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Decision in brief

Comments in CDLA/997/2003 and commentary in Volume I of Social Security Legislation 2018/19 to effect that it is when household would normally close down for the night, ignoring staying awake later in order to deal with child’s care needs, endorsed.

Decision in brief

Relevant rule at rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2018 refers to the hearing proceeding if ‘the tribunal’ is satisfied that the claimant has been notified of the hearing and that it is in the interests of justice to proceed.

Summary

In this decision, the Supreme Court, by a 5:2 majority, dismissed appeals by the claimants that the cap, in its revised form, unlawfully breached their human rights, via breaches of the European Convention on Human Rights (‘the Convention’). The claimants were lone- parent mothers and their children – in the DA cases, the children being aged under two; in the DS cases, the children all aged two or above. They argued that the cap was in breach of Article 1 of Protocol 1 of the Convention (right to possessions), Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination).

Giving the lead judgment, Lord Wilson first noted that there was no dispute that the claimants’ entitlement was within the ambit of Article 1 of Protocol 1 (paragraph 17). Further, he held that the cap was within the ambit of Article 8, and that the claimants all had a ‘status’ for the purpose of their Article 14 argument (paragraphs 37 and 39). However, in DS it was ‘already obvious’ that discrimination against lone parents of children of school age was justified, so the court instead addressed their ‘fall-back complaint', that the cap violated the Convention rights of lone parents with children aged under five, and children of lone parents of that age (paragraph 45). Regarding Article 14, the test of justification regarding any rule about entitlement to benefits was whether it was ‘manifestly without reasonable foundation’. There was ‘no future doubt’ about that being the correct test (paragraph 65). Regarding Article 14 read with Article 8, it was right to consider, as an aid, Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), in the context both of the rights of the children themselves and their parents (paragraphs 66 –78).

However, the cap did not breach the claimants’ Convention rights. Parliamentary materials showed that the government did evaluate the likely impact of the revised cap on lone parents with young children, including taking account of the best interests of the children, so there was no breach of the UNCRC (paragraph 87). Also, treating the claimants in the same way as all others subject to the revised cap was not ‘manifestly without reasonable foundation’. The government’s policy aims of promoting work were a ‘reasonable foundation’ for the rule, particularly when accompanied by provision of discretionary housing payments which were ‘just about adequate’ in addressing the particular hardship the cap may cause to the claimants (paragraph 88).

Note

Lord Wilson added: 

‘These appeals were rightly brought. The arguments raised in them have been of such weight as to attract this court’s most careful and sympathetic consideration; and they have led two members of the court to enter a powerful dissent from the majority’s dismissal of the appeals’ (paragraph 91).

Summary

In this case, the Court of Appeal upheld a decision by the High Court that the two-child limit was not unlawful. The claimants were lone parents with more than two children and both were affected by the two-child limit as applied to their child tax credit. They argued that the rule was incompatible with their rights under the European Convention on Human Rights (‘the Convention’). Specifically, they argued that the two-child limit was in breach of their rights under Article 8 (right to respect for private and family life) and Article 12 (right to marry and found a family) and/or was in breach of Article 14 (prohibition of discrimination).

The court unanimously dismissed the claimants’ appeals. In the lead decision, Lord Justice Legatt concluded that the two-child limit was not in breach of their Convention rights. Regarding Article 14, he concluded that although there was differential treatment of women (who were much more likely to be affected than men) and families with more than two children, the aims of the measure were undoubtedly legitimate and given the wide margin for discretion allowed to states, it could not be said that the rule was manifestly without reasonable foundation. It was therefore not unlawful (paragraph 160).

Regarding Articles 8 and 12, the ‘root difficulty’ for the claimants was that the Convention was ‘not aimed at securing social and economic aims’ but instead provided rights of a ‘predominantly civil and political’ nature (paragraph 29). There was a consistent body of authority that the Convention did not impose an obligation to provide financial support for family life, and there was nothing in the two-child limit which interfered with the claimants’ right to choose the number of children they had (paragraphs 31– 38). Regarding Article 14 and possible discrimination, there was differential treatment in that the rule disadvantages women in comparison with men, and that it treats families with more than two children less favourably than families with only one or two children. But such differential treatment is capable of justification. Authority had established that the test is whether the measure is ‘manifestly without reasonable foundation’ (paragraphs 85 – 88).

