Selected upper tribunal decisions from April 2011 to March 2012

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Click on the decision number to view the full decision.

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

Court decisions

Ahmed v Secretary of State for Work and Pensions [2011] EWCA Civ 1186 (21 October 2011) - Whether loan taken out to “acquire alternative accommodation more suited to special needs of disabled person”

The claimant and her severely disabled son lived in a privately rented house in Old Trafford until 2001 when she moved to a rented flat in another part of Manchester.

In 2006 her landlord defaulted on his mortgage payments Following possession proceedings being taken, in 207 the claimant bought the property with an interest only mortgage.

However, the DWP then refused to help with her mortgage housing costs on the grounds that:

  • the loan had been entered into when she was in receipt of income support; and
  • was not obtained to purchase alternative accommodation more suited to the special needs of her son.

In considering this decision, the Court of Appeal  explains that the validity of the claimant's entitlement to housing costs turned on whether her loan satisfied the condition in paragraph 4(9) of Schedule 3 to the Income Support (General) Regulations 1987 which provides:

“… that the loan was taken out, or an existing loan increased, to acquire alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimant.”
The Court holds that it was evident that the property was, when it was acquired, more suited to the son’s special needs than her house in Old Trafford."

However, in this case the Court finds that the length of time between the claimant moving to the property and actually taking out in loan was critical:

“The 6-year gap between leaving the house in Old Trafford and moving into the Property, on the one hand, and purchasing the Property on the other, cannot be ignored and, if it is not ignored, it cannot sensibly be said that there is the necessary link between the move and the acquisition. In other words, the Property is not "alternative accommodation" (that is to say, accommodation alternative to the house at Old Trafford) nor was that house accommodation which "was occupied before" the acquisition of the Property.”

As a consequence, the Court dismisses the claimant’s appeal so upholding the decision that she is not entitled to help with her mortgage housing costs.

Lucy Stewart v Secretary of State for Work and Pensions (ECJ Case C-503/09) - Claiming Youth IB abroad (in the EU)

21 July 2011

This case concerns a young woman with Downs Syndrome who moved with her parents to live in Spain when she was 10 years old. When she turned 16, she claimed incapacity benefit in youth, but was refused because she did not satisfy the presence and ordinary residence tests. Her appeal was referred to the European Court by the Upper Tribunal for guidance as to whether incapacity benefit in youth should be classified as a sickness benefit or an invalidity benefit.

The Court held that short-term incapacity benefit in youth was an invalidity benefit for the purposes of EEC Regulation 1408/71, and that accordingly the award of the benefit could not be subject to tests of ordinary residence, past presence or actual presence. This means that incapacity benefit in youth can be claimed by people living in other EU states.

The same principle should also apply to contributory ESA in youth at present. However, once CESA is limited to one year (from April 2012) the ECJ’s reasoning may no longer apply, since the key difference between a sickness benefit and an invalidity benefit is that sickness benefits cover temporary breaks in work through ill-health, and invalidity benefits cover permanent or long-term disabilities.

this case has now been reported as [2012] AACR8.

Minter v Kingston Upon Hull City Council and Potter v Secretary of State for Work and Pensions [2011] EWCA Civ 1155 - Whether payments made in settlement of equal pay claims are 'income' or 'capital'

In this judgment, the Court of Appeal considers whether payments made in settlement of equal pay claims are 'income' or 'capital'.

The two claimants had both been made one-off lump sum payments by their local authority employer in order to settle claims for breaches of equal pay legislation over several years.

In each case, the Upper Tribunal had held - in CH/2270/2009 and in CJSA/475/2009 - that the one-off lump sum should be treated as income, resulting in both claimants being overpaid benefit for a past period.

In considering whether the payments were 'income' or 'capital', the Court of Appeal says that, if a sum is payable by way of a settlement of a claim or claims, it is only necessary to examine why the compensation is being paid, not whether the manner of payment is by way of a single lump sum or a series of payments, as the method of settlement is irrelevant and further that –

“Nor does the size of the payment in contrast to the weekly or monthly wages of an employee matter. The size of the payment in the hands of the recipient cannot alter its true characteristics. If, for example, an employer had through a computer error underpaid an employee the wages due by a substantial amount over a period, the underpayment remains income even if paid in a single lump sum of whatever its size. Nor can the mere fact that the sum may have accumulated over a prolonged period make a difference. Neither of these factors can determine the true characteristics of the payment.”

