CPAG search

Summary

In this decision, the High Court rejected an argument that the exclusion of ‘pre-settled status’ under the EU Settlement Scheme as a valid right to reside for benefit purposes is unlawful.

The claimants, both Romanian nationals, had been awarded pre-settled status under the Settlement Scheme – ie, under the UK Immigration Rules. Exclusions of that as a valid right to reside for benefit were introduced by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019. The claimants argued that the change was unlawful discrimination on grounds of nationality, contrary to Article 18 of the Treaty on the Functioning of the European Union (the argument actually focused on the amendment to regulation 9 of the Universal Credit Regulations). Specifically, they argued that, applying existing caselaw authority, if an EU national is lawfully resident in another EU member state on the basis of a right of residence arising under that state’s domestic law (eg, via pre-settled status), s/he may not be subject to discrimination on grounds of nationality.

Mr Justice Swift accepted the Secretary of State’s argument that, applying the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783, any discrimination in these cases was indirect rather than direct discrimination and so capable of justification. Further, held the judge, the habitual residence test (which included the right to reside requirement) in the Universal Credit Regulations was justified (and so not unlawful), and all the amendments made regarding the exclusion of pre-settled status did was to ‘maintain the status quo’ – ie, so that an EU national had to have a right to reside under the existing right to reside rules, and ‘maintain the prior rationale’ for the habitual residence test in the Universal Credit Regulations (paragraph 32).

Comment from CPAG

Though the coronavirus pandemic was not part of the context for the case, the decision underlines the particularly harsh environment for EU nationals effectively trapped in the UK who do not have a right to reside other than via pre-settled status. CPAG has applied for permission to appeal to the Court of Appeal.

Note: for the Court of Appeal's decision, see our caselaw summary Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741. This was subsequently appealed to the Supreme Court, see Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Summary

The claimant’s UC claim was made on 25 February 2022 and he was awarded it from that date. On 17 May 2022, he requested ‘backdating’ to 1 November 2021, the date on which he became unemployed after giving up work due to chronic back pain. That request was refused on the grounds that it was late. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal dismissed the appeal, holding that he could have made hjs claim earlier by claiming by telephone. 

Upper Tribunal Judge Jones upheld the claimant’s appeal and remitted the case to a fresh tribunal. The tribunal had held that the claimant could reasonably have been expected to have claimed earlier than he did, because he could have claimed by telephone. But the tribunal had erred in law in approaching the question too narrowly and making insufficient findings of fact. 

One of the grounds for backdating, in regulation 26(3) of the Universal Credit (Claims and Payments) Regulations 2013, is that the claimant ‘has a disability’. That is not defined in the regulations, but on the facts, that was the case here (as the tribunal had accepted), as the claimant had chronic back pain of sufficient severity to oblige him to have given up work. Regulation 26(2) requires not only that one of the backdating grounds in subparagraph (3) applies but also that ‘as a result of that circumstance...the claimant could not reasonably have been expected to have claimed earlier’, so that a causal connection between the claimant’s disability and not claiming earlier was required. But – as the judge also agreed – what was reasonably expected here ‘must be assessed against the background of the claimant’s circumstances as a whole’ (paragraph 39). In this case, the claimant had no prior knowledge of the benefit system, including the possibility of claiming by telephone, and did not speak English as his first language. He argued that that was relevant to the regulation 26(2) test. The judge agreed but said that if someone in similar circumstances ‘could reasonably have been expected to have discovered UC, and the means of claiming it’, so that the claim could have been made even just one day earlier, then backdating could not apply. However in this case, the tribunal, in only considering whether the claimant’s back pain stopped him making a telephone claim, appeared ‘to have unduly narrowed its view’ and failed to have regard to the claimant’s wider circumstances, so that ‘it failed to properly to consider what a hypothetical person with the appellant’s disability could reasonably have been expected to do, given his knowledge of the benefit system and the possibilities for acquiring information about benefit entitlements and procedures available to him’ (paragraphs 46–48). A related failure was making no findings that the Secretary of State would have allowed the claimant to claim by telephone. 

