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Summary

The claimant was a child aged four years. He had cerebral palsy, developmental co-ordination delay, dyspraxia and hypertonia; he also had problems with faecal leakage and medically recognised 'absences' which required intervention from an adult to rouse him to avert danger, in particular when walking outdoors. His claim for DLA (made via an appointee) was refused, a decision that was upheld by the First-tier Tribunal.

Judge Lane allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in a number of ways. Firstly, it omitted to deal with the claimant's need for extra attention at school under his statement of special educational needs. It was well established that extra attention a child receives of this sort may qualify as attention in connection with bodily functions, and that cognition was an aspect of the working of the brain (paragraph 5). The Secretary of State had submitted a rough calculation that this extra attention amounted to about 43 minutes per day [inadvertently stated as 43 minutes per week in the transcript]. The judge held it was possible the claimant may qualify for the care component. Regarding the low rate and care for a 'significant portion of the day', the judge pointed out that 'it is not enough following R(DLA) 5/05 for a Tribunal simply to say that 'an hour' is a significant portion of the day' (paragraphs 7-8).

Regarding the claimant's 'absences', the tribunal also failed to apply authority (ROLA 4/01) that attention out of doors could also amount to supervision or guidance and count for the lower rate of the mobility component. Attention in connection with bodily functions may arise indoors or outdoors, and while walking (paragraphs 9-10). Regarding faecal leakage, the tribunal found that the problems mostly arose during the day, were infrequent at night and that the child could wear nappies to minimise the need for attention. The judge could see nothing wrong with those findings. However, the tribunal also said that any night-time needs were not, as required, 'substantially in excess' of a non-disabled child of the same age and sex, as any four-year-old child would need help in dealing with incontinence. That was the wrong approach, as it missed the fundamental point that only a small percentage of four-year-old children were faecally incontinent: the 'real question to ask' was whether the child's needs from faecal incontinence at night were 'substantially in excess', not the actual need for the changing of clothes and bedding (paragraphs 17-19). However, on the facts of this case, that was not a material error, as the judge accepted that the facts meant that the 'incidents of night-time incontinence were simply insufficient to qualify for benefit and could be offset by using nappies (paragraph 20).

Comment from CPAG

This is a useful restatement of the relevance of attention needs at school, and the correct application of the 'substantially in excess' test. See also the article on p8.

Summary

In this decision, a three-judge panel of the Upper Tribunal considered a challenge to regulations under which receipt of income-based jobseeker's allowance ceased to provide that a HB claimant automatically satisfies the right to reside and habitual residence tests, where the only right to reside the claimant had was that of a jobseeker. The challenge was that the relevant amending regulations were not validly made, as the Secretary of State had impermissibly failed first to refer them to the Social Security Advisory Committee (SSAC).

Judges Gamble, Knowles QC and Carmichael QC rejected the challenge, holding that the regulations were validly made. The relevant amending regulations were The Housing Benefit (Habitual Residence) Amendment Regulations 2014 No.539. They came into force on 1 April 2014. They were not referred in advance to SSAC, as the Secretary of State relied on the power at section 173(1)(a) of the Social Security Administration Act 1992 ('the Act') not requiring such a referral where 'it appears to the Secretary of State that by reason of the urgency of the matter it is inexpedient so to refer them'. The Upper Tribunal held that the First-tier Tribunal did have the authority to consider whether regulations were validly made (paragraph 5), but accepted that in this case the exemption had been legitimately applied.

The Upper Tribunal held that the correct focus was initially on when an obligation would arise to refer to SSAC, in the absence of any urgency, under section 172 of the Act. That was the point at which the Secretary of State 'proposes to make regulations'. Although various official statements were made during 2013 indicating intentions to strengthen the habitual residence test, the Upper Tribunal accepted an affidavit from the DWP that it was not until early in 2014, at a very late stage, that the intention to limit HB was formed (paragraphs 41-43). An argument that urgency that was self-induced could not be relied upon was not accepted, as 'the point in time that a policy decision is made is itself a question of political judgement, and pre-eminently one for . the executive, not the courts.... Consultation is required only when the government has decided what to do'. That left it reviewable on 'Wednesbury' grounds - ie, that it was beyond the range of reasonable decisions open to the Secretary of State. On the facts of this case, the Upper Tribunal was unable to make such a finding (paragraphs 50-53).

