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Decision in brief

Claimant had moved out of the property and (as determined by the tribunal) notified the housing benefit section of the local authority, but direct (‘managed’) payments to the landlord continued for some time before the landlord pointed out that the claimant had moved out – tribunal correctly upheld the local authority decision that under regulations 100 and 101(2) of the Housing Benefit Regulations 2006, the consequent ‘official error’ overpayment was recoverable from both the tenant and the landlord, and that the local authority had lawfully decided to recover it only from the landlord – tribunal correctly noted that the decision as to whether and from whom to recover the overpayment is not an appealable decision (R(H) 6/06)

Comment from CPAG

Originally, a three-judge panel of the Upper Tribunal had been convened to consider this case as it had been thought to raise difficult questions concerning the prescribed means of notifying a change of circumstances, but which in the end did not arise. See also, our article: UC and housing costs problems
 

Decision in brief

Claimant had no physical or mental problems preventing her from washing or bathing and did not need prompting or assistance - problem was that her medical condition (trimethylaminuria) meant that she had persistent body odour – applying principles set out in MM and BJ (PIP) [2016] UKUT 490 (AAC), the requirement to be able to carry out an activity ‘to an acceptable standard’ is about the accomplishment of the functional activity, not the result – similarly, medicated soap used by the claimant was not an ‘aid’ required for the activity of washing and bathing – claimant therefore did not score points under Activity 4

Comment from CPAG

The distress caused to the claimant by her condition nevertheless did lead to her scoring sufficient points for the standard rate of the daily living component under Activity 9 (engaging with other people face to face). See also our article: ‘To an acceptable standard’ in PIP

Summary

The claimant’s request for a mandatory reconsideration of his tax credits decision was made 35 days outside the standard 30-day time limit for making such a request (but within the absolute time limit of 13 months). HM Revenue and Customs (HMRC) determined that the request was late and that therefore it would only consider it in ‘special circumstances’. It said the request could not be accepted, although the decision about this indicated that HMRC had taken into account the claimant’s reasons for lateness (he reported language problems and illness) and the alleged error (mistake about his self-employed status and income). The First-tier Tribunal struck out the claimant’s appeal, holding it had no jurisdiction as there had been no mandatory reconsideration and therefore there was no right of appeal.

Judge Scolding QC allowed the claimant’s appeal against the strike-out, reinstated the claimant’s appeal and directed the First-tier Tribunal to consider it. The tribunal had erred in holding that it had no jurisdiction. The correct position was that HMRC had carried out a mandatory reconsideration, and so therefore the claimant did have the right of appeal. In so holding, the judge had reference to the decision of the tribunal of judges in R (CJ) v SSWP (ESA) [2017] UKUT 324, reported as [2018] AACR 5, a decision that held that for benefits there was a right of appeal where a mandatory reconsideration had been made late (but within the absolute 13-month time limit) and the DWP had refused to admit it.

In argument before the judge, HMRC submitted that the present case was distinguishable from that in CJ, as that was a benefits case, and the relevant law for tax credits was materially different. Section 38(1A) of the Tax Credits Act 2002 requires a mandatory reconsideration (referred to there as a ‘review’) to have been ‘carried out’ in order for appeal rights to arise; it was submitted that, therefore, where HMRC had refused to accept the late appeal, there had been no mandatory reconsideration. But the judge rejected that. The rules for benefits and tax credits, although differently worded, had ‘the same statutory purpose’, which was to ‘create a state prior to an appeal where the Secretaries of State for Work and Pensions or HMRC can consider the decision again in order to reduce the number of appeals’ (paragraph 17). There was no intention of reducing appeal rights. Applying the reasoning in CJ, and so bearing in mind considerations such as common law fairness and the right to a fair trial in Article 6 of the European Convention on Human Rights, the judge held that ‘carrying out a review’ under section 38(1A) of the Tax Credits Act 2002 ‘must include considering whether to extend time to carry out the review’. HMRC’s contention that there had been no review ‘failed to grapple adequately’ with the fact that the decision about that implicitly sought to uphold the original decision. As in CJ, the availability of judicial review was not an adequate substitute for appeal rights in such cases (paragraph 27).

