explicitly as a breach of the rules of natural justice (although the result would have been the same).

Summary

The claimant was a severely disabled adult with learning disabilities in receipt of DLA. He did not report to the DWP his admission to hospital. When the Department became aware of the hospitalisation, a decision was made that he had been overpaid DLA on the basis that (per regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991 No.2890 (‘the DLA Regulations’) neither component of DLA is payable after a cumulative 28 days have been spent as an inpatient in a publicly-funded hospital. The claimant argued that this restriction was unlawful as in breach of his human rights as a disabled adult, in that it was in breach of Article 14 (prohibition of discrimination) read with Article 1 of Protocol 1 of the European Convention on Human Rights.

Judge Ward dismissed the claimant’s appeal. The difference in treatment in the rule between severely disabled adults in hospital and severely disabled children in hospital was justified. Following the decision of the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, restriction of DLA in hospital was unlawful and the regulations were changed so as to remove the restriction on children but retain it in adults. The judge considered that this difference in treatment was not unlawful as it was not – to apply the correct test for justification – ‘manifestly without reasonable foundation’ (paragraph 31).

The judge considered that, ‘by contrast with the position in Mathieson by the time it reached the Supreme Court, there is (a) evidence from the DWP about how the system is intended to operate where adults with learning disabilities are in hospital and (b) a lack of evidence on the claimant’s side to cast doubt on it’ (paragraph 20). He was not satisfied that, in general, family members were required to assist in proving care to a person with learning disabilities who was in hospital. Their experience of the person ‘may well be a valuable resource for medical and nursing staff’ and they may wish to attend to support the patient, ‘but that does not make out an equivalent situation to that which prevailed in Mathieson’ (paragraph 21). Having reviewed the evidence and taken witness statements, the judge concluded that ‘that there is no evidence that the NHS would require carer input to the care of a patient with severe learning disabilities of the extent claimed, or anything like it, and even where the person has a Deputy appointed. The basic rationale for the rule is the avoidance of double provision from public funds for the same contingency. On the evidence in this case the needs of the patient are being met by the NHS and the Secretary of State is entitled to have drawn the line where she did.’ (paragraph 31).

Summary

The claimant had an accident at work and, just over two months later, claimed personal independence payment (PIP). He was awarded the standard rate of the daily living component. Following mandatory reconsideration, the claimant appealed. The First-tier Tribunal adjourned its in-person hearing twice, on the second occasion notifying the claimant that ‘...at your appeal hearing you may lose this benefit or it might be increased or stay the same’. The claimant failed to attend the third hearing, which this time went ahead. The tribunal removed the award on the basis that, at the time of the claim, the claimant did not satisfy the ‘required period’ condition to have had the requisite disabilities for three months. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. On the entitlement issue, the tribunal had erred by failing to have regard to the provision for an advance claim and of PIP at regulation 33 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (SI No.380). As noted in EB v Secretary of State for Work and Pensions (PIP) [2017] UKUT 311 (AAC), that provided that a claimant may qualify for an advance award by satisfying the three-month period after the date on which the entitlement decision was made. 

The tribunal also erred by failing to give the claimant an adequate warning that it intended to reduce the award already made. The Secretary of State submitted that, although the tribunal had notified the claimant of the potential for an adverse decision, it did not correctly inform the claimant of its intention to disallow the award. The Secretary of State cited CPIP/3480/2016, which held in that case that at ‘...no point was the appellant made aware of the specific concerns of the tribunal...so as to enable him to prepare his case...’ (cited at paragraph 17 to the present decision). Judge Wikeley agreed. 

Comment from CPAG

This decision is further authority of the general need for the tribunal to give a specific warning of an intention actually to reduce the award (or otherwise make a more adverse decision) in that particular case. For similar previous authority, see BTC v SSWP [2015] UKUT 155 (AAC), RC v SSWP [2017] UKUT 139 (AAC), and LJ v SSWP (PIP) [2017] UKUT 455 (AAC).

Summary

SK came to the UK as an asylum seeker in 2015 with her then three year old son (a ‘pre-flight’ child). In 2017 (by which time she had been granted refugee status), she claimed a Sure Start maternity grant while pregnant with her daughter. LL had been the carer of her nephew under a residence order since he was 18-months-old. She became pregnant with her first child and claimed a maternity grant. Both claims were refused (and had appeals rejected by the First-tier Tribunal), as they fell foul of the provision in regulation 5A of the Sure Start Maternity the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 No. 3061 (‘the 2005 Regulations’) that a claimant will not be eligible if there is another child aged under 16 in the family for whom s/he is responsible (the ‘first child only rule’).

Judge Church allowed the claimants’ further appeals and substituted decisions that they were entitled to a Sure Start maternity grant. He held that regulation 5A of the 2005 Regulations discriminated against them, contrary to Article 14 read with Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights. Also, as conceded by the Secretary of State (regarding LL), ‘regulation 5A of the 2005 Regulations also unlawfully discriminates against those having their first biological child while already responsible for a child who came into their care after reaching 12 months old contrary to Article 14 read with A1P1 of the Convention’ (paragraph 152). The claimants had (unlawfully) been treated by the rules in the same way as other people having a second child, despite the fact that their situation was, in a relevant way, different (because in each case the people in these groups were highly unlikely to already have baby items). The judge considered whether this was capable of justification, as not manifestly without reasonable foundation’. It was not justified. Reviewing the evidence and witness statements, the judge concluded:

'Excluding such claimants from eligibility does not further the legitimate aim of targeting the [Sure Start maternity grant] at the families who need it most. Rather, it denies claimants who are likely to be among those the most in need of such support. It is therefore not merely a disproportionate way of achieving the stated objective, but an inappropriate measure which defeats the stated objective.’ (paragraph 149)

In each of these cases, it was appropriate to remake the decision as the First-tier Tribunal should have made it. Applying section 6(1) of the Human Rights Act 1998, the judge disapplied the offending provision in the 2005 Regulations (as amended) (paragraph 155).