Summary

The claimant went to the official (gov.uk) website to claim JSA online. Due to a prompt on the website suggesting to the claimant that he could be better off claiming pension credit (PC) and asking if he would like to consider a claim for that 'or continue with this application for jobseeker's allowance', the claimant eventually ended up claiming PC. Only when that had been refused did he complete a claim for JSA. The First-tier Tribunal accepted that his JSA claim should be backdated to the time he originally started to make a JSA claim, holding that on the facts that regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 No.1968 applied. That provides that a claim for JSA or income support can be backdated for up to three months where 'the claimant was given information by an officer of the Department for Work and Pensions... which led the claimant to believe that a claim for benefit would not succeed.'

Judge Wright allowed the Secretary of State's further appeal, and remitted the case to a new tribunal. However, that was only on the basis that the tribunal had given inadequate reasons about precisely how the claimant came to be of the view that the JSA claim could not succeed. He upheld the tribunal's substantive finding that the information on the DWP website could amount to information from an officer of the DWP, and held that on the facts of the case the tribunal did not err in finding that the claimant had 'been given information by an officer of the DWP' (paragraph 8).

In so holding, he held that the earlier decision of Judge Wikeley in S K-G v SSWP (JSA) [2014] UKUT 430 (AAC) was wrongly decided and should not be followed (paragraph 6). That decision held that information on the website did not constitute information given by an officer of the DWP as it lacked the requisite 'interchange of some kind between the officer and the enquirer'. In particular, Judge Wright took into account evidence that the DWP is responsible for the accuracy of the information on the website (paragraph 20) and that it had been held in R(IS) 3/01 and that the words in regulation 19(5)(d) 'are not to be given any artificially restricted meaning' (paragraph 31) . The words 'by an officer of the DWP' referred to the status of who provided the information, not how it was provided; the requirement in S K-G that there had to be some sort of personalised, specific interchange between the claimant and the DWP did artificially restrict the meaning of the words and so was inconsistent with previous caselaw (paragraphs 26-31 ).

Summary

The claimant had multiple sclerosis and depression. When walking, she had difficulties with balance, unsteadiness, stiffness and pain. The First-tier Tribunal awarded her points under descriptor 2(b) ('can stand and then move more than 50 metres but not more than 200 metres, either aided or unaided'). Its findings of fact included that the claimant was limited to walking 50-200 metres, and could walk 50 metres before needing to 'pause', walking a distance of a third of a mile in about 15 minutes.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a fresh tribunal. Given its findings, the tribunal had erred in failing to consider whether the claimant's ability to walk was being accomplished within a 'reasonable time period', as required under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 No.377 (paragraph 17). Regulation 4(A) also requires that the test is of the claimant's ability to satisfy a descriptor 'safely', 'to an acceptable standard' and 'repeatedly'.

The judge considered whether, if a claimant had to pause or stop before reaching a distance prescribed in the descriptors, that meant the distance had in fact not been achieved. He agreed with the approach taken by Judge Parker in CPIP/2377/2015. There, she held that matters like pain and the nature and extent of any rests required by the claimant were relevant to whether the claimant could complete a descriptor 'to an acceptable standard', but that such rests could be merely for a second or for an hour, and it was up to the 'good sense' of the tribunal to decide whether that meant the claimant could walk the prescribed distance or not (cited at paragraph 14). In the present decision, Judge Hemingway held that where a claimant needed merely to pause before stepping up a kerb, or to take a gulp of air, it would be 'losing touch with reality' to decide that meant that the claimant's moving had come to an end. On the other hand, for example, if the claimant had to pause and recover because of fatigue, or to allow pain to recede, that might well, depending on the circumstances, suggest that such a halt brought into play the requirements of regulation 4(2A). The judge added his view that there will also be times when the halt is of such length that 'it cannot realistically be said any resumption is part of the same period of walking'. It was a matter for the 'good judgement and common sense' of the tribunal (paragraph 15).

Comment from CPAG

The decision seems to allow two arguments about the effect of pauses/stops: (1) that the pause/stop is of such duration that it simply brings the period of walking to an end; (2) that although the pause/stop is not of such duration as to bring the period of walking to an end, applying the regulation 4(2A) factors means that the claimant nevertheless cannot be said to achieve the distance in the descriptor.

