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Summary

The claimant had autism and learning difficulties, and was living in a care home, funded in part by the NHS under section 117 of the Mental Health Act. After 28 days, payment of the care component ceased (under section 78(8) of the Social Security Contributions and Benefits Act 1992 and regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890). The claimant's appeal against that, made via his appointee, included an argument that the rules breached his human rights by unlawfully discriminating against him as a disabled person in a care home.

Rejecting the appeal, Judge Markus QC held that any discrimination (ie, under Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1) was justified. The claimant argued that the poor quality of the care provided in the home meant that he should not be regarded as receiving care at all, and that evidence about poor-quality care in general meant that the claimant's position could be compared with that of disabled children in hospital, who were found to be subject to unlawful discrimination by the statutory suspension of their DLA in Mathieson v Secretary of State for Work and Pensions [2015] UKSC47; [2015] 1 WLR3250.

Judge Markus QC held that the statutory references to care homes showed that the rules were concerned with 'the nature or function of the establishment not the services which are actually provided to any particular individual' and that regulation 9 applied 'if the claimant is in an establishment which has the characteristics of a care home' (paragraph 16). The judge distinguished the present case from Mathieson. In that case, a 'structural' problem was identified, namely that the evidence showed that due to the continuing care provided by parents and others in hospital, NHS provision in hospital did not overlap with the care component of DLA. By contrast, that structural problem did not apply in the present case, where the evidence about poor-quality care was about only a small minority of cases, and in any case did not mean that care needs were not being met (paragraphs 40-41 ). It followed that, in the majority of cases, payment of the care component to care home residents would result in double provision. At most, the evidence showed at most that the claimant's case was a 'hard case' which did not invalidate a rule which, on the whole, was beneficial (paragraphs 42-44).

Summary

In 2012, the claimant reapplied for ESA following a previous failure of the work capability assessment (WCA). Under the rules that applied at that time, as the reapplication was within six months of the previous failure, she could only have been treated as having limited capability for work (and so entitled to ESA) pending a new WCA if she had a new condition or her condition had 'significantly worsened'. In the event, the decision maker in fact decided the new claim, finding that the claimant did not have limited capability for work. That was upheld by the First-tier Tribunal.

Judge Wright dismissed the claimant's further appeal, holding that the tribunal had not erred in law. He also commented extensively on the rule (then at regulation 30(2) of the Employment and Support Allowance (General) Regulations 2008, SI No.794), under which a claimant who has previously failed the WCA may on a repeat claim be treated as having limited capability for work. However, he emphasised that, given that (1) regulation 30(2) was not in fact raised as an issue in this appeal, and (2) the terms of regulation 30 had in fact been changed after the date of the decision under appeal (so as to effectively require a new condition or significant deterioration in all such cases, regardless of a six-month period), his views were provisional and not in any sense binding in any other case (paragraph 4).

Regarding what was meant by the reference to 'significant worsening' in regulation 30 (including in its amended form), the judge agreed with the Secretary of State that it required a judgment against the previous WCA, and was a test of whether the claimant 'would be likely' to satisfy the WCA when the actual decision on that was made. As such, he disagreed with the comment in Volume I of Sweet and Maxwell's Social Security Legislation that the test was whether the claimant 'would' satisfy the WCA. If the decision maker was of the view that the claimant simply 'would' not satisfy the WCA, it should simply make that decision - ie, make a new decision on the new claim reapplying the WCA (paragraphs 34-40). In support of his view, the judge pointed to the words of Commissioner Jacobs (as he then was) in CIB/1959/1997 and CIB/2198/1997, that what was required for 'significant worsening' was that it was 'fair to assume' that the claimant would satisfy the test (paragraph 37).

The judge considered it possible that there was a right of appeal against a decision on 'significant worsening'. Although previous caselaw authority had spoken of 'building block' decisions against which there was not a right of appeal, he considered that it was 'difficult to categorise' a regulation 30(2) (now regulation 30(4)) decision as a building block for any other decision; rather it seemed to 'stand on its own' (paragraph 48). It was not 'readily apparent' to the judge that a section 30(2) decision was not a decision deciding a claim under section 8 of the Social Security Act 1998, so giving rise to a right of appeal (paragraph 51).

