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Decision in brief

Tribunal notice reference to having placed ‘particular reliance’ on the evidence of the appellant was in conflict with the summary of reasons, which showed that in fact the tribunal had rejected that evidence – the phrase ‘particular reliance’ appears in the standard wording of the computer template used by the Social Entitlement Chamber, but is editable and should not be used as general ‘boilerplate’ wording.

Decision in brief

Whether primary carer had a ‘secondary’ or ‘contingent’ right to reside based on the right to reside of the child who was the family member of his father (under Article 7(1)(d) of Directive 2004/38/EC) – no such ‘secondary’ right to reside – no principle in EU caselaw which provides that where a child has a right to reside, the primary carer of that child must also have a right to reside in order to render the child’s right effective – such a principle could not be reconciled with the terms and purposes of the Directive.

Decision in brief

‘Charges in respect of general counselling or of any other support services, whoever provides those services’ as per paragraph 1(f) of Schedule 1 of the Housing Benefit Regulations 2006 – must be applied with a ‘historically-based approach’, so that the deliberate exclusion of such services that previously were eligible because of their connection with the provision of adequate accommodation is adopted.

Decision in brief

Regulation 5(3) of the Immigration (European Economic Area) Regulations 2016 – ‘permanent’ does not mean ‘unchanging’ or ‘lasting for a long time’, but rather that there is not a ‘realistic prospect of a return to work within the foreseeable future’.

Decision in brief

Function of the Upper Tribunal in reasons appeals is to decide whether the [First-tier] tribunal’s decision on the substantial question in issue leaves the informed reader in no real and substantial doubt why it reached the conclusions it did – tribunal in this employment and support allowance case clearly addressed the points and activities put in issue and dealt with the substantial questions in an intelligible way, leaving no real or substantial doubt as to the reasons for the decision and what material considerations were taken into account.

Decision in brief

Section 17(1) of the Social Security Act 1998 on finality of decisions (as explained in CSDLA/237/2003) means that as there cannot be two or more overlapping decisions concerning the same period; the tribunal considering the original appeal is limited to considering the period up to the date of the decision on the fresh claim – decision on the fresh claim must be challenged separately.

Decision in brief

Tribunal did not believe that claimant had been working or incurred and paid for childcare fees – tribunal took the correct approach to credibility and adequately explained its decision – principally relied on what the claimant said in evidence, not on how she appeared when giving it – cited inconsistencies, implausibilities and contradictions – tribunals do need to be aware of cultural issues when evaluating evidence but that is not a guarantee that evidence will be found to be credible – tribunal arranged an all-female tribunal environment to take account of the claimant’s religious sensitivities.

Decision in brief

Claimant who could not hear speech and could only understand a written message if written in Urdu – restriction to Urdu not a sensory impairment and so not relevant to Activity 7 – but tribunal erred in requiring claimant to be impaired in understanding both verbal and non-verbal communication – in order to satisfy a descriptor a claimant needs to be impaired in understanding either spoken or written communication, but does not need to be impaired in both (AT and VC v SSWP (ESA) [2015] UKUT 445 (AAC)).

Decision in brief

Claimant, a Polish national, claimed jobseeker’s allowance (JSA) in March 2009, but by the time the decision on the claim was made, dated 2 May 2009, it had been held in the Upper Tribunal that the extension of the Worker Registration Scheme with effect from 1 May 2009 was unlawful – therefore, by the date of the decision in his case, the law no longer prevented the claimant from having a right to reside for JSA as a jobseeker.

Summary

In this judicial review decision, the High Court held that rules restricting payment of the higher rate of BSP to cases where the claimant had been married to, or the civil partner of, her/his late partner was incompatible with provisions in the European Convention on Human Rights (ECHR).

The claimants were surviving parents with children from a relationship in which the partner had died. The claimants had been ‘cohabiting’ with their partners – ie, were unmarried and were not their civil partners. Under section 30 of the Pensions Act 2014 read with the Bereavement Support Payment Regulations 2017 (SI No.410), the higher rate of BSP, for surviving parents with children, is limited to cases where the claimant had been married to, or the civil partner of, her/his late partner. The claimants were therefore refused entitlement to higher rate BSP. They sought, on judicial review, a declaration of incompatibility of that restriction with Article 14 of the ECHR (prohibition of discrimination).

Mr Justice Holman granted the claimants’ applications, declaring that section 30(4)(a) of the Act, read with section 30(1), is incompatible with Article 14 of the ECHR, read with Article 8 (right to family life), ‘in so far as it empowers the Secretary of State to order by regulations that bereavement support payment be paid at a higher rate in the case of a person who is pregnant or entitled to child benefit, only if they are a spouse or civil partner of the deceased’ (paragraph 66).

