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Summary

The claimant was a Polish national who came to the UK in 2008 and worked for over a year before becoming unemployed. She was refused HB on the basis that her only right to reside being a ‘jobseeker’ – ie, that she did not, for example, have a right to reside on the basis of retained worker status. The First-tier Tribunal held that she did have a right to reside on a retained worker basis for a period of time (in a period when seeking work and entitled to jobseeker’s allowance), but that period was limited to six months. This was because (under a rule often referred to as the ‘genuine prospect of work’ test) she was required to have a ‘genuine prospect’ of being engaged in work (with a need for ‘compelling evidence’ of that after six months), and that requirement was not satisfied.

Judge Wright allowed the claimant’s further appeal and substituted a decision that she was entitled to HB. That was because she had a right to reside on the basis of retained worker status. The tribunal had erred in applying the ‘genuine prospect of being engaged’ test to her, even though the domestic (UK) regulations provided for that. In those regulations, the requirement for there to be, regarding someone who has worked for over a year, a ‘genuine chance of being engaged’ in work (and the need for ‘compelling evidence’ of that after six months), as in regulation 6(2)(b)(ii) and (7) of the Immigration (European Economic Area) Regulations 2006, was unlawful. That was because it was contrary to European Union (EU) law, namely Article 7(3)(b) of Directive 2004/38/EC, which sets out when someone who has worked for over a year has a right to reside, and makes no provision for (at any time) a test of a ‘genuine chance of being engaged’ in work. It does require that person be in ‘duly recorded involuntary unemployment’ and has ‘registered as a jobseeker with the relevant employment office’, but makes no further requirement than that.

The judge did not doubt that a test after six months of seeking employment of having a ‘genuine chance of being engaged’ was legitimate in its application to right to reside merely as a ‘jobseeker’ – ie, those who had not previously worked (referred to by the judge as ‘pure workseekers’). The language of such a test was coined in R v Immigration Appeal ex parte Antonissen (Case C-292/89) [1991] ECR I-00745. But that was about ‘pure workseekers’ and was ‘not an authority in respect of those who have moved to and worked in a member state for over a year who then become involuntarily unemployed’ (paragraphs 55–57). The judge could find nothing in other relevant authorities ‘which provides a general rule of EU law that means satisfaction of Article 7(3)(b) requires that the person must have a genuine chance of being engaged in employment’. The tribunal therefore erred in applying the test provided for in regulation 6(2)(b)(ii) and (7) of the regulations (paragraphs 65–67).

Comment from CPAG

In effect, this decision (not limited to HB) holds that the so-called ‘genuine prospect of work’ test, or ‘GPOW’, is unlawful in so far as it is applied at any point to claimants now unemployed but who previously had worked for more than a year. It will apply regarding the identical wording used in regulation 6 of the current (2016) version of the Immigration (European Economic Area) Regulations. By parity of reasoning, and in the light of the Court of Justice of the European Union decision (regarding the treatment of self-employed claimants) in Gusa, C-442/16, it should also apply to claimants who had been self-employed for a year or more before claiming as unemployed. However, the decision is not authority that the genuine prospect of work test is unlawful regarding the right to reside merely as a jobseeker.

Summary

The claimant suffered from several medical conditions, including gynaecological problems and difficulties with bowel movements. She had been refused employment and support allowance (ESA) on a repeat claim (having already had a previous award terminated). Following an unsuccessful mandatory reconsideration, she appealed. She said that she found discussing her medical issues very distressing/embarrassing, and requested an all-female panel, a female clerk and a female presenting officer. That request was refused, and when on the day of the hearing the claimant did not turn up, the tribunal decided to proceed in her absence, and dismissed the appeal.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred by proceeding in the claimant’s absence when, due to the absence of the self-assessment questionnaire (ESA50) from the appeal papers, the tribunal had very little idea of what the claimant’s case was. Fairness required that she should have been alerted to that and given the chance to attend a hearing.

Strictly speaking, that meant the judge did not have to decide on whether the tribunal was wrong to proceed without agreeing to the claimant’s request regarding (among other things) an all-female panel. However (having noted the observation that the First-tier Tribunal rules do not give parties the right on demand to an all-female panel or even a single member of the same sex), he agreed that ‘the decisions in CIB/2620/2000 and CIB/2811/2008 are plainly authority for the proposition that, even in the absence of a request for at least one member of the panel to be of the same gender as the claimant, “a tribunal will nevertheless be under a duty to raise the matter of its own motion if there is a genuine reason to believe that in the circumstances of the particular case the absence of such a member may lead to injustice”’ (paragraph 20). There may be ‘exceptional cases’ in which fairness required that every member of the tribunal, and the clerk and presenting officer, be female as well (paragraph 21). In practice, such cases were likely to involve either appeals involving ‘sensitive and uniquely female’ medical conditions, or ‘cultural issues about the giving of evidence’. The common thread was the need, under rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, to apply the overriding objective of dealing with cases fairly and justly (paragraph 23).