Comment from CPAG

Thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision. The decision is an explicit rebuttal of HMRC’s long-held argument that the wording of the relevant tax credit legislation required a different (and restrictive) approach regarding appeal rights after a late mandatory reconsideration to that taken, following the decision in CJ, to benefits. There is indeed no good reason why the tax credits position should be different; however, it remains to be seen if HMRC is to seek to appeal further

Decision in brief

After reaching 65 the enhanced rate removed on reassessment – tribunal erred in holding that the award had been superseded for change of circumstances and that it had been for the standard rate, with effect that the enhanced rate could not be awarded after age 65 – supersession should have been for receipt of new official medical report, and on basis that original award was for the enhanced rate, with effect that the enhanced rate could be restored on appeal after age 65 – even if there had also been a change of circumstance, the correct approach would have been to allow the claimant to take advantage of the receipt of new medical report ground so as to avoid limitation of the award (DS v SSWP (PIP) [2016] UKUT 538 (AAC), reported as [2017] AACR 19, applied).

Decision in brief

Also, Upper Tribunal exercising appellate jurisdiction cannot deal with argument based on alleged breach of Equality Act 201 O (although can in exercising judicial review function)- regarding high rate for severe visual impairment, the relevant part of the Equality Act was not in force when the regulations were made - in any case, 'due regard' was had to age issues' - even in the event of all that being wrong, the suggested remedy of disapplying the regulations would bring no benefit to the claimant or anyone else

Decision in brief

Work consisting solely of selling Big Issue - decision in Bristol City Council v FV (HB) [2011] UKUT 494 (AAC) not authority that all Big Issue sellers are self-employed persons - on facts of present case (which included that claimant worked for 40 hours a week at a profit of less than £2 per hour, did not keep sales records, had no intention of seeking other or more remunerative work and had bulk of income from benefits), tribunal did not err in holding that the work was not genuine and effective

Decision in brief

Court of Justice of the European Union (CJEU) decision in Brey requires a personalised assessment of whether claimant would be a burden on the social assistance system - subsequent decisions of CJEU in Dano, Alimanovic, Garcia-Neto and Mirga do not alter that, as they are about different rights to reside, and in particular do not concern claimants with comprehensive sickness insurance and a previous record of self-sufficiency

Summary

In this decision, the Scottish Court of Session rejected a petition for judicial review of the decisions by the Secretary of State for Work and Pensions and the Scottish Ministers to change the eligibility rules for the winter fuel payment (WFP) (including the equivalent in Scotland) for the winter 2024/25. The change was to means test entitlement by restricting entitlement to those entitled to pension credit. The WFP rules were amended to make that change in England and Wales in regulations that came into effect on 16 September 2024. The rules on the equivalent devolved Scottish benefit, the pension age winter heating payment (PAWHP), were amended to the same effect from 13 November 2024, the Scottish Ministers considering that under the circumstances there was no real option but to mirror the WFP changes for 2024/25. Under an agency agreement, the PAWHP was paid by the DWP for that winter.

The claimants were Scottish residents who had lost entitlement to the PAWHP. They were married and lived in Scotland and were both of pension age. Neither qualified for pension credit. They argued that the decisions by the Secretary of State regarding the WFP and by the Scottish Ministers regarding PAWHP were unlawful on a number of grounds, including breach of duties under the Equality Act 2010, failure to consult, irrationality and ‘Wednesbury’ unreasonableness and breach of the Human Rights Act 1998.