The Court goes to find that in each case that it was clear from the underlying dispute and terms of the settlement agreement that the payment was compensation for the lower wages (which had been paid over a period of time because of breaches of the Equal Pay Act 1970).

As the true characteristic of these payments was clearly compensation for past lost income the Court concludes by dismissing both appeals.

Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403 - IS claimants who have previously worked and are arguing that they retain worker status

Court of Appeal 18 October 2011

Ms Elmi is a French single parent who came to the UK in September 2005. She found work, but was made redundant after six months.  She went to claim JSA but was advised to claim income support as she was a single parent. Her claim for IS was refused on the grounds she did not have a right to reside.

Ms Elmi had clearly had a right to reside as a worker whilst employed. The question in the appeal was whether she retained that status following her redundancy. Workers who are made redundant can retain worker status under Article 7(3)(c) of Council Directive 2004/38 if they have “registered as a job seeker with the relevant employment office”. When claiming income support she had completed a habitual residence questionnaire on which she stated that she was seeking work. Both the First-tier Tribunal and the Upper Tribunal held that this was sufficient to show that she had registered as a jobseeker with the relevant employment office.

The DWP argued that registering as a jobseeker required a claim for JSA, which has the necessary systems for monitoring whether the claimant was actually seeking work. There are no such systems for IS.

The Court rejected this argument, and held:

"22. In my judgment this analysis fails as a matter of law. I accept that it would have been and remains open to Parliament to legislate specifically and clearly for the position for which the Secretary of State contends, and that such legislation, if in reasonable terms, would be compatible with the Citizen's Directive. However, for the reasons I have given I do not consider that, having failed to do so in relation to Income Support, it is open to the Secretary of State to spell out of Article 7(3)(c) and its context and archaeology a provision that excludes those in the position of the respondent from Income Support. One must not forget that this case is about the Treaty right of free movement of workers. The Citizen's Directive was intended "to simplify and strengthen that right": recital 3. A Member State is free to legislate for reasonable conditions and requirements in circumstances such as the present, but I reject the case for the Secretary of State that Income Support is unavailable to the respondent….
…..

27. On the contrary, for all she knew she had done quite sufficient by putting her form in, explaining that she had become involuntary unemployed and wished to seek work. Her form was accepted. Absent any lawful system for registration which might well have been satisfied by her being clearly told on the form that she needed to apply for Job Seekers Allowance and not for Income Support, it seems to me unlawful, as well as quite unjust, for the Secretary of State to turn round and say "because you applied for the wrong form of benefit we could not monitor the truth or otherwise of your claim and therefore you are not entitled to Income Support because you are a person from abroad".

Note that the judgement is concerned with IS claimants who have previously worked and are arguing that they retain worker status. Claimants who have never worked but are seeking work will not be able to rely on this decision to show that they have a right to reside as a jobseeker, because Reg 21AA(3)(b) of the Income Support (General) Regulations 1987 provides that the right to reside as a jobseeker does not qualify the claimant for IS.

This case has been reported as [2012] AACR22.

Secretary of State for Work and Pensions v Maria Dias (ECJ Case C-325/09) - Right of permanent residence and right to reside

21 July 2011.

Ms Dias is a Portuguese national who came to live in the UK in 1998. She lived here as a worker for just over 5 years, and obtained a five year residence permit. She then had a year out of the workforce, apparently following the birth of a child, then worked for three years. In March 2007 she claimed income support but was refused on the grounds that she did not have a right to reside. Her appeal was allowed by the Commissioner (CIS/185/2008), but the DWP appealed to the Court of Appeal, who referred the case to the ECJ.

Following their decision in Lassal the Court held that the five years residence she completed as a worker gave her the right of permanent residence, even though that period was completed before the right of permanent residence was introduced in April 2006. The issue then became whether Ms Dias’s year out of the workforce affected this right. During this period she was still covered by the residence permit issued when she was working.

The Court held that the residence permit did not confer a right of residence during the period when Ms Dias was out of the workforce. The Court has held in the past that residence permits are evidence of a right to reside, but do not confer a right. On this basis, even though she held a residence permit, she did not have a right to reside while she was economically inactive, because she was not exercising rights under the Treaty at that time.

