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Summary

Ms Mirga is a Polish national who had first come to the UK as a child, and she was aged 19 at the time of her claim for income support on the basis of pregnancy. Previously, she had worked in the UK for several months. Her claim was refused on the basis that she did not have a right to reside. Mr Samin, an Austrian citizen, was not a worker or looking for work by the time he applied for housing assistance under homelessness legislation, and had poor mental health including at a moderately high risk of suicide. His application was refused on the basis that he did not have a right to reside.

It was argued for the claimants that the refusals were unlawful as the domestic regulations under which right to reside was refused (the Immigration (European Economic Area) Regulations 2006 No.1003) infringed their rights under the Treaty, in particular the right under Article 21.1 to move and reside freely within the EU, and the prohibition under Article 18 of discrimination on grounds of nationality. It was also argued that the refusal of a right to reside to the claimants was flawed as it had made no reference to the proportionality of such a refusal, bearing in mind all the circumstances of their cases.

By a unanimous decision, the Supreme Court rejected both arguments and dismissed the appeals. Giving the decision for the Court, Lord Neuberger considered that the rights under Articles 21.1 and 18 only arose where the claimant lawfully resided under EC Directive 2004/38/EC ('the Directive'), which provided for the right to reside rules (paragraphs 43-47). Further, the Court considered that the decisions of the European Court of Justice (ECJ) in Dano and another v Jobcenter Leipzig (Case C-333/13) [2015] 1 WLR 2519 and Jobcentre Berlin Neukoln v Alimanovic (Case C-67 /14) [2016] 2 WLR 208 provided clear guidance that the rights relied on by the claimants only existed where they resided in accordance with the Directive - ie, had a right to reside (paragraphs 48-57).

The Court also dismissed the proportionality argument. In this context, the claimants had referred particularly to the decision of the ECJ in Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080, in which the Court held that before finding that the residence of a claimant placed an unreasonable burden on its social assistance system, it was required to take account of the individual situation of the person concerned. But, in the present decision, the Court considered that Brey could not assist the appellants in the light of the subsequent reasoning of the ECJ in Dano and Alimanovic. Lord Neuberger commented: 'it seems unrealistic to require "an individual examination of each particular case'" (paragraph 69), and that 'where a national of another member state is not a worker, self-employed or a student, and has no, or very limited means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Sam in), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances' (paragraph 69). The claimants' applications represented precisely what the ECJ in Dano had said was the aim of the 2004 Directive to stop, namely 'economically inactive Union citizens using the host member state's welfare system to fund their means of subsistence' (paragraph 71).

Summary

This decision of a three-judge panel of the Upper Tribunal was made to decide the extent of the duties of the First-tier Tribunal in an ESA appeal, where medical reports and previous decisions have not been provided to the tribunal, or where there may be such reports but the tribunal is unaware of them. In so deciding, the Upper Tribunal considered in particular the previous decision of Judge Wright in ST v SSWP (ESA) [2012] UKUT 469 (AAC) (Bulletin 238, p14).

The facts in the present case included that the claimant had been entitled to ESA since 2010, failed the work capability assessment in 2012 and had her appeal against that disallowed by the First-tier Tribunal. Before the Upper Tribunal, it emerged that the claimant had in fact appealed successfully against two previous failures of the work capability assessment, but that information (including the decisions made by the previous tribunals) were not before the tribunal that considered the challenge to the 2012 failure. It was submitted for the claimant that the tribunal had erred in proceeding without the previous decisions, as although the claimant had not specifically requested that, the tenor of her appeal letter and reference to additional medical evidence amounted to a submission that her condition had not changed since she was last awarded ESA and the tribunal was, therefore, obliged to seek the previous decisions.

