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Decision in brief

‘Dependence’ and need for support to be material – linguistic support in the form of translation at medical and other appointments – not a form of material support – neither is emotional or social support – material support is that concerned with the physical necessities of life

Decison in brief

In applying to withdraw her appeal to the Upper Tribunal, the Secretary of State accepted that 

‘an EU citizen who retains worker status by virtue of reg.6(2)(b) of the Immigration (European Economic Area) Regulations 2006…will not lose that worker status merely because his or her JSA is disallowed on the grounds of “not actively seeking work”’

Note from CPAG

This decision is merely a consent to withdraw an appeal rather than a fully reasoned and binding decision of the Upper Tribunal. However the Secretary of State’s concession is noteworthy. 

Thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision.

Decision in brief

On the facts, claimant had reason for late application for statement of reasons (poor health and lack of access to advice) – in the ‘interests of justice’ for permission to appeal to be granted as evidence indicated that the Secretary of State had failed in her duty to supply the tribunal with full adjudication history

Summary

This decision of the Northern Ireland Court of Appeal concerns the context in which the various descriptors in the WCA should be applied. The claimant had been refused employment and support allowance (ESA). The issue was whether, in the WCA, she should have been awarded points under Activity 14 (coping with change).

In the decision now under appeal, the Northern Ireland Commissioner (applying in particular the Upper Tribunal decision in AS v SSWP [2013] UKUT 587) had held that the descriptors must be applied on their own terms, but be understood against the backdrop of the modern workplace. But that did not mean that context applied to each and every descriptor: although some descriptors applied only to the workplace, others clearly did not (paragraph 20).

The Northern Ireland Court of Appeal rejected the claimant’s argument that the commissioner had, in the context of Activity 14, wrongly failed to apply the ‘work context’ as described in AS (and as endorsed in JC v SSWP [2014] UKUT 352 (AAC)). It was clear that the commissioner had been fully sighted of the decision in AS and recognised it represented an ‘authoritative statement of the law’ (paragraph 36). The commissioner’s finding that some descriptors were not limited to the workplace, including those in Activity 14 which was about to ability to cope with change and manage ‘day to day life’ was ‘entirely consistent’ with the decision in AS (paragraph 38). On the evidence, both the tribunal and the commissioner had been entitled to refuse the claimant points under Activity 14 (paragraphs 39–55).

Summary

The claimant had severe medical conditions including hypertension (high blood pressure). In 2013, on examination for the work capability assessment (WCA), his blood pressure was recorded as poorly controlled, and he was placed in the support group on the basis of the exceptional circumstance that there was a ‘substantial risk’ to his health were he to be found to be capable of undertaking work-related activity. In 2016 he was reassessed. The examining nurse recorded that he had ‘significantly high’ blood pressure despite being on the maximum dose of medication, recommended that he attend accident and emergency and notified his GP that the examination had been cut short. Despite that, she declined to find that he was at ‘substantial risk’ regarding the support group, stating that risk could be averted by workplace adjustments and medication. The decision maker adopted that, as did the subsequent First-tier Tribunal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that he is in the support group, by virtue of the ‘substantial risk’ provision at regulation 35(2) of the Employment and Support Allowance Regulations 2008, SI No.794. The judge broadly agreed with the Secretary of State’s submission that the tribunal erred by failing to identify the basis on which the Department was justified in superseding the previous decision to put the claimant in the support group. Also, the tribunal had failed adequately to explain why it did not consider he should be in the support group (paragraphs 16–17). The judge added that tribunal’s treatment of the issue of the claimant’s high blood pressure was ‘deficient in several respects’: it was not mentioned in the context of regulation 35(2), and ‘astonishingly’ there was no mention of the fact that the most recent WCA had been cut short with the claimant advised to attend A&E (paragraph 19).

