Selected commissioners decisions from April 2006 to March 2007

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Past attendance allowance, disability living allowance and incapacity benefit summaries of decisions can also be found in our other digests of decisions. 

ARMED FORCES COMPENSATION SCHEMES/WAR PENSIONS

CAF/3326/2005: Meaning of disablement and the right of appeal to commissioner, status of decisions

The case concerned an ex guardsman who was injured in Aden (grenade shrapnel to arms legs and shoulder) and in Belfast (low back pain as a result of picking up a jerry can that was too light and falling off the back off a lorry). The effect of the shrapnel was accepted in full whilst the low back pain was accepted in part as arising out of the service injury.

The claimant sought to have the disablement assessment increased, the shrapnel wounds having caused restricted shoulder movement - rotator cuff syndrome. Subsequently he also claimed that low back pain had led to hip problems (there was also a later claim, made in 2006, that his injuries caused "condition right trochanteric bursitis" - this will be the subject of another appeal).

The pensions appeal tribunal (PAT) erred in law because it failed to give adequate reasons for its decision to disallow the appeal. The PAT also did not deal with the claim in relation to hip problems (or give reasons for this) but the commissioner did not reach a final decision on this issue as the claim is going to be referred back for a rehearing and also because the decision of the PAT could be considered to encompass all aspects of the claimant's argument (even if it erred in failing to give reasons).

The decision is useful for two reasons.

Firstly it discusses the status in appeals of Social Security Commissioner decisions made in their role as Pensions Appeals Commissioners in relation to the decisions of the nominated judges of the High Court and the Court of Session (who previously fulfilled the commissioner's role).

Citing Minister of Pensions v Higham [1948] - the decisions of high courts and the court of session are binding on PATs but are not absolutely binding on subsequent decisions made by those higher courts. The commissioners, having taken over the statutory appeal that previously lay to a nominated judge, can regard previous decisions by nominated judges in the same way as they would the decision of an individual commissioner, without the complication of distinguishing between those decisions which are reported and those which aren't. However in practice a commissioner may accord "great respect to the views of distinguished nominated judges reached after full arguments from counsel" as well as to those decisions which have "been approved many times over the years".

The decisions of both commissioners and nominated judges remain binding on PATs.

Secondly the decision discusses the meaning of "disablement" when distinguishing between entitlement appeals, which have a right of appeal from a PAT and assessment appeals, which don't have a right of appeal.

In order to establish whether an award should be made there are a number of stages.

  • the claimant has to have a disablement - this is defined as physical or mental injury (this includes a wound or disease) or damage, or loss of physical or mental capacity.
  • the injury (or injurious process) that causes the disablement must be identified - despite the fact that the term "injury" is part of the definition of disablement Commissioner Mesher identifies this as a separate process
  • the condition must be caused or aggravated by service in HM forces

The commissioner thought that distinguishing between entitlement and assessment appeals was complex and restricted his comments on this issue to the present case rather than try to establish a general rule. He held that the claimant's claim in respect of hip disablement was separately made and therefore considered it an entitlement appeal which carries the right of further appeal from a PAT.

CAF/4200/2005: Treatment of a gratuity where a pension is subsequently awarded

Where a claimant has been awarded a lump sum gratuity but is later assessed as having 20% disability, or more (and therefore entitled to a pension instead of a lump sum) the Secretary of State can withhold payment of the pension until the the gratuity is recovered. If the claimant is further reassessed to a percentage below 20% a new gratuity should be calculated but the old gratuity award should be deducted from it. This decision has now been reported as R(AF)3/07.

CAF/52/2006: Unmarried dependants

The claimant was not eligible for a pension under Article 30 of the Service Pensions Order. This allows someone who is dependant and living as a spouse to receive a "widows" pension if she has care of a child and under paragraph 51A Schedule 4 of the same order, has been living with her partner 6 months prior to the commencement of the partner's service in HM forces. In contrast, under Article 29, married widows/widowers can get a pension regardless of their date of marriage.

The claimant argued discrimination under Article 14 of the European Convention of Human Rights, citing the difference between Article 29 and the more restrictive rules for unmarried couples in Article 30. She also cited the difference in treatment between those who are unmarried and are able to satisfy Article 30, together with paragraph 51A Schedule 4 and those who can't.

The appeal failed for three reasons.

Firstly the tribunal could only act as it did because the Service Pensions Order is primary legislation. In law the commissioner cannot make a declaration of incompatibility in this case.

Secondly the commissioner held that the claimant, as the survivor of a marriage-like relationship was not in a comparable position to a widow (a separate argument that she was married "by cohabitation with habit and repute" under Scottish law was also rejected).

Thirdly, regarding unequal treatment between those who are unmarried, the commissioner cited paragraph 59 of Secretary of State for Defence v Hopkins which allowed that legislation could be drafted to bring welfare to the most needy - in this case those caring for children.

This decision has been reported as R(AF)2/09.

CAF/336/2006: Claimant arriving late at the appeal

The claimant arrived in time for his pensions appeal tribunal (PAT) but was delayed whilst entering the building (he was searched). He arrived whilst the appeal was in session but was not allowed to give evidence. This was an error of law because at that point the decision had not been made and the tribunal should have reconvened to hear the claimant's evidence or adjourned the appeal to a later date. The decision discusses past case law concerning the point at which a decision is effective.

Subsequently the claimant requested a set aside, which the President did not consider. At that point he had the opportunity under Article 20(5) of the PAT rules to set the decision aside in order to obtain a quicker rehearing for the claimant.

CAF/656/2006: Issues not raised at the appeal

It is the substance of the appeal rather than the contents of the appeal letter that determines the issues that were raised by the appeal.

"it is the decision appealed against and the ground on which the decision was made which define the scope of the appeal."

CAF/1416/2006: Causation due to service in the Navy

The tribunal failed to make proper findings as to whether the claimant's eczema and osteoarthritis were cause by service in the navy. Commissioner Rowland criticised the chairman for granting leave to appeal when he did not consider there to be any error of law. This was in part ascribed to the fact that the powers for review and set aside are more limited than for other social security appeals.

This decision is also useful for anyone interested in the history of H.M.S. Ausonia from its grander days as a Cunard liner through to its naval service in the war and later as a depot ship.

CAF/2798/2006: Claimant's right to comment on a new diagnosis

At the hearing the tribunal found that the claimant's loss of balance and dizziness was due to "Vestibular Neuronitis giving rise to peripheral labyrinthine disorder". This diagnosis had not been raised before and there was a breach of natural justice in not allowing the claimant to deal with this issue.

CAF/3923/2006: Cases where there is no right of appeal

This was an appeal against a refusal to review a decision, against which no right of appeal lies. The tribunal decided that there was a right of appeal (the commissioner disagreed) in this case but then consciously refused to decide the appeal itself. This was not an outcome decision and so was also not appealable to commissioner.

ATTENDANCE ALLOWANCE

CA/2650/2006: Effective date of supersession where claimant ceases to satisfy the residence and presence conditions

The claimant moved to France in October 2003 but did not inform the DWP until she was sent a questionnaire in January 2004. The decision maker removed the award and sought to recover benefit back to October 2003. This was considered to be the effective date of her change in circumstances according to regulation 7(2)(c)(ii) of the Social Security (Decisions and Appeals) Regulations 1999.

Commissioner Mesher held that the provisions of regulation 7(2)(c)(ii), in force at the time, do not apply to changes of circumstance related to the residence and presence test. The change of circumstances instead fell to be considered under Section 10(5) of the Social Security Act 1998.

The commissioner then substituted his own decision and decided that the evidence contained within a letter provided by the claimant to the tribunal indicated that she had not immediately made up her mind to settle in France . The decision to permanently reside therefore took place from the point at which the questionnaire was returned. Therefore there was no recoverable overpayment.

CA/3800/2006: Interrupted self funding in residential care and entitlement to AA

The claimant was self funding and in receipt of DLA. Some of her investments performed badly and the local authority was forced to fund her residential accommodation. Her AA ceased. Then she received compensation for bad advice concerning her investments and the local authority asked her to reimburse them back to the date they intervened. She did this and continued to self fund her residential accommodation.

Following an appeal she was given backdated AA to cover the period that the local authority paid her fees as she had now reimbursed them and effectively had been self funding the whole time. This approach follows Chief Adjudication Officer v Creighton reported as R 1/00 (AA) and R(A) 1/02.

Where the tribunal erred was in failing to consider the effective date of reinstatement. The decision-maker had terminated and reinstated payment under the supersession provisions on a change of circumstances when the claimant began again to pay her own fees. The change occurred when she resumed payment of her fees and payment of attendance allowance could only be reinstated from that date under regulation 7(9)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and not earlier. It was suggested that instead of terminating payment on supersession, the payment should have been suspended under regulation 16(3)(a) (ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This approach has a number of advantages.

"If the claimant ceased to be able to pay her own fees permanently, payment would cease and that could be given effect under a supersession. But if the claimant's lack of funds was, or might be, only temporary, it would be premature to supersede until the position became clear. In those circumstances, suspension would be appropriate. If the claimant was able to resume payment of her fees, the suspension could be lifted under regulation 20 [of the Decisions and Appeals regulations], which allows payment to be reinstated. If it became clear that the claimant would not be able to resume payment of her fees, a supersession could then be made terminating payment."

The tribunal was entitled to take any decision that the decision-maker could have taken when making the decision under appeal (following R(IB) 2/04) . It could have revised the decision on grounds of official error or decided that neither supersession nor suspension was required and made payment under the original award of attendance allowance.

CHILD BENEFIT

CF/3348/2002: Wife leaves husband and takes children - husband receiving child benefit

This decision upholds Paragraph 1 Schedule 10 of the Social Security Contributions and Benefits Act 1992, which states that for the first three weeks in which a new child benefit claim is made the previous claimant (the husband) has priority over the new claim.

CF/741/2006: Refusal to send statement of reasons

This error of law occurred when a statement was refused because the Appeals Service had lost the decision notice and the record of proceedings. The claimant had applied within the prescribed time. She subsequently asked for the decision to be set aside but the commissioner expressed doubt as to whether this was legally possible (see CDLA/1685/2004 for more discussion on this issue).

CF/1727/2006: Tribunal didn't know who administered child benefit

The decision was wrong in law because in confirming the decision of the Secretary of State the tribunal neglected to notice that the bulk of the child benefit award was under the jurisdiction of HMRC. Thereafter mistakes flowed from that initial crucial error. The tribunal also failed to fully consider the husband's employment status. There were indications that he was paying NI contributions which would have meant that child benefit was payable. The commissioner noted that, following the transfer of child benefit to HMRC, the procedure for determining this status seems unclear.

CF/2311/2006: Failure to disclose

A mother failed to inform HMRC that her two children were in local authority care. It was held that, with reference to B v Secretary of State for Work and Pensions and regulation 23 of the Child Benefit and Guardian's Allowance (Administration) Regulations 2003 (SI 2003/492) the claimant was under a duty to disclose and that the overpayment was recoverable.

The commissioner also noted a number of technical errors in the tribunal's decision which were errors of law (the commissioner substituted his own decision). Notable among these was what appears to be the consistent habit of tribunals to refer to "decisions of the Secretary of State" rather than decisions of an officer of HMRC".

COMPENSATION RECOVERY

CCR/1022/2006: Determining the injury in respect of which compensation was paid

The claimant received compensation as a result of medical negligence. The tribunal failed to draw a distinction between the injury in respect of which the compensation was paid (which was recoverable from benefits) and the injury that led to the appellant being admitted to hospital (which was not recoverable from benefits).

DISABILITY LIVING ALLOWANCE

CDLA/2807/2003: Decision on payment for days a child was not in residential school

The child began residential school in 1995 and in 1997 a review decision was made. Initially enquiry forms were sent, by the DWP asking for the days she spent at home and payments were made. Later there were no further enquiries and all payments ceased. A later renewal decision (2006) was misleadingly worded to imply that DLA care component was not payable at all rather than not payable for days spent in residential school. Commissioner Mesher found this to be an error of law and despite the lack of documentary evidence available (due to DWP policy on disposal of documents) decided that a similar incorrect decision had been made on the earlier 1997 decision.