Comment from CPAG

Given his very clear caveats, Judge Wright's comments on the approach to the 'significant worsening' referred to in the current version of regulation 30(4) must be regarded as strictly obiter - ie, not binding. His interpretation of the meaning of the words is in line with previous authority and does not break new ground. However, his speculation that there may be a right of appeal against a decision on this may well call for consideration in future cases.

Summary

The claimant owned a property not lived in as her home. She tented it out and acted as a landlord to the tenants. Her claim for HB was refused on the basis that the value of the property represented capital in excess of the limit of £16,000. Her appeal to the First-tier Tribunal was refused.

Judge Jacobs held that the tribunal had not erred in law - ie, that the claimant was lawfully treated as possessing capital in excess of the limit. The main issue raised before the judge was whether the property was a business asset, in which case its value was to be ignored (under paragraph 8 to Schedule 6 of the Housing Benefit Regulations 2006, SI No.213). Reviewing relevant caselaw from a number of jurisdictions, the judge drew a number of conclusions about the approach to whether a 'business' was being conducted in such circumstances, including: (1) the meaning of 'business' depends on its context in the legislation (paragraph 16); (2) the number of properties being let out and the number of units that are let are not decisive, but letting a single property as a unit is unlikely to be a business, whereas letting out a single property as units for multiple occupation or letting out more than one property is more likely to be a business; in any case, the amount of administration and activity involved may create a business (paragraph 18); carrying out the duties of a landlord is not sufficient; beyond that no single factor is decisive and it is the combined effect of all the facts and circumstances that count (paragraph 19).

On the facts of this case, the claimant's duties as a landlord (collection of rent, repairs, etc.) were not sufficient to constitute a business (paragraphs 27-28). The value of the property therefore counted as the claimant's capital. Although the value may be affected by the presence of tenants, in this case the evidence showed that it was not significant as the valuations showed the presence of shorthold tenants did not significantly affect the value, and the claimant would be able to secure vacant possession in a reasonable time (paragraphs 31-34).

Summary

The claimant received a four-week sanction on her JSA for failure to participate in the Work Programme by attending a Work Programme appointment. On appeal, the claimant stated that she had not received the letter requiring her to attend. The tribunal directed the Secretary of State to supply copies of the relevant documents. Although the evidence was supplied, albeit late, the tribunal appears not to have received it. It allowed the claimant's appeal on the basis that a sanction could only be imposed if the claimant had been appropriately notified of the requirement to participate. The tribunal 'drew inferences' from the Secretary of State's failure to provide the requested evidence, such that the claimant had not been adequately notified and so had not failed to participate.

Allowing the Secretary of State's further appeal and remitting the case to a fresh tribunal, Judge Rowland held that there had been an inadvertent breach in the rules of natural justice by the tribunal making the decision it did, when in fact the evidence had been supplied (paragraphs 10-11). Also, however, there was an error in that the tribunal's reasons did not properly explain why it drew an adverse inference from the Secretary of State's apparent failure to provide the evidence. The judge said, 'Where there has been a failure to comply with a direction to provide evidence, a tribunal may well be entitled to draw an adverse inference against the offending party; that is to say that it may infer from the failure that the facts are not as the offending party says they are. However, it is not entitled to do so merely as a punishment. It is appropriate to draw an adverse inference only if the tribunal it satisfied that it is probably that the reason for the failure to comply with the direction is that the evidence does not exist or would harm the offending party's case' (paragraph 12).

In the present case, there could 'plainly have been other realistic reasons' for the failure to comply', and so the tribunal's reasons needed to address what the 'inherent probabilities' were' (paragraph 17). That was not, however, to minimise the importance of the Secretary of State, as a party to the appeal, complying with directions. The Secretary of State is not entitled merely to ignore a time limit in a direction, nor is he entitled to make an unexplained application for extension of time on the assumption that it will be granted (paragraph 18).