The various aims of the two-child limit were legitimate (paragraph 122). Given in particular the aim of reducing benefit expenditure, that any reduction in child-related benefit would affect more women than men and that parliament had been aware of the impact of the change, the indirectly discriminatory effect on women was justified (paragraphs 125 –132). Regarding the differential treatment of claimants with families of more than two children compared with those with fewer children, the aims of reducing benefit expenditure and of incentivising people to support themselves did not provide a complete justification (paragraphs 134 –135). Here, therefore, the burden of justification rested on the general aim of ensuring that the benefit system is fair to taxpayers, and the specific aim of placing those getting benefits in a position where they face the same financial choices regarding having children as those not getting benefits. This touched on ‘political controversy’ and, given the wide area of judgement afforded under the Convention, the rule was not manifestly disproportionate here (paragraphs 136 –145). Looking at the rule solely in terms of the interests of the children affected rather than the adults (Article 14 could apply to the children when read with Article 8 – paragraph 148), justifications of fairness to the taxpayer and parental choice could not provide complete justification. But it was ‘a matter of intense political controversy’ as to where the balance lay, and a court was ‘not a suitable institution for deciding between these competing views’. A court could therefore not properly conclude that the differential treatment of the children was manifestly disproportionate to the legitimate aims pursued (paragraphs 156 –158).

Note

CPAG represented the claimants and at time of writing was looking to seek permission to appeal to the Supreme Court.

Summary

In this judicial review decision, the High Court held that draft rules providing for ‘transitional payments’ to severely disabled people who underwent ‘natural’ migration from legacy benefits to universal credit (UC) before 16 January 2019 are unlawful. The claimants had all been entitled to the severe disability premium (SDP) in their legacy benefit. When they underwent ‘natural’ migration to UC (after making a claim for that benefit), they were significantly worse off (as UC does not include such a premium and there is no transitional protection to the levels of the former legacy benefit in ‘natural’ migration).

Following rule changes from 16 January 2019, such claimants are now prevented from undergoing migration until they become subject to the ‘managed’ migration process, which does provide transitional protection. Rules still in draft form (the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019) provide for ‘transitional payments’ to such claimants who naturally migrated before that date, to reflect their loss of the premium. But these payments are in the form of fixed-rate, generic payments rather than the transitional protection (covering the full difference in value between legacy benefit and UC) that will apply to claimants who undergo managed migration. In the claimants’ cases, these fixed-rate payments would be significantly less (by about £100 per month) than they would have been entitled to in transitional protection.

Mr Justice Swift accepted the claimants’ argument that the difference in their treatment compared to a severely disabled claimant who would get transitional protection under managed migration amounted to unlawful discrimination, via a breach of Article 14 read with Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR). It was common ground that, here, transitional protection fell within the ‘property and possessions’ ambit of Article 1 of Protocol 1. It was also accepted that the difference between ‘natural’ migrants and ‘managed’ migrants (who since the 16 January 2019 changes were a proper comparator group) was a difference in status for the purposes of the prohibition of discrimination in Article 14 (paragraphs 42–43). Although discrimination was capable of justification if not ‘manifestly without reasonable foundation’, the judge was not satisfied that the Secretary of State had identified any reason that explains the difference in treatment between those (like the claimants) in the ‘SDP natural migrant group’ and those SDP recipients who since 16 January would not undergo natural migration (paragraph 64).Consequently, the parts of the draft rules providing for the transitional payments were quashed, and it was ‘now a matter for the Secretary of State to decide what should happen next’ (paragraphs 72–73).

Summary

The claimant suffered from a number of health conditions, including anxiety resulting in loss of confidence in social interaction. In their reasons for refusing her appeal, the First-tier Tribunal included that the medical member of the tribunal advised on number of potential treatment options, and said that, ‘the Tribunal was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP and the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild.’