This meant that both decisions were decisions not to award benefit. The appeal tribunal had originally been asked to decide whether there was good cause to extend the period imposed by regulation 38(2A) of the Claims and Payments Regulations, where payment of a sum had not been obtained within 12 months. However, because there was no decision to award benefit, regulation 38 did not apply. The tribunal would have had the power to substitute a decision as to payability rather than consider regulation 38, following the principles set out in R(IB)2/04 but did not do so.

CDLA/2974/2004: Mental disablement and bodily functions

In cases where someone has mental disablement, as in this case an 8 year old with autistic spectrum disorder, this disablement can lead to the need for attention with bodily functions. Cites the House of Lords decision "Regina v Ireland 1998" which interpreted "actual bodily harm" as including a neurotic disorder or other recognisable psychiatric illness. Commissioner Rowland echoed this decision by emphasising the importance of diagnosis when reaching a decision in such cases.

CDLA/2999/2004: Power to supersede converted Mobility Allowance awards

A lifetime Mobility Allowance (MA) award was changed into a lifetime disability living allowance mobility component award. Attempts to change the award following an improvement in the claimant's mobility failed because the continuing decision is the MA one. The rules for supersession cannot apply to Mobility Allowance as it was subject to the old review system which revisions and supersessions replaced. As a result there was no overpayment of benefit and the only remedy is for the Secretary of State to amend the law.

This decision no longer applies from 16.10.2006 as the law was amended by SI 2006/2529 and SI 2006/2540 (SR 2006/402 and SR 2006/388 in Northern Ireland).

CDLA/2309/2005: Use of same EMP for consecutive claims

The claimant had complained informally about the conduct of the EMP and argued that it was a breach of natural justice to use the same EMP again. Commissioner Williams did not accept this but directed the tribunal to carefully consider the EMP's new report in the light of its consistency with the first report, the consistency of the claims made by the claimant and the consistency of the nature of the issues in dispute on both occasions. It might, however, have been a breach of natural justice had the claimant made a formal complaint about the EMP.

CDLA/2328/2006: The duty to report

This decision discusses the duties and the interrelationship between regulations 32(1A) and 32(1B) of the Social Security (Claims and Payments) Regulations 1987. These state the information required to be given and the changes required to be notified which may affect benefit entitlement.

CDLA/3429/2005: Revision - ignorance of a material fact

The claimant overstated care needs and subsequently obtained work. The appeal tribunal found that claimant had insufficient care or mobility needs to satisfy the test but misdirected itself by considering the point at which the claimant could be expected to notify the DWP of her employment as a supersession on grounds of change of circumstances.

The correct approach should have been to revise the original decision and remove entitlement from the start of the claim.

CDLA/3941/2005: Mobility exertion leading to serious deterioration in health

Claimant had "loose bodies" in the joint of the knee, which needed periodically "washing out". In addition the claimant was advised to limit walking in order to prevent a worsening of her condition. Commissioner Angus decided that this constituted mobility exertion leading to serious deterioration in health, in this case the need for a knee replacement at a later date.

CDLA/83/2006: Reliance on claimant's evidence

The Tribunal relied on the claimant's own account of how he managed to attend the tribunal on the day of the hearing but failed to establish whether this was a result of the variability of the claimant's condition.

Commissioner Jacobs stated that a claimant's evidence may be unreliable for a number of reasons including poor judgement or poor perception. It may also be irrelevant or may be insufficiently comprehensive because it does not disclose the full range of matters. This case is an example of the latter.

CDLA/145/2006: Tribunal's observations at the hearing

This decision discusses the relevance of observations (how someone walks etc.) in terms of their reliability and significance and the duty of the tribunal to offer the claimant the chance to comment on observations when they are made.

"If an observation is used purely as confirmation of a conclusion that the tribunal would have reached anyway, there is no need for a tribunal to investigate it further or for the claimant to have a chance to comment on it. However, 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 will mean the decision is wrong in law."

In this case the observations were seen as part of a parcel of factors and were not attributed an "inappropriate significance". Furthermore the claimant had a representative who should have appreciated the significance of the tribunal's questioning and have asked the claimant further and more specific questions or invited the tribunal to pursue specific inquiries. This decision has now been reported as R(DLA)8/06.

CDLA/393/2006: Incorrect Revision - error of law not established

The claimant had Down's Syndrome and was awarded DLA low rate mobility and low rate care in 1994. A request for a supersession was received in 2004 but the decision maker did not increase the award. The case was appealed and the tribunal made a revision of the original decision based on grounds of error of law, awarding middle rate care component back to 1994.

Commissioner Mesher rejected this, stating that there was no official error as the claimant's mother's "common sense" completion of the claim form contributed in part to the decision maker's error in not obtaining further evidence.

The award was allowed to stand from 2004 after the commissioner had questioned whether the tribunal had established the need for "continual supervision" to satisfy the care component and "guidance on unfamiliar routes" to satisfy the mobility component. Although the tribunal did not take advantage of oral evidence the commissioner was satisfied that these needs had been established.

With reference to supervision "natural protection" provided by bus drivers, shopkeepers, friends and neighbours were all thought to be relevant to the test.

CDLA/468/2006: Meaning of continual

Follows R(A)1/73 and Moran v Secretary of State for Social Services.

"The nature and degree of supervision which a claimant requires will vary from case to case, so that, for example, it may be possible to leave a claimant who has a propensity to fall sitting in an armchair for short periods without any risk of the claimant causing danger to himself or others. The fact that a supervisor in such a case is able to leave the same room, or even house, as the claimant for a short period of time while the claimant is sitting in the armchair will not prevent the supervision which the claimant requires from being regarded as continual. However, supervision does require the carer to be attuned to the needs of the person cared for and to be in a position to respond to the onset of danger."

CDLA/487/2006: Virtually unable to walk - new evidence before the commissioner

The tribunal erred because it's reasoning on distances traveled was "thin" and it failed to properly consider the manner of walking. It also erred in not considering whether low rate mobility component could be awarded.

Commissioner Rowland also considered that it would be helpful, where a claimant's appeal is supported and there is more evidence available to the commissioner than was available to the decision maker, if the Secretary of State would indicate whether he wished to stand by the original decision in every respect. Where such concessions are made the commissioner is more likely to substitute a decision and avoid another referral to a tribunal. If the concession is not made and the Secretary of State gives an explanation, this reasoning may still be useful at the tribunal rehearing.

CDLA/1190/2006: Children - advanced award of mobility component

A child was awarded middle rate care component on a renewal form but would have been eligible for high rate mobility component on attaining the age of 3 - 3 months after the date of the award.

The decision maker and tribunal erred in law, incorrectly interpreting section 76(1) Contributions and Benefits Act 1992, in not considering a possible advance award of high rare mobility component.

Commissioner Howell cautiously suggests that a practical approach be taken with advance awards. In this case the decision maker could have made an initial award of DLA care component followed by a combined prospective award of both components. The decision cites regulations 13A (power to make an advance award for a change of circumstances within three months) and 13C (cases where a renewal is made in advance of the expiry of an existing award) of the Claims and Payments Regulations 1987. It is not clear what the "practical" approach would be where these regulations do not apply.

The commissioner also noted that it was impossible to know what the claimant was sent or told during the time of the renewal because the original documents had been destroyed as part of the DWP document retention policy.

CDLA/1312/2006: Bias - rehearing to the same tribunal

An application was made to the district chairman under section 13(2) of the Social Security Act 1998. Section 13(2) empowers the chairman to set aside a decision of an appeal tribunal where it is erroneous in law, without having to resort to the expense and delay of appealing to a commissioner.

The district chairman set aside this decision and directed that the case be reheard by the same tribunal. It was argued by the claimant's representative that the claimant would not receive a fair hearing because of possible perceived bias and that all set asides should be referred to a differently constituted tribunal. Commissioner Mesher rejected this argument but, in guidance given to the district chairman (this was requested by a different chairman to the one who set aside the tribunal decision), highlighted some of the pitfalls of using the same tribunal except in the most straightforward of cases.

The commissioner followed Sinclair Roche and Temperley v Heard (2004) which sets out the relevant factors to be taken into account when deciding to remit a case back to the original tribunal (in this case an employment appeals tribunal). The factors were:

  • proportionality
  • passage of time
  • bias or partiality
  • a totally flawed decision by the first tribunal
  • the "second bite of the cherry" principle - there was a real risk of the appearance of pre-judgment or bias if a tribunal had already made up its mind , on the face of it, about all the matters before it
  • tribunal professionalism

There were also problems for the original tribunal where a case is referred back to them. Section 13(2) does not empower the chairman to give any directions of law to guide the new appeal tribunal. The tribunal is therefore unsure as to how far it is entitled to adopt findings and conclusions already made at the previous hearing and how far it is required to address all issues in contention. The commissioner advises the district chairman to err on the side of caution when considering the referral of a set aside back to the original tribunal.

"All that would tend to suggest that the safest option under section 13(2) will always be to refer the case to a differently constituted appeal tribunal. As the practical advantages of referring it to the same appeal tribunal appear limited, that would point to exercising that power only in the plainest cases, where there is some positive reason for doing so, and erring on the side of safety where there is any doubt."

CDLA/1480/2006: Natural justice where tribunal intends to remove an award at a paper hearing

The claimant had appealed against a decision to award low rate care only, thinking that she was also eligible for mobility component. The tribunal decided to remove the care award but failed to inform the claimant or the Secretary of State of this intention.

"..at a paper hearing or at any hearing not attended by the claimant it will always be an error of law for the tribunal to remove an award that has already been made unless the claimant has been given specific notice…that this is under consideration."

CDLA/1490/2006: Misleading wording in the Appeals Service Guidance

The claimant requested a paper hearing because she could not cope with an oral hearing and mistakenly thought that the information in the Appeals Service publication "How to Appeal - a step by step guide" prevented a representative, in this case her father, from giving evidence on her behalf (this information is directed at situations where the representative is making a presentation solely on what the claimant has told him or her rather than based on the representative's own observation or experience).

"In view of the fact that the Claimant and/or her father do appear to have been misled by the information in the Appeals Service guide, and would have asked for an oral hearing if they had appreciated that the Claimant's father would be permitted to give evidence, I think that there was an inadvertent breach of natural justice and that the Tribunal's decision must be set aside. The Secretary of state supports the appeal on that ground. Whether the relevant passage in the guide should be modified is a question which the Appeals Service may wish to consider."

CDLA/1639/2006: Migraines and the mobility component

The effect of migraines in relation to virtual inability to walk are irrelevant where they affect sight or cause pain (this follows R(DLA)6/99). Migraines affecting balance are relevant to the virtual inability test. However the overall mobility test will fail if, whilst suffering from migraine, the claimant cannot benefit from enhanced facilities for locomotion.

Migraines which come on suddenly and affect sight or balance may indicate the need to consider the award of low rate mobility component.

CDLA/2746/2006: Preferred medical evidence

The tribunal did not err in preferring the evidence of the EMP in this case as it was based on clinical findings at an examination. The claimant's GP had not done a similar examination (although the doctor probably examined the claimant at some point) and made no clinical findings to set against those of the EMP.

Citing case law - CS/778/1981 and CDLA/1898/2003 - the decision emphasises the importance of the evidence of a GP at tribunal hearings but also follows R(DLA)3/99, which places a duty on a tribunal to consider all evidence placed before it.

CDLA/2747/2006: Mobility - conflicting medical evidence and "Waddell signs"

The tribunal failed to give adequate reasons as to why it preferred the evidence of the DLA EMP over an IB report prepared by another EMP. It also made findings which were not supported by evidence. These findings were based on a series of tests for Waddell signs made at the examination. A Waddell sign is an inappropriate physical response during a medical examination which appears inconsistent with the claimant's condition - such as when a claimant is pretending to be in or exaggerating pain. Commissioner Jacobs states that evidence of Waddell signs is often misinterpreted by tribunals.

"I am not saying that a claimant who exhibits Waddell signs is not exaggerating. What I am saying is that the mere presence of those signs is not conclusive of the matter."