Summary

The claimant was found by the First-tier Tribunal not to have the right to reside as a jobseeker on the basis that he failed the 'genuine prospect of work' (GPOW) test. In particular, the tribunal held that there was not 'compelling evidence' that he had a genuine prospect of work, as required (after the relevant period) by regulation 6(7) of the Immigration (European Economic Area) Regulations 2006 No. 1003.

Judge Agnew of Lochnaw Bt QC allowed the claimant's further appeal and remitted the case to a new tribunal. The judge could not be clear that in applying the 'compelling evidence' requirement of the GPOW test, the tribunal had not applied a higher standard of evidence than that permissible under the civil standard of proof, which was simply that on the 'balance of probabilities' the claimant had a genuine prospect of work (paragraph 15). To the extent that the Secretary of State was suggesting that 'compelling evidence' imposed some higher standard of proof, that was contrary to EC law as set out in Article 14(2)(b) of EC Directive 2004/38/EC and the decision of the European Court of Justice in Case C-292/89 R v Immigration Appeal Tribunal ex p Antonissen [1991] ECR 1-745, both of which merely provided for a requirement for claimants to provide 'evidence that they are continuing to seek employment and that they have a genuine chance of being engaged' (paragraph 14).

The judge said, of the 'compelling evidence' requirement contained in regulation 6(7), ' ...I interpret "compelling evidence" to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has a genuine chance of being engaged' (paragraph 12), and that 'I see no logical reason why different member states are entitled to provide for difference standards of proof to prove that a person is "continuing to seek employment and that they have a genuine chance of being engaged"' (paragraph 14).

Comment from CPAG

This decision is clear authority that the restrictive approach to what is 'compelling evidence' in the GPOW test, as set out in DWP guidance (Volume 2 para 073099 DMG) and routinely applied by decision makers, is unlawful. In any case, the GPOW and compelling evidence requirement are the subjects of another forthcoming decision of the Upper Tribunal in MB v Secretary of State for Work and Pensions (CJSA/2042/2015).

Summary

The claimant, in responding to her annual declaration at the end of the tax year, represented her income as £11,000. HMRC held information that her income for the relevant year had in fact been £22,797. The claimant agreed with HMRC's figures, and explained that she inadvertently gave the wrong figure because of the complexity of her finances in the year, which had involved three different jobs and a period of unemployment. Although HMRC initially accepted her explanation, it eventually imposed a penalty of £1,360 on the basis that the claimant had acted negligently. The claimant's appeal was rejected by the First-tier Tribunal.

Judge Levenson allowed the claimant's further appeal and remitted the case to a new tribunal. The relevant law was at section 31 of the Tax Credits Act 2002 and provided for a penalty not exceeding £3,000 where a person had 'fraudulently or negligently' made an incorrect statement or given incorrect information or evidence. The tribunal had erred in that it had not shown that it had verified that the figures used by HMRC were accurate, had given no consideration to whether the claimant acted reasonably and had not considered whether the level of the penalty was appropriate (paragraphs 16-19). On the latter point, the judge rejected HMRC's submission that the tribunal could not consider the assessment of the appropriate penalty. The judge said that 'in its very nature the appeal encompassed both an appeal against there being any penalty and an appeal against the calculation of the penalty' (paragraph 19).

The judge set out a number of propositions involved in the correct approach to tax credit penalties (paragraph 25). These included: that 'the imposition of a penalty involves the exercise of discretion whether or not to impose any penalty at all or a penalty of a particular amount'; that it was proper to take HMRC guidance on penalties as a 'starting point' for the calculation of any penalty; that the tribunal must be satisfied as to the underlying facts on which the calculation of the penalty was based; that in most cases it will be necessary for the tribunal to find 'whether the claimant acted innocently and/or reasonably, or negligently (that is, with a lack of due care), or fraudulently'; and that the tribunal must consider any aggravating or mitigating factors and 'must take into account the principle that the maximum penalty is reserved for the worst offence'.

