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Decision in brief

Claimant’s MP had written to the tribunal on his behalf requesting clarification – that was legitimately considered a request for a review and in turn treated as an application for permission to appeal (under rule 41 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) – decision was legitimately set aside as internally incoherent – second First-tier Tribunal was able to correct that incoherence.

Decision in brief

Journeys considered are not necessarily local (SSWP v IV (PIP) [2016] UKUT 420 (AAC) approved) – what is required is a ‘general overall assessment’ which does not focus unduly on the length, be it long or short.

Decision in brief

Tribunal wrong to hold refuse points on basis claimant could avoid the problem by adapting the food she eats – implies consuming liquid or mashed food only – definition of ‘take nutrition’ includes reference to cutting food into pieces and chewing and swallowing – indicates expectation of ability to eat solid food – even if food is blended or mashed, that would require use of an aid to do that – also must consider whether activity can be carried out ‘to an acceptable standard’ with reference to claimant’s pain and discomfort.

Decision in brief

Co-ordination rule at Article 67 of Regulation EC 883/04 provides that child (as a family member) is treated as if residing in UK – but does not provide that domestic CTC rule that child is ‘normally living with’ the claimant is satisfied – claimant not entitled to CTC for the child

Decision in brief

Activity can take different forms (SSWP v MM [2019] UKSC 34) – does not include difficulty interacting with a crown (AM v SSWP [2017] UKUT 7) – implies engaging with people you do not know (HJ v SSWP [2016] UKUT 487) – if a claimant limits her/his engagement with others substantially to avoid the risk of substantial harm, it may mean s/he cannot engage socially (SSWP v AM [2015] UKUT 215) – must be able to engage safely and to an acceptable standard (SSWP v AM [2015] UKUT 215 and AB v SSWP [2017] UKUT 217).

Decision in brief

Child with autism needing attention for more than one and a half hours per day – tribunal needed to explain why it did not consider attention for that amount of time was not for a ‘significant portion of the day’ given findings in CDLA/58/1993 and Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32; R(DLA) 2/03 that attention for an hour would reasonably be regarded as a significant portion of the day.

Decision in brief

Article 17 of Directive EC 2004/38/EC – what was said by the Supreme Court in Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31 regarding Article 17(1)(a) and the need for factual residence rather than lawful residence also applies to Article 17(1)(b).

Decision in brief

Claimant was entitled to export her child benefit to Spain, as Article 7 provides for export of cash benefits unless otherwise prevented by the regulation, and no such exception applies to family benefits including child benefit – no evidence that the claimant had applied for, or been awarded, Spanish equivalent to child benefit, so overlapping provisions in Article 68 did not apply.

Summary

The claimant moved out of the matrimonial home, with her three children, in 2012. Her husband remained in the property. The claimant claimed HB in 2012 and 2014. The local authority maintained that she did not declare her interest in the property until 2016, by which time she was going through a divorce. The local authority decided that she had not been entitled to HB as a result of the 2014 claim and raised an overpayment for the 2012 to 2016 period. The claimant appealed, arguing that she had declared her interest in the property and that the overpayment was not recoverable from her. The First-tier Tribunal allowed her appeal, but on the basis that the former home had been occupied by a former partner from whom the claimant was not ‘estranged’, and therefore fell to be disregarded as her capital – ie, and so she had not in fact been overpaid.

Judge Sutherland Williams allowed the further appeal of the local authority and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the meaning of whether the claimant was ‘estranged’, and had wrongly found that her interest in the former matrimonial home was to be disregarded as her capital, under paragraph 4 of Schedule 6 to the Housing Benefit Regulations 2006, No.213. As a result, the ‘central factual issue’ of whether the overpayment was recoverable from her had been left unresolved and would need to be dealt with by the new tribunal. The tribunal was to proceed on the basis that the claimant was estranged from her former partner at all relevant times (paragraphs 40–46).

The judge held that the claimant was not entitled to have the value of her interest in the matrimonial home disregarded under paragraph 4(b). That was because, contrary to the tribunal’s finding, she was ‘estranged’ from her former partner. Paragraph 4(b) applies in cases where the home is lived in by someone regarded as a former partner because (for example) the couple are no longer members of the same household, but not where they are estranged, divorced or where their civil partnership has been dissolved. The tribunal found that the claimant and her former partner had remained in contact ‘purposefully and effectively’ regarding things like childcare, maintenance and money matters and concluded that they were not estranged. But that was wrong. In the context of Schedule 6, held the judge, estrangement ‘implies that the reason the two people concerned are no longer living together as a couple in the same household is that the previous relationship between them has ended… the test is not limited to whether they continue to remain friendly relations or remain on good terms with one another’ (paragraph 9). That approach was founded in previous caselaw authority, in particular R(IS) 5/05 in which it was held that the question was whether the parties had ceased to consider themselves to be a couple. Drawing on that, Judge Sutherland Williams said that an estranged couple ‘may operate on a functional, non-acrimonious level, but this cannot be considered to constitute a continuation of the previous or marital relationship’ (paragraph 34).