Judges Mullan, Ward and Lunney held that the tribunal had not erred in law and, therefore, the claimant's further appeal did not succeed. Tribunals are not always under an obligation to have regard to previous medical reports or decisions and, on the facts of the present case, the previous decisions were not relevant. The judges agreed with Judge Wright in ST that the Secretary of State was under an obligation to provide 'relevant' evidence to the tribunal. They also agreed that could include previous medical reports and decisions (paragraphs 72-76). But that concerned the obligations to the tribunal of the Secretary of State; to the extent that ST held that a tribunal that proceeds without such evidence will always have erred in law, the judges disagreed (paragraph 78). The judges said: 'we emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant. .. we can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it' (paragraph 79).

The judges endorsed (paragraph 83) the approach taken by the Northern Ireland Commissioner in JC v Department for Social Development (IB) [2014] AACR 30 [2011] NI Com 177. There it was held that the requirement for the tribunal to consider evidence from previous assessments 'depends entirely on the relevance of the earlier assessments', but also that a tribunal is required to consider such evidence 'where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition' (paragraph 50 (vi) and (vii) of JC, quoted at paragraph 40). Where relevant reports may exist but the tribunal is simply unaware of them, the judges again endorsed the approach in JC that the tribunal should consider whether evidence from the previous adjudication history 'assists in the assessment of the claimant's overall capacity' (paragraph 85, quoting paragraph 52 of JC).

Comment from CPAG

This decision makes clear that, in general, it is for the tribunal to decide if it needs to have regard to previous medical reports or decisions. The Upper Tribunal was given evidence that, in the light of ST, decision makers making submissions to tribunals are told to include evidence from earlier assessments where there 'has been no clear change or the appellant says that their condition has not changed or has worsened'. Where the evidence nevertheless is not included in the papers, appellants and their representatives who want the tribunal to have regard to it should be as clear about the relevance of such evidence as possible. A tribunal that proceeds without such evidence may err, for example, by failing to ask itself the right questions or make relevant findings of fact.

Summary

This decision is another to address the question of the interpretation of words in Activity 1 (planning and following journeys) of the PIP assessment test, namely the reference to the claimant's ability to 'follow the route' of a journey. Although the decision is that of a single judge, it says the appeal concerned was 'identified as something of a test case' and a number of cases had been stayed behind it (paragraph 1 ).

In essence, Judge Ward had to decide whether the words 'follow the route' of a journey meant that the test was restricted to one of ability to navigate, with ability actually to begin the journey and personal interactions along the way left out of account (as held by Judge Jacobs in DA v SSWP [2015] UKUT 344 (AAC)), or also include a test of the claimant's ability to go out to follow the journey, taking account of psychological factors such as anxiety (as held by Judge Agnew in RC v SSWP [2015] UKUT 386 (AAC)). In the present decision, Judge Ward agreed with the approach of Judge Jacobs in DA - ie, that the test of ability to 'follow the route' of a journey 'focuses us upon the claimant's ability to navigate along pathways and is not concerned with the other possible problems that a claimant may have when being in the natural environment' (paragraphs 32-33).

The claimant in this case had anxiety and depression. She became nervous and anxious when out, and generally relied on friends and family to be with her in order to get about. However, she did not have any impairment on her ability to navigate when out. The First-tier Tribunal declined to award her 10 points under descriptor 1 (d) (cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid).

It was argued for the claimant that the decision of Judge Agnew in RC should be preferred to that of Judge Jacobs in DA. But Judge Ward preferred the decision in DA, and held that although the tribunal had erred in making insufficient findings of fact, he could nevertheless remake the decision to the same effect, so that the claimant's appeal failed. He considered that the position of someone who because of 'overwhelming psychological distress' either cannot go out or cannot do it without prompting was covered in descriptors 1 (e) and (b). Therefore, he agreed with Judge Jacobs's linguistic analysis of the descriptors in Activity 1 , and suggested that the emphasis placed on the significance of the word 'cannot' by Judge Agnew was misplaced: 'Even if as a matter of general language, it may perhaps be argued to be possible - at a stretch - to say that a person who cannot get out of the door because of anxiety "cannot" "follow the route", that would be to approach the descriptor in a vacuum' (paragraphs 28-29).