Judge Poynter allowed the claimant’s further appeal on a number of points, with the overarching one being that, on the facts, it failed to deal in sufficient detail with the evidence of the examining healthcare professional regarding the descriptors for getting about and coping with social engagement (paragraph 20). But he also disagreed that the tribunal had been ‘entitled to conclude’ that the claimant’s anxiety symptoms were mild from the fact that it was unclear why there was no corresponding treatment for it (paragraph 47).

The judge held that, ‘tribunals should be very cautious about drawing inferences from the treatment received by claimants’ (paragraph 38). Medicine is a ‘broad church’ with a wide spectrum of reasonable opinion and practice, and treatment a matter of professional judgement (paragraphs 40–41). The medical member of the tribunal in this case may well have been justified in believing that there were a number of potential treatments, but the claimant’s GP may have believed differently regarding his patient (paragraph 42). There was ‘a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it’, which was not a permissible conclusion (paragraphs 45–46).

Thanks to Peter Turville of Oxfordshire Welfare Rights, the claimant’s representative, for sending us this decision.

Summary

The local authority decided that the claimant had been overpaid HB and council tax benefit, caused by her alleged failure to report changes in her earnings and her alleged failure to report that her child benefit was stopping, and that the overpayments were recoverable from her. The First-tier Tribunal dismissed the claimant’s appeal.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to ensure that the documentation before it was sufficient to determine the claimant’s liability to repay. The tribunal had also erred in failing to have regard to the local authority’s prior knowledge that the claimant had stopped receiving child benefit, the claimant having in fact notified them of that. The error concerning the child benefit notification was conceded by the local authority before the Upper Tribunal. That left Judge Wikeley to decide the claimant’s argument that the tribunal had failed to ensure that the documentation before it was sufficient.

The lengthy history of decision making in this case included that, in connection with the decision on the HB overpayment, on a number of occasions the local authority had sent to the claimant very large bundles of computer- generated notification letters covering the overpayment period (one, for example, comprising over 100 pages). Some, but not all, included final pages setting out how overpayments in the various periods had been calculated. The local authority’s response to the First-tier Tribunal clearly failed, held Judge Wikeley, to present its case clearly and cogently, although ‘a process of forensic archaeology’ revealed a route to the overpayment totals for council tax benefit as stated (paragraph 33). But regarding the HB overpayment, the tribunal had simply accepted the local authority’s explanation without sufficient probing, and it was impossible to discern how the overpayment total had been arrived at. It was, said the judge, 

‘the Council’s responsibility to make out its case and satisfy the First-tier Tribunal as to both the accuracy of the information relied upon and the methodology employed in calculating the claimed overpayment. The Council failed to do so here; moreover the Tribunal erred in law by taking the approach that it did’ (paragraph 35).

Summary

The claimant was a Polish national. Her right to reside depended on her counting as a self- employed person. Following notification of a decrease in hours, the local authority terminated her HB on the basis that: ‘your earned income has decreased to an amount below the required threshold for EEA Nationals for your work to be considered “genuine and effective”’. That decision was upheld by the First-tier Tribunal.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in following the decision maker’s approach and decision. That was because both had misapplied the law regarding what is ‘genuine and effective work’ by misapplying official guidance about this and the use of a ‘minimum earnings threshold’. For HB, guidance on this was in HB Circular A3/2014. That provides that where the claimant is earning at the threshold, her/his work will automatically count as ‘genuine and effective’, but where s/he does not satisfy the threshold, ‘a further assessment will be undertaken against a broader range of criteria (such as hours worked, pattern of work, nature of employment contract, etc.) ’ to decide whether the employment is genuine and effective.

Judge Jacobs said that the circular ‘is not law, but there is nothing wrong with it when it is read and understood’. It contained a concession that the work will be genuine and effective if the claimant’s earnings meet the threshold, but that if they did not then other criteria, ‘which accurately record the approach required by EU law’ should be applied (paragraph 3). The tribunal (like the decision maker) had either never read the guidance or if it did had misunderstood it. That was because it had applied the minimum earnings threshold as a rule of law and ignored the guidance to use the other, broader criteria if the threshold was not met (paragraphs 4 and 5).