However, this did not affect her right of permanent residence. Once the right of permanent residence is acquired, absences from the host State of less than two years do not affect that right, and by analogy the Court held that periods of less than two years residence without a right to reside could not affect the right of permanent residence.

The DWP have issued guidance on this case (Memo DMG 23/11).

Secretary of State for Work and Pensions v Mohammad [2011] EWCA Civ 1358 (23 November 2011): Whether property transfer resulting from divorce proceedings meant claimant was eligible for income support mortgage costs help

Court of Appeal judgment

The claimant’s house had been bought in her husband’s name, and was remortgaged by him in 2001. Following their divorce, in 2007 the property was transferred into the claimant’s name under a court order. While the bank refused to transfer the mortgage into the claimant’s name, under the court order she undertook to relieve her husband of the obligation to make mortgage payments.

An Upper Tribunal Judge - in CIS/688/2010 - held that the claimant was eligible for help with mortgage costs. This was on the grounds that while the Income Support (General) Regulations 1987 (ISGR) require that a qualifying loan has to be taken out for the purposes of “acquiring an interest in the dwelling house occupied as a home” but there is no requirement that it should have been taken out by the claimant.

However, the Court of Appeal has upheld the Secretary of State’s appeal against that decision, with Lord Justice Kitchin holding that -

“When the Respondent assumed responsibility for the payments to the building society by her undertaking in the ancillary relief proceedings and/or when in due course the home was transferred into her name, she did not in my view take out a loan or even take over a loan.

I appreciate that the Respondent is counted as "liable" to meet the mortgage costs for the purposes of the ISGR but that "liability" is an extended version of liability which it is quite clear from Schedule 3 paragraph 2(1) does not coincide with the legal liability for the debt. The loan has in fact remained the husband's loan throughout.

As far as the building society is concerned, it is the husband who is liable to them in relation to it. If the Respondent defaults on the mortgage payments, her liability is to the husband by virtue of the indemnity provision in the ancillary relief undertaking, not to the building society. Therefore, the Respondent has neither taken out nor taken over a loan, in my view.”

He adds that -

“Furthermore I cannot accept that where there is one loan as there is here, it can be said to be "taken out" for paragraph 15(1) at a different time from when it was "incurred" for paragraph 4(2). It would have put the matter nicely beyond question had the draftsman used the same phraseology at these two points in the Regulation but I do not consider that the different choice of words connotes a deliberate separation of the two concepts.

The obvious interpretation is that the loan is taken out/incurred at the same time and, in my view, it is the correct interpretation. It means that if the Respondent had succeeded in establishing that she had taken out the loan at the time of the ancillary relief proceedings and thus apparently satisfying paragraph 15(1), she would necessarily have incurred it whilst she was on income support and paragraph 4(2) would have disqualified her from benefit.”

Secretary of State for Work and Pensions v Payne & Anor [2011] - Whether Social Fund loans and benefit overpayments can continue to be recovered following the making of a Debt Relief Order (DRO) or bankruptcy order

Supreme Court 14 December 2011

The Court of Appeal had previously held that once a bankrupt is discharged, the liability to repay the Secretary of State is also discharged (R(Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327) but there were conflicting judgements about the position between the making of a bankruptcy order and the discharge.

Mrs Payne had taken out a Social Fund loan of £843 in September 2007, but no deductions from benefit had been made. In August 2009 she obtained a DRO, listing the loan among her qualifying debts. The DWP then began to make deductions. Mrs Payne challenged the decision to begin deductions by way of Judicial Review.

Mrs Cooper’s case concerned an overpayment of incapacity benefit. In August 2009 the DWP decided there was a recoverable overpayment of £1195 and began recovery deductions shortly afterwards. In January 2010 Mrs Cooper obtained a DRO which listed the overpayment among her debts. She challenged the decision to continue deductions by way of Judicial Review.

Before the Supreme Court the Secretary of State argued that the right to recover Social Fund loans and benefit overpayments from ongoing benefit was not a “remedy in respect of the debt” that would be suspended following the making of a DRO or bankruptcy order.  He argued that the power to make deductions is part of the calculation of a claimant’s entitlement to benefit, and the claimant is only entitled to the net sum after recovery deductions (“the net entitlement principle”).

