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Summary

In this High Court judicial review case, a reference has been made to the Court of Justice of the European Union (CJEU) for a preliminary ruling, and consequently no substantive decision has yet been made by the High Court. 

The case concerns a claimant (a Bangladeshi national) who came to the UK in 2021 as a dependant of her adult son (a Spanish national) who was a worker and had gained settled status in 2019. The claimant had pre-settled status. Initially she lived with him and was dependent on him, but following domestic abuse she left his home in 2023 and ceased to be dependent on him. She was refused universal credit (UC) on right to reside grounds. She applied for judicial review on grounds of discrimination. 

Mr Justice Chamberlain needed to consider a related but distinct point, namely whether the claimant had a freedom of movement right to reside (ie, under European law) as a dependant family member of a European Union (EU) citizen who had retained her right to reside as a family member after the dependency ceased, by virtue of Article 17(2) of the Withdrawal Agreement. But that involved a question as to whether Article 17(2) of the Withdrawal Agreement could apply to a person, like the claimant, who was a dependant family member outside the host state (in this case, the UK), but had only actually entered the UK after the end of the ‘transition period’ following the UK’s exit from the EU, after 31 December 2020. The judge referred this question to the CJEU.

Summary

The claimant was considered by the local authority to have been overpaid housing benefit between 2014 and 2018. She had reported that her son had moved out of the property in 2014 (and so no non-dependant deductions had been made since then), but the local authority became aware of evidence that the son still used the property as a correspondence address and concluded that he had in fact continued to live there. The claimant appealed. The First-tier Tribunal asked the claimant to provide evidence about her son’s alleged residence elsewhere including council tax bills or oral evidence from the son. The claimant instead provided several letters which repeated her claims but focused on her belief that she was being persecuted by the local authority. 

The tribunal dismissed her appeal, making an adverse inference from the claimant’s failure to respond to what it considered to be its straightforward requests for evidence. The claimant applied for a set-aside of the decision, on the basis of witness evidence from the son and neighbours and (for the first time) a submission that the claimant had lacked mental capacity to respond to the tribunal, backed up with evidence from a consultant psychiatrist. The set-aside application was refused. A subsequent late appeal against the original decision of the tribunal (not the refusal of the set-aside) was eventually dismissed by the Upper Tribunal, which held that tribunals were well used to dealing with litigants with compromised cognitive abilities, that the tribunal had at all times acted fairly, and that the psychiatrist’s report had not established that the claimant lacked capacity at the time of the tribunal. The Upper Tribunal refused the claimant permission to appeal. 

The Court of Appeal granted the claimant permission to appeal, allowed the appeal and remitted the issue of the son’s place of residence during the period of the alleged overpayment to the First-tier Tribunal to be reheard in the light of the evidence now available. There had been a mistake of fact leading to an error by way procedural unfairness, which the Upper Tribunal (in not properly assessing the detail of the psychiatrist’s report) had not identified. That the mistake of the First-tier Tribunal was revealed by fresh (ie, post-decision) evidence was not a barrier as (per the principles in Ladd v Marshall [1954] 1 WLR 1489) the evidence was objective and uncontentious, the mistake was not the fault of the claimant or their representative and the mistake had caused unfairness. Giving the lead judgment in a unanimous decision, Lord Justice Stuart Smith noted that both the First-tier and the Upper Tribunal are required by their rules to adopt a flexible approach in order to achieve a just result and that, ‘... where a litigant in tribunal proceedings is found to have lacked capacity (or to have been compromised in their ability to participate fully in the proceedings) after the event, it may be relatively easy to conclude that there has been a mistake of fact’ (paragraph 47). Further, there may be cases ‘... where even a specialist tribunal judge will not be alerted to the difficulties that the litigant is facing. Where that is recognised at a later date, either on a set aside application or on an appeal, the full extent of the tribunal’s powers is available, up to and including setting aside or allowing the appeal, to ensure that the final outcome is fair’ (paragraph 48). This was such a case. The mistake of fact (not the fault of the claimant) was that the tribunal had considered the claimant to have capacity, when the psychiatrist’s report, properly assessed, showed that the claimant was suffering from a severe mental disorder at the time of the hearing that adversely affected her ability to participate fully in the proceedings (including in responding to evidence requests). That was something not appreciated by the tribunal and so led to an error of law by way of ‘material procedural unfairness’ (paragraph 64). The Upper Tribunal had wrongly considered that the psychiatrist’s report had not shown that. 