Comment from CPAG

The ‘minimum income threshold’ is sometimes cited by decision makers, wrongly, as a complete test of whether work is ‘genuine and effective’. This decision provides a clear corrective to that, while not doubting that meeting the threshold is one way of satisfying that requirement.

Summary

The claimant was held to be not entitled to PIP because he failed, allegedly without ‘good reason’, to attend the medical. Following mandatory reconsideration, he appealed against that decision to the First-tier Tribunal. Before that was heard, he attended a rearranged medical appointment. The department indicated that it did not consider the claimant scored sufficient points to be entitled. Eventually, his appeal was struck out by a district judge, on the basis that his appeal had lapsed and in any case the claimant had not applied for a mandatory reconsideration of the subsequent refusal of entitlement following the rearranged medical.

Judge Wikeley allowed the claimant’s further appeal (against the purported striking out) and remitted the case to a fresh tribunal. The district judge had erred in striking out the appeal, both on the basis that the appeal had lapsed and that the claimant had needed another mandatory reconsideration. In striking out the appeal, the tribunal had breached the rules of natural justice by not giving the claimant an opportunity (as also specifically required under the tribunal rules) to make representations regarding the proposal to strike the appeal out (paragraphs 41–46). In any event, the claimant’s appeal had not actually lapsed. Reviewing some fundamentals of social security decision making, the judge pointed out an accepted distinction between ‘outcome’ decisions (ie, those which actually decide entitlement and which can only be changed by revision, supersession or appeal) and ‘building block’ or ‘stepping stone’ determinations made along the way to the decision, which are important but not in themselves outcome decisions (paragraphs 50–51).

In the present case, a conclusion that the claimant did not have good reason for missing the medical was a stepping stone determination rather than an outcome decision (paragraph 50). In the PIP rules, such a determination required the making of a ‘negative determination’ that the claimant does not have limited ability in the relevant test, but that was still not an outcome decision, which was the decision that the claimant was not entitled to PIP (paragraphs 52–55). Applying those principles to the present case, the actual outcome decision had not been changed (ie, on revision or supersession) and all that had actually happened was that the claimant had been allowed to attend a rearranged medical. As there was no change to the decision under appeal, there was no basis for lapsing it (paragraphs 60–61). The indication given by the department after the rearranged medical that the claimant did not score sufficient points was at most a ‘recommendation’ and not a new decision. It followed that there could be no mandatory reconsideration of such a ‘non-decision’; regarding his still extant appeal, the claimant clearly had already satisfied the mandatory reconsideration requirement (paragraphs 63–66).

Summary

The First-tier Tribunal refused the claimant’s appeal, holding that she was not entitled to personal independence payment (PIP). The tribunal had not put to the claimant that it did not consider her a credible or reliable witness in that it did not accept her evidence that she suffered from blackouts. The claimant appealed, arguing that the fact of blackouts occurring had been accepted by the decision maker and examining healthcare professional, and that the tribunal had erred in not giving her a chance to deal with the tribunal’s view.

Judge May QC refused the claimant’s further appeal. In the circumstances, the tribunal had been under no obligation to raise with the claimant the potential conclusion that she did not suffer from blackouts. The tribunal had relied on the evidence before it and assessed that. In its reasons, the tribunal explained that it could see no treatment for blackouts and no evidence of investigations into it until the matter had been raised in connection with the appeal. Judge May said was ‘apparent’ from the existing evidence that the examining healthcare professional ‘had doubts’ about the history given to him (paragraph 4). The claimant’s representative had been prepared to proceed on the existing evidence, and ‘it was not for the tribunal to cross-examine the evidence on the evidence that she gave. The task of the tribunal was to assess it’ (paragraph 7).

The judge did not accept that it was ‘incumbent on the tribunal to test the claimants evidence by cross-examining her on her credibility’ (paragraph 8). He considered that to be suggested in the commentary by Judge Jacobs in the book Tribunal Practice and Procedure, where it is suggested that a witness suspected to be lying must be given a chance to deal with that concern. The danger of such an approach is ‘that it could be argued that the tribunal is adopting the approach of an adversary rather than a dispassionate assessor of the evidence before it’. Judge May also considered that comments (also by Judge Jacobs) in CDLA/4585/1997 about it being good practice for tribunals to give claimants a chance to comment on any impressions that may have been formed as a result of observations at a hearing were not ‘directly in point’ in this case, as they concerned observations of a claimant made by the tribunal itself, which was not what had happened here.