The Supreme Court dismissed the Secretary of State’s appeal, Lady Hale holding:

"21. This Court is in the fortunate position of being able to adopt a coherent approach which it would have been difficult for the courts below to achieve. In my view, there is no such thing as the so-called "net entitlement principle". The claimant to any kind of social security benefit has a statutory entitlement to the amount of benefit which she is awarded by the Secretary of State or a tribunal. The members of this Court are, for example, statutorily entitled to the state retirement pension should they choose to claim it. Some claimants may have a prior liability to repay previously overpaid benefits, whether of the same or an entirely different kind, or they may have taken out a Social Fund loan which they are liable to repay. By no stretch of the imagination does a Social Fund loan to buy a cooker amount to an advance payment of retirement pension to which the claimant later becomes entitled. It could more plausibly be regarded as an advance payment of future income support. But at the point when the loan is made and the liability to repay arises it cannot be known whether the claimant will continue to be reliant on income support. She may get a job, marry a rich man, or win the lottery. The liability to repay arises independently of her entitlement to any benefit from which the Secretary of State may later decide to recoup it.

22. In any ordinary use of language, the power to recover the debt by deduction from benefit is a "remedy in respect of the debt". Moreover, if self-help remedies such as this were not included in the concept of a "remedy", it is difficult to see why both section 251G(2)(b) and section 285(3)(b) specifically prohibit the use of court proceedings to enforce the debt. They would be otiose if the only remedies contemplated by the prohibition of any remedy were court proceedings. There is no sense in a scheme which prohibits recovery of the liability by one method but allows it by another.

23. Furthermore, I do not see any reason to distinguish between the DRO scheme and bankruptcy in this respect. There is a minor difference between the language of section 251G(2) and section 285(3) but this is readily explicable by the antiquity of the latter provision. It can be traced back to the time when remedies against the person of the debtor were universally applicable (and not restricted to certain statutory creditors as they are today). There is, as the majority of the Court of Appeal pointed out, a major difference between the purpose of the waiting periods in each scheme. But this does not affect the analysis of the nature of the liability to repay and of the Secretary of State's power to recoup. It is just as much a remedy against the property of the bankrupt as it is a remedy in respect of a debt listed in a DRO. For my part, therefore, I would hold that Taylor and Chapman was wrongly decided. The Secretary of State loses the power to recoup overpayments and Social Fund loans on the making of a bankruptcy order just as he does on the making of a DRO."

Several members of the Court expressed doubts about whether this was the intention behind the insolvency legislation, but they were clear that the only possible meaning of the legislation as it stands was that Social Fund loans and benefit overpayments should be treated as any other debt. The Court suggests that the Government may wish to consider amending the insolvency legislation so as to exclude such debts from being included in DROs and bankruptcy orders.

Note that this decision does not apply in Scotland. Bankruptcy law is different in Scotland, and in Mulvey v Secretary of State for Social Security 1996 SC 8 the House of Lords reached the opposite conclusion, relying on the “net entitlement principle”. The Supreme Court did not consider they should overturn Mulvey whilst considering an English case, but did place a question mark against the reasoning in Mulvey.

The DWP have issued guidance concerning this case (HB/CTB U1/2012).

Sefton Care Association & Ors, R (on the application of) v Sefton Council [2011] EWHC 2676 (Admin) (9 November 2011) and JM & NT, R (on the application of) v Isle of Wight Council [2011] EWHC 2911 (Admin) (11 November 2011) - Two decisions concerning local authority attempts to reduce the costs of community care services

These two High Court decisions look at some of the issues that local authorities face when they are considering trying to reduce the costs of community care services. In both cases the Court emphasised the importance of following statutory Guidance, and carrying out adequate consultation.

In Sefton, the Council had decided to freeze the fees it paid for people placed in residential care.  For several years the fees increased in line with inflation, but the Council decided that it would not increase the fees for 2010/11 or 2011/12. The decision for 2011/12 was challenged by a group of local care providers.

The Court quashed the decision to freeze the fees because the Council had not considered the actual cost of providing care as required by the statutory Guidance. The Court also held that there was no meaningful consultation about the proposal to freeze the fees, and when the care providers did express concerns about the proposal, their views were not taken into account.

