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Summary

This decision of the Supreme Court is about the ability of a tribunal (or public authority or court) to correct a decision that is held to be in violation of the claimant’s human rights. Reversing the effect of a decision of the Court of Appeal in a separate but closely related case, the court held that (subject to an exception regarding primary legislation) a public authority, court or tribunal must not act in a way that is incompatible with the claimant’s human rights, and so must remedy the breach of those rights.

The claimant lived with his severely disabled partner in a two-bedroom rented social housing property. Because of her disability he was unable to share the bedroom. However, in 2013 his local authority applied the ‘bedroom tax’ in respect of the allegedly spare second bedroom, as then provided for in regulation B13 of the Housing Benefit Regulations 2006. The First-tier Tribunal found that was to unlawfully discriminate against him as a member of a couple with a disability (and so breach his human rights), and disapplied the bedroom tax. The Secretary of State’s further appeal to the Upper Tribunal was allowed, as by then the Court of Appeal had held that tribunals were not able to remedy human rights act breaches (Secretary of State for Work and Pensions v Carmichael and another [2018] EWCA Civ 548). The claimant’s further appeal was then ‘leapfrogged’ to the Supreme Court, where it became the subject of the present decision.

The court unanimously held that the decision maker and tribunals were in fact required, under section 6(1) of the Human Rights Act 1998 (‘HRA’) to remedy the breach of the claimant’s human rights, so as to disapply the bedroom tax. Giving the lead decision, Lady Hale said: ‘there is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where that is necessary to comply with the HRA’ (paragraph 27). The only exception was where the incompatibility was something required by primary legislation (ie, an Act of Parliament, not as here, secondary or ‘subordinate’ legislation in the form of a housing benefit regulation that was not implementing something required by an Act). If there was a bar on remedying breaches imposed solely by secondary legislation, ‘the HRA would have said so’ (paragraph 29).

Summary

On the morning of the claimant’s medical regarding her ESA, her husband telephoned to report that she had fallen and was going to hospital. In the event the claimant did not consider it necessary to go to hospital, but later wrote that she was always having falls and sent some photographs of her injuries. The decision maker did not consider that the claimant had good cause for failing to attend the medical, and referred to a ‘pattern of avoidance’ as the claimant had missed five previous medicals for various reasons. The First-tier Tribunal dismissed the claimant’s appeal, giving a number of reasons including by making reference to the previously missed appointments. That showed, said the tribunal, that the claimant must have known the importance of attending and of having a good reason for not doing so.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal erred by giving inadequate reasons. That was partly because the reasons included things like saying that the decision maker was entitled to expect some medical evidence – the absence of such evidence did not mean that the fall was not significant. The tribunal had also erred by misusing the evidence of previously missed appointments. The tribunal judge was right to say that that was relevant but not decisive to the question of good cause. It was not wrong to say that the history was evidence of the claimant’s knowledge of the importance of attending and showing good cause. But that was not a sufficiently comprehensive treatment. In particular, it did not show the judge had considered whether the history supported the claimant’s explanation on this occasion. There was reference to the reasons for not attending on two of the previous occasions, but not all of them, and neither did the judge consider what was known of the claimant’s disabilities and whether that might support the reasons she gave (paragraphs 19–20).

More widely, in principle the significance of previously missed appointments ‘will depend on the circumstances of the case’ (paragraph 15). The explanation and evidence provided by the claimant will always be relevant. Previously missed appointments may also be relevant. For example, a claimant whose explanations refer to the same condition will not be under suspicion if there are repeated failures to attend due to agoraphobia. Similarly, variations in ability to attend from a claimant with a variable condition such as chronic fatigue syndrome will not in itself be a cause for suspicion (paragraph 16). A claimant who gives different reasons for not attending on successive occasions might (depending on the facts) have a lengthy history of failure to attend with what now seem to be dubious reasons, but could still have been delayed by bad weather or have had a domestic emergency. In short, ‘it all depends, which means that tribunals need to take care in their reasoning‘ to show whether they took account of previous failures and to show how they did so, taking account of points both for and against the claimant (paragraphs 17–18).

Comment from CPAG

See also the decision in SA v SSWP (ESA) [2019] UKUT 118 (AAC) in which there was also a history of failure to attend medicals.