Comment from CPAG

Although strictly obiter (not formally binding), the judge’s observations on when a tribunal should consider an all-female panel are likely to be persuasive authority. They may also be applied, in relevant cases, to contemplation of an all-male panel.

Summary

The claimant had brain injury that led to problems with anosognosia (ie, lack of insight into the condition with which he presented), confabulation (false memory), fatigue and a need for support to convey and understand information. Having been refused personal independence payment, the First-tier Tribunal awarded him the standard rate of the mobility component, but not the daily living component. His grounds of appeal to the Upper Tribunal included that the tribunal had failed to take into account the level of support from to him by his representative, his lack of awareness and insight and his confabulation, all of which had been put to the tribunal by his representative, who had been present at the hearing.

Judge Ward set the decision aside and referred the case to a fresh tribunal. The tribunal had erred by failing to consider whether the claimant’s impairments triggered duties under the Practice Direction ‘First-tier and Upper Tribunal – child, vulnerable adults and sensitive witnesses’ or, if it did consider that, to say what it made of it. On the facts, the claimant was a ‘vulnerable adult’ and the tribunal was therefore required to consider how to facilitate the giving of any evidence by him. The judge accepted the Secretary of State’s concession that the tribunal had erred in this way, in particular because the very things that caused the claimant to be a ‘vulnerable adult’ (ie, memory issues and lack of insight) all went ‘to the very heart of giving evidence’ (paragraph 17).

The judge referred to the decision, regarding ‘vulnerable adults’ and the Practice Direction, of Judge Poynter in RT v SSWP (PIP) [2019] UKUT 207 (AAC). There it was observed that in fact a very large proportion of appellants would satisfy the definition of ‘vulnerable adult’, but that normal tribunal procedure would often adequately facilitate the giving of evidence. However, in those cases where special arrangements had or arguably should have been put in place, the tribunal’s statement of reasons must address that. In the present case, it seemed that the claimant’s representative had given evidence to the tribunal about the claimant’s problems in giving his own evidence, but this had not been recorded or addressed. The judge observed that one ‘learning point’ here was that, in cases such as this, representatives should tick the box on the appeal enquiry form that the appellant has ‘special needs’. A second ‘learning point’ (and one that may be relevant ‘to other not for profit organisations who provide some form of personal support for their service users’) is that it should be clear at the outset where a representative is also looking to give evidence, and not merely to provide submissions on evidence that was otherwise before the tribunal (paragraphs 18–19).

Comment from CPAG

This is an example of a case where, on the facts, the ‘vulnerable adult’ status of the appellant should have led the tribunal at least to consider whether to adjust normal procedures in the taking of evidence – ie, so as to take evidence from the appellant’s representative. Representatives are also reminded that giving evidence is a distinct role from representing, and the wish to give evidence should be stated plainly to the tribunal.

Summary

The claimant accepted a claimant commitment which included that she would apply for vacancies she was told to apply for by her work coach. The work coach identified with the claimant that she should apply for the position of a part-time coffee assistant/barista in a coffee shop. The claimant did not apply for the post. On appeal against the subsequent high level sanction, she argued that she had ‘good reason’ for not applying, as the company’s website said that it expected its employees to have a ‘passion for coffee’, and as she did not have such a passion, any application from her would surely be ‘pointless’. The First-tier Tribunal rejected her appeal.

Judge Mitchell rejected the claimant’s further appeal on this point. Although the First-tier Tribunal had erred in failing to give adequate reasons. But that was not material in this case, as on the facts no reasonable tribunal could have found that the claimant had good reason for failing to apply for the vacancy because she had formed the view that, lacking a passion for coffee, any application would be pointless (paragraph 59). Parliament had enacted (in this case, at section 26 of the Welfare Reform Act 2012) a ‘good reason’ provision without providing a definition or any express guidance about its express meaning (paragraph 58). Evaluation of whether a claimant had good reason to apply for a vacancy s/he had been directed to apply for, said the judge, is always likely to include the claimant’s dealings with her/his work coach. The claimant ‘may have had a stronger case’ if she had asked her work coach to reconsider the direction to apply for the job before herself deciding not to do so (paragraph 60).

Further, said the judge, ‘a claimant’s belief that it would be pointless to apply for a particular vacancy, being a vacancy that she had previously agreed to apply for following discussions with a work coach, cannot in my judgement amount to a good reason for failure to apply where that belief is arrived at without any subsequent consultation with the official for the time being charged with assisting the claimant to obtain work (ie, the work coach)… in general, it would not be consistent with parliament’s purpose if, following a work coach interview at which a claimant raised no concerns about the appropriateness of a vacancy, the claimant could, without fear of sanction, subsequently decide for themselves would be pointless.’ (paragraph 61).