The decision helpfully includes Professor Waddell's own thoughts on the significance of these signs.

CDLA/3896/2006: Mobility - duty to consider the after effects of walking and guidance on the use of electronic IB85 forms

When considering severe discomfort the tribunal should consider both the discomfort during walking and any discomfort incurred as a result of walking that occurs after the walking has ceased.

The tribunal relied on the evidence contained within an electronic IB85 but did not consider all of its findings. The commissioner suggests that this is probably due to the computer automatically carrying forward some but not all relevant statements from one box to another. When using an IB85 a tribunal is under a duty to look at the whole form.

CSDLA/388/2001: The relevance of a complaint about an EMP to the General Medical Council (GMC)

The complaint to the GMC was held to be irrelevant for the following reasons.

  1. There is no evidence that the claimant made reference to such a complaint at the hearing as was later asserted to the commissioner by her solicitor.
  2. Even if the tribunal had known of the complaint it would not have had "any influence whatsoever" on the appeal. The tribunal was already aware that the claimant disputed the evidence of the EMP but explained in detail why it preferred the EMP report. In doing so its approach was neither irrational nor improper. It did not consider the evidence of the claimant to be persuasive and gave adequate reasons.
  3. The GMC response, had it been seen by the tribunal, would have made no material difference to the outcome as the GMC Preliminary Proceedings Committee (which decides whether cases need to be taken further) took the view that the allegations, even if proved, did not amount to serious professional misconduct. This committee did send the doctor a letter of advice, referring the EMP to parts of the GMC booklet "Good Medical Practice". Commissioner Parker considered these references to be misplaced in relation to the work of an EMP.

The claimant also argued that the tribunal was incorrectly conducted and that insufficient time was allowed to put her case but these arguments were dismissed. The claimant also argued that other evidence was not considered in full. The commissioner stated that the tribunal had

"…made sufficient findings of primary fact, underpinned by evidence and having addressed all material matters, to justify its decision, and has adequately explained how it weighed the evidence and has shown that it took into account all relevant evidence. It is not required expressly to mention every item of evidence when the context of the whole decision makes clear why it decided as it did in light of the submissions made."

R(DLA)1/07 (CSDLA/133/2005): Prompting and motivation, communication and social integration

This is a decision of a tribunal of commissioners, which considers in some detail whether prompting and motivation are attention in connection with bodily functions. In doing so they survey the relevant case law on prompting, motivation, the meaning of disability, bodily functions, communication and social integration. They reached a number of conclusions:

1. Functions of the brain are included within the term "bodily functions", disapproving of CSDLA/867/1997, CSDLA/832/1999 and CSDLA/860/2000 which take an opposing view.

2. Prompting and motivation are capable of constituting attention in connection with an impaired bodily function within the meaning of the law.

3. The term bodily function refers to the normal action of an organ of the body - e.g. the action of the jaw. It is also appropriate to extend the term bodily function to the organ's immediate purpose - the mastication of food. Bodily functions can also be the actions of an organ acting with other organs - the jaw carries out the function of eating because it acts in concert with the rest of the digestive system.

4. An activity performed by the body is not a bodily function if it isn't a normal action or purpose of that organ or set of organs - e.g. shopping, cooking, dressing, undressing or getting in or out of bed. But even if an activity is not itself a bodily function the "discrete" bodily functions involved with this activity can be "unbundled" to ascertain a claimant's impairment in order to decide whether they are relevant to the test for DLA.

5. Communication is an activity that needs to be unbundled in order to assess impairment. It involves many organs of the body, including the mouth, vocal chords, face and limbs. Communication involves a group of bodily functions - hearing, seeing, speaking and movement.

"In a case where a claimant's claim for benefit is based upon difficulties with communicating, it will be possible to look at the particular functional aspects that are deficient in his or her case, in order properly to assess the attention that will be reasonably required in respect of those deficiencies."

6. Social integration should be unbundled in the same way as communication and the bodily functions involved identified by the tribunal when making a decision.

CSDLA/140/2006: Failure to disclose information

The claimant's condition had improved enough for her to return to work but she failed to tell the DWP, even when she was sent a leaflet asking for this information. In the opinion of the commissioner the tribunal reached the right decision, that entitlement ceased from the date she started work, but had erred in law in stating its grounds for supersession. The commissioner allowed the appeal but substituted a decision to the same effect.

CSDLA/242/2006: Date of claim

This decision discusses circumstances where someone does not satisfy the requirements for DLA on the date the claim is made but may do so within three months.

CSDLA/612/2006: Defective decisions by the Secretary of State - powers to correct

The Secretary of State made erroneous decisions concerning the supersession (wrongly disallowed to the date of the original award) and overpayment (erroneous because the dates followed those of the supersession decision) of DLA. The decision went to appeal. The tribunal allowed the claimant's appeal, on grounds of ignorance of a material fact and substituted a reduced DLA award. It also found that the grounds of regulation 3(5)(c)(ii) of the Decisions and Appeals regulations were not met. This regulation considers whether at the time of the decision the claimant knew or could reasonably have been expected to know the fact in question and that it was relevant to a decision..

The commissioner found that the tribunal had failed to make sufficient findings regarding material fact and also incorrectly applied regulation 3(5)(c)(ii).

However in allowing the Secretary of State's appeal Commissioner May refused to refer the decision back to another tribunal but instead referred it back to the Secretary of State because of the two original erroneous decisions. Notwithstanding the powers to correct decisions, as stated in R(IB)2/04, the commissioner considered that there are " limits to the extent which the Commissioner or the tribunal should assist the Secretary of State with poor decision making."

GENERAL

CG/2054/2004, CG/1614/2005 and CG/1823/2005: Bereavement payments - dead spouse on partial category A pension

This combined decision discusses three cases where the claimant has reached retirement pension age and his spouse died whilst in receipt of category A pension topped up by category B pension. Two appeals failed and the third was allowed (this was an appeal by the Secretary of State against a decision to award benefit. Article 14 Human Rights argument also rejected. The decision also examines this benefit within its historical context.

CG/4016/2005 and CG/4018/2005: Carers allowance (CA) - computation of earnings

This concerns two cases where the claimants were working and earning more than the allowed amount for CA. In each case less benefit was paid when their earnings went down because of how these were calculated under the Social Security Benefit (Computation of Earnings) Regulations 1996. What follows is a trudge through this rather dense legislation as the commissioner demolishes the appellants' arguments. These concern regs 6(2)(a) and 7, earnings "of the same kind" and "not of the same kind", discretion under regulation 8(3), whether the regs are ultra vires and whether the regs are discriminatory against women. A useful decision for those who need it.

CG/1752/2006: carer's allowance and earnings - disregarded payments where a stay is temporary

The claimant was caring for a young man and received income under the Adult Placement Scheme. The initial placement, made in 1998, was for a year but kept being extended. The decision maker refused to award carer's allowance because the claimant's earnings were too high.

Under schedule 1 paragraph 7 of the Social Security Benefit (Computation of Earnings) Regulations 1996 any payment made by a health authority, local authority or voluntary organisation to the claimant in respect of someone who is not normally a member of the claimant's household but is temporarily in his or her care may be treated as disregarded when calculating earnings. The appeal tribunal held that this applied and overturned the original decision, arguing that the meaning of temporary is "not permanent". Commissioner Jacobs did not agree stating that the tribunal had misdirected itself in reaching this conclusion.

In support of this he cites paragraph 16 of CIS/17020/1996 - "..an arrangement which is not permanent is not necessarily temporary ". In such cases the arrangement may be indefinite and it will be for the tribunal to decide whether it is temporary or not. He then cited R(IS)1/96 as the correct approach when deciding if a stay is temporary or not.

The commissioner substituted his own decision because, in terms of schedule 1 paragraph 7, the only reasonable conclusion that a tribunal could reach was that the young man was a member of the claimant's household because he had been living with the claimant for five years.

CG/2952/2006: Increase for child dependants - transitional rules

The claimant was in receipt of carer's allowance (CA) with an increase for child dependants. The CA was terminated when the person the claimant cared for went into hospital. It was reinstated when she came out again but minus the increase for child dependants. This was held to be correct under Article 3(3)(b) of the Transitional Provisions and Savings Order.

HOUSING BENEFIT

CH/4234/2004 (reported as R(H)6/06): Recovery of overpayments from more than one person

Decision made by a tribunal of commissioners. Local authorities do not have a broad discretionary power to decide whether the relevant overpayment was recoverable from the landlord or the claimant. The local authority should have made a decision to the effect that the overpayment was recoverable from both the landlord and the claimant.

Secretary of State for Work and Pensions v. Chiltern District Council and Warden Housing Association (reported as R(H) 2/03) held not be relevant because the legislation had been amended or else should not be followed because it is inconsistent with other binding authority.

Rejected the approach of R(H)3/04 as no non-justiciable issues fall within the scope of the right of appeal.

CH/257/2005: Effect on entitlement to benefit where landlord fails to comply with S48(1) of the Landlord and Tenant Act 1987

Section 48(1) requires the landlord to furnish an address in England or Wales to which a tenant can serve notices. Failure to do this means that under Section 48(2) due rent does not have to be paid until the landlord complies with S48(1). This does not, as the tribunal wrongly concluded, remove the tenant's liability to pay rent it can only delay when that rent might be paid. A claimant is therefore still entitled to receive housing benefit even if the landlord does not comply with S48(1).

CH/1786/2005: Occupation of home - determination of centre of interest

The claimant was a tenant but also lived with his sister for a certain number of days in the week and during periods when he was ill. Citing CH/2521/2002 the decision reaffirms that the question of occupation of a dwelling is a matter of fact for the tribunal to decide. The conclusion by this tribunal that the claimant was occupying the dwelling was one that was reasonable in the light of the facts before it. The council who brought the appeal cited Herbert v Byrne [1964] and R(SB)7/86 (both referred to in CPAG's handbook of Housing Benefit and Council Tax Legislation - 18 edition pages 208-9) but the commissioner considered these to be relevant only to "the degrees of actual physical occupation necessary to get within the relevant statutory definition when taking on new accommodation for the first time", not to someone already occupying a property.

CH/2409/2005: Recovery of council tax benefit

Claimant informed the local authority of a change in circumstances and complied with all requests made to him and so was not held to have caused or contributed to the official error for part of his award. However once a later change of circumstances notification was sent he could reasonably have been expected to check whether the authority had acted on his information and would have realised he had been paid excess benefit.

CH/2553/2005: Power to issue statements of reasons more than three months after a decision notice

Such a power does not exist within the legislation but a legally qualified panel member has an "extra statutory duty" to issue statements more than three months after a decision notice has been issued. However appeals against either a refusal to do this or against a decision to issue a statement extra statutorily cannot be made to commissioner but must instead be made by application for judicial review. The decision suggests that a commissioner could invite a legally qualified panel member to reconsider a refusal to issue such a statement but would have no powers to direct them to do so.

CH/2638/2005: Claimant in two homes - Recovery of overpayments from more than one person

A claimant moved address and claimed at the new one. His old landlord was overpaid housing benefit on the old address. The tribunal erred in finding that the claimant could not reasonably avoid paying rent on two homes. Following CH/4234/2004 (reported as R(H)6/06) the local authority should have made a decision to the effect that the overpayment was recoverable from both the landlord and the claimant to give both parties the opportunity to state their respective cases.

CH/2812/2005: Tribunal's jurisdiction over a case not dependent on referral by a local authority

Two decisions were quashed following judicial review. The local authority ignored the resulting court order and refused to refer the decisions to an appeal tribunal so the Appeals Service district chairman listed them instead. The tribunal found that the court order was binding and in the absence of evidence from the local authority (who did not attend) found in favour of the claimant.

Commissioner Jacobs confirmed that a court order was binding on tribunals. An argument of collateral challenge, the right to challenge the validity of the order, was rejected in this case because the local authority did have such an opportunity to challenge.

Tribunals have the power to decide if a case is within its jurisdiction under regulation 20 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 regardless of how it came to their attention. Normally this would be done following the normal notification and submission procedures but in the case the local authority had no intention of making a referral to appeal following the issue of a court order. The tribunal was right to take matters into its own hands because it had jurisdiction and also because this would prevent the claimant being forced to return to the courts to get redress.