Comment from CPAG

As this decision illustrates, merely positing a telephone claim as a viable alternative method of claiming will not be sufficient to refuse ‘backdating’. All the facts must be considered, including whether the claimant would have been permitted to claim by telephone (most are not).

Summary

In this case, the Court of Appeal held that the absence of transitional protection for claimants who had their award of ‘legacy’ means-tested benefit wrongly terminated by the DWP and claimed UC as a result but were worse off on UC, was in breach of their human rights, and therefore unlawful. In so holding, the court reversed the earlier decision in these cases of the High Court but left it to the Secretary of State to devise a remedy.

TD was the mother of a disabled child (AD) who had been on income support (IS), child tax credit (CTC) and carer’s allowance. Her award of IS was terminated by the DWP. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC, and was worse off as the amounts for her disabled child in UC were less than in her IS and CTC. The claimant in Reynolds was on income-related employment and support allowance (ESA) which included the severe disability premium (SDP). Her ESA was terminated following her failure, allegedly without good cause, to attend a medical assessment, but without the decision maker having regard to a letter from her GP explaining why she could not attend. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC and was worse off due to there being no SDP in UC.

The Court of Appeal unanimously declared that in these circumstances the claimants had undergone a violation of their rights under Article 14 (prohibition of discrimination) of the European Convention on Human Rights. They had been discriminated against when compared to similar claimants who have not had their legacy benefit wrongfully terminated. The difference in treatment could not be justified (ie, so as to be lawful) as it was ‘manifestly without reasonable foundation’. The High Court, in the decision now under appeal, had erred in merely asking whether the Secretary of State had given adequate consideration to the question of justification, rather than actually deciding whether the difference in treatment was indeed justified.

Giving the lead decision, Lord Justice Singh held that ‘the difference in treatment was manifestly disproportionate in its impact’ on the appellants with regard to the Secretary of State’s aims in creating the UC rules, and so (in the absence of evidence from the Secretary of State to the contrary) was ‘manifestly without reasonable foundation’ (paragraph 92). The Secretary of State argued that the claimants in fact had undergone a change in their circumstances (ie, so as to justify their treatment) by themselves deciding to claim UC. But Lord Justice Singh said: ‘In my view, this is to elevate form over substance. Although it is true that the appellants were not compelled by law to apply for UC, as a matter of practical reality they had no choice but to apply for UC. It is important that the legislation in this country governing social security should be interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society’ (paragraph 69). Further, in rejecting administrative cost and complexity as a justification, he said: ‘What is crucial, in my view, is that these appellants were treated as they were despite their successful reviews, for reasons to do with administrative cost and complexity, which have nothing to do with the merits of their cases; and that the only reason in reality why they moved from legacy benefits to UC was as a result of errors of law by the state itself’ (paragraph 83).

Comment from CPAG

Other claimants who claimed UC having had their legacy benefit incorrectly terminated by the DWP and were worse off as a result may (depending on the facts) have good arguments that they have been treated unlawfully. However, the court made a declaration that the claimant’s Article 14 rights had been violated, rather than actually remedying that violation, which was left to the Secretary of State to devise. A response by the Secretary of State is now awaited.

Summary

The claimant’s appeal to the First-tier Tribunal was against the refusal of her claim for personal independence payment (PIP). The tribunal dismissed her appeal, holding that she had ‘overstated’ the impact of her health conditions. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Although most of the claimant’s grounds for further appeal involved an attempt to re-argue the case on its factual merits (and so would not have led to permission to appeal), there was an issue arising from the fact that it seemed the tribunal had not considered certain evidence that had been added to the appeal bundle. He held that led to a point about how the tribunal had assessed the claimant’s credibility. In particular, it did not believe she had been medically advised not to drive for as long as she claimed, but that was in apparent ignorance of the further medical evidence which supported what she said. 

