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Decision in brief

No error in tribunal proceeding without adjournment – claimant represented by ‘responsible representatives’ who included tribunal decision awarding PIP in their submission but did not request adjournment to get the PIP evidence – tribunal entitled to assume that the representative knew the case which was to be presented and had lodged the documents necessary to support it

Decision in brief

2015 claim made in Spain should have been referred to the DWP in UK under European law (in particular under Article 45 of EC Regulation 987/2009 and Article 50 of EC Regulation 883/2004) – subsequent referral to DWP following further claim in 2016 does not change that date of claim for ESA should be taken as date of the original (2015) claim for invalidity benefit in Spain

Decision in brief

The mark referred to has to be ‘meaningful’ so as to be capable of conveying some meaning – random doodling or scribbling is not sufficient, but the mark could be a name or signature, or be in the form of a symbol, such as a tick that could indicate agreement – it is not a test of intellectual capacity and the claimant’s literacy is not in issue – SM v SSWP [2015] UKUT 617 (AAC) cited and approved

Decision in brief

Regulation 9(1)(d) of the Housing Benefit Regulations 2006 (SI No.213) provides such a person is treated as not liable for rent – it does not matter that the ex-partner is a joint landlord of the claimant rather than a sole landlord – ‘mischief’ preventing approach in Bristol CC v JKT [2016] UKUT 517 and general trend of applying the ‘anti-avoidance’ purpose of regulation 9(1) approved – intent of the rule is to prevent the mischief of the public purse funding family arrangements when a landlord parent who would benefit has responsibilities to accommodate the child in any event

Decision in brief

Fact that leaflet ES40JP did not include an express instruction to employment and support allowance claimant to report cessation of disability living allowance (DLA) did not mean that he was not under a duty to disclose it – leaflet does include instruction to report any changes to do with benefits and if claimant or partner starts or stops getting a benefit – leaflet did impose a duty to report cessation of DLA

Decision in brief

Consent to appeal being withdrawn by the Secretary of State – judge had raised question of whether absence of any job title in notice issued to claimant rendered the notice invalid – Secretary of State applied to withdraw appeal on basis that had guidance on the scheme been properly applied, claimant would not have been referred to it on the basis of problems with addiction, depression and criminal convictions – therefore had good cause for not attending

Summary

This decision of the Court of Appeal considers the so-called ‘past presence test’ for disability benefits in the context of claimants who are European nationals.

The claimants (BK and MM) were, respectively, an Irish national aged 12 who came to the UK with his mother, and claimed disability living allowance (DLA), and a German national who came to the UK to be cared for by her daughter and claimed attendance allowance (AA). Where a European claimant is covered by the European Union (EU) co-ordination rules and is habitually resident in the UK, rules (regulation 2A of the Social Security (Attendance Allowance) Regulations 1991, No.2740, and regulation 2A of the Social Security (Disability Living Allowance) Regulations 1991, No.2890) provide that the past presence test does not apply if the claimant can demonstrate a ‘genuine and sufficient link to the United Kingdom social security system’. In BK v SSWP and SSWP v MM [2016] UKUT 547 (AAC), it had been held by Judge Jacobs in the Upper Tribunal that neither claimant could demonstrate a genuine and sufficient link to the UK (the requirement for a link to the UK social security system was unlawful as contrary to EU law). (Judge Jacobs had also held that ‘mere’ residence in the UK did not allow aggregation with periods of residence in the previous EU country: the claimants did not pursue their appeal against this aspect of the decision.)

Allowing the claimants’ further appeals, the Court of Appeal held that both claimants could demonstrate a genuine and sufficient link to the UK. Both were European nationals who fell within the European ‘co-ordination’ rule at EC Regulation 883/2004, and it was common ground that both were habitually resident in the UK (paragraphs 34–35). Applying principles from European caselaw, when establishing whether the claimant had a ‘genuine and sufficient link’, all relevant evidence had to be taken into account, including family and other personal circumstances. Evidence of the ‘motives, intentions and expectations’ of the claimant were not to be ignored. Also, it was common ground that the required link was to the UK and could not be to the UK social security system (paragraphs 67–69).