In JM & NT the Council proposed to make savings by changing the eligibility criteria for adult social care services. Historically the Council had provided services to those assessed as being at Critical or Substantial risk. The new criteria were that for people at Substantial risks only those needs that placed them “at the greatest risk of not being able to remain at home and safe” would be met.

The case was brought on behalf of two young men with autism. The Court held that the Council had unlawfully breached statutory Guidance by prioritising the risks of not being able to remain at home and to be safe over other risks. The Guidance makes it clear that there is no hierarchy of needs, and all areas of life must be considered, including the right to dignity and respect, quality of life and freedom from discrimination. The Council had also used criteria relating to the frequency, likelihood and immediacy of risk, instead of focusing on the severity of risk as required by the Guidance.

The Council had carried out a consultation exercise, but those consulted were not given details of the number of people who might be affected, the costs and potential savings, or the types of services included and as a result the responses to the consultation could not fully reflect the experiences and views of users and their carers.

In both cases issues were also raised as to whether the Councils had complied with the general duty under S49A of the Disability Discrimination Act 1995 to have due regard to the needs of disabled people.

In Sefton the Court declined to hold that there had been any failure in relation to the 1995 Act, because there would have been no further need for the Council to consider its equality duties had it properly assessed the level of fees it would pay.

In JM & NT, the Court held that the Council had failed to comply with the equality duty in S49A. The inadequate consultation, and a similarly flawed Equality Impact Assessment, meant that Councillors considering whether to adopt the new policy did not have sufficient information to enable them to discharge their duty to have “due regard” to the needs of disabled people.

Armed forces compensation schemes/war pensions

Attendance allowance

Child benefit

CF/1195/2011 [2011] UKUT 489 (AAC): Child benefit - whether qualifying young person living together with a cohabitee as if they were spouses

Judge Lane
9 December 2011

The claimant was in receipt of child benefit for her 16 year old daughter who had last attended school in October 2008. Following a major rift with her mother, on 5 November 2008 the daughter left home and, as her mother put it, went to live with her boyfriend. However, the mother did not let the DWP know about this change of circumstance until 2 February 2009.  By 28 February 2009, the daughter was living with her father, who did not live with the mother.

The DWP held that the claimant had been made a recoverable overpayment of child benefit amounting to £150 as the daughter had been living as a cohabitee. Regulation 12(1) and 12(2) of the Child Benefit (General) Regulations provide that -

“(1) Child Benefit is not payable to any person (‘the claimant’) in respect of a qualifying young person for any week in which the qualifying young person is living with another –
(a) as if they were spouses, or
(b) as a member of a cohabiting same-sex couple,

unless paragraph (2) applies.

The person with whom the qualifying young person is living is referred to in paragraph (2) as ‘the cohabitee’. 

(2) This paragraph applies if –
(a) the cohabitee is receiving relevant education or approved training and
(b) the claimant is not the cohabitee.”

However, in upholding the claimant’s appeal Judge Lane rejects that her daughter was living with her boyfriend as if they were spouses and says that -

“Alarm bells should ring where, as here, a young person barely out of childhood leaves home in a huff and runs off to live with a boyfriend.  These circumstances have the hallmark of pique rather than of relationship.  It is hardly surprising that the appellant’s daughter left her boyfriend almost as quickly as she joined him.  I refer to this circumstance - which pre-dates the respondent’s decision - to emphasise how immature, evanescent and unlike a relationship akin to marriage this episode was likely to have been from the outset.

In my view, it would be wrong to dignify the circumstances in which the appellant’s daughter and her boyfriend lived together with the words ‘living together as husband and wife’.  I have accordingly decided to substitute my own decision and allow the appeal without remitting it for a further hearing.  It would be disproportionate to do so, in view of the very small sum involved.” 

Compensation recovery

Disability living allowance

CDLA/1340/2009 [2011] UKUT 293 (AAC): Supersession, because of a change of circumstances

Three judge panel - Judges Mesher, Williams and Wikeley
15 July 2011

This case concerns the date that a supersession, because of a change of circumstances that is disadvantageous to the claimant, should take effect. It only applies to DLA and AA decisions that are not “disability determinations”, for example where the claimant has gone into hospital.

In a very long and complex decision, the Tribunal of Judges held that the rule that supersession because of a change of circumstances that is disadvantageous takes effect from the date of the change cannot apply for any period before 10 April 2006.