Comment from CPAG

Although not a decision of a three-judge panel of the Upper Tribunal or of a higher court, this decision undoubtedly tips the balance of current caselaw authority in favour of the 'ability to navigate' approach taken in DA. It therefore makes the arguments in favour of the more generous approach in RC, set out in the article in Bulletin 249 (p5), more difficult, and further appeals against the application of RC even more likely. Tribunals, however, remain free to adopt whichever of these decisions of single Upper Tribunal judges they prefer.

Summary

The claimant had an appeal before the First-tier Tribunal concerning a challenge to a decision refusing to change her award of disability living allowance (DLA) following a change of circumstances. The hearing was adjourned due to the tribunal running out of time, with a date set for resumption on a date some two months later. While the appeal was adjourned, the claimant, having sought advice, gave written notice of withdrawal of her appeal. However, the tribunal considered that its consent was required before withdrawal could be granted, refused to allow withdrawal and went on to decide that the claimant had no entitlement to DLA.

Judge Knowles QC allowed the claimant's further appeal, and substituted a decision that she had lawfully withdrawn her appeal. Therefore, the tribunal's decision that she had no entitlement to DLA was of no effect. The tribunal had erred in deciding that its consent was required before the appeal could be withdrawn. Rather, held the judge, a withdrawal sent by written notice was under a rule giving an absolute right to withdraw, which applies even if a hearing had commenced but subsequently been adjourned (paragraphs 2 and 35). Although consent is required where the request to withdraw is made during a hearing, the tribunal was wrong to regard a hearing as still taking place during an adjournment (paragraph 36).

The relevant rule was at rule 17(1 )(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That provides that a party may give notice of withdrawal (ie, without a need for consent) 'by sending or delivering to the Tribunal a written notice of withdrawal'. However, under subparagraphs (2) and (3)(c), where notice is given 'at a hearing', the tribunal must consent to the withdrawal. In the present case, the judge held that withdrawal under subparagraph (1)(a) (ie, by written notice and not at the hearing) 'gives a party an absolute right to withdraw' (paragraph 35). The tribunal was wrong to regard the claimant's withdrawal to have been made 'at a hearing'. A hearing is defined as 'an oral hearing' and there was no such hearing taking place when the withdrawal was notified, in which case the withdrawal took immediate effect (paragraph 36). In so holding, the judge held that the decision in BP v SSWP (DLA) [2011] UKUT 228 (AAC) was no longer good authority on the interpretation of rule 17, and the decision of Judge Hemingway in LC v SSWP [2015] UKUT 315 (AAC), holding that there was an absolute right to withdraw during an adjournment, was approved (paragraph 40). The only caveat was that rule 17(3)(b) provides that a tribunal can issue a direction that withdrawal may take effect only with the tribunal's consent. So, for example, in the present case the tribunal could have issued such a direction when it adjourned, with the effect of providing that consent was required - however, it did not (paragraph 37).

Summary

The claimant's PIP appeal was dismissed by the First-tier Tribunal. In its statement of reasons, the tribunal recorded that it had relied in part on observations of the appellant during the hearing. These included that during the hearing the appellant: 'turned to his partner infrequently for assistance and displayed a very high level of concentration, logical thought and good communication skills.' Although he had been upset for a short time at the start of the hearing, he had engaged well thereafter. The tribunal also recorded that he was wearing a top which, 'in the view of the medical member of the Tribunal, showed he had good muscle tone' and exercised regularly.