Summary

This decision of a three-judge panel of the Upper Tribunal considers whether there was a power for First-tier Tribunals to allow tax credit appeals that were made outside the statutory 30-day time limit against decisions made in a period between 3 November 2008 and 5 April 2014 (when the rules were clarified to permit late appeals). In JI v HMRC (TC) [2013] UKUT 199 (AAC), Judge Rowland held that (due to an inadvertent error in drafting new legislation at the time) there was no power. In the present decision, Judges Jacobs, Wikeley and Mitchell held that there was such a power and that JI was therefore wrongly decided.

The decision arose from a case in which HMRC decided in 2012 that the claimant had not been entitled to any tax credits in 2010/11, as she had claimed as a single person but was now considered to have been a member of a couple. The claimant's appeal was outside the basic 30-day time limit set at section 39 of the Tax Credits Act 2002. Applying JI, the First-tier Tribunal held that the appeal was out of time and that it had no power to extend time.

The judges held that the tribunal erred in law, and remitted the case to a new tribunal for a decision on whether to admit the appeal. During the relevant time, although section 39 did not itself permit late appeals by allowing the extension of time, other rules did. These rules were at Schedule 5 paragraph 4 of the Tribunals, Courts and Enforcement Act 2007 ('TCEA 2007') which, properly interpreted, authorised tribunal procedure rules to allow First-tier Tribunals to extend time and, read as a whole, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 (the 'Tribunal Procedure Rules), which contained that power.

Specifically, JI had been wrong to hold that the TCEA 2007 did not permit tribunal rules to extend the appeal time limit for tax credits (paragraph 80). Parliament intended that paragraph 4 of Schedule 5 made such provision (paragraph 84). Further, rule 5(3)(a) of the Tribunal Procedure Rules permitted First-tier Tribunals to extend 'the time for complying with any rule' and that included the time limits at rule 23 (paragraphs 98-100). The judges were not persuaded that, in the absence of the findings about the existence of rules to extend time, an inability to allow a late tax credit appeal was a breach of the right to a fair trial at Article 6 of the European Convention on Human Rights, given a general discretion to allow an individual appeal in 'exceptional circumstances' (paragraphs 109-10). But, in any event, the judges considered that there always had been the power to admit a late appeal.

Comment from CPAG

This decision may permit claimants who had a late tax credits appeal struck out because of JI to have their appeals reinstated. For more, see the article on p4.

Decision in brief

Tribunal did not err in holding that where the assistance given was no more than 'prompting', it could not fall within Activity 9(c) and was instead provided for by Activity 9(b) ('need prompting to be able to engage with other people') - there is a qualitative difference between the assistance in the two descriptors and the fact that prompting was provided by someone who would be relevant under 9(c) did not mean that 'prompting' was relevant there

Note from CPAG

It is understood that permission has been granted for further appeal to the Court of Appeal.

Decision in brief

Sufficient to have the requisite difficulty with either verbal or non-verbal communication - difficulty in both areas not required - AT and VG v SSWP (ESA) [2015] UKUT 445 (AAC), which made identical decision regarding Activity 7 ('understanding communication') of limited capability for work test, approved and applied

Decision in brief

Involves reasonably flat pavements and road surfaces, taking into account an ability to negotiate kerbs, but disregarding any inability to climb steps or slopes - as in the case of the higher rate mobility component of disability living allowance, the test is not about whether the claimant can walk on unploughed land or over unmade-up roads or pavements under repair by the council (R(M 1/91 cited)

Summary

The claimant failed to attend an interview under the Work Programme, and her reasons for not attending were not supplied until well outside the five-day period allowed for showing 'good cause' for failing to carry out work-related activity. A sanction was imposed on the claimant. On appeal, her argument was that she had mental health problems, there were problems with her medication and her mother had died in the preceding months. The First-tier Tribunal dismissed the claimant's appeal as she had not shown good cause within five days of being notified of her failure to comply.

Judge Wright, allowing the claimant's further appeal, substituted a decision that the claimant's ESA was not subject to a sanction. Although the Claimant had not shown good cause within five days, the tribunal had erred in failing to consider whether the initial requirement to attend the interview under the Work Programme was reasonable, having regard to her circumstances, as provided for by regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011, No.1349 ('the WRA regulations') (paragraph 35). On the facts of this case, that was something the tribunal should have considered, as it was clearly a matter that was raised by the appeal, even though the specific issue cited had been that of good cause (paragraphs 37-40).