Decision in brief

On the facts of the case (the claimant still came under the Regulation, was habitually resident in Great Britain and had a ‘genuine and sufficient link’ to the UK), the claimant was therefore able to satisfy regulation 22 of the Social Security (Personal Independence Payment) Regulations 2013 so that the past presence test for personal independence payment (PIP) did not apply to her – tribunal wrongly considered that Regulation 883/2004 had been ‘revoked’ by UK legislation

Decision in brief

Application of earnings rule at regulation 8 of the Social Security Benefit (Computation of Earnings) Regulations 1996 – tribunal wrongly based finding that each month’s actual earnings were to be used (under regulation 8(1)(b)(i)) rather than averaged on a work cycle of a year (under regulation 8(3)) on a consideration that it was not ‘irrational’ for the Secretary of State not to have used the yearly cycle under regulation 8(3) – error of law for the tribunal to review the rationality of the Secretary of State’s decision when it should have decided afresh and for itself whether to use the discretion to apply regulation 8(3)

Summary

On supersession, the claimant has his award of the enhanced rates of both components of personal independence payment (PIP) reduced to the standard rate. Prior to the hearing of the claimant’s subsequent appeal, the district tribunal judge sent out directions which included telling the claimant that the tribunal would ‘have to’ consider which scoring descriptors should apply, and directing that the Secretary of State must attend – ie, via a presenting officer. In the event, no presenting officer attended. The tribunal’s decision notice said that the decision on supersession was ‘confirmed’ but (contrary to that) that the claimant was not entitled to either component of PIP at all. The tribunal’s statement of reasons said, in effect, that the tribunal was entitled to reconsider everything, the claimant had been warned of that, and that the Secretary of State had decided not to attend.

Judge Wright allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in that the decision notice wrongly stated it confirmed the decision on supersession, when in fact it made a more adverse decision for the claimant. As stressed in SSWP v JL [2018] UKUT 291 (AAC), it is essential that the decision notice is legally coherent. The tribunal proceeded in the absence of a presenting officer despite having directed attendance, and had not shown it had properly considered the waiving of the requirement. ‘The presenting officer’s failure to attend’, held the judge, ‘was a matter the First-tier Tribunal could have taken into account by, for example, waiving the requirement or requiring it to be met. But by proceeding on the basis that it was open to that official to choose whether to attend or not, the First-tier Tribunal misdirected itself and thereby erred in law.’ (paragraph 12)

The tribunal had also erred in its approach to reconsidering all the descriptors and making a decision less favourable to the clamant than the one she had appealed against. This might not have been so, said the judge, ‘if the law required the First-tier Tribunal to decide all and any issues going to entitlement that arise on the evidence. But that is not the law. Under section 12(8)(a) – which provides that the First-tier Tribunal “need not consider an issue that is not raised by the appeal” – the tribunal is only required to decide the issues that are raised by the appeal and has a discretionary power to consider other issues’ (paragraph 16). The tribunal had not explained if or how it had exercised that discretion, and it was not possible to see from the papers that the claimant had herself put all the descriptors into question. Further, in possibly obiter comment, the judge was not satisfied that the claimant had been given adequate notice that issues neither she nor the Secretary of State had raised were issues arising on the appeal. Although the district tribunal judge had written in advance, taking that approach was something that could only properly be done by the three-person tribunal that decided the appeal (MB and others v SSWP (ESA and DLA) [2013] ULKUT 111 (AAC); [2014] AACR 1).

Comment from CPAG

The decision is a correction (not the first) to a First-tier Tribunal wrongly assuming that it either was obliged to reconsider all aspects of a decision or that it was simply entitled to do so without proper reason. The observation that only the tribunal can warn a claimant of a wider reconsideration, even if strictly obiter, is also of note.

Decision in brief

This was not changed by the fact that arrears of new-style employment and support allowance (ESA) were paid to the carer in her own right, with the effect (because of overlapping benefit rules) that no CA was ‘payable’ for the relevant time – fact remains that (as per the reasoning in DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) [2018] UKUT 46) the carer was both entitled to and ‘in receipt’ of CA and so there was no entitlement to the severe disability premium (SDP)

Decision in brief

Social Security Scotland submitted tribunal had failed to recognise that there was a need for a link between the claimant’s difficulties and his physical or mental condition – but in SSWP v IV (PIP) [2016] UKUT 420 (AAC) the Upper Tribunal had, in the context of personal independence payment (PIP) and difficulties with reading, held that entitlement could take account of illiteracy for a person who could not learn to read, but not for a person who simply has not learned – in PW v SSWP [2023] UKUT 121 (AAC) it was noted that it was not necessary for a claimant to have a diagnosis in order to qualify for PIP – applying those as ‘useful guidance’ for adult disability payment (ADP), it was tolerably clear that the tribunal concluded that the claimant’s issues with reading were due to an inability to learn to read rather than being a matter of choice, and so were causally linked to a ‘mental condition’ – that being the case whether the effects of that were sufficient to score points were primarily issues of fact for the tribunal

Decision in brief

Contrary finding in CH/844/2002 disapproved – not eligible under regulation 12(1)(d) (Kirklees MBC v JM [2018] UKUT 219 approved) – alternative ground under 12(1)(f) (mooring charges) not considered.

Decision in brief

Those rules do not deal with composition, and the Practice Statement on composition of tribunals in social security and child support cases does, so that a PIP appeal must be determined by a properly constituted three-member panel unless a specified exception (eg, agreement by the parties to the appeal) applied – none of those exceptions obviously applied in this case