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Decision in brief

Someone who needs to use incontinence pads to be able to manage incontinence scores two points under descriptor 5(b) 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence' - an incontinence pad is an 'aid' -therefore someone who needs to use incontinence pads cannot manage her/his incontinence unaided - either bowel or bladder incontinence may be relevant

Summary

The parents of the child were separated. The father had been the claimant (and recipient) since 2011. The mother made a competing claim, on the basis that the child had gone to live with her then boyfriend and his family in July 2013, did not return to live with the father until April 2014, and in that period she (ie, the mother) was supporting the child financially. HMRC refused the claim, firstly on the basis that the father had already been paid up to December 2013 and so she could not be entitled until then, that the priority rules prevented entitlement for three weeks from then, and that in fact the child was living with his father again from January 2014. The First-tier Tribunal refused the claimant’s appeal, on the basis that the father had already been paid child benefit to December 2013, and that, in any case, the child had never actually lived with her.

Judge Wikeley allowed the claimant’s appeal and remitted to case to a fresh tribunal for findings of fact about exactly where the child lived and when. The tribunal had erred in two respects. Firstly, the tribunal had regarded the rule about non-entitlement for a period in which someone else had already been paid child benefit, at section 13(2) of the Social Security Administration Act 1992, as an absolute rule. In fact, that rule was subject to exemptions set out in regulations, namely regulation 38 of the Child Benefit (General) Regulations 2006, SI 2006 No.223. That provides exceptions in the situations where it has been finally determined that the child benefit was overpaid and (in effect) is recoverable; or where where the child benefit has been voluntarily repaid, or recovered from the other person. The tribunal’s treatment of section 13(2) as an absolute rule was therefore an error of law (paragraphs 19–21).

Secondly, the tribunal had wrongly assumed that entitlement to child benefit is exclusively a matter of residency. In fact, as provided for by section 141 of the Social Security Contributions and Benefits Act 1992, entitlement is based on ‘responsibility’ for a child. That is defined in section 143(1) as the child living with the claimant or where the claimant is contributing to the cost of providing for the child at at least the rate of child benefit. In fact, the claimant’s case had always been that entitlement was based on the latter route, but the tribunal had never properly addressed that argument (paragraphs 22-28).

Summary

This decision deals with two cases that concerned the presence tests for, respectively, DLA and attendance allowance (AA), and the application of EC Regulation 883/2004. In BK, the claimant was Irish. He lived in Ireland from his birth in 2000 until moving to the UK with his mother in 2013. He was refused DLA on the basis that he had not been present in the UK for at least 104 weeks out of the previous 156, and did not have a ‘genuine and sufficient link’ to the UK. In MM, the claimant was German and came to the UK in 2013, having lived in Germany since 1998. She was refused AA for same reasons

In both cases, the First-tier Tribunal considered arguments that the claimant’s past presence in the relevant EU country fell to be aggregated with their presence in the UK, under Article 6 of EC Regulation 883/2004. In BK, the tribunal refused to accept that argument, in MM the tribunal accepted it and allowed the claimant’s appeal.

Judge Jacobs held that the tribunal in BK did not err in law, but the tribunal in MM did. Article 6 did not allow aggregation of presence on the basis of ‘mere residence’ (paragraph 18). In the decision in Stewart v Secretary of State for Work and Pensions (C-503/09), the Court of Justice of the European Union had laid down a general principle that a member state may insist on a claimant demonstrating a genuine and sufficient link with that state as a condition of benefit entitlement. To allow mere residence in another state to be aggregated could render the Court’s decision nugatory and bypass the law that Stewart applied (paragraphs 18–19). The only aggregation that was possible under Article 6 regarded residence which equated to insurance in a member state (paragraphs 20– 24). However, the Court in Stewart established a test of a genuine and sufficient link to the member state, not to the state’s social security system. Therefore, the requirement in the domestic legislation to show a link to the UK social security system is unlawful and it is possible that presence alone may demonstrate a genuine and sufficient link (paragraphs 28–32).