Comment from CPAG

Fresh (ie, post-decision) evidence and arguments will not usually permit a tribunal decision to be overturned. But this case is an example of the limited exception to that, provided by the Ladd v Marshall principles. It is also worth noting that in this case the court was dealing with a very late appeal against the tribunal’s decision and would seem to have been primarily concerned with the error of law in that decision, rather than an appeal against the refusal to set the decision aside. But clearly it considered that – for the same reason – that was wrong too.

Summary

In this decision, the High Court dismissed an argument that, in the rules on exception to the two-child limit in UC for a child born as a result of a non-consensual conception, it was unlawful not to apply the exception where the child was the claimant’s first or second child rather than their third or subsequent child. 

The claimants were mothers who each had two or more children conceived in abusive relationships where they were teenagers. One of the mothers later had two more children, both conceived consensually, while the other had an older child returned to her from local authority care. Both then had the two-child limit applied to their UC. Under the relevant ‘ordering’ rule at regulations 24A and 24B of the Universal Credit Regulations 2013, SI No.376, the exception for non-consensual conception can only be applied regarding a child so conceived where that child is the claimant’s third or subsequent child. So no exception was applied in respect of the first and second children of the claimants, even though they had been conceived non-consensually. On application for judicial review, it was argued that that was unlawful as discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR) – as a breach of duty to protect the claimants from inhuman or degrading treatment contrary to Article 3 of the ECHR – and on the ground of irrationality as a matter of public law. 

In the High Court, Mrs Justice Collins Rice DBE CB rejected those arguments. Regarding alleged discrimination, differences in the treatment of the claimants, or allegedly unlawful failure to treat them differently, were justified and so not unlawful. The judge was unpersuaded by arguments that parents of non-consensually conceived children who are not their third or subsequent child are treated differently from parents who have adopted or are caring for other people’s children. In such cases, following amendments introduced in 2018, the ordering rule does provide an exception even if the child is the first or second child. Under the Children Act 1989, parents of non-consensually conceived children automatically have parental responsibility for them, in contrast to adopters and non-parental carers, who decide to take on such responsibility. That was important: ‘The regulations’ differential treatment of biological mothers on the one hand and adopters and nonparental carers on the other is rooted in a legal principle that they are not analogous: the former have automatic default parental responsibility, and the latter do not’ (paragraph 47).

Regarding the fact that the claimants were treated the same as parents of consensually conceived children, the judge noted that ministers had rejected the proposal that, having provided an exception in the ordering rules for non-parental carers, the same ought to be done for parents of non-consensually conceived children. The judge reminded herself (at various points throughout the judgment, including here) of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2022] AC 225, in which the two-child limit was held to have been a legitimate measure introduced with limiting welfare costs in mind after careful scrutiny by parliament, with the courts in no position to decide where the balance should be struck between the interests of claimants with children on the one hand and the interests of the community as a whole on the other. Ultimately for the judge, that directed the judgment in the present case: ‘The competing arguments about where a “fair and reasonable” balance can be struck in this matter are not the sorts of argument a court can legitimately arbitrate or, where they have been settled in a contested political process, with which a court can legitimately interfere’ (paragraph 99); and ‘In my judgment, the question of justification again ultimately resolves itself into a question of whether or not the solution we have at present was the right policy decision, whether or not the regulations amount to “wise legislation”, and which of two competing versions of socio-economic fairness should prevail. Like the two-child limitation itself, this was at the time, and remains, a question of intense political controversy. It cannot be answered by a process of legal reasoning’ (paragraph 107). As the ordering rule was justified, it could not therefore also be ‘irrational’, so the argument on that point was bound to fail too. 

Regarding inhuman and degrading treatment, the starting point for the claimants was that they had experienced such treatment at the hands of their perpetrators. It was argued that the consequent failure to provide financial support for all their children had been degrading and risked not merely acute poverty but a return to conditions of violence. But the judge reminded herself that the Article 3 duty is on the state to not itself directly subject people to inhuman and degrading treatment by its own agents. That was clearly not the case here. That left the argument that the state had a positive duty, triggered by the inhuman and degrading treatment inflicted by the perpetrators, to do something demanded by Article 3. But the judge could not see any such duty in this context. 