The judge agreed with the Secretary of State, who submitted that the tribunal had erred in not having regard to all the relevant evidence in finding that the claimant had ‘overstated’ her claim. Although tribunals were entitled to make their own findings about credibility and in general it was not for the Upper Tribunal to disturb that (per IP v SSWP (IB) [2010] UKUT 97 (AAC)), it was possible to do so where the finding on credibility involved an error of law. In this case, the tribunal had erred and may have reached a different conclusion on the claimant’s credibility had they been aware of the additional evidence. Further, in that case they may have gone on to award the claimant’s further points. 

Comment from CPAG

Fairness and natural justice need to be observed, as well as – as shown by the present case – considering the claimant’s evidence in the context of all the available evidence. See also the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).

Summary

The claimant had epilepsy and suffered from seizures. Her application for personal independence payment (PIP) was refused on 5 July 2019, a decision that was upheld on mandatory reconsideration in October 2019; she appealed to the First-tier Tribunal on 24 August 2021. Pending the tribunal hearing, in November 2020 she suffered a further seizure, which resulted in the withdrawal of her driving licence. She had another seizure in January 2021. The tribunal was aware of the 2020 and 2021 seizures but said that they ‘did not affect the assessment of risk at the time of the decision’. In essence, they were considered simply to be changes of circumstance which post-dated the decision under appeal and so could not be considered. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in incorrectly applying the rule in section 12(8)(b) of the Social Security Act 1998, which provides that a tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made’. Although that had to be applied in any case, in the present case the tribunal had neglected to consider whether the 2020 and 2021 seizures nevertheless provided evidence about the claimant’s circumstances at the time of the decision under appeal. The ‘blanket rejection’ of that evidence by the tribunal (ie, without further consideration and explanation) was an error of law (paragraph 23). 

In so holding, the judge applied existing authority on this point. In R(DLA) 2/01 Commissioner (as he then was) Jacobs had said at paragraph 9: 

‘...it is the time to which the evidence relates that is significant, not the date when the evidence was written or given...If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.’ 

That was followed by Judge Ward in JS v SSWP [2011] UKUT 243, concluding that evidence coming into existence after the date of the decision could be relied on so far as relevant to show the circumstances pertaining at the date of the decision.

Summary

The claimant was entitled to ESA. She was subject to a repeat work capability assessment and was sent an appointment letter to attend a medical. The claimant did not attend that medical, her reasons for not doing so were not accepted as constituting good cause, and her ESA entitlement was terminated. Following mandatory reconsideration, she appealed but the First-tier Tribunal rejected her appeal.

Judge Poynter allowed the claimant’s further appeal and substituted as decision that she had not, as a matter of law, ‘failed’ to attend the medical. The tribunal had erred in failing to establish that the claimant was under a legal obligation to attend the medical so that failure (without good cause) to do so could lawfully lead to the termination of her ESA. Firstly, held the judge: ‘It was not in dispute that the claimant did not attend for examination. But did she “fail” to do so? The two are not the same. The difference is that one can only “fail” to do something one is under an obligation to do’ (paragraph 27). Further, that obligation must be a legal obligation (and not, for example, merely a moral one).

There was a clear line of authority that before the Secretary of State could penalise a claimant for not doing something, the claimant must have told the claimant unambiguously that the thing must be done and what must be done. ‘In short,’ said the judge, ‘there needs to be “the language of clear and unambiguous mandatory requirement” and there needs to be “crystal” clarity’ (paragraph 57). Invitation, encouragement and ambiguity do not impose a legal obligation. In this case, the tribunal erred in that it did not have either the relevant appointment letter, or a specimen of the standard letter that would have been sent, before it. It could not have been satisfied that the claimant was under a legal obligation and should not have decided the appeal against her (paragraphs 79–83). Further, having been given recourse to the standard appointment letter that would have been sent, the judge considered that its language was not sufficiently unambiguous so as to impose a legal obligation (and so the claimant’s appeal must succeed as she could not have ‘failed’ to attend). The letter told the claimant that ‘It is important that you attend this appointment’, but that was clearly not sufficient notification of what had to be done. It also said: ‘You could lose your ESA payments and/or national insurance credits if you don’t go to your work capability assessment’. But that was still ambiguous as it did not get over that failure to attend certainly would (without good cause) result in loss of benefit; phrases such as ‘you must attend’ or ‘the law says you must attend’ would be better (paragraphs 93–104).