CH/2913/2005: Recoverability of overpayments from the landlord's agent.

This decision confirms that overpayments of housing benefit can also be recovered from a landlord's agent as well as the landlord. It has been reported as R(H)10/07.

CH/2986/2005: Local housing allowance (LHA) - "vulnerable" tenants and the landlord's right of appeal

The local authority became a LHA Pathfinder Authority and began paying rent to a tenant, instead of his landlord. The tenant ceased to pay his rent and the landlord appealed.

It was held that LHA does not involve any change to primary legislation and that it is a payment of HB, not a new benefit. The decision to pay the claimant rather than the landlord was a supersession of HB on grounds of change of circumstances (a change in the regulations). As such the landlord had a right to appeal against this decision and the tenant/claimant has a right to be party to the proceedings.

Commissioner Williams cautions tribunals against placing too heavy a reliance on HB guidance at the expense of the law (particularly where this guidance may be misleading - he compares it to Humpty Dumpty's creative use of language in " Alice through the Looking Glass"). The term local housing allowance does not appear in regulations though it is used repeatedly throughout HB guidance. Neither is the term "vulnerable" in relation to tenants who "have difficulty in managing their affairs" mentioned in the law.

CH/3083/2005: Official error and duty to disclose - destruction of documents

A claimant started work in February 2004 and notified the jobcentre, assuming that they would inform the council. The subsequent overpayment was discovered in August 2004 when the local authority carried out a data matching exercise using data supplied by the DWP.

The claimant's appeal was upheld because of official error on the part of both the DWP and the local authority. Commissioner Turnbull noted that the relevant documents relating to the claimant's jobseeker's allowance claim had been destroyed. However, as the claimant wished to claim a four week extension of HB/CTB he accepted that she would have ticked the relevant box indicating she was on these benefits. The DWP should then have informed the local authority. The local authority erred in not carrying out their data matching exercise more frequently and discovering the overpayment sooner.

The claimant was also under a duty to disclose. In a substituted decision the commissioner stated that it was reasonable for the claimant to expect to be paid HB/CTB during March (the four week extension period) and that it might take a further month for her to realise that benefit was being wrongly paid but that from May 2004 the overpayment was recoverable.

CH/3402/2005: Late renewal claim

The claimant had Alzheimer's and submitted a partial claim. The council failed to provide proper assistance which caused her to make a late claim for renewal.

CH/3450/2006: Renting a home previously owned

This decision has been reported as R(H)6/07. It concerns a claimant and her husband who sold their home to their nephew to clear outstanding debts but continued to live in the property. Housing benefit was refused under regulation 7(1)(h) of the Housing Benefit (General) Regulations 1987 - cases where the former owner must satisfy the local authority that they could not continue to occupy the building without relinquishing ownership.

Objectively it appears that the claimants could have continued to own the home. They had outstanding debts but these were not pressing. The commissioner also considered whether the perceptions of the claimant might be a relevant factor where he or she, regardless of the objective facts, believed that they could not continue to occupy the building without relinquishing ownership. He decided that in almost all cases perceptions were not relevant to the test for regulation 7(1)(h). A claimant's perceptions may be relevant as evidence of what was practically possible (in this case the claimant failed to investigate other options) or where he or she is under so much stress it affects their mental health, forcing them to dispose of a property regardless of the other options available.

CH/3497/2005, CH/3498/2005 and CH/3499/2005: Occupation of home

The case concerns a claimant who was possibly living elsewhere and may not have been paying a commercial rent. Tribunal did not investigate these allegations adequately. The commissioner also criticised the local authority (Harlow District Council) delay in dealing with this case.

CH/3586/2005: Contrived tenancy

Claimant lived in and paid rent for a property owned by her son, who did not reside with her. This was not considered to be a contrived tenancy when considering the dominant reason for entering into the agreement. The claimant had asserted that the tenancy was for life but it was not found to be a long tenancy, which would have been ineligible for housing benefit.

CH/3860/2005: Deductions from self employed earnings

The decision discusses deductible expenses. In particular, following R(FC)1/91 it was held that repayments on a loan used to purchase a replacement car were deductible but would need to be apportioned according to the level of business or personal use made of the car by the claimant. This decision has been reported as R(H)5/07.

CH/282/2006 and CH/557/2006: Late notification of change of circumstances

Tribunal failed to consider the whole of regulation 9 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 when deciding whether there were special circumstances for a delay in notification of a change of circumstances.

CH/423/2006, CH/424/2006 and CH/425/2006: Supported living, eligible rent and exempt accommodation

This case concerns three claimants who receive help under the supported living scheme. The main issue is whether the accommodation in which they reside is exempt from eligible rent restrictions. Commissioner Turnbull found that it wasn't which means that housing benefit can only be paid on £45 (the local reference rent) of their contractual rent of £238.92 per week.

Reg.10 of the Housing Benefit (General) Amendment Regulations 1995 provides that an older version of regulation 11 Housing Benefit (General) Regulations 1987 shall continue to apply in certain cases, one of which is that of a person “who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation.”

Reg 10(6) states that exempt accommodation includes accommodation which is...

“provided by a non-metropolitan county council …… a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.”

In cases where the old form of regulation 11 applies a council cannot restrict the amount of rent eligible for housing benefit unless there is suitable accommodation available to the claimant and it is reasonable to expect them to move.

The three claimants live in accommodation provided by Rivendell Lake Housing Association Limited. Supported Living Limited (SLL) were the actual owners of the property where the claimants live but it has been leased to Rivendell. The property had four bedrooms. The claimants lived in three of them, the fourth being used by sleep-in staff as part of a care package. Care, support and supervision was provided by Citizenship First (CF). Citizenship First received funding for this from a number of sources, none of them being Rivendell or SLL. Despite this Rivendell, SLL and CF entered into a tripartite agreement “to provide accommodation in a supportive environment for persons with learning disabilities".

The appeal tribunal dismissed the claimants' appeal and the commissioner agreed with the tribunal's findings - summarised best in paragraphs 30 and 31.

"In my judgment Tribunal was right to hold, on the facts found by it, that the care, support and supervision provided by CF to the appellants was not being provided by “a person acting on [Rivendell’s] behalf” within the meaning of regulation 10(6) of the 1995 Regulations." (paragraph 30)

" Rivendell was not under any contractual obligation to the appellants to provide them with care, support or supervision, neither was it under any statutory obligation to do so. The absence of any contractual obligation is evident from the terms of the tenancy agreements…..The statutory obligations would appear to have been on the Council…..Rivendell was not, therefore, under any contractual or other obligation to provide care, support or supervision which it needed to find someone else to perform on its behalf." (paragraph 31)

Despite the tripartite agreement in force the reality was that it would have been up to the council to arrange replacement care had CF ceased to provide it.

"It is, I think, self-evident that unless the care etc is provided the scheme would not work, because the appellants (or at any rate the two more disabled of them) would not be able to live together in the house. It is not, however, self-evident that if CF ceased to provide the care, Rivendell would in practice have to seek to ensure that it was received from another source, and the Tribunal made no finding to that effect. Indeed, it expressly found (see para. 26 above) that another provider would have to be arranged by the Council. I am not sure that a finding that Rivendell would have had to seek to ensure that care was received from another source would have been realistic, because the Council appears to have statutory obligations to provide the necessary care etc, and in reality it would therefore appear to be the Council who would seek to find a substitute for CF. It is, however, clearly the case that in practice Rivendell’s consent to the identity of the new provider would be necessary." (paragraph 35)

"In my judgment the fact that the provision of the care etc. benefits Rivendell in the sense that without it the scheme would not be viable does not mean that the care is provided by CF “on [Rivendell’s] behalf” within the meaning of regulation 10(6). That is in my judgment so even if it be assumed that if CF ceased to provide it Rivendell would in practice wish to take steps to ensure that it was provided from some other source. Care which is provided by B to C is not provided “on behalf of” A, within the sense of regulation 10(6), merely because the provision of it results in some incidental, or even intended, benefit to A. There must in my judgment be some respect in which B acts for A, either because A would otherwise be legally obliged to provide the care or because A has engaged B to provide it for him. In other words, I would agree with the Tribunal in rejecting the “wide” interpretation contended for in the grounds of appeal." (paragraph 36)

The property is therefore not exempt accommodation according to regulation 10(6) of the 1995 regulations and so it is subject to local reference rent rules.

Note: As a result of this decision it would appear that a number of councils are reconsidering the amount of housing benefit payable in similar circumstances. It is likely that only those land lords who themselves offer care, support or supervision or who directly engage a care provider to do this for them will be unaffected.

This decision has now been reported as R(H)2/07.

Note: This decision was upheld by a High Court when judicial review was applied for on CH/2751/2007, a similar decision. The court rejected the appeal (case S, R (on the application of) v A Social Security Commissioner & Ors [2009] EWHC 2221 (Admin) ) and noted the following:

"... a close analysis of the statutory words themselves demo nstrates, beyond any real argument, that the narrow construction is correct. The full wording of the relevant part of paragraph 4(10) of Schedule 3 is 'where that body or a person acting on its behalf also provides the claimant with care, support or supervision'. In my view, applied to the factual circumstances of this case, the words 'that body' plainly refer to the landlord, Rivendell. The primary focus must, therefore, be on whether the second organisation (here, Lifeways) is providing care, support or supervision which 'that body' (i.e. Rivendell) would otherwise be providing to the Claimant. In other words, the crucial question is whether Lifeways is providing [care, support or supervision] in place of Rivendell (i.e. the narrow construction).

Furthermore, the use of the word 'also' in the statutory wording is significant. It indicates that either the landlord provides both housing and [care, support or supervision], or, that the care provider operates in place of the landlord, since it is the landlord who would otherwise also be providing such services.

In my view, the statutory wording points to an interpretation of the phrase 'on its behalf' which focuses on the provision of services by one body in place of another. It does not extend to the sort of generalised and consequential benefits for the landlord that formed the basis of [the claimant's representative's] submissions. As the statutory wording and legislative and policy history make clear, only those specified organisations that have the ultimate responsibility for the provision of [care, support or supervision] qualify for the exemption. In the present case, Rivendell held no such ultimate responsibility, nor does it claim that it did. That being the case, the accommodation provided to the Claimant by Rivendell did not qualify for exemption and the [social security commissioner] was right to so conclude."

CH/532/2006 and CH/533/2006: Application of test case rule and retrospective decision making

A local authority refused to process claims made by the claimant in January, March and May 2004 because she supplied insufficient information. At that time there was no right of appeal against a refusal to make a decision. Following R(H)3/05, a decision made by a tribunal of commissioners in September 2004, a right of appeal was established and the relevant regulations were amended.

Paragraph 18 of schedule 7 of the Child Support, Pensions and Social Security Act 2000 sets out the test case rules for HB and CTB claims. Under these rules decisions made prior to the date of a decision which changes the law (such as R(H)3/05) are still treated as if made correctly under the law as it applied at the time.

In this case the there had been no determination (no decision) so the tribunal should have followed R(H)3/05 but chose not to, which was an error of law.

CH/542/2006: Whether family members in the same dwelling

The claimant was deemed not liable to make payments in respect of a dwelling under regulation 7(1)(b) of the Housing Benefit (General) Regulations 1987 - cases where the liability is to a close relative (the claimant's son). The tribunal erred in not fully investigating whether the claimant was in fact living in a separate dwelling. Commissioner Turnbull considered this and in a substituted decision held that both claimant and son and their respective families lived in the same dwelling. All of the rooms in the dwelling were shared by these two households apart from the bedrooms and one bathroom.

CH/687/2006: Council's duty to investigate under Kerr

A claimant's partner was in receipt of IB at the short term higher rate. When he moved onto long term IB the award of HB should have ceased. The tribunal found that the claimant had not failed to disclose as she did not know that her partner's IB had increased. Citing Kerr (AP) (Respondent) v. Department for Social Development (Appellants) ( Northern Ireland ) [2004] the tribunal held that the local authority had failed to ascertain the date of the partner's IB claim. As a result there had been an official error.