Comment from CPAG

CPAG has permission to appeal to the Court of Appeal. Clearly, the outcome of any such challenge would involve further consideration of the finding, reflected in the judge’s closing remarks, that this matter is ‘a policy question dealing in social, economic, moral and ethical subject matter’ and ‘a political law-reform question’ – and so not a legal one.

For further details see our test case update: Two-child limit non-consensual conception exception ordering rule.

The claimant was refused PIP. The First-tier Tribunal (FTT) upheld that refusal. In its reasons, the tribunal said that medical evidence lacked ‘detailed objective substantiation of the disabling functional effects claimed by the appellant across the PIP assessment activities’. It also referred to observations it made of the claimant at the hearing, which were that he ‘did not exhibit indicators of disability’. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in three ways: (1) it seemed that the tribunal may have failed to consider whether medical evidence (in the form of an MRI scan) which post-dated the decision may nevertheless have been relevant at the date of the decision under appeal; (2) the tribunal wrongly rejected the medical evidence it did have on the basis that it did not make specific reference to the PIP activities; (3) it was not clear whether the tribunal had given the claimant the opportunity to comment on its observations of him at the hearing: that was an error of law ‘both in terms of the FTT’s failure to afford the appellant this opportunity and, given the written reasons are silent on this point, to provide adequate reasons of how it dealt with this issue’ (paragraph 25). 

Regarding error (1), the tribunal seemed to have had in mind section 12(8(b) of the Social Security Act 1998, which provides that a tribunal shall not consider ‘any circumstances not obtaining at the time the decision was made’. But, as pointed out in several decisions including R(DLA) 2/01 and R(DLA) 3/01, that refers only to post-decision ‘circumstances’, not to post-decision evidence which might nevertheless be evidence of circumstances at the relevant time. Regarding error (2), most medical reports do not make specific reference to the PIP activities. To consider such evidence as automatically inadequate or unpersuasive was so unfair as to be ‘contrary to natural justice’ and breach the claimant’s human right to a fair hearing (paragraph 20), as well as to constrain the tribunal in its task of ‘holistically considering and properly weighing all the evidence’ (paragraph 21). Rather, it was for the tribunal to make its own findings. 

Regarding error (3) and the tribunal’s observations of the claimant, the judge noted the principles adumbrated by Judge Poole QC (as she was then) in CC v SSWP (ESA) [2019] UKUT 14 (AAC) and said: ‘It is important to remember the hearing usually takes places some months after the date of the decision and is in effect a “snapshot” of an appellant’s presentation on that particular day over a relatively short space of time. Attaching weight to “on-the-day observations” should therefore be approached with caution by the FTT. It is crucial the tribunal affords the appellant the opportunity to comment on observations it may have made otherwise unfairness to the appellant can result. I note the decision of Upper Tribunal Judge LT Parker In CSPIP/45/2016 on this issue specifically paragraph 7: “Notwithstanding a tribunal is entitled to take observations into account, this is always subject to its overriding duty to provide a fair hearing; this will usually mean allowing a claimant to comment on such observations before any final adjudication is made”’ (paragraph 24). 

Comment from CPAG

Regarding whether a tribunal’s observations of the claimant should be put to them at the hearing, although this decision approvingly notes CC v SSWP (ESA) (which emphasised that this will be a matter of fairness in the context of the case but by no means automatically required), it is arguably more assertive than that decision in endorsing the view that this will ‘usually’ mean giving the claimant the chance to comment.

Decision in brief

The wording of the activity is to be interpreted as meaning that it is about only one activity (ie, of navigating and maintaining safety taken together} – the ‘maintaining safety’ element is not restricted to descriptor 8(b) (‘cannot safely complete a hazardous task...’) which is the only descriptor specifically referring – other descriptors (eg, descriptor 8a ‘unable to navigate around familiar surroundings...’) must also be applied with maintaining safety in mind – so that the claimant in this case who had a hearing impairment, might satisfy descriptor 8(a) on the basis that his inability to hear sometimes led him to collide with cyclists and scooter riders on pavements

Decision in brief

Fairness and justness – breach of rule 24(5) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008