Comment from CPAG

The judge also had references to similar decisions regarding alleged ‘failure’ to attend personal independence payment medicals in OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC) and IR v Secretary of State for Work and Pensions (PIP) [2019] UKUT 374 (AAC). The present decision is consistent with those (and, unlike IR, in which the language of the appointment letter was formally obiter, is substantive authority for the need for the instruction to the claimant to be very clear and unambiguous).

Summary

The claimant began inputting his details and evidence onto the online UC claim form on 2 December, but logged out before returning to complete it and submit the finalised form on 6 December. The DWP took his date of claim as the date the finalised form was submitted – ie, 6 December. The claimant argued that his date of claim should have been 2 December as beginning completion of the form on that date, logging out and then completing it later should be regarded as having made a defective claim on the earlier date, which was then corrected within the time permitted – ie, one month or potentially longer.

Judge Wikeley rejected the claimant’s argument and held that the date of claim was 6 December – ie, the date the claimant hit the ‘submit’ button on the online form and so sent the claim in. The relevant legal provisions included in particular regulations 8 and 10 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380. The judge noted that regulation 10 is the one which sets the date of the claim, and under regulation 10(1)(a) that the ‘default rule’ is that the date of claim is, ‘in the case of a claim made by means of an electronic communication in accordance with regulation 8(1), the date on which the claim is received at an appropriate office’ (paragraph 33).

The judge rejected the claimant’s argument that beginning the completion of the online form and then logging out to complete it later constituted a ‘defective claim’. Crucially, for the judge, there was no valid comparison (as argued for the claimant) with the housing benefit rules, in which claiming via a claim form or other written method was possible, and so rules allowed the date of claim to be treated as earlier than that on which it was received – eg, to allow for postal delays and DWP opening hours. It was this context in which the Court of Appeal made its decision in Novitskaya v London Borough of Brent (Secretary of State for Work and Pensions intervening) [2009] EWCA Civ 1260; [2010] AACR 6. The universal credit context however was very different. Universal credit, said the judge,’ is an exclusively online benefit – a claim can be made literally at any time, 24/7. It follows that no allowance need be made for e.g. postal delays or DWP office opening hours’ (paragraph 64). There was no direct read across from the housing benefit situation: ‘The Court of Appeal’s observations in Novitskaya were premised on the relatively relaxed statutory requirements for the form of a claim for most traditional social security benefits… whereas the universal credit claims regime, as described above, is far more prescriptive. One cannot assume…that the generous Parliamentary intention identified by the Court of Appeal in Novitskaya necessarily holds good in the new scheme’ (paragraph 65). The judge was not clearly able to identify of exactly what a ‘defective’ claim for universal credit might be. In any case, he was not satisfied that ‘an incomplete online universal credit claim form, even if the data is held on the Secretary of State’s official computer system, amounts to a defective claim in circumstances where the claim has not been submitted…’ (paragraph 102).

Comment from CPAG

CPAG represented the claimant in this case. The decision contains a comprehensive survey of the relationship of the practical reality of claiming universal credit to the relevant legal provisions. The outcome is obviously disappointing for any claimant who undergoes delay submitting a claim.

Summary

In this decision, the Court of Appeal unanimously held that the child element was not a ‘family benefit’ for the purpose of the main European co-ordination rules in EC Regulation 883/04. In so holding, the court in effect upheld the previous decision in this case by the Upper Tribunal in SSWP v MS [2023] UKUT 44. 