Summary

The claimant was refused PIP after failing, without good reason, to attend her medical. Following mandatory reconsideration, she appealed. Before the appeal was heard, a new medical was arranged as the DWP now accepted she had good reason for not attending (she was ‘put back on the PIP journey’, to use the DWP language). However, although a medical report was prepared indicating that the claimant would score nil points, no formal decision on entitlement was made. When the First-tier Tribunal considered the claimant’s appeal, it took into account the medical report and decided that she was not entitled to PIP.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to make adequate findings of fact and in giving inadequate reasons for its decision. There was no error in the tribunal proceeding, as no actual new decision had been taken on the claimant’s entitlement after the rearranged medical, and so the appeal had not lapsed (AI v SSWP (PIP) [2019] UKUT 103 (AAC) (also by Judge Wikeley)). The tribunal had not erred in taking the medical report (ie, from the rearranged medical) into account. Although a tribunal was barred from taking into account changes of circumstance after the date of the decision under appeal, evidence produced at a later date could still shed light on how matters stood at an earlier date, and on the facts of the present case, the tribunal ‘was probably entitled’ to take the view that the claimant’s condition was ‘probably little different’ between the date of the decision and the date of the medical (paragraph 13).

The judge considered that ‘in the great majority of cases’ where the Upper Tribunal finds that a tribunal erred in a case like this, the correct approach will be to remit the case to a fresh tribunal, rather than remit to the Secretary of State for a decision. Although it was true that at no stage in this case had a decision maker actually made a decision as to which PIP descriptors applied, the extreme delay that had already occurred, the fact that the Secretary of State had had ample time to make such a decision after the rearranged medical, and that the First-tier Tribunal was ‘better placed’ than the decision maker to make a fair decision all supported remission to a fresh tribunal (paragraphs 18–22).

Comment from CPAG

The fact that (despite the issuing of the medical report) there was still no formal new decision on entitlement after the rearranged medical was crucial to the appeal not lapsing and the First-tier Tribunal retaining jurisdiction. In similar cases, given that any such history will have involved considerable delay, the judge’s recommendation, in the event of the tribunal erring in law, of remittal to a new tribunal rather than to a decision maker is likely to apply.

Summary

The claimant was refused entitlement to the mobility component of PIP. This was because the claimant considered that he could mobilise so as to be able to plan and follow the route of a journey using his car. The tribunal did not consider how the claimant might fare if seeking to follow the route of a journey on foot or using public transport.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred firstly in failing to address the medical evidence before it, including a letter from the claimant’s GP, suggesting the claimant’s ability to drive was impaired more than it considered was the case, resulting in a failure to adequately explain its findings (paragraph 8). Further, in comments strictly obiter (not essential to the decision), the judge considered that rather than an exclusive focus on the ability to mobilise in a car, what was required was ‘an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative’ (paragraph 10). The judge agreed with the Secretary of State’s representative that tribunals should not limit themselves to considering, solely, an ability to follow the route of a journey using a car.

The judge did not agree that a failure to consider a claimant’s ability to use public transport ‘of itself’ amounts to an error of law. That was because the guidance in the official PIP assessment guide that a person should only be considered to follow an unfamiliar journey if s/he could use public transport was merely guidance, not the law (paragraph 10). However, the judge went on to say that an overall and holistic assessment was required, and also repeated that the tribunal should also have considered the possibility that even if a car could be used, parts of the journey might still have to be undertaken on foot, as held in JB v SSWP (PIP) [2019] UKUT 203 (AAC) (another decision of Judge Hemingway).

Comment from CPAG

Although strictly obiter, the recommendation of an ‘overall and holistic assessment’ of the ability to plan and follow the route of a journey would seem very difficult to depart from. Clearly, the judge considers that the crucial importance given to the ability to use public transport by the PIP assessment guide is an overstatement (a point he also made in JB v SSWP); but a tribunal that fails to consider public transport as part of the ‘overall and holistic assessment’ would surely be erring by given it too little importance. See also the article on p6 of Bulletin 273.

Summary

The claimant was awarded the standard rate of the daily living component of PIP, but not the mobility component. When the case reached the First-tier Tribunal, it increased the award of the daily living component to the enhanced rate but refused to make an award of the mobility component. In the course of the appeal, it emerged that the official medical report (prepared by Capita) had been subject to an audit and had been altered (actually, to the claimant’s advantage, by increasing the points score for daily living). The tribunal refused to adjourn to get further details of the audit and the change.

Chief Commissioner Mullan held that the tribunal had erred in law and remitted the case to a fresh tribunal. The tribunal had erred in failing to put its observations of the claimant’s walking ability to her for comment, and so breaching the rules of natural justice. The tribunal had also erred in failing to adjourn as it refused the request on the basis that it was an attempt to ‘ambush’ the Department at the hearing, when in fact the issue of the audit of the report had been raised by the claimant’s representative well in advance of the hearing.

Although the Chief Commissioner was not strictly required to consider the substantive ground (ie, that the tribunal had erred in not having investigated the changes made to the medical report), he thought it right to issue guidance for future cases. That included the following (paragraph 64): the Department is ‘under a duty to co-operate with the tribunal’ and must also ensure an ‘equality of arms’ between the Department and the claimant; where an appeal raises a challenge to the validity of the official medical report involving an assertion that the report has been subject to audit and/or amendment, ‘there will usually be a requirement on the appeal tribunal to adjourn to investigate the matter further’; this was an issue of ‘fairness to the appellant’, and to that it extent it may not matter that the disclosure may not make a difference to the outcome. Applying that to the present case, the tribunal had also erred in failing to make further enquiries about the possible amendment to the report.