Judge Markus QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in not putting its observations about his ability during the hearing to him, so that he could comment. It had therefore breached the requirements for a fair hearing. In so holding, the judge applied the decision of Commissioner (as he then was) Jacobs in R(DLA) 8/06. There, he held that a tribunal may take into account observations made at a hearing, but that a failure. to allow a claimant to comment on those observations 'may' be a breach of the tribunal's inquisitorial duty or to ensure a fair hearing. An observation used 'purely as a confirmation of a conclusion that the tribunal would have reached anyway' did not need to be put to the appellant; but 'if an observation is one of the factors taken into account in reaching a conclusion', any failure in the tribunal's inquisitorial duty or violation of the right to a fair hearing is wrong in law (paragraph 11 ).

Applying those principles to the facts in the current case, Judge Markus held that there was no need for the tribunal to have put its observations about the claimant's muscle tone to him, as it had in any event also found that he attended the gym (paragraph 15). However, it should have put to the appellant its observations about his ability during the hearing, as those observations informed the tribunal's conclusions and were a significant factor which the tribunal took into account (paragraphs 17-18). The Secretary of State's argument that the appellant's presentation at the hearing was 'available for all to see' and did not therefore need to be put to him was rejected; the tribunal's observations were 'significantly based on its own perception or interpretation of the Appellant's conduct and the Appellant was unable to comment on that' (paragraph 18).

Summary

This is the first UC decision from the Upper Tribunal.

The claimant stopped work in December 2014, and claimed UC on 6 January 2015. Earnings from the employment were paid to him on 16 January. An amount of £364.35 was taken into account for the purposes of his UC. The claimant disputed that on the basis that the money should not have been taken into account, as it was earnings in respect of a period before his claim for UC. The First-tier Tribunal rejected his appeal.

Judge Jacobs dismissed the claimant's further appeal, as the tribunal had not erred in law. There was no dispute that the money paid to the claimant counted as earned income, under regulation 52(a)(i) of the Universal Credit Regulations 2013 No.376 (paragraph 9). On a new claim, under section 5(1)(b) of the Welfare Reform Act 2012, income can be calculated on the assumption that an award will be made, allowing a UC assessment period to be fixed (paragraph 10). Finally, it was clear that the money was received during the assessment period, even if was earned earlier. Therefore, it counted as part of the claimant's earned income under regulation 54(1 ), and it did not matter that the employment from which it was derived had ceased to exist by the time of payment (paragraph 11 ). The claimant's appeal must therefore fail.

Decision in brief

Claimant cannot challenge direct payment by challenging landlord's title to grant him the tenancy - ie, by alleging an illegal letting - it is well established that so long as the tenant remains in possession undisturbed by any adverse claim, the tenant cannot dispute the landlord's title - facts showed that the tenant was in the requisite eight weeks' or more arrears, and there was no evidence that it was in his overriding interest not to make payments direct to the landlord

Decision in brief

Context of test is the function of 'identifying those who cannot reasonably be expected to work' and so test refers to a person 'being oriented towards a workstation, whether sitting or standing, in such a manner that they may fairly be described as capable of performing a job of work' - if a person needs to sit with a rigidly outstretched leg so that they cannot fairly be said to be capable of doing a job of work at a workstation, this does not amount to remaining sat 'at a work station'

Decision in brief

Supervision monitoring the claimant's condition in case of an attack and before any therapy is administered is not within 3(c)-(f) (SSWP v AN applied) - 'until there is therapy, there can be no supervision to manage it' - but risk to claimant giving rise to a need for supervision could apply in a number of activities need not be a risk that is unique to a particular activity- 'It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied'

Summary

In this decision, the Court of Appeal ruled that the ‘bedroom tax’ unlawfully discriminates against female victims of domestic violence living in specially adapted accommodation, and against disabled children who require an overnight carer. However, the Secretary of State has appealed to the Supreme Court and another decision is now awaited.