Commissioner Whybrow rejected this argument, stating that Kerr was not intended in matters concerning future entitlement. The council had all the information to hand to make a decision at the time and was entitled to assume that future changes in income would be notified by the claimant.

The decision has useful potted summaries of relevant case law - Kerr, CIS/222/1991, R(SB)10/91, R(SB)2/93, R(H)1/04, R(H)2/04, CH/412/2003, CH/1908/2003 and CH/530/2006.

CH/858/2006: Overpayments, tax credits and official error

A claimant was sent an HB letter stating how her award was calculated. The award, as stated, did not take account of an increase in the claimant's earnings or the amount of Tax Credit she was paid.

It was held that the overpayment due to her increase in earnings was recoverable because the local authority processed the information within a reasonable amount of time and the claimant should have realised that the earnings stated on the letter were incorrect and that this would affect her assessment.

The overpayment due to the omission of her tax credits payments was not recoverable as it was due to official error (the amount was forgotten and not input). The claimant had declared her tax credits payments and the wording of the letter she received did not make it clear how these payments were to be treated.

The question of whether she should have made reasonable enquiries about the amount of her award were mitigated by the fact that she was Dutch, had only recently come to this country and was making her first claims for benefit.

The decision also discussed whether overpayments could be split in this way. Commissioner Jacobs said that they could in cases:

  • where overpayments are in part made by official error and in part by other causes, such as this case.
  • in cases where a decision is due to official error but where, after a certain time, a claimant could reasonably have been expected to consider that an overpayment had occurred.

CH/883/2006: Long tenancies

The commissioner upheld the tribunal's findings concerning a long tenancy which, under regulation 10(2)(a) of the Housing Benefit (General) Regulations 1987, would not be eligible for HB. It found that a 25 year lease had not been created because it was not "under seal" as required under section 52 of the Law and Property Act 1925. The tenancy was therefore a weekly one for which HB was payable.

CH/1395/2006: Correct procedure on recoverable overpayments

The council issued a series of letters to the claimant concerning her HB/CTB. In substance, apart from one period, these were sufficient to be considered overpayment decisions. However, the content of these notifications was insufficient for them to be considered decisions to recover benefit. In particular they failed to address some of the rights of the claimant - such as the right to a request a statement of reasons. The decision surveys case law around this subject - R(H)3/04, Haringey LBC v Awaritefe (1999) and CH/4943/2001.

CH/1400/2006: Right to reside and the right to receive services - Directive 73/148/EEC and others

The claimant is a Slovenian national who came to this country and enrolled on a course at Kings College , London . Commissioner Howell overturned the tribunal decision stating that the claimant had a right to reside on the grounds that she was receiving services as a student in an educational establishment and satisfied Directive 73/148/EEC. Citing Wirth v Landeshauptstadt Hannover [1993] he stated that services are do not extend to courses under the national education system.

The commissioner then considered whether the claimant had a right under Directive 93/96/EEC, Article 1 of which requires that a student on a vocational course has the right to reside if he or she declares that they have sufficient resources to avoid becoming a burden on the social assistance system of the member state. In this case it was arguable whether the course was vocational (contemporary cinema cultures) and no such declaration of resources was made.

The commissioner then considered Directive 90/364/EEC which grants a right of residence to those covered by sickness insurance and who also have sufficient resources to avoid becoming a burden on the social assistance system. Again this did not apply.

Finally he considered whether her employment in former Yugoslavia (prior to Slovenia becoming a member state) would satisfy Council Regulation 1408/71 - the application of social security schemes to employed persons and their families moving within the community. But this was not satisfied either.

CH/1556/2006: Payment for increase of rent

The claimant, Ms J, moved into a tenancy in August 2003. She was renting from her mother and Ms J had previously been the owner of the house in which she was now a tenant. As a result of the confusion surrounding her claim a rent officer assessment was not made until November 2003. Ms J's rent was subsequently increased in August 2004 but the council refused to pay any increase until November 2004, 52 weeks after the rent officer assessment. The tribunal upheld the claimant's appeal on this issue so the council appealed to commissioners. Commissioner Williams found in favour of the council. The tribunal had failed to make adequate findings of fact and/or failed to adequately explain its reasons as to why the Rent Act 1977 was the appropriate mechanism for determining the rent increase when it actually appears to have been made under the Housing Act 1988.

An argument under Article 6, the right to a fair hearing, was rejected as this can only apply to the tribunal during an appeal, not the council.

CH/1822/2006: Deprivation of capital

See CIS/1757/2006 below.

CH/1911/2006: Two homes - meaning of person and occupation of a home

Regulation 5(5)(d) of the Housing Benefit (General) Regulations 1987 allows rent to be paid for up to four weeks on two properties where a person has moved into a dwelling and cannot reasonable avoid liability in respect of both dwellings.

In this case the claimant's partner had "occupied" the new property in order to get it ready. The tribunal held that this was consistent with regulation 5(5)(d) but the commissioner disagreed.

Reading Section 130 of the Social Security Contributions and Benefits Act 1992 and regulation 76(2) of the Housing Benefit (General) Regulations 1987 in conjunction with regulation 5(5)(d) a person is the person claiming HB, not the partner. Taking regulation 5 as a whole the term occupying as a home means the whole family. The claimant's partner was therefore living in the new home during the period under dispute but was not occupying it so regulation 5(5)(d) does not apply.

CH/2121/2006: Voidable contracts and mental capacity

There is no minimum level of understanding on the part of a tenant that makes a tenancy void for lack of capacity. A tenancy is merely voidable at the tenant's option.

CH/2484/2006: Contrived tenancy and points of law

The commissioner found no evidence of errors of law concerning this appeal. The claimant was paying rent on a flat in a house owned by his son. Apparently a flat had been converted within the property when the claimant had been made redundant, which the claimant was to rent. The council made submissions on a number of points - the reliability of the claimants testimony, whether or not the claimant was or wasn't resident during certain periods, evidence of building which indicated that the flat had not been converted at the point of claim. All of these and other points were dealt with in detail by the commissioner. In none of them could he find that the tribunal had given insufficient reasons for its findings of fact.

CH/2959/2006: Rent contract with someone who has no authority to let a premises

The claimant rented a house from his brother, MI. The property was actually owned by another brother, A. It was held that even if MI had no authority to act as agent or let the premises a rent agreement could still be valid for HB purposes. The situation might be different if the claimant was aware that the MI had no authority to act as an agent. The question of whether a tenancy was contrived would be for the tribunal to decide once the issue of the validity of the agreement was settled.

CSH/149/2006: Two homes - meaning of adaptations

Regulations 5(5)(e) and 5(6)(c)(i) of the Housing Benefit (General) Regulations 1987 allow rent to be paid for up to four weeks on two properties where the claimant cannot move into a property until it has been adapted to meet the needs of a disabled person. Following his own decision - CH/1363/2006 - Commissioner May held that carpeting and decorating are not adaptations for the purpose of these regulations.

This decision has been reported as R(H)4/07.

INCAPACITY BENEFIT

CIB/4174/2003: Calculation of therapeutic earnings

This is an appeal that has been remitted for redetermination following Secretary of State for Work and Pensions v Doyle. Doyle overturned this commissioner's decision that the Social Security (Computation of Earnings) Regulations 1996 should not be used to calculate exempt work. This decision now recalculates the claimant's earnings using these regulations and finds that those earnings were, at the relevant times, less than the weekly earnings limit and so the claimant was not to be treated as capable of work. This decision has now been reported as R(IB)3/07.

CIB/2811/2005: New medical report

The tribunal erred in law in its reasoning concerning the descriptors for activity 9 (reaching). The commissioner felt that the supersession was not based on a change of circumstances but on the evidence of a new EMP's report. As the claimant had been found to incapable of work a year earlier the medical evidence which informed that decision should have been made available.

CIB/2949/2005: Commissioner's jurisdiction - Section 13(3) Social Security Act 1998 where there are separate submissions

Section 13(3) compels the tribunal chairman to set aside a decision where "each of the principal parties to the case expresses the view that the decision was erroneous in point of law". This was true in this case but each of the parties made separate submissions and by the time the second was received the matter was before the commissioner. Under section 14(7) the commissioner could have set aside the decision but because one submission was earlier opted to use section 14(8) which allowed him to substitute his own decision.

CIB/3108/2005: duty to consider evidence - X rays

A tribunal is not bound to consider evidence if it is not relevant but must give reasons for deciding this. In this case the panel doctor would not look at X ray evidence because he thought that this constituted an examination and also because he had no expertise in looking at X rays. This produced two errors of law. Firstly the consideration of X rays does not constitute an examination. Secondly, if the tribunal thought that the evidence might be relevant but needed someone with greater expertise to interpret it they should have considered adjourning the appeal or stated reasons for not adjourning it. This decision has been reported as R(IB)2/06.

CIB/712/2006: Pain and reasonable regularity

Discusses the framework for assessing pain in relation to activities and descriptors quoting at length from CDLA/902/2004. Paragraphs 16 and 17 discuss reasonable regularity in relation to descriptors.

"The question of reasonable regularity is to be determined not by considering simply the frequency with which a person can perform a particular activity, but by asking whether normally, in the course of an ordinary day, taking into account other activities, a person would generally be capable of performing that activity."

"The use of the expression "reasonable regularity" by Commissioners in their decisions is simply to explain that the test is not whether an activity can be carried out once regardless of the consequences for the rest of the day or longer, but whether overall and in the context of carrying out the other activities of which he is capable, and of carrying out the descriptor in question as he might reasonably be expected to, a person is generally able to perform the descriptor in question."

CIB/885/2006: Destroyed claim forms

A claimant with mental health problems stated that she had made her claim for IB in 2003. At her tribunal she was able to produce an email from the customer services manager at Aylesbury Job Centre confirming that she attended an appointment on 9th October 2003 to claim IB. Unfortunately the relevant documents had been destroyed as part of the DWP document retention policy. This decision is worth looking at for the, at times, desperately creative suggestions made by the Secretary of State giving reasons why the claimant did not proceed with her claim. Commissioner Mark treats these as either illogical or unproven.

“14. It is plain from the decision notice when the first tribunal ordered an adjournment that the claimant’s evidence, which appears to have been accepted by that tribunal, was that she attended on 9 October 2003 to claim incapacity benefit. If she did attend for that purpose, then regulation 4(5) of the Claims and Payments Regulations requires that she should have been supplied with the appropriate claim form. The tribunal accepted in the decision notice that documents were completed at that meeting but that they appeared to have been destroyed by the DWP. There is no suggestion here that the claim form would not have been provided in the normal manner either in advance of the meeting or at latest at the meeting by KP [the interviewer]. There is no suggestion that following the meeting the claimant retained any forms which still needed to be completed. The obvious inference, therefore, on the evidence before the tribunal, was that it was completed at or before the meeting and retained by KP. This accords with the recollection of the claimant that a document or documents were completed at the meeting and retained by KP. There was no evidence that any decision was ever made on that claim which therefore remained outstanding.”

The commissioner substituted his own decision allowing the claim.

CIB/1064/2006: Exceptional circumstances - type of work

The decision considers that the type of work that a claimant might be expected to perform can be based on past employment, experience and skills (as opposed to considerations of all work). All of these may be relevant when considering whether there would be a "substantial risk to the mental or physical health of any person if he were found capable of work."

In this case the claimant had been a chauffeur but now suffered from dermatitis and tinnitus. The commissioner outlined broad areas of work that might affect the claimant's health - manual work, any work that would cause a flare up of dermatitis and any work involving driving in traffic.

CIB/1374/2006: Mental health descriptors

Tribunal had failed to properly consider a number of descriptors (including sleep problems, avoids routine activities, disruptive behaviour).

CIB/1635/2006: Regulation 16(3) Social Security (Incapacity for Work)(General) Regulations 1995

This does not apply where there are linked periods of incapacity.

CIB/2537/2006: Chronic Fatigue Syndrome

Tribunal failed to consider physical activities fully. The same was true of mental health activities but the commissioner only made comments but no finding on this. CIB/13161/1996 and CIB/13508/1996 cited.