In particular, the judge considered that the tribunal should have explained why the decision differed from the previous one. He cited (paragraph 17) the decision of Judge Rowland in VH v SSWP (ESA) [2018] UKUT 290 (AAC), where he said that although a claimant had no right to assume that the same decision would be made, R(M) 1/96 was relevant and ‘any apparent difference ought to be explained’. Although (as held in VH) it may be sufficient to point to additional evidence, in the present case the tribunal had not dealt with the evidence about the claimant’s blood pressure (paragraphs 18–19). The judge pointed out the serious threat to health presented by very high blood pressure. Given the evidence before the tribunal of the claimant’s ‘indisputably high and uncontrolled blood pressure’, there was ‘no evidential basis’ for the nurse’s finding that substantial risk could be avoided by reasonable adjustments in the workplace and medication (paragraphs 22–23).

Summary

The claimant was aged 71 and getting pension credit. In 2017 he had sold his home to a friend for £55,000. That was because the mortgage was due to mature in 2021 when he would have owed around £52,000, he had no assets to pay that with, work was out of the question because of a health condition, and in the meantime he was continuing to have to pay £115 in mortgage interest. He had been given advice by a council employee that, having sold the home, he would be able to get HB if the friend then rented it to him. But the council refused HB, a decision that was upheld by the First-tier Tribunal.

Judge Poole QC set the decision aside and remitted it for reconsideration by a fresh tribunal. The tribunal had erred in its interpretation of (and gave inadequate reasons regarding) the relevant law, which was contained at regulation 9(1)(h) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, SI No.214. That provides that a claimant is not regarded as liable for rent where s/he previously owned the property within the last five years, except where ‘he satisfies the appropriate authority that he… could not have continued to own that dwelling without relinquishing ownership’. The tribunal placed too much emphasis on the absence of evidence of repossession by the mortgage company, and failed to explain why, in the light of the claimant’s circumstances, keeping up with the interest payments and the undisputed inability to repay in 2021 did not amount to a practical compulsion to sell the house (paragraph 14).

In applying the ‘exception’ about having to sell the house provided in regulation 9(1), the judge placed particular emphasis on the test being one of ‘practical compulsion’, with regard to the circumstances of a particular claimant, not legal compulsion. That test had been set out in CH/3853/2001. In the present case, the judge held that that was the correct test, not the one of there needing to be an ‘immediate threat’ to occupation, which was the test proposed by the Secretary of State. The regulation contained no such words, nor did it specify how far off the danger of losing the property needed to be. ‘In my view’, said the judge, ‘it is not the law that people have to wait until there is an emergency or an immediate threat before it can be found that there is practical compulsion. People should not be penalised for sensible planning when, put colloquially, the writing is on the wall’ (paragraph 13). In difficult circumstances, tribunals may be helped by bearing in mind that the rule is aimed at preventing people from getting local authorities to pay for their housing costs by creating arrangements that they sell their home but stay in it and pay rent, when this was not necessary (paragraph 13, referring to the comment in paragraph 7). As in this case, however, ‘where there is a genuine and serious problem with continued occupation without a sale and no real alternatives, then the circumstances may disclose practical compulsion.’

Comment from CPAG

This decision is a clear rejection of the Secretary of State’s argument that for the exception to apply there had to be an ‘immediate threat’ to occupation. But the ‘practical compulsion’ test applied by the judge is still with reference to the individual facts of the case.

Summary

The claimants had both been in receipt of DLA for a number of years. On transfer to PIP, CH was awarded only the enhanced rate of the daily living component, despite having been entitled to the high rate mobility component of DLA; KN was completely refused PIP, despite having been entitled to the mobility component (lower rate) and care component (middle rate) of DLA. Their appeals had both been dismissed by the First-tier Tribunal. In the Upper Tribunal, two issues of principle were relevant: firstly, should the tribunals have obtained the evidence relating to the previous DLA awards, and secondly, to what extent were the tribunals required to explain in their reasons for their decisions the difference between the DLA and PIP decisions.

