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Summary

The claimant was a severely disabled child entitled to the high rate of both the care and mobility components of disability living allowance (DLA). In 2010, he went into hospital for what turned out to be over a year. Applying regulations 8(1) and 10(2) of the Social Security (Disability Living Allowance) Regulations 1991 No.2890, payment was suspended once he had been in hospital for more than 84 days. His father (his appointee) challenged that on the basis that it breached the child’s human rights. That argument was dismissed by the First-tier Tribunal, the Upper Tribunal and then the Court of Appeal.

In a unanimous decision, the Supreme Court upheld the claimant’s further appeal and held that the decision to suspend payment of DLA violated his human rights. The decision unlawfully discriminated against him in suspending his DLA, and so was in breach of Article 14 of the European Convention on Human Rights (ECHR) when taken with Article 1 of Protocol 1 (right to protection of property). The Secretary of State was not obliged to suspend payment by primary legislation and so, given the court’s finding about breach of the ECHR, acted unlawfully. Accordingly, the First-tier Tribunal should have allowed the claimant’s appeal, setting it aside and substituting a decision that the claimant was entitled to continued payment of DLA (paragraph 48). 

Regarding Article 14 and discrimination, disability was a prohibited ground and the court held that the claimant was within the Article’s scope as someone with ‘other status’, namely as a severely disabled child in need of lengthy inpatient hospital treatment (paragraph 19). There was no justification for the difference of treatment compared to severely disabled children not in hospital. Primarily, that was because the court considered that it simply was not the case that, as argued by the Secretary of State, all the claimant’s disability related needs were catered for by the NHS and so to have continued to pay DLA would have been ‘double provision’. Rather, the claimant’s parents continued to care for him in hospital and incurred a range of related costs in doing so. It was estimated that the extra costs of travel to and from hospital, parking, food and drink for staying at the hospital, and laundry was about £8,000 (paragraph 6). 

The court also accepted that (in the context that parents are now encouraged to attend and care for disabled children, and evidence about the cost of this from charities) the case of the claimant’s parents was not a hard case, unreflective of the position of most parents in their situation. This was not, therefore, a case in which difference in treatment could be justified as a ‘bright-line’ rule, the effect of which was beneficial overall (paragraphs 27–36). The court also considered that in failing to conduct an evaluation of the possible impact of suspension of DLA in such cases, the Secretary of State was in breach of international law, namely the UN Convention on the Rights of the Child. Although such international conventions were currently not incorporated in UK law, they may be relevant in that, as here, interpretation of the ECHR should be ‘in harmony’ with them (paragraphs 38–44). 

The court was clear, however, that it was not making a general declaration about the violation of human rights. It accepted that ‘it may not always follow that the suspension of payment of a child’s DLA following his 84th day in hospital will violate his human rights’; although ‘no doubt many other disabled children’ would benefit from the decision, in individual cases the  Secretary of State must have the opportunity to consider how he could avoid violating the rights of disabled children in this situation (paragraph 49).

Comment from CPAG

The decision establishes that the First-tier Tribunal (ie, not just the court) can hold that the suspension is unlawful – ie, on human rights grounds. The court’s rejection of a ‘bright-line’ justification in the light of the evidence may be important in other discrimination challenges, as might its reference to the potential relevance of the international conventions, such as the UN Convention on the Rights of the Child.

Summary

The claimant was unable to attend the hearing of her appeal, and the hearing was adjourned for what was the second time. The adjournment notice included that ‘this is a peremptory adjournment, that is the appeal must proceed when next listed'. A new hearing was arranged but on the day the claimant was again unwell and unable to attend, and arranged for a friend to telephone and ask for a postponement. That request was refused and the hearing went ahead in the claimant’s absence. The tribunal decision included that the previous adjournment was a ‘peremptory’ adjournment and it had been decided that the next hearing must proceed. The claimant requested a set-aside of the tribunal decision on the basis that she was absent from the hearing. The district tribunal judge refused to set the decision aside.

Judge Poynter held that the claimant’s further appeal against the tribunal decision should be treated as an appeal against the refusal to set the decision aside. He allowed the appeal, so as to set the decision aside, with the result that the appeal was to be reconsidered at a hearing by a fresh tribunal. The district tribunal judge’s decision to refuse to set the decision aside involved an error of law, namely the assertion that none of the grounds for a set-aside applied, whereas one did: namely that the claimant did not attend the hearing. On the facts, Judge Poynter considered that it was in the interests of justice to set the decision aside (paragraphs 6–7). Regarding that, the judge put particular emphasis on the previous, so-called ‘peremptory’ adjournment notice. The
tribunal granting the adjournment had no power to give a direction that the appeal must proceed when next listed, and the tribunal that insisted on proceeding at the subsequent hearing should not have permitted itself to be influenced by that direction (paragraph 31).