Judge Jacobs held that the tribunal in BK did not err in law, but the tribunal in MM did. Article 6 did not allow aggregation of presence on the basis of ‘mere residence’ (paragraph 18). In the decision in Stewart v Secretary of State for Work and Pensions (C-503/09), the Court of Justice of the European Union had laid down a general principle that a member state may insist on a claimant demonstrating a genuine and sufficient link with that state as a condition of benefit entitlement. To allow mere residence in another state to be aggregated could render the Court’s decision nugatory and bypass the law that Stewart applied (paragraphs 18–19). The only aggregation that was possible under Article 6 regarded residence which equated to insurance in a member state (paragraphs 20– 24). However, the Court in Stewart established a test of a genuine and sufficient link to the member state, not to the state’s social security system. Therefore, the requirement in the domestic legislation to show a link to the UK social security system is unlawful and it is possible that presence alone may demonstrate a genuine and sufficient link (paragraphs 28–32).

Note: The claimants are seeking leave for appeal.

Decision in brief

Regulation 17(1)(a) Employment and Support Allowance Regulations 2008, No.794 has effect that a person enrolled on a modular course is not ‘receiving education’ during periods in which s/he not undertaking any module or is only undertaking one or more modules on a part-time basis.

Decision in brief

Receipt of medical evidence from a healthcare professional is a ground for supersession – but that did not prove the factual basis for the supersession (ie, the decision to alter the award) – tribunal should not have merely found the factual basis to have been inadequate – should have gone on to consider what decision should have been made including the expiry date of the award.

Decision in brief

Regulation 7 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, No.214 – day of leaving the UK counts as a day of absence but the day of return to the UK does not – on the facts, the claimant exceeded the permitted maximum period of absence by one day and so lost entitlement.

Summary

The claimant had learning disabilities. She was entitled to income-related ESA. Her late mother had set up a ‘liferent’ trust for her. Under the terms of the trust, the claimant had a right to receive any income from the trust funds. Although she had no enforceable right to any other payments, the trustees had a power to make additional payments of capital from the fund if they chose to do so. The First- tier Tribunal found that all the payments from the trust fell to be taken into account.

Judge Poole QC set the decision aside and remitted the case to a new tribunal. The tribunal had erred in failing properly to apply the relevant provisions, which were at Schedule 8 paragraph 16 and regulation 112 of the Employment and Support Allowance Regulations 2008, No.794. They provide, respectively, that ‘voluntary’ payments of income are among the income to be disregarded, and that voluntary payments not made at regular intervals are to be treated as capital. In so holding, the judge considered whether (as argued by the claimant) the trust should be regarded as a ‘discretionary’ trust, with the payments from it ignored. It was argued that the claimant had no control of the actual amounts she received or of the timings of the payments. Further, with reference to the official guidance at paragraph 28502 of the Decision Makers’ Guide (DMG), if the income was paid at the discretion of the trustees, it should be treated as a voluntary payment.

On the evidence, the trust was a ‘liferent’ trust with a power to advance capital and was not a ‘purely discretionary’ trust (paragraph 17). To identify the properties of a trust, it was necessary to consult the trust deeds or document, and the ‘way in which trustees administer trust funds does not change the character of the trust’ (paragraph 18). In this case, the terms of the trust expressly created a liferent trust, which gives the right to receive for life the benefits of a property or assets without the right to dispose of that property or asset. Accordingly, the claimant had a right to receive any income from the trust funds. However, trustees did have the choice as to whether to pay her additional capital. ‘The trust,’ held the judge, ‘is therefore not purely discretionary’ (paragraph 19). He went on to consider what was a ‘voluntary’ payment. He noted there was ‘no general exemption’ which stated that payments from a liferent or discretionary trust were to be left out of account, and that instead the payments must fall within a specific disregard (paragraph 22). He had reference to R v Doncaster Borough Council ex p Boulton [1993] 25 HLR 195, where it was held that ‘voluntary’ in this context did not mean ‘without compulsion’ but rather a payment without anything being received in return. In this case, the judge considered that the trustees did receive something in return for the payments of income from the trust, ‘which was a discharge of their legal obligation arising under the trust to pay liferent income to the claimant’ (paragraph 29). Therefore, the payments of income from the trust were not voluntary. However, the capital payments were voluntary. The official guidance in the DMG was consistent with this: ‘capital advances in excess of the liferent income are money paid at the discretion of the trustees, and fall to be treated as voluntary’ (paragraph 30). If paid at regular intervals, they were to be disregarded as income under paragraph 16 of Schedule 8; if not made at regular intervals, they were to be regarded as capital under regulation 112.

Comment from CPAG

This decision has some important findings about the relevance of the terms of the trust deed as distinct from the actions of the trustees in general, and about liferent trusts in particular. However, it does not disagree with the official guidance that payments of income from a discretionary trust should be regarded as voluntary and therefore ignored.