The arguments concerned the lawfulness of the ‘bedroom tax’ rule (referred to by the government as the ‘removal of the spare room subsidy’) at regulation B13 of the Housing Benefit Regulations 2006, SI No.213. In particular, the Court considered whether there was unlawful discrimination in breach of Article 14 of the European Convention on Human Rights (ECHR), even in cases where discretionary housing payments (DHPs) were available to the claimants. The Court had to decide whether to apply the decision in Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117, which had found unlawful discrimination (despite the availability of DHPs) against a ‘very limited’ category of disabled claimants, or the decision of the Court in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 584, which had held that the availability of DHPs justified the discrimination against a ‘broader category’ of disabled persons (decisions described at paragraphs 32–38).

The Lord Chief Justice, Lord Tomlinson and Lord Justice Vos unanimously held that the discrimination against the claimants could not be justified. In the domestic violence case, ‘A’ was a woman who was a victim of domestic violence, living with her 11-year-old son. They required a third bedroom adapted as a ‘panic space’ under Sanctuary Scheme arrangements, but under the ‘bedroom tax’ their housing benefit was restricted to that of a two-bedroom property. The Court held that claimants like A were ‘few in number and capable of easy recognition’ and that regulation B13 could be amended to ‘identify them as a discernible and certain class’. Therefore, the Court considered itself bound by Burnip, and not by MA. There was no objective and reasonable justification for the discrimination against female victims of domestic violence, and Article 14 was breached (paragraphs 47–56).

In the Rutherford case, grandparents caring for their severely disabled grandson required a third bedroom to accommodate an overnight carer for their grandson. However, the bedroom tax rules allow an extra bedroom for an overnight carer only of a disabled adult, not a disabled child. The Court held that the Secretary of State should have had specific regard to the best interests of children, such as the disabled grandson in this case, when devising the regulations (paragraph 72). The attempted justification of the discrimination against disabled children (compared to disabled adults) by the Secretary of State ‘did not address how the distinction could be justified by reference to the best interests of the child as a primary consideration’. The Court accepted that DHPs were intended to provide the money lost in housing benefit, but were not persuaded that that this ‘justifies the different treatment of children and adults in respect of the same essential need within the same Regulation…’ (paragraph 73). Therefore, the claimants in this case succeeded for the same reasons as in the case of A (paragraph 74).

Note from CPAG

The Court granted the Secretary of State permission to appeal to the Supreme Court. The Supreme Court heard the appeals, together with the appeal against the decision in MA, on 29 February – 2 March. For the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58.

Summary

The claimants were disabled children. One was a Ugandan national whose mother was granted refugee status in the UK and who joined his mother under family reunion provisions. The other was a Somali national who was herself a refugee in the UK. Both were refused DLA because they had not satisfied the ‘past presence test’ (PPT) of presence in the UK of at least 104 weeks out of the last 156, as provided for at regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 SI No.2890. On appeal, they argued that the PPT unlawfully discriminated against them contrary to Article 28 of EU Directive 2004/83/EC (‘the Qualification Directive’). Their appeals to the First-tier Tribunal were refused, the tribunal holding that the discrimination was justified, as the PPT was a rational means of achieving the aim of directing the benefit to long-term residents of the UK.

Judge Markus QC allowed the claimants’ further appeals and substituted a decision that, with the PPT disapplied to them, the claimants otherwise satisfied the conditions for residence and presence in Great Britain. The PPT in its application to the claimants constituted unlawful discrimination both under Article 28 of the Qualification Directive and under Article 14, read with Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).