Regarding the claimants in the present decision, the Upper Tribunal had erred in considering the motives of BK, or rather those of his mother, as irrelevant. Those motives included that BK’s mother relocated to the UK, her country of nationality, following domestic violence, needed the support of relatives in the UK and severed all links with the Republic of Ireland. In those circumstances the decisions refusing the DLA were flawed in principle and BK did have a genuine and sufficient link to the UK (paragraphs 74–76). Similarly, the Upper Tribunal should have taken into account MM’s motive, intentions and expectations, which included her severe disability and need for support on a daily basis from her daughter in the UK. Again, therefore, the decision was flawed in principle and with regard to all the relevant matters, MM did have a genuine and sufficient link to the UK (paragraphs 79–85).

Summary

The claimant was homeless and suffered from chronic fatigue syndrome. He did not know from week to week whether he would be in hospital, staying with friends or elsewhere. He could not always travel so could not pick up mail from a job centre, and did not have a phone. He repeatedly tried to persuade the DWP to communicate with him by email. The department refused to do so for some time. Eventually the department came up with a ‘workaround’ under which his mail was initially sent to an internal address and then converted to email. The workaround was allegedly necessary because of the department’s ‘relatively antiquated IT infrastructure’ (paragraph 51). The claimant refused to accept the workaround and argued that the department was in breach of both the public sector equality duty (PSED) and the duty to make reasonable adjustments to accommodate his disability under the Equality Act 2010.

Judge Jeremy Johnson QC held that ‘as matters stand’, the DWP had offered the claimant a system of communication that (subject to effective implementation) amounted to reasonable adjustment and complied with the PSED, and therefore dismissed the claim for judicial review (paragraph 108). The department told the judge that ‘the department’s policy in relation to email as a reasonable adjustment is clear; email is made available to disabled customers who require it as a reasonable adjustment’ (paragraph 41). However, the judge also said:

‘The approach of the DWP to the claimant, and to many other disabled claimants, failed over a period of years to comply with its statutory obligations under the Equality Act 2010 (and before that the Disability Discrimination Act 1995). Those with disabilities that meant that they had difficulty communicating by post were, in many instances, unable to secure a satisfactory means of communication with the DWP. This in turn meant that some went without benefits that were essential to them’ (paragraph 107).

Summary

The claimant TD was a single parent with a disabled child, entitled to income support (IS), carer's allowance and child tax credit. The DWP wrongly stopped her IS and advised her to claim UC. She claimed UC and successfully challenged the stopping of her IS, but (due to transitional rules) was unable to make a new claim for IS. She was worse off on UC by £136.99 per month, due to the absence of equivalent amounts for disabled children in UC compared to IS and no transitional protection. In the case of PR, the claimant was getting income-related employment and support allowance (ESA) including the severe disability element and support component. The DWP stopped her ESA and, although she successfully challenged that, because she had claimed UC in the meantime she was also unable to start a new claim for ESA. She was worse off by £178.09 due to the absence of equivalent amounts for severely disabled persons in UC compared to income-related ESA and no transitional protection.

The claimants argued that their treatment amounted to unlawful discrimination in breach of Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol (rights to possessions) and in the case of TD/AD, in breach of Article 8 (right to family life). They also argued that the inability of people in their position to return to legacy benefits without transitional protection in UC awards was irrational, and that the Secretary of State had failed to comply with her public sector equality duty (PSED).

Mrs Justice May rejected the claimants’ claims. Regarding unlawful discrimination, it was agreed that the relevant test was whether the treatment was ‘manifestly without reasonable foundation’ (paragraph 59). It was also accepted that a legitimate comparator ground (ie, in relation to which the claimants had suffered discrimination) was legacy benefit claimants who had not had erroneous decisions made. But the judge accepted that the discrimination there was justified (ie, not without reasonable foundation) as, in contrast to the claimants in R (TP and AR) v Secretary of State for Work and Pensions [2018] EWHC 1474, the evidence showed that proper consideration had been given to people in the claimants’ position before the rules were finalised (paragraphs 77–80). The judge doubted that the other two potential comparator groups (namely those who were to be subject in the future to ‘managed migration’ to UC, where transitional protection will apply, and disabled people) were eligible as comparator groups, but in any case any discrimination there was, for the same reason, also justified (paragraph 77). Regarding irrationality, again the justification for the alleged discrimination answered that point (paragraphs 81–82). Regarding the alleged failure to comply with the PSED, that had been rejected in TP and AR and there was no reason to hold differently here (paragraph 87).

Note

CPAG represented the claimants and is applying for permission to appeal to the Court of Appeal.