Comment from CPAG

This is a decision of the Northern Ireland Commissioners, and as such is not strictly binding in Great Britain. However, it draws on authority from the Upper Tribunal (in particular, CDLA/4127/2003, PF v SSWP (ESA) [2013] UKUT 634 (AAC) and AG v SSWP [2009] UKUT 127 (AAC)) and will be of persuasive authority.

Summary

The claimant was self-employed both as a legal advisor and a motor car dealer (as the judge noted, an ‘unusual combination’). He had been in receipt of both WTC and child tax credit for a number of years but latterly had found it difficult to make a profit from his work. HM Revenue and Customs (HMRC) decided to terminate his entitlement to WTC, on the basis that he did not satisfy the requirement to count as self-employed for the work to be ‘on a commercial basis’ or for the work to be ‘regular and organised’. The First-tier Tribunal rejected his appeal, noting that despite working over 30 hours a week, he was only making a profit of £49 per week, and that overall there was evidence of just seven financial transactions in the year.

Judge Hemingway held that the tribunal had erred in law, although on the facts did not set the decision aside as HMRC had made a final decision on his entitlement under section 18 of the Tax Credits Act 2002 which the claimant had not challenged, but which he now must in order to change it. The tribunal erred partly in saying that the issue before it was to determine if the work was ‘profitable and commercial’, so suggesting that if it was not profitable, it could not be commercial. As was pointed out in JW v HMRC [2019] UKUT 114 (AAC), self-employment did not of itself require profitability. So although profitability might be a relevant factor to consider, ‘it cannot be said that profitability is actually a requirement and it was not strictly speaking correct to say, as this tribunal did, that that was one of the issues it was required to decide with respect to entitlement’ (paragraphs 18–19).

Further, the tribunal erred in concluding that the work was not ‘regular and organised’ because of the limited number of financial transactions which had occurred in the relevant tax year. The judge did not agree with the implication that it ‘necessarily follows that a business is not regular and/or organised simply because there are a limited number of actual financial transactions’. If a business was properly administered and regular in the sense of, for example, regular attempts to obtain business or generate a profit, then that part of the test could be met notwithstanding a limited number of actual transactions (paragraph 19).

Comment from CPAG

This decision expressly approves the finding in JW v HMRC that profitability is not essential for work to count as self-employment in WTC. It further rules out an approach which in effect requires a sufficient number of actual financial transactions for the work to count as ‘regular and organised’. Neither decision holds that profitability and the number of transactions are actually irrelevant.

Decision in brief

Appeal concerned time limit for claiming credits for a parent and possible extension of time for such period as HM Revenue and Customs ‘considers reasonable in the circumstances’ – tribunal erred in merely considering whether the decision was one the decision maker was entitled to make, rather than considering the judgment afresh – authority that nature of a tribunal rehearing requires the tribunal to exercise the judgment afresh.

Decision in brief

Tribunal should only proceed using an unofficial interpreter (such as a family member or friend) with considerable caution – may be rare occasions when proceeding with an unofficial interpreter would be appropriate (ZO v SSWP (IB) [2010] UKUT 143 (AAC) approved).

Decision in brief

Court of Appeal in Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 held that acquisition of a permanent right to reside depends on continuous residence in a qualifying status – contrary finding in OB v SSWP (ESA) [2017] UKUT 255 (AAC) should not be followed – Ojo was not cited to the judge in OB, which is consequently to be regarded as decided per incuriam – ie, wrongly decided as made in ignorance of binding authority).

Decision in brief

First-tier Tribunal has the power to decide on appeal that claimant should have been treated as having limited capability for work (ie, for significant worsening or new medical condition) from date of repeat claim under regulation 30 of the Employment and Support Allowance Regulations 2008 – tribunal not limited to considering only whether claimant does or does not in fact have limited capability for work (ie, if work capability assessment actually satisfied or not) – EI v SSWP (ESA) [2016] UKUT 397 (AAC) wrongly decided on these points.

Decision in brief

Ground for set-aside under rule 37(2) of the Tribunal Procedure Rules potentially made out – set-aside application refused as claimant allegedly then failed to send an accompanying letter from the Home Office – but, in fact, tribunal letter requesting that letter was sent to the wrong address – in these circumstances, the district tribunal judge could not have correctly concluded that the claimant had ignored the request – refusal of set-aside was therefore unlawful.

Decision in brief

Although claimant had indicated that she wished for a decision on the papers, the tribunal had not properly considered why she could not attend a hearing and there was evidence that she had been told by the Tribunals Service that it was better to opt for a decision on the papers without an attempt to enable her attendance at a hearing.