Article 28 of the Qualification Directive provides that European Union (EU) member states ‘shall ensure that beneficiaries of refugee or subsidiary protection status receive…the necessary social assistance, as provided to nationals of that Member State’. The judge held there was no discretion as to whether to comply with the Article (paragraphs 23–26). DLA was ‘social assistance’ within Article 28, which was ‘intended to embrace a wide range of welfare benefits so as to ensure that refugees and their families are treated equally within the benefits systems of member states’ (paragraph 40). Regarding discrimination, there was ‘no doubt that the PPT places refugees and their families at a particular disadvantage compared to UK nationals’ (paragraph 67). The judge rejected the argument that the correct test for justification was whether the PPT is ‘manifestly disproportionate’. Applying the decision of the Supreme Court in R (Lumsdon) v Legal Services Board [2015] 3 WLR 121, the PPT was directly concerned with a fundamental freedom of EU law (namely, freedom of movement), and was in any case concerned with limiting of equal treatment required by a non-discretionary Directive – therefore, the discrimination required a particularly close level of scrutiny (paragraphs 84–89). Although the aim of establishing a sufficiently close link with the UK was a legitimate one, the government had not established that the application of the PPT to refugees was a proportionate means of achieving that aim (paragraph 91). The Secretary of State had produced no evidence of having considered the position of refugees in this context, and had not shown that there would not have been a less restrictive way of achieving the official aim (paragraphs 100–101).

Regarding Article 14 of the ECHR, if followed from the reasoning about the Qualification Directive that the PPT discriminates against refugees and their family members including because ‘…the test fails to recognise that refugees are in a materially different situation from others to whom it applies’ (paragraph 107). In the context of Article 14, the test for whether the discrimination was justified was whether it is ‘manifestly without reasonable foundation’. For the same reasons as the judge gave regarding the Qualification Directive, this test was not satisfied and so ‘the application of the PPT to refugees is not justified in the context of Article 14’ (paragraphs 108–110).

Comment from CPAG

At time of writing, it was not known whether the Secretary of State intended to appeal. The claimants in the case were children; however, there would appear to be no reason why it should not also apply to adult refugees.

Summary

The claimant had a history of drug abuse and dependency involving ‘street drugs’, including current use of heroin and valium. He was scored no points in his work capability assessment. In his appeal to the First-tier Tribunal, the claimant argued for points under Activities 14 (coping with change), 16 (coping with social engagement) and 17 (appropriateness of behaviour with other people). He also argued that, if he scored insufficient points to satisfy the assessment, he fell with regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI No.937 – ie, that because of his condition there would be a ‘substantial risk’ to his health or that of another person were he to fail the assessment. The tribunal dismissed his appeal, finding that his incapacity was insufficient to score points under the descriptors, and that regulation 29 did not apply as the claimant ‘did not have any physical or mental health limitations that would prevent him from working’.

Judge Knowles QC allowed the claimant’s further appeal and remitted the case to a new tribunal. Although the tribunal’s findings and reasoning regarding the descriptors did not err in law, the tribunal had erred by giving inadequate reasons for its decision regarding regulation 29 (paragraphs 44 and 54). The possibility of the claimant’s intoxication during work hours clearly could have implications for not only the claimant’s health but also that of fellow employees and members of the public (paragraphs 50–51). More generally, evidence about the claimant’s drug use was important for the tribunal to consider in determining whether he was drug dependent and therefore suffering from a ‘specific disease or bodily or mental disablement’, and so capable of scoring points or satisfying regulation 29. The tribunal’s failure to do that meant the sufficiency of its reasoning was undermined (paragraphs 2 and 53).

Regarding ‘drug dependency’, the judge concluded that the factors pointing towards alcohol dependence set out in JG v SSWP [2013] UKUT 37 (AAC) also applied to drug dependence (paragraphs 3 and 31–32). JG was also authority for the proposition that alcohol dependency fell within the meaning of ‘specific disease or bodily or mental disablement’ as required by regulation 29 (paragraph 26). However, the criteria for diagnosing alcohol dependence cited in JG, taken from the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV), has been superseded with effect from 18 May 2013 by DSM-V. That now addresses each specific substance (eg, opioids, which include heroin) as use disorders, rated as either mild, moderate or severe. In the present decision, Judge Knowles concluded that for a DSM-V diagnosis of substance use disorder to equate with the former DSM-IV dependency diagnosis, it must be rated as moderate or severe – ie, a rating of mild use is insufficient (paragraph 41).