CIB/2751/2006: Permitted work - appropriate evidence can come from the claimant

The claimant was doing permitted work. She was advised that she would be informed towards the end of the initial 26 week period of her rights to have this extended. Unfortunately she failed the pca test and her benefit ceased. It was reinstated on appeal but the temporary break in claim meant that the permitted work letter was not sent. The claimant continued in employment until her work was noted at a subsequent pca medical. The claimant had by then been working beyond the 52 week period set for permitted work.

Regulation 17(1C) of the Social Security (Incapacity for Work) (General) Regulations 1995 allows for an extension of permitted work for a further 26 weeks where there is appropriate evidence that this is likely to improve the claimant's "capacity to engage in full time work". Commissioner Poynter cited regulation 17(1E) of the same regulations which states that appropriate evidence can come from the claimant (or from evidence that constitutes the most reliable evidence available in the circumstances). The tribunal erred in law in failing to consider this evidence.

He then substituted his own decision, based on the claimant's submission, that a further permitted work extension would be likely to improve her capacity to engage in full time work and held that she was not capable of work for a further 26 weeks because she was engaged in permitted work. She was, however, found to be capable of work beyond the second period of 26 weeks because she continued to be in work that was not permitted under the regulations.

CIB/3671/2006: Migraines and mental and physical descriptors

The effects of migraine may be relevant when considering a claimant's ability to perform a particular physical activity/descriptor. Tribunals should be guided by the approach taken in CIB/3589/2004, CIB/13161/1996 and CIB/13508/1996. Apart from those descriptors which include the wording "sometimes" the test is whether the claimant can perform a descriptor with reasonable regularity.

Migraines which arise out of a physical cause should not be considered as part of the mental health test but may be relevant where they arise from mental disablement e.g. as a result of anxiety.

CSIB/502/2006: Gillies - claimant contends no examination took place

The claimant argued that the report of an EMP was false as no examination took place (later the representative stated that this had never been contended but the commissioner rejected this). Two appeals were adjourned to allow the EMP to comment on this. The commissioner, citing Gillies (ap) (appellant) v. Secretary of State for Work and Pensions (respondent) ( Scotland)[2006], thought that there would be an "inherent unlikelihood" of the EMP failing to carry out the medical.

"A medical adviser may be negligent, or incompetent, or mistaken in the conclusions which he or she draws, but it seems inherently implausible that he or she would deliberately act in the manner alleged by the appellant..as the game is not worth the candle."

The third tribunal was therefore entitled to make findings based on the EMP report.

CSIB/719/2006: Duty to consider other exceptional circumstances

The claimant argued that she suffers from a severe uncontrolled or uncontrollable disease and that the tribunal failed to adequately consider this. Further she argued that the tribunal should have gone on to consider whether she "suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if [s]he were found capable of work."

In considering the first point the commissioner pointed out that [in England , Scotland and Wales ] regulation 27(2)(a) of Social Security (Incapacity for Work) (General) Regulations 1995 requires the condition to be life threatening, a fact which no one else had referred to. She makes no further comment on this point but concludes that a reasonable tribunal, given the evidence in front of it should have gone on to consider whether the old regulation 27(b) - substantial risk to the mental or physical health of any person if [s]he were found capable of work - applied in this case.

CSIB/803/2005 and CSIB/8188/2005: Activity 14 - Consciousness

This decision, made by a tribunal of commissioners, states that the wording of Activity 14 as amended since 6th January 1997 (SI 1996/3207 - see Howker v. Secretary of State for Social Security) is not ultra vires and that the opposing view expressed in R(IB)3/04 is superseded.

The wording of Activity 14 is now "Remaining conscious without having epileptic or similar seizures during waking moments" rather than the old "Remaining conscious other than for normal periods of sleep".

In reaching this decision the commissioners had to decide whether the DWP misled the Social Security Advisory Committee when introducing the proposed SI 1996/3207. They concluded that although the amendment to Activity 14 was not neutral in effect the intention was clear from both the amendment itself and the original commentary.

They also gave the following definitions:

  • Seizures - these are "involuntary, overwhelming and sudden"
  • Similar seizures - are to be construed "by reference to the similarity of the effects of the seizures to epileptic seizures, including the degree of suddenness of the loss or alteration of consciousness but without consideration of whether the seizures are characterised by the discharge of cerebral neurones - this is the "layman's" approach adopted by CIB/13739/1996, CIB/16122/1996, CIB/17021/1996, CIB/3721/1997, CIB/2104/1998, CIB/4598/2002, CSIB/196/2003 and CIB/1714/2003. The more technical approach taken in C30/98(IB) is rejected.
  • An episode of altered consciousness - "when he or she is no longer properly aware of his surroundings or his condition so as to be incapable of any deliberate act. This follows the approach taken in C13/96(IB). The view taken in CSIB/14/96 was considered wrongly decided.

INCOME SUPPORT

CIS/203/2002: Recovery of overpayments

Tribunal erred in the exact date of recoverability and in failing to make a decision which superseded or revised all of the decision, in order for this to be recoverable, in accordance with the requirements of section 71(5A) of the Social Security Administration Act 1992. Commissioner substituted own decision which followed the tribunals in the main. Follows CIS/764/2002 and CIS/3228/2003.

CIS/4422/2002: Failure to disclose

The claimant's IS was wrongly calculated because the DWP failed to take into account an increase in his wife's retirement pension. It was held that there was no requirement to notify the DWP of this increased income because there was no change of circumstances (the increase did not appear to take place after the award of income support). Also cites by way of reference CSB/677/1986 and CIS/1887/2002 - decisions which discuss how the DWP may present itself to a claimant as a single office even though there are separate sections within it.

CIS/1335/2004: Cremation in Spain , interment in UK

The claimant's husband died whilst on holiday and was cremated abroad. A social fund funeral expenses claim to pay for the interment of the ashes was refused. Commissioner Rowland did not allow the claimant's appeal. The social fund will pay for a burial or a cremation and the cost of interment of ashes may be allowable consequential to a cremation. Unfortunately the cremation took place in Spain and the claimant is not entitled to help with the costs of the cremation under regulation 7(1)(b)(i) and (1A) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (SI 1987/481).

CIS/1216/2005 and CH/1220/2005: Contrived tenancy, undeclared income, criminal procedures pending

The claimant claimed HB and IS. He claimed to be paying his rent to a company that was actually dissolved and then to be paying it to a company of which he was found to be a Director. He was also working (and earning) as a management consultant but had declared that he had no income. Both claims were disallowed and there was held to be a recoverable overpayment of £35,443.27 HB and £31,607.92 IS. The claimant appealed but as criminal proceedings were pending (for dishonestly falsifying a document) he asked for the appeal to be adjourned. This was refused and he subsequently did not attend. The tribunal dismissed his appeal.

Commissioner Levenson rejected all of the points of the claimant's appeal to commissioners. These were:

  1. On the question of refusal to adjourn - the tribunal was correct because the issues of entitlement were different to that for the criminal proceedings and the judge at the criminal trial would have been able to withhold any prejudicial evidence. Note this point was upheld when the case was taken to the Court of Appeal as Mote v Secretary of State for Work and Pensions & Chichester District Council 2007.
  2. On Article 6(2) of the European Convention of Human Rights (Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law) - Both parties cited Barnet London Borough Council v Hurst [2002] which concerned concurrent civil contempt and criminal proceedings. In this case it was held that the civil proceedings could be adjourned if they were prejudicial. The commissioner stated that this did not apply in the current case.
  3. Privilege against self-incrimination and the right of silence - The claimant still had a right of silence at an appeal (though he did not attend it). The chairman's decision to hold the appeal was upheld citing Bastick v James Lane (Turf Accountants) Ltd [1979]. This states that it is only proper to interfere with a chairman's discretion if "he had improperly taken into account some matter or that he had failed to take into account a relevant matter or that his discretion was perverse". None of these applied in this case.
  4. Improper to proceed as both respondents had previously supported adjournment - This was still a matter for the chairman to decide.
  5. Amicus Curiae (disinterested adviser) - This placed a duty on the Secretary of State to "seek a submission on any potential and probable issue and to raise points favourable to the other side". It was argued that there would be a conflict of interest as the Secretary of State is also a prosecutor and so the tribunal should have asked for an "independent amicus". The commissioner did not accept the logic of this. If there were a conflict of interest it would affect every tribunal where the decision making body attended. Further the amicus role is more important in cases where a claimant is unrepresented (in this case the claimant had legal representation).
  6. Absence of a financially qualified member - The issues were not difficult, particularly as the panel member was very experienced. Also none of the parties to the tribunal suggested this course of action.
  7. Tribunals failure to exercise its inquisitorial function in circumstances where the claimant did not attend - The claimant had legal representation and the tribunal was entitled to proceed on the basis that there was nothing the claimant wanted to add to the evidence.
  8. Analysis of the evidence - The claimant declined to explain aspects of this and the tribunal was entitled to draw conclusions from other evidence.

Note: As a result of criminal proceedings the claimant, who was and remains a Member of the European Parliament (MEP), was sentenced to nine months in prison. For more information on this see the related wikipedia article.

CIS/1363/2005, CIS/2322/2005, CJSA/3742/2005 and CHR/3855/2005: Appeals to commissioner against the decision of a legally qualified panel member

These four decisions were refused appeal by a legally qualified panel member (LQPM) and so did not proceed to a tribunal. Each sought to appeal to commissioner from this decision. CIS/1363/2005 concerned a man whose method of payment was changed to credit transfer, CIS/2322/2005 was a case where the appeal was outside the 13 month limit, CJSA/3742/2005 was a case of suspension of benefit and CHR/3855/2005 was also outside the 13 month limit.

Commissioner Rowland states that decisions made by legally qualified panel members under the Decisions and Appeals Regulations 1999 (SI 1999/991) are to be regarded as decisions of appeal tribunals. Many, but not all, of these decisions are therefore appealable to commissioner (a notable exception is the decision of a commissioner to refuse leave to appeal to a Court of Appeal). All of these appeals were heard, of which three were dismissed and one granted.

This decision was appealed as Secretary of State for Work and Pensions v Morina and Borrowdale [2007] and overturned (this has been reported as R(IS)6/07). The court decision states that decisions where an appeal to a tribunal is refused by a legally qualified panel member (LQPM) are not to be regarded as decisions of appeal tribunals and are not “decisions” appealable to a Commissioner under section 14(1) of the Social Security Act 1998.

CIS/3182/2005: Right to reside

The claimant was a Dutch national who worked in this country but then gave up work because she was pregnant. She remained off work following the birth in order to care for her sick son. Her claim for IS was refused because she was not held to be "a qualifying person, having the right to reside". As a result regulation 21(3G) of the Income Support (General) Regulations 1987 applied and she could not be treated as habitually resident in the United Kingdom .

Argument1, that this was discriminatory, was rejected citing CIS/3573/2005, a Tribunal of Commissioners decision. Argument 2, that regulations allowed her to be temporarily incapable of work due to illness or accident (regulations 5 and 14 SI 2000/2326) were rejected as these did not apply to the need to look after a sick child. Argument 3, concerning the right to reside under Article 18 of the European Communities Treaty and Article 1(1) of Directive 90/364/EEC (cases where the resident is not a burden on the social assistance system of the host) failed because of the commissioner's rejection of argument 1.

CIS/3573/2005, CIS/2559/2005, CIS/2680/2005, CPC/2920/2005 and CH/2484/2005: Right to reside and the habitual residence test

A Tribunal of Commissioners issued separate decisions in relation to the right to reside test for means tested benefit purposes. The main argument is outlined in CIS/3573/2005.

The claimants were not held to be "a qualifying person, having the right to reside". As a result regulation 21(3G) of the Income Support (General) Regulations 1987 applies and they cannot be treated as habitually resident in the United Kingdom (similar legislation applies in the housing benefit and pension credit cases).