The claimant was a Slovakian national living and working in the UK. Her son lived in Slovakia. She was refused the child element of universal credit (UC) for him (as she did not satisfy the ‘main responsibility’ test in the domestic UC rules). She argued that the child element was severable from UC (ie, could be treated separately), so as to be regarded in itself as a ‘family benefit’ and therefore be payable by virtue of the co-ordination rules in EC Regulation 883/04. She also argued that, if unable to accept that, the court should make a reference to the Court of Justice of the European Union (CJEU). 

The court rejected that argument. The child element was not severable from UC and was not to be treated as a ‘family benefit’ for the co-ordination rule. Giving the lead judgment, Lord Justice Green’s starting premise was that ‘...properly construed by reference to its purpose and context Regulation 883/2004 does not incorporate a test of severance’ (paragraph 37). 

After reviewing the relevant caselaw, the judge concluded: 

‘... I do not detect in the jurisprudence of the CJEU either the existence of a principle of severance, or even its earliest germs. To the contrary, the caselaw is consistent with the proper inferences to be drawn from the structure and policy of Regulation 883/2004 which is that the Regulation does not undermine the essential freedom of member states to shape their own social security systems and that generalised, composite, benefits schemes are outside the scope of the regulation. In my judgment the position is sufficiently clear for there to be no need for a reference to be made to the CJEU under Article 158 of the Withdrawal Agreement’ (paragraph 52).

Summary

The claimant was entitled to UC. He went to India on 5 March 2023, intending to return on 1 April 2023. However while abroad, he fell ill and on 30 March was admitted for medical treatment and was medically advised to take three months’ bed rest. The DWP was informed that he had not returned to the UK yet on 26 April (he eventually returned on 23 June). In May 2023, the DWP superseded the award to end entitlement from the assessment period beginning on 24 March, on the basis of the change of circumstances on 30 March. The claimant’s appeal was dismissed by the First-tier Tribunal.

In the Upper Tribunal, Judge West substantively dismissed the claimant’s further appeal, except for re-inserting the termination of entitlement from 24 March 2023 (the First-tier Tribunal having erroneously substituted termination from the assessment period beginning on 24 February). The judge dismissed two arguments made by the claimant: (1) that the rules on temporary absence (at regulation 11 of the Universal Credit Regulations 2013, SI No.376) could be split or phased, so as to allow an initial basic one-month temporary absence to be changed to award the provision allowing up to six months such absence to apply following the need for medical treatment to have arisen while abroad; (2) if that was not what the rules provided, that they needed to be read in such a way in order to avoid a breach of the claimant’s human rights under Article 14 (prohibition of discrimination) when read with Article 1 of Protocol 1 (right to property).
The temporary absence rule could not be split (or phased) in the way the claimant argued. The provision regarding temporary absence for medical treatment (at subparagraph (3)(a) of regulation 11) related to a claimant travelling abroad in order to receive medical treatment, not (as in the present case) to a claimant already abroad and whose need for medical treatment arose while away. Regulation 11(3) is ‘not intended to extend the period for which UC is available to persons temporarily absent from Great Britain if they experience medical emergencies within one month of travelling abroad’, but rather to ensure ‘that people who need to leave Great Britain to obtain treatment or for convalescence are not penalised by having their benefit withdrawn’ (paragraph 135). Regarding the discrimination argument, the alleged discrimination was against the claimant on grounds of disability. The judge considered that failed at the outset as there was no evidence in this case to establish prima facie indirect discrimination on such grounds – ie, that the claimant was indeed disabled. In these circumstances, it would be ‘wholly impermissible’ to find that the legislation was in breach of the European Convention on Human Rights (ECHR) (paragraph 160). In any case, the judge thought the Secretary of State was right to argue that any difference in treatment was capable of justification. Further, even if regulation 11 was discriminatory in the way the claimant argued, this was not a case where the remedy of disapplying something in the rules was available (without the exceptions in regulation 11 the claimant would not be entitled by virtue of not being in Great Britain), and the proffered solutions of recasting the terms of regulation 11 to make it compliant with the ECHR would be ‘attempts at judicial legislation rather than interpretation of the regulation in a Convention-compliant fashion’, and therefore to be rejected (paragraph 168).