Judge Markus QC held that the DLA evidence may be relevant to a PIP appeal, but ‘ultimately it is for the First-tier Tribunal to make its own judgement whether DLA evidence may be relevant and whether to call for it in a PIP appeal’ (paragraph 61). The PIP evidence may be sufficient regarding the specific criteria in issue, but if that was in doubt, then potentially relevant DLA evidence should be obtained (paragraphs 63–64). This was in accordance with principles in caselaw concerning employment and support allowance (ESA), in particular that of the three-judge panel of the Upper Tribunal in FN v SSWP [2015] UKUT 670 (AAC). Whether the DLA evidence was relevant depended on the facts, including whether there were ‘relevant overlapping criteria’ between the DLA and PIP rules and a ‘plausible case’ that the claimant’s condition had not improved (paragraph 62). The judge did accept that there were, in general, a number of potential overlaps between the PIP and DLA tests, but these were complex. For example, an award of high rate mobility component of DLA was based on a ‘non-arithmetical broad view’ of the claimant’s walking, quite unlike the ‘precise arithmetical test’ in PIP (paragraph 12). However, there were ‘obvious similarities’ between the reference to time, speed, distance and manner of walking in the DLA test and the need in PIP to be able to perform an activity safely, to an acceptable standard, repeatedly and within a reasonable time period (paragraph 14). In summary, a tribunal ‘need only consider whether to obtain the DLA evidence if it has decided that it may be relevant’ (paragraph 69).

As to the tribunal’s duty to give reasons, the judge accepted the argument for the claimant that the principle in R(M) 1/96 applied, so that where a PIP decision was apparently inconsistent with a previous award of DLA, the tribunal needed to give reasons for that. She rejected the argument of the Secretary of State that there was never, or rarely, an inconsistency between a DLA award and a PIP award, and upheld the approach to this issue taken by Judge Ward in YM v SSWP (PIP) [2018] UKUT 16 (AAC). There he held that where the previous award was ‘reasonably material’ to the conditions for the new benefit, then where there was an ‘apparently divergent’ decision on that new benefit, R(M) 1/96 applied. In the present decision, the judge held that this approach did not place an undue burden on the tribunal, which in relevant cases should find it ‘relatively straight-forward’ to explain any apparent inconsistency with the DLA award (paragraph 85).

Comment from CPAG

This lengthy decision should now be the lead authority on the issue of the relevance of the evidence from the previous DLA award in PIP transfer cases, and on the tribunal’s obligations to explain apparent inconsistencies between the DLA and PIP outcomes. Although it is clear – and consistent with the ESA position as set out in FN – that the DLA evidence is not always required, the decision is a corrective to the somewhat minimalist approach taken by the Secretary of State.

Summary

The claimant had paranoid schizophrenia, involving thought disorder, paranoid and delusional thinking, low mood, lack of motivation and high levels of anxiety. He usually needed encouragement to venture outside at all, could sometimes manage a familiar journey but not all such journeys, and to undertake any unfamiliar journey he had to be accompanied by a friend who provided ‘moral support’. Having being refused PIP on transfer from disability living allowance (DLA), the claimant appealed to the First-tier Tribunal. The tribunal awarded the daily living component at the standard rate, but not the mobility component. In particular, although it scored the claimant four points under Activity 1b (needs prompting to be able to undertake a journey) it declined to apply any higher scoring descriptor instead.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to higher scoring descriptors in Activity 1 in thinking (and deciding) that help needed from another person in actually following the route of a journey had to be active (in the sense of prompting, assistance, supervision, etc.) and could not be, as in the present case, merely passive. Had it not taken such an approach, it might in particular have, with due reference to ‘overwhelming psychological distress’, scored the claimant 10 points under descriptor 1d (cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid) or 12 points under descriptor 1f (cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid). In fact, and as accepted by the Secretary of State, neither of those descriptors required anything more than presence, and prompting, etc. was not required (paragraphs 15 and 19).