Comment from CPAG

It remains possible that a claimant’s view of the appropriateness of a job s/he has been directed to apply for could be relevant to whether s/he has good reason for failing to apply for it. But prior discussion of such concerns with the work coach will usually be very important to this. The individual facts will be crucial. Although not commented on specifically by the judge, lack of ‘passion’ for a job may very well be a difficult basis for a ‘good reason’ argument in any such case.

Summary

The claimant worked as a self-employed gardener. There was some seasonal variation in that work (due to gardening work being scarcer in the winter). It was decided that the minimum income floor applied to him, and that as a result of the income from that he was not entitled to UC. The First-tier Tribunal rejected the claimant’s appeal. He appealed arguing, in effect, that the minimum income floor could not be applied to him as a seasonal worker, and that the application of it to him resulted in unfairness.

Judge Hemingway dismissed the claimant’s appeal. The minimum income floor was provided for at regulation 62 of the Universal Credit Regulations 2013, SI No.376. The legislation made no reference to seasonal work. Rather, in the UC context, the question was whether the claimant was ‘in gainful self-employment’, as defined at regulation 64. That also made no reference to seasonal work, and the only aspect of it that might be relevant to that is the requirement that the work is ‘regular’. Without having taken full argument on the point, the judge considered that it would be to go too far to conclude that in this context ‘regular’ meant work performed at a constant or almost constant frequency. Rather, the word would be ‘entirely appropriate to describe a business which conformed to a standard pattern even if that pattern had predictable or relatively predictable variations’ (paragraph 19). It was therefore open to the tribunal in this case to find, as it did, that the requirement for regularity was satisfied.

Regarding whether the minimum income floor was lawful in a wider sense, the judge was referred to the decision of the High Court in R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) (Bulletin 273, p9), in which it was held that the rule was not in breach of human rights or Equality Act provisions. Although the Upper Tribunal was free to depart from a High Court judgment if satisfied that it is wrong, Judge Hemingway was not so satisfied and in fact agreed with its reasoning and followed it (paragraph 20).

Comment from CPAG

The judge indicated that he agreed with the tribunal that the legislation did not define a decision to apply the minimum income floor as one which itself carried a right of appeal. The implication is that disputes about application of the minimum income floor should be made against the resulting outcome decision on entitlement.

Decision in brief

Not necessary for a tenant with a leasehold interest in only part of the dwelling (25 per cent, 50 per cent, 75 per cent or otherwise) to be obliged to pay rent on the remainder in order to count as a shared ownership tenancy (claimant was obliged to pay service charges) – gloss put on the meaning of shared ownership tenancy in Blackburn with Darwen Borough Council v DA (HB) [2014] UKUT 431, to effect that it is required that the tenant must be obliged to pay rent, was not correct.

Decision in brief

Protective essays have no place in any statement of reasons – do not always automatically result in a material error of law, but statements containing such essays are ‘often so manifestly inadequate that the underlying decision is doomed’ from the moment it is challenged – protective essays are an invitation to appellate judges to scrutinise the statement in greater depth.

Decision in brief

Young child with developmental delay and hypermobility – needed attention with his communication skills when parents were trying to settle him back to sleep, as much more difficult to understand what was troubling the child – tribunal wrongly focused on the bodily function of sleeping (rather than with communication) and in requiring that attention in soothing a child back to sleep had to be ‘caused’ by a disability, rather than (as per CSDLA/567/2005) ‘linked’ to a disability.

Decision in brief

Claimant turned up late but tribunal had already heard the case and decided in her absence – whether tribunal should have telephoned the appellant to ask why she was not present – PS v SSWP (ESA) [2017] UKUT 55 (AAC) correctly held that there was no requirement in law to telephone – but in present case, the appellant had a previous history of attending, the tribunal had her mobile phone number and the appeal was listed for a full day with presenting officers present, concerning overpayments of over £20,000 – on the facts tribunal were under a duty to attempt to contact claimant before proceeding in her absence.

Decision in brief

Claimant with cystic fibrosis with associated depression and fatigue – lack of experience, training or inclination to cook is not sufficient regarding Activity 1, but limitation on ability to prepare and cook food caused by fatigue is relevant – prompting to eat enough or eat sufficiently frequently can be relevant for Activity 2 – depression and fatigue can be relevant in relation to Activity 3; also if the nature of the therapy/monitoring of the health condition is itself one which calls for assistance, that can be relevant as arising from the physical or mental condition even without depression or fatigue.