Summary

This decision of the Court of Appeal upholds the decision of the three-judge panel in TW v SSWP (PIP) [2017] UKUT 25 (AAC). There, it was held that transitional rules for transfer of DLA awards to claims for PIP did not unlawfully discriminate against disabled people in not backdating any increased PIP entitlement to the date of cessation of the DLA award (and instead starting PIP entitlement 28 days later). In essence, the court held that there was nothing wrong in the Upper Tribunal’s approach or reasoning.

The claimant had been entitled to lowest rate awards of DLA components, but on transfer was entitled to the enhanced rate of the PIP daily living component. The transfer had been triggered after reporting a change in her circumstances. Her argument to the court included that the Upper Tribunal erred in its interpretation of regulations 20 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, No.387, in failing to hold that regulation 20 made different provision in ‘change of circumstance’ cases so that, in effect, she was entitled to be treated as already entitled to PIP at the date she reported the change. Her other argument was that the Upper Tribunal erred in failing to identify the correct comparator (allegedly, a PIP claimant with a successful supersession for change of circumstance) when considering her argument that the failure to backdate the increased PIP award breached the anti-discrimination rule at Article 14 of the European Convention on Human Rights, and wrongly held that that Article 14 was not breached.

The court unanimously rejected both of the claimant’s arguments. Giving the lead decision, the Senior President of Tribunals held that the Upper Tribunal had interpreted the regulations correctly. Regulation 17 applied to all transfer claimants and did not make a special case of change-of-circumstance claimants (paragraphs 24–30). Regarding the discrimination argument, the Upper Tribunal had identified a comparator, new PIP claimants, but focused its analysis on whether the difference in treatment between such claimants and DLA-entitled persons. That was consistent with existing caselaw which did not place any emphasis on the identification of an exact comparator (paragraph 34). The Secretary of State had objectively justified the difference in treatment in the rules, and had a legitimate aim in treating DLA-entitled persons who notify a change in circumstances differently to new PIP claimants (paragraphs 44–46). In holding that the 28-day rule was lawful, the Upper Tribunal had been entitled to take into account (as regarding proportionality) practical concerns about such a large-scale transfer process and (in the context that it was not the sole aim and that the rule protected other claimants) the official aim of making cost savings by introducing PIP (paragraphs 47–48).

Summary

The landlord required eight weeks rent in advance, and where that was not paid regarded the claimant as eight weeks in arrears from the outset, and requested direct payments of HB (ie, to her) immediately. The local authority refused to commence direct payments for arrears, arguing that arrears arising out of rent in advance did not count. The First-tier Tribunal agreed and dismissed the landlord’s appeal.

Judge Gray allowed the landlord’s further appeal and remitted the case for rehearing by a fresh tribunal. The tribunal had erred in holding that arrears arising from rent due in advance could not count as arrears. Rent was in arrears once the contractual date for payment had passed, irrespective of whether or not it was due in advance. The plain words of the relevant regulation (regulation 95 of the Housing Benefit Regulations 2006, No.213), mandated payment directly to the landlord where rent is the equivalent of eight weeks in arrears, subject to the required consideration of whether it was in the ‘overriding interest’ of the claimant not to make direct payments (paragraph 41). The only issue for the new tribunal was to consider the overriding interest question (paragraphs 2–3).

The judge was considering the direct payment for arrears rule at regulation 95, not the rule at regulation 96 allowing direct payment in wider circumstances (and where regulation 95 does not apply). The judge held that whether or not the eight-week-in-advance rental provision in the tenancy agreement was set with the intention of defeating the eight-week arrears rule in regulation 95 (as argued by the local authority) was irrelevant. There was a contrivance rule at regulation 9, but that concerned the issue of a tenancy contrived to take advantage of the HB scheme (paragraph 17). The judge adopted the analysis of regulation 95 made by Commissioner (now Judge) Jacobs in CH/1821/2006 and in R(H) 1/08, where he held that regulation 95, where applicable, imposes a mandatory duty to make direct payment, and that consideration of whether it is in the overriding interest of the claimant not to make direct payments was also mandatory both for the local authority and the tribunal (paragraphs 22–26). The phrase ‘overriding interest’ was to be given its natural meaning, but set a ‘high hurdle’ (paragraph 28). A policy of financial inclusion or other ‘generic’ reason cannot be the basis for deciding the question; although such issues could be ‘part of the picture’, individual criteria must also be considered, including ‘the interest in the tenant retaining the accommodation they have secured’ (paragraph 31).

Comment from CPAG

The judge said that the issue of whether arrears of rent due in advance could count was apparently a matter which arose frequently, and had been told that a binding decision will be of practical assistance. The decision must now be regarded as the key authority on the question.