Held that regulation 21(3G) is general in its application rather than applying only to persons stated in regulation 21(3)(a) - (d) of the same regulations - certain European nationals, refugees, those with exceptional leave to remain, and those deported to the UK. All those persons have a right to reside so to limit sub-para (3G) to those four categories of persons would make (3G) serve no useful purpose.

Also considered whether regulation 21(3G) is discriminatory under Article 12 of the Treaty of Rome. Held to be indirectly discriminatory, because the right to reside test is more easily satisfied by UK nationals than by non-nationals but that there is objective justification for the indirect discrimination.

This decision was taken to court by the claimants as Abdirahman and Ullusow v Secretary of State for Work and Pensions but was dismissed and the Tribunal of Commissioners decision upheld. It has been reported as R(IS)8/07.

CIS/3605/2005: Recovery of overpayments

The main argument was that tribunal decision was not a revision or supersession under section 71(5A) of the Social Security Administration Act 1992 because the original decision was not valid. This was rejected. The original decision was valid even if it was incorrect and was therefore subject to revision, supersession or appeal.

CIS/3811/2005: Witness expenses and the issue of witness summons

The claimant requested expenses for two witnesses but the Appeal Service failed to issue witness summonses within the specified time (they didn't issue them at all). This decision discusses the correct procedure in these cases.

CIS/3875/2005: Article 50 of EC Treaty - receipt of services

Under this article someone in receipt of services can be considered to have the right to reside under regulations 5 and 14 SI 2000/2326 and therefore have access to IS. The commissioner accepted that housing might be a service but stated that Article 49 suggests that these services must be of a temporary nature. A person should not establish that country as his or her principal residence in order to receive these services. The service must also be provided for remuneration, something the claimant could not provide as he was a destitute and mentally ill man.

Arguments concerning disproportionality (whether it was lawful to impose a blanket policy on the right to reside) and unlawful discrimination were rejected citing CIS/3573/2005.

CIS/3890/2005: Incapacity and the right to reside

The claimant is a German citizen who ceased work due to a back problem. Her IS was subsequently withdrawn because she ceased to be a "worker", according to EC regulations and so no longer had the right to reside. She argued that she was still a worker as the regulations allowed her to be temporarily incapable of work due to illness or accident. She subsequently returned to work. Her appeal was allowed. The tribunal erred in assuming a permanent condition meant permanent incapacity.

CIS/176/2006: Refused asylum

Regulation 12(5) Social Security (Immigration and Asylum) Consequential Amendments Regulations states that a person ceases to be an asylum seeker when his claim has been decided and communicated by the Secretary of State (or abandoned). This is the point where the award of IS ceases, not following the outcome of any subsequent appeals process.

CIS/326/2006: Housing costs - abandonment by partner

The claimant's appeal to have the 39 week waiting period reduced to 8 under schedule 3 paragraph 8(3) of the Income Support General Regulations 1987 - cases where a claimant with child(ren) has been abandoned by the partner -was refused. Citing CIS/2790/1998, approved by Secretary of State for Work and Pensions v W (reported as R(IS)9/05) it was held that the claimant, who had worked since the abandonment and then stopped because of ill health, had not established a causative link between the abandonment and her reason for making a claim.

CIS/515/2006: Calculation of capital

Useful decision where the calculation of the claimant's capital was over estimated. The main failure was that every incoming payment was counted regardless of whether it fell to be treated as capital (including payment of benefit income) whilst at the same time ignoring short term outgoing payments (where the same income was disposed of). In addition it was held that the burden of proof was set too high for the claimant with regard to the supply of receipts. The decision needs to be read in full but paragraphs 35 to 39 detail the correct approach when ascertaining capital in a savings account. Paragraph 41 applies this approach to the claimant's own account. Paragraphs 42 to 45 consider evidence requirements. See CIS/3101/200 (now R(IS)9/08), which takes a different approach when calculating capital.

CIS/624/2006: Appeals against "outcome" decisions where new issues arise

This is a decision of a tribunal of commissioners. It is a complex case involving several tribunals, which concerned the capital the claimant received in respect of an interest in a flat. The commissioners upheld her appeal against the decision that she had £13,000 notional capital, substituting instead their decision that she had actual capital of £7,600.

The commissioners also discussed whether, when allowing an appeal against an "outcome" decision a tribunal was bound to substitute another "outcome" decision. It was held that a tribunal must not ignore an issue that is clearly apparent from the evidence but is not bound to make a decision on every issue raised by the appeal if there is a more appropriate way of dealing with them.

"It is well established that a tribunal allowing an appeal because the decision under appeal was made without jurisdiction is entitled simply to set aside the decision without substituting another. So too may a tribunal when allowing an appeal on the ground that the original decision was not made against the correct parties and in such a case it is plainly open to the Secretary of State to make another decision in place of the one that has been set aside (R(H) 6/06). In our judgment, the same approach can be applied where an issue first arises in the course of an appeal.

When an appeal against an outcome decision raises one issue on which the appeal is allowed but it is necessary to deal with a further issue before another outcome decision is substituted, a tribunal may set aside the original outcome decision without substituting another outcome decision, provided it deals with the original issue raised by the appeal and substitutes a decision on that issue.

The Secretary of State must then consider the new issue and decide what outcome decision to give. In that outcome decision, he must give effect to the tribunal's decision on the original issue unless, at the time he makes the outcome decision, he is satisfied that there are grounds on which to supersede the tribunal's decision so as, for instance, to take account of any changes of circumstances that have occurred since he made the decision that was the subject of the appeal to the tribunal."

The Secretary of State's decision will be an outcome decision, which the claimant can appeal. The commissioners were also asked by the Secretary of State to give guidance to tribunals.

"We do not wish to be too prescriptive but we offer the following observations.

  1. In order to assist tribunals, the Secretary of State's submission to a tribunal should indicate whether it is considered that, if the appeal is allowed, there are any outstanding issues that need further consideration and whether the Secretary of State wishes the tribunal to deal with them [there then follows some examples] the Secretary of State and the President of the Appeal Tribunals may wish to discuss what can reasonably be expected in submissions.
  2. Where a tribunal, having dealt with the issues originally raised in an appeal, is not able immediately to give an outcome decision, it must decide whether to adjourn or whether to remit the question of entitlement to the Secretary of State if he would be in a better position to decide the issue and to seek further information from the claimant. It may have to balance the desirability of a decision being made as quickly as possible against the desirability of it being made as accurately as possible, given that an appeal on a point of fact will not lie against a decision of the tribunal on any fresh issue. The wishes of the parties should be taken into account.
  3. The tribunal's decision, as recorded on the decision notice issued at the conclusion of the hearing, should explicitly record what has and has not been decided and in particular, should make it absolutely clear whether the tribunal has made an outcome decision (subject, in some cases, to the precise amount being calculated by the Secretary of State) or has remitted the final decision on entitlement to the Secretary of State. The President may wish to consider whether the current form of decision notices issued in income support and similar cases should be altered to assist chairmen with that task (We also suggest that the use of the word "revised" in the current form is unhelpful, given the technical meaning of that term in the 1998 Act.)"

The claimant has asked leave to appeal to the Court of Session.

CIS/926/2006: Asylum seeker arrears - failure to make a claim within the time limits

The case concerned an asylum seeker who wrongly claimed jobseeker's allowance instead of income support and by failing to claim within 28 days of receiving refugee status lost arrears of benefit. It was argued that he should have been supplied with a relevant form under regulation 4(5) of the Claims and Payments Regulations when he visited the jobcentre and that failure to do so meant that the 28 day time limit was suspended and did not apply. The commissioner rejected this argument citing CI/2000/2004.

CIS/933/2006: The ceiling for loans for housing costs taken out whilst on IS

Confirms that any such loan, was subject to the £100,000 applied by the "appropriate amount" rule.

CIS/1462/2006: Overpayments and missing evidence

The commissioner allowed the appeal and directed that, in the rehearing, all relevant documents be made available. The claimant and her husband were in receipt of income support but had not declared a number of savings accounts. Because of lack of evidence or evidence produced late (the husband had power of attorney on behalf of his mother and they also had a disabled son who may or may not have title to one of the accounts) the purpose of the accounts and the ownership of the capital within them was unclear.

CIS/1757/2006, CIS/1807/2006 and CH/1822/2006: Deprivation of capital prior to becoming claimant's partner

The commissioner refused leave to appeal in this case. This was challenged but the commissioner's decision upheld in Hook, R (on the application of) v Secretary of State for Work and Pensions [2007] EWHC 1705 (Admin) (3 July 2007).

The claimant's partner was found to have disposed of capital in order to obtain benefit. She did this prior to becoming the partner of the claimant but Commissioner Jacobs held that the law still applied with regard to notional capital.

The decision has now been reported as R(IS)7/07.

CIS/1867/2006: The danger of following DWP telephone advice

The claimant was told by phone that she could have £8000 capital and subsequently failed to disclose savings which exceeded £3000. The claimant's appeal was upheld on a technicality - there was no evidence before the tribunal that the DWP had asked the claimant to inform them of possession of capital under £8000. However the commissioner substituted a decision that the amount was recoverable as the DWP provided proof that the claimant was advised in writing of her duty to inform. She should have looked at the instructions in the back of her order book instead of relying on anything the DWP told her over the phone.

CIS/1996/2006 and CIS/2125/2006: Partner's duty to disclose

"There is no relevant regulation specifying that partners of income support claimants have to disclose or notify anything at all to the Secretary of State, or for that matter to the claimant, no matter how directly responsible or even deliberate their omission to do so may be in causing benefit to be wrongly paid out in excess of lawful entitlement."

The claimant's partner had been working and receiving earnings without the knowledge of the claimant, whilst she was in receipt of income support. The overpayment was not held to be recoverable.

CIS/2317/2006: Responsibility for children

The claimant claimed responsibility for her two children, who lived with her. It was decided that she was not in fact responsible for them because although she was paid child benefit into her bank account the actual claimant of this benefit was the claimant's husband, who no longer lived with her.

CIS/2448/2006: Section 117 - effect of repayment of benefit by local authority

The claimant lived in a nursing home between 1997 and 2001 and was wrongly charged by the local authority. The home was part of an aftercare package under section 117 of the Mental Health Act 1983 and so should have been supplied free of charge. In March 2005 the local authority paid the claimant a cheque for £24,760.60 to cover the deductions made from his benefits during the period in question.

The DWP then stopped his income support because his capital was now too high. The claimant argued that this payment constituted arrears under paragraph 7 of Schedule 10 of the Income Support General Regulations.

This argument was unsuccessful because paragraph 7 of Schedule 10 applied to income related benefits in this case and the DWP did not owe the claimant any arrears. It had paid the claimant his benefits, although most of the money went to the local authority to pay for his residential care. The lump sum paid by the local authority did not constitute arrears for the purpose of paragraph 7 of Schedule 10.

CIS/2661/2006: Consideration of capital where a couple are separated or estranged

This decision poses more questions than supplies answers. The claimant declared that she was the owner, with her husband, of a house. She no longer lived with him but was not seeking a divorce. The husband remained in the house and had no intention of leaving it or buying her share. On the matter of her share the DWP decided that it was half of the market value of the house, sold freehold, after mortgage and disposal costs had been deducted.

The tribunal allowed the claimant's appeal. The Secretary of State appealed and although the commissioner did not agree with the grounds he gave the appeal was allowed.

The decision painstakingly works through relevant law (Schedule 10 of the IS General Regulations) and case law (R(IS)1/03, R(IS)1/97 and Hourigan v Secretary of State for Work and Pensions (R(IS)4/03)) - possibly more than should be necessary because of the lack of information available.

The new tribunal will need to know whether the claimant is separated or estranged and whether she is a joint tenant or has a tenancy in common. The commissioner draws the attention of tribunals to www.landregistry.gov.uk, which is useful for establishing the tenancy arrangements for a particular property.

Even after some of these questions have been answered the commissioner believes that the valuation of the house will be nowhere near that assumed by the DWP since the market value would be affected by the fact that it would need to be sold with the husband still living in it.

This decision has been reported as R(IS)5/07.

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

CI/3565/2004: Industrial diseases D7 (asthma)

Claimant was found to have asthma as a result allergy to the sensitising agent latex.