Summary

The claimant was a national of a European 'AB' state. Before claiming JSA and eventually being awarded it in April 2014, he was found to have been exposed to trafficking on two occasions. Although he was awarded JSA with a finding that he had the right to reside as a jobseeker, he appealed as he wished to argue that he had a retained worker status. The First-tier Tribunal rejected the claimant's appeal, finding that there was insufficient documentary evidence to hold that the claimant had worker or retained worker status.

Judge Ward rejected the claimant's further appeal. Although the tribunal may well have erred in finding that there was insufficient documentary evidence, and in not investigating whether the claimant had been a worker before the first trafficking incident, that did not matter regarding an appeal about JSA in which the claimant in fact had already been awarded the benefit (paragraphs 18-23). On the facts of the case, the judge considered that the claimant's work during the trafficking incidents was not sufficient in itself to give him worker status as it was not enough to be 'genuine and effective'. However, the judge noted that it was not the case that only lawful work was relevant to establishing worker status (JA v SSWP (ESA) UKUT 122 (AAC) cited), and ' ...a trafficked person is not precluded from arguing their case on ordinary principles - including that they can demonstrate that they are a worker or have retained worker status' (paragraphs 21-22).

Underlying the claimant's appeal was a concern that merely having jobseeker status did not give him a right to reside for housing benefit purposes. But the judge held that as a matter of law, 'the decision on the right to reside for the purposes of a JSA claim is not determinative for housing benefit purposes' (paragraph 24). The local authority was not fixed with the decision already taken on that point by the DWP, and the claimant could argue the point afresh with the local authority. The claimant had in fact been granted discretionary leave under the Immigration Act (as a victim of human trafficking) from October 2014. Such leave meant that he could claim both JSA and housing benefit without the restrictions that apply to other European claimants; however, the leave was granted after the date of the decision under appeal and did not invalidate it (paragraphs 9-12).

Summary

The claimant, a British national, was resident in Northern Ireland. Her award of working tax credit included a childcare element. The childcare provider was located in the Republic of Ireland. Eventually, HMRC decided that, because the childcare provider was not an approved provider outside the UK, there was no entitlement to the childcare element, although it did not attempt to recover the overpayment from the claimant. The claimant's appeal was dismissed.

A Tribunal of Northern Ireland Commissioners (Chief Commissioner Mullan, Commissioner Stockman and Deputy Commissioner Ward) allowed the claimant's further appeal, and substituted a decision that the claimant was not disentitled solely on the basis that her childcare provider was located outside the UK and therefore not providing eligible childcare within regulation 14(2) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 {SI No.2005). The claimant had a right (under Article 56 of the Treaty on the Functioning of the European Union) to receive services from a childcare provider in another member state, and the decision to find that she was not entitled to the childcare element was unlawful under EU law (paragraphs 43, 90-92, 105(i) and (viii)).

The Commissioners raised a doubt about the existence and validity of the regulations providing for authorisation of childcare providers outside the UK, but held that even if they were, they could not (under EU law) be accepted as a proportionate scheme of authorisation, not least because, as HMRC described them exclusively in terms of Crown servants overseas, they were insufficiently transparent and accessible (paragraphs 79, 90-92, 105(vii)).

Note: as a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it considers legislation applying in the UK, and has been highlighted by the Upper Tribunal in Great Britain.

Summary

In this decision a two-commissioner tribunal of Northern Ireland Commissioners considered the correctness of a decision to decide an ESA appeal on the papers, in a case where the claimant had not received the official form enquiring whether or not he wanted an oral hearing.