Although there were differences between the higher rate of BSP and widowed parent’s allowance, which had already been the subject of a similar declaration (this time by the Supreme Court) in Re: McLaughlin [2018] UKSC 48 (30 August 2018), it was intended to benefit the relevant children, and so could not be distinguished from the reasoning in McLaughlin. Regarding whether the discrimination against the parents could be justified, the test was whether it was ‘manifestly without reasonable foundation’. But there was no more justification for the discrimination here than there was in McLaughlin – ie, where there was none. ‘In my view, said the judge, ‘there is manifestly no reasonable justification whatsoever’ in providing the higher rate BSP to families based on marriage or civil partnership, yet denying it to those based on cohabitation; ‘the impact of the death upon the child or children, and the financial and other needs of the children, are precisely the same’ (paragraph 58).

Comment from CPAG

The Secretary of State’s initial application for leave to appeal was refused; however, she may renew the application directly to the Court of Appeal. That aside, the relevant rule, being in primary legislation, was declared to be incompatible with human rights law, rather than struck down or otherwise remedied. That means that the offending law stands, and (unless the decision is reversed) it is up to the government to provide a remedy. For further information and updates, see the test cases pages of our welfare rights section.

Summary

The claimant was a 46-year-old national of the Philippines. Her mother came to the UK in 1990 (and subsequently became a British citizen) and began to live with a partner who was an Irish national. The mother and her partner were not married to, or civil partners of, each other. The claimant argued, for immigration purposes, that she had a right to reside as the family member of the Irish citizen. That was on the basis that she was his ‘stepdaughter’ and was financially dependent upon him. The claimant relied principally on Article 2(2)(c) of the so-called ‘Citizens Directive’, 2004/38/EC, which provides for the right to reside of ‘direct descendants’ of the European Union (EU) citizen, or of her/his spouse or registered partner, who are either aged under 21 or are dependent on that citizen.

The Court of Appeal unanimously rejected that argument. Giving the lead decision, Lord Justice Peter Jackson held that ‘a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations that give effect to the Citizens Directive’ (paragraph 20).

Drawing on the decision of the Court of Justice of the European Union in SM v Entry Clearance Officer, UK Visa Section (C-129/18) (24 April 2019), the court accepted that on a natural reading of the rules, a person who is not a biological descendant or an adopted child is not a direct descendant. SM placed ‘beyond doubt’ that the words ‘direct descendant’ were to be given their natural meaning. Although that could also include the legal relationship of adoption, it did not include a child (as in the case of the claimant in SM) subject to legal guardianship. Given that, it would be anomalous to consider the claimant, who had ‘no legal relationship of any kind’ with the person she described as her stepfather, a direct descendant of him (paragraph 19). Article 2(2)(c) of the Directive did provide that a person could be a direct descendant of the ‘spouse or partner’ of an EU citizen – ie, so that in cases of marriage or civil partnership of the EU citizen to the claimant’s parent, there could be a ‘family member’ relationship to the EU citizen. But that did not apply on the facts of this case.

Summary

In this decision, the Court of Appeal considered appeals from the Secretary of State against two decisions of the High Court: those in TP and AR v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin) (14 June 2018) (‘TP No.1’), and in TP, AR and SXC v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin) (3 May 2019) (‘TP No.2’).

In TP No.1, the lack of transitional protection for severely disabled claimants who moved house (to a new local authority area) and so had to make a new claim for universal credit (UC), losing their severe disability premiums (SDPs), was held to be unlawful (as unjustified difference in treatment compared to those who did not move house). In TP No.2, rules then in draft form providing for generic fixed-rate ‘transitional SDP amounts’ for severely disabled claimants who naturally migrated to UC were also held to be unlawful (as unjustified difference in treatment compared to those who, later, will get full transitional protection under the managed migration arrangements).

The court unanimously rejected both of the Secretary of State’s appeals, in effect upholding the decisions in TP No.1 and TP No.2. In particular, regarding TP No.1, the court held that Lewis J in the High Court had not erred holding that there was no objective justification for the difference in treatment. The relevant test was whether the difference in treatment was ‘manifestly without reasonable foundation’. The ‘fundamental difficulty’ for the Secretary of State was that she had supplied no evidence to explain the difference in treatment, and indeed it had subsequently emerged that in fact as early as February 2018 (ie, before the hearing in TP No.1), DWP ministers had already decided to legislate to prevent natural migration in cases such as those in TP and AR (paragraphs 115– 129). (The court noted that the failure to inform the High Court of this change was a failure, albeit by omission and in good faith, by the Secretary of State regarding the duty of candour and co-operation in judicial review proceedings (paragraphs 136–141)). Similarly, in TP No.2, Swift J, in the High Court, had not erred, in considering objective justification, in applying the test of whether the difference in treatment was ‘manifestly without reasonable foundation’. On the evidence before him, he had been entitled to hold that the different treatment was not justified, including by rejecting cost as a reason sufficient in itself (paragraphs 154–189).

Comment from CPAG

Re TP No.1, the court did not refer to the fact that the legislation preventing natural migration in cases such as TP and AR (the ‘SDP gateway’) is now to be removed from 27 January 2021. Re TP No.2, the court did not consider (as not considered in the decision under appeal) the legitimacy of the finalised rules on transitional SDP amounts in UC.