Summary

The claimant incurred a sanction for failure to participate on a placement under the work programme. He had turned up as requested, but when asked by the provider to confirm the accuracy of information regarding his identity on a computer screen (including his national insurance number and benefits) he refused, citing data protection concerns. The provider refused to allow the claimant to proceed to participate in the scheme. The First-tier Tribunal refused his appeal, rejecting the claimant’s argument of a breach of the Data Protection Act, and holding that by refusing to confirm the details on the computer he had, without good cause, failed to participate in the scheme.

Judge Hemingway allowed the claimants’ appeal and remitted the case to a new tribunal. He was not persuaded by any of the claimant’s arguments about data protection concerns. Such concerns could have been pursued through the appropriate enforcement channels provided by the Data Protection Act, and against that background he was not justified in refusing simply to confirm the accuracy of the details on the computer screen (paragraph 13). Neither did the tribunal err in considering conduct before commencement of actual activity on the scheme relevant, or in considering the requirement to confirm identity reasonable (paragraphs 15 –17).

However, the tribunal did err in failing to enquire into whether the claimant offered, or would have offered if asked, an ‘alternative but still satisfactory’ way of confirming his identity. For example, he might have had a passport or driving licence. Without enquiring into whether the claimant offered, or would have offered, such an alternative way of confirming his identity, the tribunal did not have a proper evidential basis for concluding that the claimant had refused to confirm his identity, as distinct from a refusal to confirm the accuracy of the details on the computer screen (paragraph 18).

Comment from CPAG

The claimant’s concerns about data protection did not amount to ‘good cause’ for not participating; however, that is not necessarily the same as a refusal to confirm identity, and that (plus the failure of the tribunal to make findings about that) is what saved the claimant in this case.

Summary

The claimant was held to have been overpaid income-based JSA and also to be liable to repay an overpayment of £12,460.09. The issue before the Upper Tribunal was whether the claimant had misrepresented her capital when claiming JSA – ie, so as to provide a ground for recovery of the overpayment, under section 71 of the Social Security Administration Act 1992. At the First-tier Tribunal, the Secretary of State had acknowledged that the JSA claim form was no longer available, and argued that the overpayment was recoverable on the alternative ground of failure to disclose a relevant fact (also under section 71). The tribunal instead decided that, the absence of the claim form notwithstanding, the correct ground for recovery was misrepresentation.

Judge Hemingway allowed the claimant’s further appeal to the extent that he decided that the issue of whether the claimant had misrepresented the amount of her capital when claiming JSA was to be reconsidered by a fresh tribunal. He did not revise the associated decision that the claimant was not entitled to income-based JSA (ie, and so had indeed been overpaid) because of excess capital. The judge considered that the Secretary of State’s alternative ground of failure to disclose was not persuasive. Where it is said something is not disclosed on a claim for benefit which results in an overpayment (ie, as distinct from an ongoing award), ‘then the basis for recovery…can only be misrepresentation’ (paragraph 26). It was certainly open to the tribunal to adopt a different ground for recovery to that relied upon by the Secretary of State; however, an explanation for the tribunal’s thinking about that was required, and the claimant was required to have been put on notice and given an adequate opportunity to meet this change without being disadvantaged by surprise (R(SB) 40/84 cited); the tribunal had failed to do that and so had erred (paragraphs 28 – 30).

The mere absence of the claim form did not prevent the tribunal from finding that the claimant had misrepresented her savings. Depending on the facts, a tribunal can reconstruct content of a missing form, and in this case, there was evidence that the claimant had also misrepresented her savings in claims for employment and support allowance, housing benefit and a discretionary housing payment. Although that did not necessarily mean she had misrepresented her savings when claiming JSA, there was ‘sufficient evidence…to make it legally permissible’ for the tribunal to conclude that she did (paragraph 35 – 38). However, the new tribunal was to reconsider whether it was right not to limit itself to the Secretary of State’s ground of failure to disclose, and if not, whether the claimant had misrepresented her savings, the claimant having been given the opportunity to respond specifically to that (paragraph 40).

Comment from CPAG

This decision underlines that it is for a tribunal to decide whether there is a ground for recovery of an overpayment under section 71; however, if the ground identified has not yet been put to the claimant, then s/he must be given adequate opportunity to address it. As in other authority (eg, VL v SSWP (PC) [2018] UKUT 403 (AAC), Bulletin 269, p11), the mere absence of the relevant claim form does not preclude a finding of misrepresentation, although the facts are crucial.