In this case, the need for another person had to arise from ‘overwhelming psychological distress’, as established by the Upper Tribunal in MH v SSWP (PIP) [2016] UKUT 531 (AAC). However, that was clearly accepted by the tribunal in its award of points under descriptor 1b. The reason it declined to score points under descriptors 1d or 1f seemed to be that it considered, erroneously, that only active help from another person was relevant (paragraph 15). The judge also held that the claimant was capable of scoring under descriptor 1f even though he may be able to undertake (without help) some familiar journeys. If on a broad assessment the claimant could not undertake some other familiar journeys most of the time, then an ability to manage without help ‘a very limited number’ of specific journeys will not prevent him scoring points (paragraphs 20–21).

Comment from CPAG

In an important aside, the judge also said that, in his recent experience, some tribunals seemed to misunderstand MH in one respect. This is that they consider that a person who needs ‘prompting’ both to get out of the house and then also to enable her/him to follow the route of a journey could only score four points – ie, under descriptor 1b. But that is not right: if the need for prompting to prevent/reduce overwhelming psychological distress is also in the context of following the route of a journey, the claimant could instead score 10 points under descriptor 1d or 12 points under descriptor 1f (paragraph 18).

Summary

The claimant failed to attend an appointment with his adviser. On appeal, the claimant said he failed to attend because he misread the requirement to attend and thought it was on the day after the actual date. A sanction was applied. The First-tier Tribunal dismissed the claimant’s appeal, holding that he did not have good reason for his failure to attend.

Judge Poole QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. A sanction can only be lawfully applied if there is proper notification of the requirement and of the consequences of failure to comply. Although the claimant clearly had been sent notification of the date, time and place of the appointment, ‘mere notification’ of those things was insufficient to meet that. The tribunal had erred in upholding the sanction when the Secretary of State had not shown that a sanctionable requirement had been imposed in the first place (paragraph 32).

The issue of adequate notification will not feature in every appeal. But it will in others – eg, as in this case where the claimant was unrepresented and the papers contained obvious inconsistencies about what was notified to the claimant (paragraph 21). Requirements can be imposed both within and without a claimant commitment, but the sanctions related not to the claimant commitment itself but for failures to perform ‘requirements’ which may or may not be in the claimant commitment (paragraph 12). It was for the Secretary of State to establish that a requirement had been imposed (paragraph 14). Public law principles of fairness apply to ensure that sanctions are only lawful where properly notified including the consequences of failure to comply (paragraph 18). That can be done by a combination of the claimant commitment and subsequent communication (including verbal). The legislation was sufficiently flexible for there not to be specific wording or methods used, but ‘the key matter for tribunals to consider is whether fair notice has been given, having regard to all of the communications between the SSWP [Secretary of State for Work and Pensions] and the claimant…does the evidence show that the substance of the relevant requirement and consequences of non-compliance were notified to the claimant?’ (paragraphs 29.1 and 29.2). In the present case, it was not shown that the work-related requirements in the claimant commitment had ever been notified to the claimant, and there was insufficient proof that other communications had supplemented the commitment so that the claimant had been adequately notified of the appointment in question (paragraphs 29–31).

Comment from CPAG

This decision is authority that the mere fact that a claimant has been told of the date, time and place of an interview/ appointment connected to a work-related requirement is insufficient to count as adequate notification. The claimant must have been notified so that s/he is able to understand what s/he is required to do and the consequences of failing to do so. Whether that has been met will depend on the facts of the case. But tribunals should be alive to the possibility that it has not been met.

Decision in brief

A deportation order invalidates any leave to enter or remain in the UK (section 5(1) of the Immigration Act 1991), but the leave is extended while appeal rights against the order are being exercised (section 3D) – so claimant was not a ‘person subject to immigration control’ until his appeal rights against the deportation order were exhausted

Decision in brief

EC Regulation 883/2004 – under Articles 11, 25 and 29 is that if claimant was still to be regarded as self-employed, UK would be competent state, but otherwise effect of Polish pension is that Poland is the competent state – it is possible that where work is given up as a result of the sickness of the person being cared for, then can be treated as continuing as self-employed under Article 11 – but on the facts of the case, that did not apply as claimant was only working for two hours a week on a Saturday and it was plain she was not required to give up work to care for the disabled person