Chief Commissioner Mullan and Commissioner Stockman decided that the tribunal had erred in not holding an oral hearing. In so doing, they considered the relevant Northern Ireland legislation, in particular regulations 39 and 46 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 {SI No.162). That requires the appellant to indicate his choice of hearing on a form, and includes that if the form is not returned within the time limit, the appeal may be struck out. The Commissioners held that, on the facts of the case, it was 'clear that the appellant had not unequivocally waited his right to an oral hearing' (paragraph 43). The regulations were silent on what should happen where the enquiry form was not returned but the appeal was not struck out. Holdin,9" a paper 'hearing' was the practice of The Appeals Service (TAS) in Northern Ireland, but there was no basis for that in the regulations, and 'it would have been equally valid to have listed the appeal as an oral hearing with notification to the appellant' (paragraph 44).

Further, the Commissioners considered that there was a basic right to an oral hearing of an ESA appeal. In Miller v Sweden [2005) ECHR 71, the European Court of Human Rights held that the right to a 'fair and public hearing' at Article 6(1) of the European Convention on Human Rights (ECHR) entailed an entitlement to an oral hearing, unless there were 'exceptional circumstances'. Such exceptional circumstances could arise in social security schemes where the outcome 'usually depended upon the written opinion given by medical doctors' {decision quoted at paragraph 31 ). Taking into account statistics showing the much higher success rate for appellants in ESA appeals where there was an oral hearing, in the present decision the Commissioners concluded that, 'it appears to us that ESA appeals have characteristics which mean they are more accurately determined on the basis of oral evidence together with documentary evidence than on the basis of documentary evidence alone' (paragraph 37). Therefore, the principles in Article 6(1) implied a right to an oral hearing in ESA appeals, 'and we further accept that in general terms that there are not exceptional circumstances that justify dispensing with an oral hearing within the meaning of Miller v Sweden' (paragraph 38).

Comment from CPAG

As a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it has been highlighted by the Upper Tribunal in Great Britain. The situation is further complicated in that in Great Britain the directly relevant provision is at rule 27 of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No.2685), which provides in effect that an oral hearing of any appeal must be held, unless all of the parties have consented to, or not objected to, a decision on the papers and the tribunal considers that an oral hearing is not required. More widely, however, the emphasis on the importance of oral hearings in ESA appeals (the statistics used were from appeals in Great Britain) is noteworthy in the context of the current intention to move all social security appeals online - see Bulletin 254, p3, and the article on p5 of this Bulletin.

Decision in brief

Refers to ability to cook using a conventional cooker without prompting, supervision or assistance and (if cannot do so) ability to cook without such help using a microwave - but if claimant does need prompting, supervision or assistance, consideration needs to be given to a higher scoring descriptor (d to f), as the highest scoring descriptor is the one that applies

Decision in brief

But primary focus is on the cognitive or intellectual function of making decisions - physical disabilities can be the source of difficulties with these, but it will only be in 'the most extreme set of circumstances that limitations flowing from a physical disability alone will result in a person having limitations in relation to making budgeting decisions' as set out in Activity 10

Decision in brief

Possession of a European Health Insurance Card (EHIC) not proof of comprehensive sickness insurance in circumstances in which there is no other member state required to reimburse the UK with costs of healthcare - on facts of the present case, claimant clearly habitually resident in UK rather than on a 'stay' and UK could not successfully have claimed costs from Italy on the basis of the EHIC

Decision in brief

It is not axiomatic that an apparently purposeless appeal must lapse -this is especially so where the section 18 decision has not been appealed - where there is no section 18 appeal and the outcome of the section 16 appeal may affect the section 18 decision, the section 16 appeal should continue unless or until an effective appeal against the section 18 decision is lodged

Decision in brief

Requirement is that claimant has a mental condition that (in the context of reading problems) affects his ability to read or learn to read - regarding following 'the route of a journey' it is the route that matters, not the destination, and so the journey envisaged does not have to be a local one - in practical terms it may be sufficient to consider a local journey but it would be wrong to apply that as a matter of law - the only qualification in the descriptors is the distinction between familiar and unfamiliar journeys -the test is general in nature, without reference to the individual characteristics of the route, other than whether it is familiar or unfamiliar