This is because that under the legislation in place from 5 July 1999 until 9 April 2006 a DLA supersession taken on non-disability grounds - for example that a claimant had been a hospital in-patient or a care home resident - could only take effect from the date on which it was made.

The amending regulation that provides for a supersession of DLA on non-disability grounds only came into effect from 10 April 2006 (i.e. regulation 5(3)(a) of the Social Security (Miscellaneous Amendments) (No. 2) Regulations 2006 (SI 2006/832) that amended regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999).

In this specific case, the claimant was in hospital or a nursing home from January 2000 and the care component was not payable from February 2000. However the DLA Unit did not discover that the claimant had been in the nursing home until November 2006. The Upper Tribunal decided that the superseding decision that DLA was not payable from February 2000 only took effect from 10 April 2006.

This decision has now been reported as [2012] AACR14

CDLA/705/2010 [2011] UKUT 29 (AAC): Use of slow cooker

The claimant had Meniere’s disease and suffered from dizzy spells and blackouts without any prior warning.  He claimed that, following an attack if he  was in an unfamiliar place he would need assistance in getting home safely.

With regard to the cooking test the claimant used a slow cooker about 4 to 5 times a week because it was safer if he suffered an attack.

At his appeal the tribunal found that he did not satisfy the criteria for the low rate mobility component and that with regard to the cooking test it considered that he would be able to carry out the necessary tasks both physical and mental in order to prepare a cooked main meal for himself. 

Both the Secretary of State’s representative and the claimant’s representative submitted that the tribunal erred in law because it had not disregarded the claimant’s ability to use routes which were familiar to him on his own, with regard to low rate mobility component.  Judge Rowland was sceptical about the claimant’s inability to use unfamiliar routes but accepted the submission and allowed the appeal.

When considering the cooking test, Judge Rowland did not think that this required the use of a ‘traditional’ cooker but suggested that any tribunal considering the use of a slow cooker might need to examine whether the claimant could prepare a sufficiently wide range of meals not to satisfy the “cooking test”. However he decided it was unnecessary in this case because of the  Secretary of State had agreed that the whole decision to be set aside in view of the conceded error in respect of the mobility component.

CDLA/1780/2010 & CDLA/1781/2010 [2011] UKUT 228 (AAC): Right to withdraw appeal

Judge Mark
7 June 2011

In this case the Upper Tribunal considers the circumstances in which an appeal to the First Tier tribunal can be withdrawn.

Rule 17 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provide for an absolute right to withdraw an appeal before a hearing, but also provide that an appeal can only be withdrawn during a hearing with the tribunal’s consent.

The procedural history is quite complex, but the case, which concerned an indefinite award of DLA at the low rate of both components, was heard at five different hearings, the last three all before the same tribunal. The claimant was warned at the first and third hearings that she could end up with a lower or shorter award, and at the fourth hearing was specifically advised to take advice from her representative as to whether she should withdraw the appeals.

At the fifth hearing, the claimant’s representative made some procedural applications and then, while the tribunal was considering these, tried to withdraw the appeal. The tribunal refused to agree to the appeal being withdrawn and proceeded to hear it, deciding that the claimant was not entitled to either component from the date of claim.

The claimant appealed to the Upper Tribunal on the grounds that she should have been allowed to withdraw her appeal.

Judge Mark held that there is “an absolute right to withdraw only before a hearing”, and in this case a hearing began at the latest at the third hearing of the appeal. Judge Mark went on to say “Once the hearing commences the absolute right goes and it does not revive just because there is an adjournment, whether for discussions, for lunch or for a more extended period”. As the claimant had ignored warnings of the possibility of losing the existing award, the tribunal was fully justified in refusing to permit a withdrawal.

It is important to note that in this instance, the last three hearings were all before the same tribunal. It is not clear from the decision what the position would be if a case was adjourned, and relisted before a differently constituted tribunal.

CDLA/2156/2010 [2011] UKUT 93 (AAC): Refusal to adjourn

This case concerns a tribunal’s refusal to adjourn an appeal hearing. The claimant had back pain, obesity, depression and bowel and bladder problems, resulting in incontinence.  He lived alone and his social contacts were limited to the church of which he is a member. He requested an oral hearing but although he did not specifically request it, his submission, done by the CAB indicated that he wished to attend the hearing with his priest. A hearing was arranged but the priest was not available for that day and the claimant did not attend. The appeal went ahead and was determined on the evidence before the tribunal. The appeal was unsuccessful.