The judge accepted that, following the decision in SSWP v TJ and others [2015] UKUT 56 (AAC), 'good cause' had to be shown within five working days, as provided for by regulation 8 of the WRA regulations, and that time could not be extended (paragraphs 23- 24). However, the judge agreed with the argument made by the Secretary of State that the tribunal was able to consider for itself whether, on the facts, the prior requirement to attend the interview was reasonable. Although at the time of the decision under appeal the claimant's full circumstances may not have been known to the decision maker, later evidence shown gave a fuller picture of circumstances at that time and could still be taken into account. On the evidence which was, and should have been, before the tribunal (including the claimant's action plan which the Secretary of State had erroneously failed to supply to the First-tier Tribunal), an issue clearly arose as to whether it was reasonable for the claimant to attend the interview. That was a prior and separate issue to good cause, and the tribunal erred in not considering that (paragraphs 37-40).

Summary

In this decision, the Upper Tribunal considered a number of cases in which the main issue was whether a European national continued to have the right to reside as a jobseeker, having been subject to the requirement to have 'compelling evidence' of a 'genuine chance of being engaged in employment' (the GPOW test), as required (after the relevant period) by regulation 6(7) of the Immigration (European Economic Area) Regulations 2006, No.1003 ('the EEA Regulations').

Judge Ward began by recalling that the right of jobseekers under European Union law is derived from the decision of the European Court of Justice in Antonissen, Case C-292/89. In that immigration case, the Court (at paragraph 21) held that a jobseeker was entitled to stay in a member state if he 'provides evidence that he is continuing to see employment and that he has genuine chances of being engaged'. Regarding the meaning of a 'genuine chance', the judge held that a chance is proved by reference to the facts (paragraph 35); that a genuine chance was one that offered 'real prospects of success' in getting a job (paragraph 42); he rejected the argument that it simply meant 'more than marginal' (paragraph 43). The genuine 'chance' has to be something coming to fruition within .a 'reasonable period of time', although that could include the future effect of attainment of qualifications or completion of training (paragraphs 46-48); there was no 'absolute limit' on the right for which jobseeker status could be retained, or step change in what had to be proved (paragraph 49); however it was necessary to take the preceding period of six months (or longer)'s lack of success in getting work into account in assessing 'genuine chances' (paragraph 51).

Turning to the requirement in the EEA Regulations for 'compelling evidence' as part of the GPOW test, the judge first rejected the argument that there was authority that the requirement was in contravention of European Union (EU) law (paragraph 53). The Secretary of State argued that the UK was clearly entitled to require a 'more compelling' case after six months' residence while unemployed. The judge did not disagree, to the extent that it did not impose anything further to the 'genuine chance' test set out in Antonissen; that also involved a burden of proof based on probabilities, so that the requirement for 'compelling evidence': 'does not add anything, save for making express to decision makers and tribunals what was the case anyway'

(paragraph 56). What the test could not do was anything more than that The judge said, 'Insistence on "compelling" evidence may, if care is not taken, all too easily result in raising the bar above the level I have found to be required, namely chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work with a reasonable period' (paragraph 57). He considered that approach was consistent with that of Judge Sir Crispin Agnew of Lochnaw QC in KS v SSWP [2016] UKUT 269 (AAC) (Bulletin 253, p13) (paragraph 59).

In the course of his decision, the judge made reference to the official guidance on the GPOW test, in paragraphs 073099 and 073100 of the Decision Makers' Guide. That, in effect, states that 'compelling evidence' is limited to a job offer or awaiting the outcome of a job interview. Although the judge declined to comment in detail on the guidance, he did point out that it was 'internal guidance, not law' (paragraph 30), and that tribunals 'should be alive to the risk that, because the Guidance is framed in the limited way in which it is, GPOW interviews may have been conducted, and/or the Secretary of State's submissions to the tribunal written, by reference to a restricted palette of issues' (paragraph 61). In one of the individual cases, the judge held that the tribunal had correctly treated the guidance as providing some examples of what might be compelling evidence, but that there were other ways in which the requirement might also be met (paragraph 90).

Note: See also the article on p4.