Summary

This decision of the Scottish Court of Session dismisses as incompetent the appeal of the Secretary of State against that in the Upper Tribunal of Judge Sir Crispin Agnew of Lochnaw Bt QC in SSWP v YB [2014] UKUT 80 (AAC) (Bulletin 239, p11). As a result, the Court did not consider any substantive issue of law, and the decision in SSWP v YB stands.

The Secretary of State's appeal was dismissed as 'incompetent' as the Court considered it was not made 'on a point of law arising from a decision made by the Upper Tribunal', as required by section 13 of the Tribunal, Courts and Enforcement Act 2007, and therefore there was no jurisdiction to consider the appeal. The Secretary of State was seeking to challenge the conclusion in YB that regulation 12(1 A) of the Social Security (Disability Living Allowance) Regulations 1991 No.2890 was ultra vires (as discriminatory and incapable of objective and reasonable justification, in not providing for an outdoors test of visual acuity regarding the high rate of the mobility component). But, held the Court, Judge Agnew had decided the appeal applying regulation 12(1 A), and his views on the vi res of the regulation 'formed no part of the reasoning which led him to that decision'. The Secretary of State's appeal therefore did not 'arise' from the 'decision' (paragraph 47).

Comment from CPAG

This decision leaves the decision in SSWP v YB intact. That decision itself left regulation 12(1 A) intact, albeit that Judge Agnew clearly felt that the 'Snellen scale' applied by the regulation discriminated against those whose visual impairment was outdoors rather than indoors. The Court of Session was told that if the Secretary of State's appeal was not permitted to go forward then 'he will feel bound by the Upper Tribunal Judge's expression of view as to the vires of the regulation.' The Court commented that 'how the appellant chooses to act is a matter for him.' In subsequent guidance (Memo DMG 28/15), the DWP has decided simply to continue to apply regulation 12(1 A) without amendment.

Summary

In this judicial review decision, the applications for judicial review were made by carers getting carer's allowance (CA) for looking after disabled grandparents (in one of the claims, the disabled grandmother was also an applicant). The carers were also claiming housing benefit. Under the relevant rules (regulations 75G and 75F of the Housing Benefit Regulations 2006 No.213) neither CA as a benefit nor carers looking after a family member other than a partner or dependant child are exempted from the cap. One of the carers was a single parent who, as a result of the cap being applied, fell into arrears and was evicted, and was now living in a single room with her four children. The other carer had very poor health himself, including mental health problems.

The main argument made by the claimants was that the benefit cap unlawfully discriminated against both the carers and the disabled grandparents, and was therefore in breach of Article 14 of the European Convention on Human Rights (ECHR), read together with Article 1 of Protocol 1 (right to possessions) and Article 8 (right to private and family life). In the High-Court, Mr Justice Collins noted that it was accepted that Article 1 of Protocol 1 was engaged (paragraph 43). He further held that although it was disputed by the Secretary of State that Article 8 applied, that did not matter to the carers since Article 1 of Protocol 1 applied to them, and Article 8 certainly applied to the disabled grandparent, as 'it is clear that many disabled persons would choose to have their needs, particularly where intimate care is concerned, dealt with by family members or relatives whom they can trust. .. the desire for care to be administered by a particular family member or relation will almost always be likely to fall within Article 8' (paragraph 46).

The judge then considered whether there was indeed a breach of Article 14. The test was whether the claimant was treated differently, and whether the difference in treatment was then unlawful as having 'no objective and reasonable justification'., a test which in the context of benefits had been formulated as whether the difference was 'manifestly without reasonable foundation' (paragraphs 58 and 68). The judge considered in the present cases that even though the claimants were carers, it was right to consider if there was discrimination against the disabled because, as a result of the cap, 'a significant number of those who are at present care for in what can broadly be called a family context are unable to have that care continue'. There was, therefore, adverse treatment where a family carer was not exempt as 'although care can be provided by others, the loss of the trusted carer can be devastating' (paragraph 63). The judge held that, although the benefit cap policy had a legitimate aim (paragraph 65), this discrimination was not justified as the 'manifestly without reasonable foundation' test was not met (paragraph 71 ). The material placed before parliament when introducing the cap did not raise the effect on the disabled of loss of family carers, and so the discriminatory effect had not been considered (paragraph 66-69). The judge held that 'the failure to exempt at least individual family carers is not lawful because it amounts to indirect discrimination which is not objectively justifiable' (paragraph 74).

Comment from CPAG

The decision has not been appealed. As such, it is binding on decision makers and tribunals. The court did not actually quash the regulations, but arguably continued application of the cap unamended is wrong. The government has indeed promised amendments to the Welfare Reform and Pensions Bill to exempt all recipients of CA from the cap in the future; but that still leaves the question of protection for those current recipients affected by this decision.