Summary

The claimant had chronic anxiety and depression, and only felt genuinely safe when at home or in his car. He feared strangers and needed to know, before setting out, who he would meet at the end of the journey. On appeal, the First-tier Tribunal scored him 10 points under mobility Activity 2 (moving around), but no points under mobility Activity 1 (planning and following journeys). The tribunal considered that the claimant was able to undertake journeys, both familiar and unfamiliar, by driving, even though he would not be able to do so by walking.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to enquire sufficiently into the claimant’s ability to follow the route of unfamiliar journeys in his car (paragraphs 9–10). There was sufficient evidence of his ability to follow the route of familiar journeys. But the tribunal had not enquired into his ability to follow the route of unfamiliar journeys, something that was relevant to the possibility of a further 10 points under descriptor 1(d).

The judge also considered whether the tribunal was right in proceeding on the basis that the route of a journey could be followed from start to end in a car. On the facts, the tribunal had also failed to make sufficient findings about this. As a matter of common sense, there would always be a part of a journey using a car which would have to be accomplished by other means – ie, to get to the car and then to leave it to get to the ultimate destination. The facts of the client’s case indicated the part of the journey from leaving his car to get to his ultimate destination could be problematic for him, and the tribunal had failed to address that (paragraph 12). But the judge rejected an argument that if the claimant could not use public transport for the journey, then he should be regarded as unable to follow the route of the journey. Although that was suggested in previous versions of the PIP Assessment Guide, that was merely guidance and not binding law, and the judge did not agree with it (paragraph 13).

Comment from CPAG

The judge does not refer in this decision to JC v SSWP (PIP) [2019] UKUT 181 (AAC), which also dealt with, in broadly similar terms, the issue of ability to follow a route using a car. It is worth noting that the judge in that case did consider the claimant’s ability to use public transport as a relevant factor

Summary

The claimant’s appeal against the decision that he was not entitled to personal independence payment (PIP) was rejected by the First-tier Tribunal. The Secretary of State’s response to the appeal (ie, the appeal papers) had not included a list of the PIP activities and descriptors, contained only one express reference to the legal provisions on which the Secretary of State relied, did not include any copies of legal materials, and contained internet links on which the law for PIP could allegedly be found, but which in fact was to a draft version of the PIP regulations and merely the home page of the official legislation website for everything else.

Judge Poynter held that the tribunal erred by inadvertently breaching its duty to act fairly towards the claimant. He set the decision aside and remitted it to a new tribunal (paragraph 8). The Secretary of State’s response to the tribunal was inadequate. That was partly because if failed to include the PIP activities and descriptors (LH v SSWP (PIP) [2018] UKUT 57 (AC) cited) but also because it referred to draft legislation that was not in the same terms that the tribunal was required to apply. Although the tribunal had applied the correct substantive law, the Secretary of State’s response was not just for the benefit of the tribunal: ‘it also serves the function of informing appellants of the criteria applied to reach the decision and, thereby, the matters that they have to establish if they are to win their appeal’. The response did not do either, and it was not possible for the claimant properly to prepare his case (paragraph 4, citing various paragraphs from the judge’s initial permission to appeal). The tribunal should at the very least have drawn the defects to the claimant’s attention, sought his comments and provided him with any information he might reasonably have requested about the PIP descriptors and assessment (paragraph 6).

The judge noted the Secretary of State’s representative in the Upper Tribunal said that a template was now in use for providing responses in PIP appeals which refers to the law on which the decision has been based and lists the descriptors. The judge hoped that the error in this case would therefore not be repeated in future, although his decision may still be of relevance in appeals already in the system (paragraphs 9 –10).

Comment from CPAG

It should be noted that although the initial problem lay in the (extremely) inadequate response by the Secretary of State, the tribunal itself erred by failing to deal with the claimant fairly in the light of that.

Decision in brief

It was correct that the mere fact of a diagnosis of hand arm vibration syndrome (HAVS) did not necessarily bring the claimant within PDA11 – but a tribunal must make adequate findings and give adequate reasons for holding that a claimant does not meet the statutory criteria – tribunal erred in failing to deal with conflicts in the evidence between the official medical report and other available medical evidence, and the evidence of the claimant, regarding his sensorineural symptoms, which are relevant to PDA11.