In the Outer House of the Court of Session, Lady Hood refused the petition for judicial review. She did consider that, in the particular circumstances of the case, the claimants should be allowed to challenge both the Secretary of State’s and the Scottish Ministers’ decisions before the court. But none of the claimants’ arguments for unlawfulness were made out. The Secretary of State did have due regard to her duties under the Equality Act, as did the Scottish Ministers regarding their duties. There had been no statutory duty to consult, and neither had either respondent promised to do so. On irrationality, the threshold was high and the fact that the decisions could result in hardship for those excluded was not enough to render them irrational in the legal sense. Lady Hood noted that the European Convention on Human Rights (which was implemented in the UK by the Human Rights Act) did not guarantee socio-economic rights and nor was it engaged regarding whether payments like the WFP and PAWHP ought to be provided on a universal basis. There had been no relevant breach.

Summary

The claimant reached pensionable age on 20 August 2021. He did not claim state pension at that point and carried on working. He made an online claim for state pension on 17 August 2022. In that claim, he clearly indicated that he wished to claim from his 67th birthday, which was on 20 August 2022. He was awarded state pension, including an increase for deferring entitlement, from that date. However, the claimant had made a mistake and had intended to ask for backdating to 20 August 2021. Having been refused that, the First-tier Tribunal (FTT) allowed his subsequent appeal on the basis that the decision starting entitlement from August 2022 was capable of revision on any ground to correct that mistake.

Judge Wright allowed the further appeal of the Secretary of State and substituted a decision that the First-tier Tribunal had erred in law and that the claimant’s appeal to it was dismissed – ie, with the effect that the date of claim was 20 August 2022. The tribunal had erred in considering that the Secretary of State’s decision could have been revised so as to backdate the claim for a year. Even though the claimant had indeed made a mistake in asking for his claim to start in August 2022, he had clearly indicated that date on his claim and the structure of the state pension rules did not permit that to be changed once the claim had been decided upon. There was no parallel with the rules on extending the time to claim (in effect, backdating) universal credit (UC), as adjudicated on by the Court of Appeal in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186, reported as [2024] 1 WLR 3012, which were quite different.

The claim was decided on 17 August 2022. Judge Wright agreed with the Secretary of State that after the claimant’s having chosen his date of claim and the claim having been decided on that basis, there was ‘no proper basis’ for the Secretary of State, or the tribunal, to have then decided differently (paragraph 33). Although under regulation 5(1) of the Social Security (Claims and Payments) Regulations 1987 the claimant had been able to amend his claim (ie, to ask for backdating) at any time before it was decided, he had not done so. The claim form had been very clear, and there was no dispute that the claim had been correctly decided. Having been decided, the claim no longer existed and could no longer be amended. ‘Given all this,’ said the judge, ‘I can identify no lawful basis for the Secretary of State or the FTT on appeal changing the start date of entitlement to the state pension, as to do so would be to amend the claim after it had been decided and after it had ceased to exist’ (paragraph 37). It was important to note that the rules on the state pension placed in the hands of the claimant the choice between claiming on reaching pensionable age or deferring until a later date. The tribunal was not permitted to act on the wish of the claimant, subsequent to the decision adopting that choice, to change it. Nor did anything in Miah alter that. The issue in Miah was whether a UC claim had been made within the time and (in the judge’s words) ‘where there was an absence of evidence about the date from when Mr Miah wished to claim his universal credit.’ The ‘essence’ of the court’s decision was the conclusion that whether UC had been claimed in time ‘could be determined (on revision or on appeal) like any other issue going to entitlement’. That was different to the present case, which was about state pension where the claimant had clearly indicated he wanted to defer his claim and his entitlement until his 67th birthday (paragraph 48).

Comment from CPAG

This decision, as the judge makes clear, is predicated on the very particular arrangements regarding date of claim and deferral on entitlement in the state pension rules. As the judge (and the Secretary of State in her submission) also makes clear, that is very different from the UC context and Miah, where there is no requirement on claimants to indicate a wish for backdating and it is for the Secretary of State to consider that when making the decision.