Comment from CPAG

This decision contains a considered review of previous authority, including (in addition to R(IS) 5/05) the decisions in CPC/683/2007, CH/117/2005 and CH/3777/2007, and will be a key authority on the approach to ‘estrangement’ in the context of Schedule 6. The claimant in this case is still able to argue her original point (ie, that the overpayment is not recoverable from her) at the new First-tier Tribunal.

Summary

The claimant was awarded IS on the basis that she was a lone parent. However, it was later decided that she was living together as a married couple (and so not entitled to IS) with someone she had represented as her ex- partner. The First-tier Tribunal dismissed her appeal. Her appeal to the Upper Tribunal involved arguments that the tribunal had failed properly to apply the correct legal test, by failing to make adequate findings of fact about relevant factors and failing to deal with the emotional aspect of the relationship.

Deputy Judge Najib dismissed the claimant’s appeal. The tribunal had correctly applied the legal test and given adequate reasons for its decision. The judge did not dispute that the correct starting point for deciding whether an unmarried couple was ‘living together as a married couple’ (ie, what is sometimes referred to as cohabiting) was set out in Crake v Supplementary Benefits Commission; Butterworth v Supplementary Benefits Commission [1982] 1 All ER 498. The six factors of shared household, stability, financial support, sexual relationship, children and public acknowledgement were, as described there, ‘admirable signposts’ to help in deciding the question. Deputy Judge Najib also endorsed the need to address the emotional aspect of the relationship, as emphasised by Judge Jacobs in PP v Basildon District Council (HB) [2013] UKUT 505 (AAC).

But the tribunal had applied that authority and reflected that in the reasons for its decision. The deputy judge accepted the Secretary of State’s argument that, in the light of comments by the Scottish Court of Session in DK v Secretary of State for Work and Pensions [2016] CSIH 84, the decision was to be reached in the round. No single fact or ‘signpost’, as in Crake, was decisive, and the question was not whether a particular ‘signpost’ was or was not established but whether on all the evidence the primary question of whether two people were ‘living as a married couple’ was established (paragraph 23). It was not necessary for a tribunal to ‘give long and precise’ accounts of its reasoning regarding each of the individual ‘signposts’, and in fact there was ‘no requirement in every case for there to be a “finding” on each signpost’, as long as the tribunal had taken all the evidence into account and answered the primary question, namely whether the claimant was living with someone as a married couple. The tribunal had given a summary of the reasons why each ‘signpost’ was met, and the deputy judge was also satisfied the tribunal had given adequate consideration to the emotional aspects of the relationship (paragraphs 25–27).

Comment from CPAG

This decision is not authority that the ‘signposts’ in Crake and the ‘emotional aspect’ in PP are not at the core of the correct legal test for deciding cohabitation. Rather, it holds that a tribunal is not required to give detailed reasons about each signpost or factor, as long as it has given adequate consideration to them and taken all the relevant evidence into account. (Note that since 2 December the statutory test is whether the two people are living together ‘as a married couple or civil partners’.)

Summary

The claimant lost entitlement to PIP having failed to attend the appointment for his medical. He said that was because he had had an epileptic fit which required an overnight stay in hospital. However, he was held not to have had good reason for not attending by both the decision maker and the First-tier Tribunal. The tribunal made reference to the fact that the claimant had not given a reason for saying he could not attend an earlier medical, and had not provided, as he had promised, medical evidence about the overnight stay in hospital.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that he did have good reason for failing to attend the medical. The tribunal had erred in not having sight of the official letter notifying the claimant regarding the medical. It was not enough that the claimant was aware of the appointment and had received the letter. As a general rule, held the judge, ‘the letter should be produced in order for the FTT to be satisfied that attendance at a consultation was a requirement and that a failure to attend had consequences’ (OM v SSWP (PIP) [2017] UKUT 458 (AAC) and MB v SSWP (PIP) [2018] UKUT 213 (AAC) cited) (paragraph 10). On the facts, the judge considered that although the claimant had not submitted evidence about the hospital stay, there was sufficient evidence about the claimant’s medical condition and disabling effects to show that he had good reason for not attending.

Further, in comments not strictly necessary to the decision (and so formally obiter and not binding), the judge considered whether the wording of the Atos letter which had advised the claimant of the appointment for the medical imposed clearly and unambiguously a legal requirement to attend. He had reference to existing authority on the necessity for a clear and unambiguous instruction to impose a legal requirement on a claimant (including Remilien v Secretary of State for Social Security [1998] 1 All ER 129, reported as R(IS) 13/98, and Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07). The letter sent by Atos said that ‘it was important’ that the claimant attended, and that failure to attend without good reason was likely to result in a disallowance. The judge onsidered that the plain failure to meet the test set out in existing authority was not remedied by reference to the likely consequences of not undertaking a particular course of action (paragraphs 24, 34–38).

Comment from CPAG

This decision is a clear reminder to tribunals of the need for them to have sight of a letter imposing a mandatory appointment. Although the comments on the particular wording of Atos letter concerned in this case are, strictly speaking, obiter, the need for clear and unambiguous wording is well established and is also binding.