Although it is important to avoid unnecessary adjournments and First-tier Tribunals are busy, adjournment is sometimes necessary and it is the tribunal before which the appeal is listed that is best placed to consider that (paragraphs 36–37). A history of previous adjournments will often be an important factor to take into account when considering a further request, and there is no harm in a tribunal granting an adjournment saying that it is unlikely that a further adjournment will be granted. But, said the judge, ‘what a tribunal may not do is seek to bind the hands of a future tribunal’ by directing that an appeal must proceed when next listed, or by giving any other direction with a similar effect (paragraphs 38–39).

Comment from CPAG

The First-tier Tribunal appears to have been overly concerned with progressing business, resulting in an attempt to bind future proceedings that it was wrong to follow. Judge Poynter also points out that changes in circumstance can easily lead to a perfectly legitimate repeat request for an adjournment, and that the other party to the appeal may in fact be the source of the most recent request.

Summary

The claimant claimed HB in December 2012. He had previously owned the property, and formal transfer of ownership (to his son) had not occurred until March 2010. The local authority refused his claim, holding that he was not liable for the rent on the basis that he had previously owned the property and was within five years of ceasing to own it. However, the claimant had, since January 2001, been subject first to a High Court restraint order followed by an inhibition in the Land Registry, then a Crown Court confiscation order and then appointment of a receiver to enforce the confiscation order, with the effect that he was prohibited from disposing of the property himself, and the transfer to the son was under the power of the receiver. Nevertheless, the First-tier Tribunal found that the claimant was the 'registered legal owner' of the property until March 2010, that he was therefore to be treated as not liable for rent and that he was therefore not entitled to HB. 

Judge Levenson allowed the claimant's further appeal and substituted a decision that he was not to be treated as not liable for rent, The tribunal had erred in regarding claimant as the 'owner' of the property up until March 2010. The relevant rule regarding being treated as not liable for rent in these circumstances was at regulation 9(1)(h) of the Housing Benefit Regulations 2006, No.213. 'Owner' is defined at regulation 2(1) and provides that it is 'the person who... is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners'. 

The judge held that it was clear that the fee simple was included in the restraint order, the Land Registry inhibition and the appointment of a receiver to enforce the confiscation order (paragraph 15). It was 'absolutely clear' that from the time of the issue of the restraint order in January 2001 , the claimant was not the person who for the time being was able to dispose of the fee simple, and there would have been severe legal consequences had he attempted to do so. The judge said that 'neither the local authority nor the First-tier Tribunal ever got to grips with the implications for this case of the definition in regulation 1(2) (paragraph 18).

Summary

The claimant claimed asylum in the UK on 24 July 2014. He was awarded refugee status on 26 November 2016. He promptly telephoned the tax credit office (on 1 December 2016) and requested a tax credits claim form. However the form failed to arrive (either because of a failure by HM Revenue and Customs (HMRC) or the Royal Mail) and his claim was not received until 9 February 2017. HMRC automatically backdated the claim for one month – ie, to 9 January 2017. On appeal to the First-tier Tribunal, the claimant argued that his date of claim should have been the date of his claim for asylum. The tribunal refused the appeal.

Judge Wikeley refused the claimant’s further appeal. The date of claim was correctly identified as 9 January 2017 and the tribunal had not erred. Although there was a provision allowing for a claim by a refugee to be dated as the claim for asylum (at regulation 3(4)–(8) of the Tax Credits (Immigration) Regulations 2003, SI No.653 (‘the 2003 regulations’), that did not apply on the facts of this case. That left the standard ‘one-month backdating rule’ at regulation of the Tax Credits (Claims and Notifications) Regulations 2002, SI No.2014 (‘the 2002 regulations’), which had been correctly applied.

The reason that the claimant was not assisted by regulation 3 of the 2003 regulations was that he did not satisfy the requirement at 3(5)(b) to have claimed tax credits within one month of receiving notification of refugee status. On the facts, he had been notified on 26 November 2016, but did not claim tax credits until 9 February 2017 – ie, more than a month later. The judge held that the telephone call on 1 December 2016 could not be regarded as a claim. Regulation 5 of the 2002 regulations provides that claims must be made in writing ‘or in such other manner as [HMRC] may decide having regard to all the circumstances’. Firstly, the tribunal had no jurisdiction regarding whether a claim could be made in writing as that was purely discretionary for HMRC (paragraph 16, applying CTC/31/2006). Secondly, in any event, ‘no reasonable tribunal’ could have concluded that the telephone call, which was very short and clearly just to request a form, amounted to a claim (paragraph 18). The judge noted that if the issue was whether the claimant had good cause for claiming when he did, his late receipt of the claim form may have been relevant – but good cause was not part of the statutory test (paragraph 20).