CI/535/2005 and CI/1814/2005: A11 (vibration white finger)

A decision of a Tribunal of Commissioners. The commissioners found:

  • The assessment of disablement for the purposes of industrial injuries benefit is essentially a factual question for the judgement of the tribunal. In this case it was not 'so wildly wrong' that it can be set aside. Cites Murrell v Secretary of State for Social Services, reported in R(I) 3/84).
  • The tribunals' explanation for their decisions were held to be sufficient for any reasonable person to understand.
  • The tribunals were mindful of R(I) 3/02 (formerly CI/14532/1996) when arriving at their decision. R(I) 3/02 states that once an A11 diagnosis has been made all aspects of the vibration-induced condition itself (including in particular any and all loss of faculty of a neurological or sensorineural nature) must be taken into account in the assessment of functional disablement.
  • Neither of the tribunals did or said anything inconsistent with the judicial guidelines on assessment as advised in commissioner's decision CI/2553/2001.
  • The percentage disablement found by the tribunal was not inconsistent with the findings of medical reports prepared for claims under the DTI compensation scheme. This includes the test results of the claimants' sensorineural symptoms measured on the 'Stockholm scale' (the most widely used method of grading Hand Arm Vibration Syndrome').
  • In case CI/535/2005, the appeal was formally allowed in order to correct the 'date of onset' of the disease.
  • The commissioners also give some guidance on the assessment of disablement for the purposes of prescribed disease A11.

This decision has been reported as R(I)2/06.

CI/2930/2005: Industrial injuries benefits assessment of disablement

This case, which involved a teacher who had been pelted by snowballs by his pupils in 1966, had been the subject of five previous tribunals and two previous commissioner's decisions. All of this is detailed in this 19 page decision, which also treads carefully through the law involved in assessing disablement. Commissioner Williams has gone into this detail, not because the case sets any particular precedent but because the case is an illustration of how things can go wrong and also because he felt the claimant needed a full explanation of how his case had been handled. At the request of both parties he substitutes his own decision.

CI/3696/2005: Meaning of accident

Neither being suspended nor receiving a letter of suspension can be regarded as an accident in the ordinary sense of the word.

CI/142/2006: Psychological injury considered as an accident

The claimant stated that she had suffered depression as a result of the psychological damage resulting from an interview at work. The tribunal failed to adequately consider this. The decision is useful because it surveys a number of decisions concerning similar situations.

CI/421/2006: A11 (vibration white finger) - cold provocation test requested

Tribunal erred in refusing to comply with the claimant's request. Commissioner didn't recommend such a test be made at the rehearing, but he didn't recommend that it shouldn't either.

CI/954/2006: Aggregation of assessments

This decision concerns one industrial injury and two accidents and is very convoluted.

JOBSEEKER'S ALLOWANCE

CJSA/1703/2006: Voluntary unemployment - length of sanction

The claimant left employment by mutual agreement with his employer. A sanction of 20 weeks was imposed, upheld by the tribunal. The tribunal erred in not considering whether the claimant had just cause for leaving his employment and in not explaining the reasons for the length of the sanction adequately. The commissioner then detailed the correct approach for considering how long a sanction should be (you should start from the minimum one week and increase the number of weeks according to how mitigating or not the circumstances were). The commissioner then substituted his own decision and the claimant was disallowed JSA for four weeks.

CSJSA/23/2006: Calculation of notional earnings

The claimant was working part time for a business (of which he was sole director and majority shareholder). Tribunal erred when considering his notional earnings. The decision sets out directions the new tribunal should follow and includes a number of extracts from regulations in the appendix to the decision.

CJSA/1390/2006, CJSA/1398/2006 and CJSA/1403/2006: Casual worker's entitlement to benefit

These three cases involved seasonal workers who, following the termination of their employment, were forced to claim JSA until the beginning of the following season when they would resume work. Crucially they had no actual right to employment the following season but instead had to compete with other workers before being reinstated.

The Secretary of State sought to argue that regulation 51 of the Jobseeker's Allowance Regulations 1996 (SI 1996/207) established that they were deemed to be in remunerative work for the whole year because their work had a recognisable cycle and so were ineligible for JSA. Commissioner Howell rejected this approach as there was no evidence of such a cycle because there was no guarantee of continuity for the three casual workers. In effect their employment ceased and they were unemployed.

The decision cites Banks v CAO [2001], R(JSA)1/03, R(JSA)5/02, R(IS)8/95, CIS/493/1993, CIS/422/1995 and CJSA/1028/2005 and follows R(JSA)1/06.

This decision has been reported as R(JSA)1/07.

PENSION CREDIT

CPC/206/2005: Assessed income period - claimant awaiting proceeds of sale of property

The case concerns a claimant who claimed SPC and was awaiting the proceeds of a sale of her property. The decision maker wrongly specified an assessed income period when it was already known that her income would increase. Commissioner Levenson amends the decision maker's revised decision and substitutes his own to similar effect, which is to award SPC but not specify an assessed income period then to supersede this on grounds of change of circumstances from the date the claimant received the proceeds of her sale.

CPC/1820/2005 and CPC/2574/2005: Evidence required to establish eligible proportion of housing costs for a scheme manager/warden

States that the "gold standard" approach when assessing what to apportion as housing costs is contained within paragraph 28 of CIS/2901/2004. However this is a time consuming process. CPC/968/2005 advocated a broader approach and this decision considers this to be a practical solution.

"a decision-maker or tribunal supplied with the terms of the lease relating to services and service charges, a breakdown of the service charges, details of what service charges (if any) are met by the Supporting People programme, and a statement from the scheme manager as to how his working time is usually divided up should normally be able to make a reasoned estimate of how much of the service charges are eligible or ineligible."

CPC/1928/2005: Revision of assessed income period

A couple sold their home. Then the husband went into residential care and the wife was treated as a separate claimant. The tribunal was right in substance (they made an error in law to the right effect) to refuse to apply a fresh assessed income period pending the payment of the wife's share from the sale of her home. Had such a period been applied this capital (£47,529.97) would not have been taken into account for five years.

CPC/4177/2005: Equal treatment with regard to savings credit

The claimant's wife was entitled to severe disablement allowance (SDA), which is not regarded as a qualifying income for pension credit purposes. As a result the claimant could not receive savings credit. He sought to argue that this was in conflict with Council Directive 79/7/EEC (unlawful discrimination against women because there are more of them receiving SDA). The commissioner accepted that savings credit fell to be considered under the directive but held that the appeal was misconceived because the qualifying income rules apply equally to both men and women. Savings credit was designed to promote saving so all social security benefits are excluded from the definition of qualifying income because they are not savings derived income.

PENSIONS

CP/3485/2003: The right of a pre-op male to female transsexual to receive retirement pension at 60

Following Sarah Margaret Richards v Secretary of State for Work and Pensions, which allowed those who had undergone male to female gender reassignment to receive a pension at the age prescribed for women this decision holds that it is unnecessary for complete gender reassignment to have taken place in order to qualify for a pension.

This decision predates the passing of the Gender Recognition Act 2004 which allowed anyone who has been granted a full gender recognition certificate to receive state benefits appropriate to his or her acquired gender.

CP/428/2004: The right for someone who has undergone male to female gender reassignment to receive a pension prior to reaching the age of 65

This case was taken to the European Court of Human Rights as Sarah Margaret Richards v Secretary of State for Work and Pensions (attached to this decision as an appendix). The court upheld her right to receive a pension at the age prescribed for women and referred it back to the commissioner. Commissioner Bano set aside the decision of the appeal tribunal and substituted a decision awarding benefit.

CP/540/2005: Increases for spouse or dependant - earnings

The claimant is self employed and paid his wife for secretarial work but failed to declare his wife's earnings each year. The claimant said that he had declared his wife's work but the commissioner doubted this had been done each year. Crucially he had never stated her earnings. He also had two addresses, one of which he didn't use but to which correspondence might have been sent. But the commissioner was not convinced, in part due to the lack of documentary evidence relating to correspondence between the claimant and the DWP (returned letters, declarations of earnings). The overpayment calculation was found to be incorrect.

CP/1240/2005: The right to a form in Welsh

The claimant failed to submit a pension claim in time (beyond the three month backdating period). She had requested a Welsh language form but this was received late. She also argued that it was in bad Welsh. Her appeal failed because she was still under a duty to make her claim on time even if the Welsh form was sent late. Whether the form was in bad Welsh was irrelevant because it was still a form authorised by the Secretary of State.

The DWP has standards to meet in the provision of Welsh services but any failure of these services is held to be administrative failure rather than an error of law.

"The failure to provide a Welsh language form…does not excuse the failure of Mrs J to claim her pension in writing at the right time. Nor does any failure to notify her of her rights in Welsh rather than English. The reason for this is that she does not have a right to be notified in either language. The notification (in English or Welsh), again, is a matter of administration and not a matter of law."

CP/60/2006 and CP/61/2006: Additional pensions offsets

The claimant had been in contracted out employment and the amount of his additional pension was offset because of this in accordance with section 46(1) of the Pension Schemes Act 1993. The claimant sought to have this overturned on the grounds it was unfair. His appeal failed.

TAX CREDITS

CTC/4390/2004: Competing claims for child tax credit

The case concerned a separated mother and father who both had equal responsibility for their children. The father claimed child tax credit, which was removed when the mother claimed. He appealed and won. The revenue commissioners appealed for clarification. This decision sets down the approach to adopt at the rehearing, which will be a three-party appeal.

It also suggests that whichever household would obtain the greater financial credit was a legitimate consideration for the purposes of the “main responsibility” test. See CSTC/299/2010 for an opposing view.

CTC/643/2005: DLA as passport to WTC

In order to qualify as a disabled worker a claimant must be receiving a qualifying benefit. If the benefit is DLA it must be in payment for every day of the WTC award. This decision has been reported as R(TC)1/06

CTC/1630/2005: Married couples who separate

Section 3(5) of the Tax Credits Act 2002 defines "married couple" as a couple who are not "separated in circumstances in which the separation is likely to be permanent". This decision considers cases where the situation is not clear. Suggests that a tribunal should consider reasons for separation and what indications there are of reconciliation. There would need to be at least a 50% chance of reconciliation before they can be considered as a couple once more. This decision has been reported as R(TC)2/06.

CTC/2612/2005: Article 6 paragraph 1 European convention of Human rights as applied to non appellant partner

As tax credits are joint claim benefits an appellant's partner has a right to be heard at any tribunal proceedings. He or she should be given copies of all relevant documents together with notice of any hearing.

This decision has now been superseded by the First-tier Tribunal (Social Entitlement Chamber) Rules 2008 which state that where a couple make a joint claim and only one of the couple appeals against a decision on that claim, the other is a respondent to that appeal. A respondent is defined in those rules as meaning:
 
            “in an appeal against a decision, the decision maker and any person other than the appellant who had a right of appeal against that decision.”

CTC/2662/2005 and CTC/3981/2005: Tax credits in relation to the appeals system

This decision usefully highlights some of the differences between social security and tax credits decisions and the problems that poses when adjudicating appeals against decisions.

CTC/31/2006: Child tax credit and the old children's tax credit

The claimant formerly received children's tax credit (a tax allowance) by filling in his tax return but failed to note that it was replaced by child tax credit (CTC). He delayed claiming CTC and then sought to get it backdated beyond the statutory three month period allowed under regulation 7 of the Tax Credits (Claims and Notifications) Regulations 2002. This was refused.

The decision also discusses whether the claimant receives a fair hearing (Article 6 of the European Convention of Human Rights) because there is no right of appeal against a determination under sections 5(1) and 5(2) of the Tax Credits Act 2002. The conclusion was that the right to judicial review complied with article 6.

CTC/2113/2006: Calculation of income and the use of jargon

The claimant disputed the variance in his tax credits over successive years even though his income had scarcely changed. His appeal failed. The changes in his tax credits were due to him losing the 50+ element and also because the provision allowing increases of £2,500 to be ignored helped him in the first year.

The commissioner also noted that HMRC's use of jargon in submission papers which serves to confuse the claimant.

Martin Inch - 7 June 2012