Summary

SC was entitled to UC. She notified her work coach that she would be going to Canada for just under seven weeks. The DWP superseded her award on the day after she left and removed entitlement, on the basis that her absence was planned to exceed one month. The First-tier Tribunal allowed her appeal on the basis that her UC should have been suspended until she had returned. MJ was entitled to housing benefit (HB). She notified the local authority of her intention to go to Brazil for just under five weeks. The local authority ended entitlement from the date of her departure. The First-tier Tribunal refused her appeal.

In the Upper Tribunal, Judge Butler allowed the Secretary of State’s further appeal in SC and dismissed the claimant’s further appeal in MJ. Both cases involved arguments for the claimants that in their cases a ‘closed-period’ supersession could have been carried out in advance – ie, a supersession to the effect that entitlement was only lost for the ‘closed period’ while abroad but was reinstated (ie, without the need for a new claim) prospectively, from the date of return. Judge Butler rejected that argument. A closed period supersession cannot be made on the grounds of a relevant change of circumstances to preserve an existing award of UC or HB where, at the date of the supersession, the claimant does not meet a condition of entitlement – eg, being in Great Britain. Neither, in these circumstances, was such a supersession possible on the ground of an anticipated change of circumstances.

The judge recognised that ‘closed period’ supersessions had been confirmed by a number of decisions initially by the Social Security and Child Support Commissioners and later by the Upper Tribunal. That authority was not disputed. But (unlike in the present cases) it concerned changes of circumstance that, at the point of the supersession, were retrospective, not prospective. The caselaw, said the judge, 

‘has confirmed it is possible to have a closed period supersession where the fixed period occurred in the past and, at the time that the SSWP makes the supersession decision changing a person’s entitlement, the person meets all the entitlement conditions for the benefit’ (paragraph 44). In the present cases, by contrast, the claimants were arguing for a ‘prospective closed period supersession’. 

The judge considered that in a retrospective closed period supersession, where past periods of non-entitlement were followed by period where the entitlement conditions were met again, the overall benefit award ‘will remain a running decision’ (paragraph 192). But if, as in the present cases, the supersession operates to disallow an existing award, the result is that there is not a ‘running decision’, which ‘explains why the supersession decision cannot be superseded for a later change of circumstances. The later change of circumstances is not relevant to the supersession decision, because that decision ceased to have effect after it changed and ended the benefit award’ (paragraph 194). So, in the present cases, the ‘outcome decision’ from the change of circumstances was simply that the claimant was no longer entitled to the benefit: ‘Once that supersession decision was made, it ended the benefit award. At this point, SC and MJ needed to make a new claim to benefit to be entitled to it once more’ (paragraph 229).

Comment from CPAG

The judge responded to observations that the outcome seemed to favour claimants who delayed reporting such changes until they satisfied the entitlement conditions again by pointing out that such claimants may have incurred overpayments and be liable to civil penalties for failure to disclose or to prosecution for fraud.

Decision in brief

Claimant’s ability must be assessed at a time of day when it is reasonable for them to carry out an activity – TR v SSWP [2016] AACR 23 and AE v SSWP [2024] UKUT 381 (AAC) applied

Decision in brief

Tribunal erred in failing to consider whether the claimant’s need to use ear plugs to reduce noise when cooking, washing and bathing constituted an ‘aid’ – also erred in not awarding points for problems with engaging with others face to face and planning and following journeys on the basis that he had no diagnosed mental health condition without explaining why it did not accept that autism and schizotypal personality disorder resulted in those problems