Comment from CPAG

This is clearly a harsh outcome for the claimant although, in the absence of a good cause provision, it is hard to see what other one could have applied. The judge noted that an HMRC refusal to accept a claim other than in writing can be challenged on judicial review. Although not discussed in this case, HMRC's failure to send out a claim form when requested might, depending on the facts, be the subject of a claim for compensation.

Summary

The claimant was a 19-year-old German national who had lived in the UK with his father and mother since he was 11. He was seriously ill and had never worked. His claim for universal credit was refused on the basis that he did not have a right to reside. The First-tier Tribunal dismissed his appeal without holding a hearing, something the tribunal explained by saying that the claimant had opted for that and the Secretary of State had not objected.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by virtue of ‘a comprehensive failure by the judge to exercise her enabling and inquisitorial jurisdiction’ (paragraph 15). The available evidence (including the claimant’s own German nationality) clearly indicated that he might be able to establish a right to reside, in particular by virtue of his father or mother possibly having German nationality at least at some stage and having worked in the UK. The tribunal had completely failed to enquire into this. The claimant was not represented. The law about right to reside was ‘not straightforward and the claimant was entitled to expect the First-tier Tribunal to exercise its inquisitorial function by asking all the questions that needed to be asked…’ (paragraphs 17–29).

The tribunal had also erred by not holding a hearing without having shown that it had considered whether it could so proceed fairly and justly. Although the claimant had opted for the appeal to be dealt with on the papers and the Secretary of State had not objected, it was also required (under rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685) that the tribunal itself ‘considers that it is able to decide the matter without a hearing’. Taken together with the overriding objective (at rule 2), that meant it had to consider whether it could deal with matters ‘fairly and justly’ without a hearing. The tribunal decision did not show that had been considered or, if it had, why it could proceed fairly and justly without a hearing. Had the tribunal judge considered that then, given the need to enquire further into the facts, the answer should have been that it could not so proceed (paragraphs 44–54).

Summary

The claimant’s child benefit appeal was about her right to reside. HM Revenue and Customs (HMRC) refused her claim on the basis that she had failed to provide evidence that her self-employment was genuine and effective. HMRC’s written response to the First-tier Tribunal stated that departmental records showed a period of maternity leave, but the records were not provided to the tribunal. The claimant said that she had already provided HMRC with evidence of her maternity allowance (which clearly indicated self- employment). The tribunal dismissed the claimant’s appeal, but made no finding regarding her entitlement to maternity allowance, did not address HMRC’s reference to maternity leave or why it considered it could proceed without evidence about that.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to address HMRC’s apparent failure to comply with its duty to provide the tribunal with relevant documents (under rule 24 (4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685). In particular, the tribunal had failed to find that the evidence already before it was sufficient without the need to enquire into the nature of the undisclosed evidence from HMRC (paragraph 19).

The judge dismissed HMRC’s argument that there had been no failure under rule 24 as, although its undisclosed records indicated that the claimant ‘may’ have been self-employed, they did not ‘conclusively evidence’ that. It was for the tribunal, argued HMRC, to call for evidence and the tribunal’s approach in this case (ie, by not calling for it) was supported by FN v SSWP [2016] AACR 24; [2015] UKUT 670 (AAC). Firstly, held the judge, HMRC had confused its responsibility as a party to proceedings with those of the First-tier Tribunal. It was not for the public authority (ie, HMRC in this case) to determine whether a document proves a particular fact; rather that is the function of the tribunal (paragraph 17). Secondly, FN did not justify the tribunal’s approach in this case. While true that FN holds that a breach by a respondent of rule 24 does not inevitably result in an error of law by the tribunal, it is also emphasis that it is for the tribunal to decide if it has sufficient evidence. In the present case, the tribunal had made no such finding and so had erred (paragraph 19).

Comment from CPAG

The documents not sent to the tribunal were clearly relevant, and that was enough both to put HMRC under an obligation under rule 24 and to require the tribunal to address the failure to meet that obligation. Contrary to the implication of the HMRC argument, FN is not authority that it is always acceptable for a tribunal to proceed without missing evidence.