Comment from CPAG

Arguably, a tribunal should be able to put concerns about credibility in a non- adversarial way. But a similar approach to that taken by Judge May QC is taken by Judge Poole QC in CC v SSWP (ESA) [2019] UKUT 14 (AAC) (7 January 2019) (file number CSE/266/2018). There a tribunal considered that the claimant’s tearfulness at the hearing was an affectation designed to help her win her appeal, but did not put that to her. The tribunal did not err. It is, held the judge, ‘not the job of tribunals to cross-examine claimants, or to put to them specifically all matters which do not support their appeal’. Natural justice is key, but what that requires varies according to context, and matters of credibility do not as a generality have to be put to claimants. In this case, the claimant herself had put her tearfulness in issue so could not have been taken by surprise by the tribunal considering it.

Summary

The claimant had originally been awarded the standard rate of the daily living component of personal independence payment (PIP), but had that removed on mandatory reconsideration, which had been requested as the claimant considered he was entitled to a higher award. At the beginning of the tribunal hearing the tribunal made an ‘offer’ to the claimant, who was represented, to reinstate the original award – ie, the standard rate of the daily living component. The claimant refused the offer. The tribunal continued with the hearing and eventually decided the claimant was not entitled to any award of PIP at all.

Judge Brunner QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in giving inadequate reasons for its decision, as it did not include a clear explanation of the tribunal’s ‘change of mind’ regarding the claimant’s entitlement. It was not possible to understand from the tribunal’s reasons what new information the tribunal had heard or had taken note of during the oral proceedings which led to its change of mind (paragraph 17).

The judge also made observations on the tribunal’s sharing of its preliminary views – ie, the making of an ‘offer’ to the claimant at the outset of the hearing. These observations were ‘deliberately not prescriptive’ but instead intended to ‘set out guidance’ for tribunals (paragraph 18). In summary, the observations were: there is nothing in principle wrong with a tribunal coming to a preliminary view after looking at the papers; there is nothing in principle wrong with a tribunal sometimes sharing that view with the parties; there are obvious dangers in sharing preliminary views, in particular a claimant feeling pressured in accepting the preliminary view, and in the appearance of bias, especially where the claimant is not represented; tribunals should be cautious about sharing preliminary views; if sharing a preliminary view, the tribunal should do so in clear language which does not put pressure on the claimant; language such as ‘offer’ is not appropriate; it should be made clear that the preliminary view remains provisional until the conclusion of proceedings and that its ultimate view (ie, after taking further evidence) may be different; there is nothing in principle wrong with a tribunal changing its preliminary view; where it does change that view, it should consider whether natural justice and the overriding objective (ie, to deal with cases fairly and justly) require it to alert the parties to that before the proceedings are concluded; where made, a preliminary view should be recorded in the statement of reasons; where shared and the tribunal has subsequently reached a different view, the reasons for that change of mind should be clearly stated in the reasons.

Comment from CPAG

This decision makes clear that it is possible for a tribunal lawfully to indicate a preliminary view to the parties to the appeal – for example, with a mind to conclude the case more quickly. However, the guidance set out in the decision also indicates that tribunals should take care to avoid pressuring claimants, to make clear that the view is a provisional one which may change in the light of further evidence, and to avoid use of the word ‘offer’. Though explicitly not prescriptive, not adhering to its principles could well lead to an error of law.

Decision in brief

Not possible in such a case for an appeal against the section 14 decision to lapse because a section 18 decision is purported to be made – if the three-judge panel’s comments about lapsing appeals in LS and RS v HMRC [2018] AACR 2; [2017] UKUT 257 (AAC) were intended to apply to decisions under section 14 not to award tax credit, they overlooked that no section 18 decision can be made in such a case and are not followed.