Under rule 31 of the Tribunal Procedure rules when a claimant fails to attend a hearing  the Tribunal may proceed if it is in the interests of justice to proceed.

Judge Ward held that the tribunal erred by limiting its field of inquiry unduly narrowly by considering only whether it had enough evidence to enable it to reach a reasoned decision. 

“…it was also relevant, particularly in the light of the written submission from the CAB, to consider whether further useful evidence was likely to be forthcoming if the tribunal did hear from the claimant and whether it was just to deprive the claimant, who had expressly requested the opportunity to attend the tribunal, of the opportunity to give his evidence in person..”

CDLA/2701/2010 2011 [UKUT] 183 AAC: Tribunal’s assessment of GP’s evidence

In an important decision Judge Jacobs considers the issue of the inferences that may be drawn from a GP’s medical evidence and the adequacy of the reasons a tribunal is required to give to explain inferences it may have drawn.

Judge Jacobs makes clear that:

“The issue is important for at least two reasons: it regularly arises and it involves fundamental issues about effective access to the appeal process and equality between the parties.”

A tribunal had dismissed the claimant’s appeal against the decision to refuse her DLA. In doing so, it relied on a medical report from an examining medical practitioner finding that two reports from her GP were not helpful as one was vague and the other based on information provided by the claimant rather than on any detailed clinical examination.

In setting aside the tribunal’s decision and remitting the appeal for rehearing, Judge Jacobs systematically ‘picks apart’ its approach to both GP’s reports. In doing so, he shows how it had treated the GP’s evidence as in conflict with the examining medical practitioner’s evidence, rather than analysing both sets of evidence as a whole.

He concludes by highlighting that:

“All too often, judges present the tribunal’s reasons as if the tribunal had a choice between accepting the evidence of the GP or of the examining medical practitioner. There may be cases where that is so, but in many cases the reports each have their strengths and each their limitations as an assessment of the claimant’s disablement. In those cases, what a proper analysis usually requires is for the tribunal to show a balance between the value that can be distilled from each report and its limitations.”

CDLA/7/2011 [2011] UKUT 235 (AAC): fear or anxiety and low rate mobility

Judge Nicholas Paines QC
17 June 2011

This case concerned a claimant with incontinence. He became extremely upset and anxious in unfamiliar places if he did not know where toilets were. The First-tier Tribunal had awarded the low rate of the mobility component because they accepted that the client needed his wife with him to calm him down and encourage him when he became upset.

Judge Paines allowed the Secretary of State’s appeal and removed the low rate mobility component because the Tribunal had not taken account of Regulation 12(7) of the Social Security (Disability Living Allowance) Regulations 1991. This provides that if “fear or anxiety” are the reason for needing supervision, the low rate mobility component can only be awarded if the fear or anxiety are “a symptom of a mental disability”. In this case, the claimant’s anxiety was the “ordinary” anxiety that might be felt a person with severe incontinence and was not the result of a mental disability.

The Judge also briefly considered the night attention conditions for the care component. He noted that the claimant needed help with changing bedding three times a week, and held that this could not amount to “prolonged or repeated attention at night”.

CDLA/86/2011 [2011] UKUT 453 (AAC): Application of Rule 36 of the Tribunal Procedure Rules.

Judge Poynter
24 October 2011

The claimant had an award of high rate mobility component and low rate care component of DLA from 2004 to 2009. On renewal she was awarded the low rate of both components, and she appealed against this decision.

The tribunal dismissed her appeal, and the claimant applied for permission to appeal to the Upper Tribunal. The application for permission argued that the Tribunal had concentrated on the distance the claimant could walk to the exclusion of other factors and did not deal adequately with the pain she experienced. The District Tribunal Judge considering the application referred the case to the judge who had presided over the tribunal to consider whether she wished to correct any of the wording in the statement of reasons under Rule 36 of the Tribunal Procedure Rules.

The statement of reasons as first issued consisted of ten paragraphs. The tribunal judge produced a document that added nine additional paragraphs to the statement, all of which were directed to refuting the points made in the application for permission to appeal.

Judge Poynter allowed the claimant’s appeal and remitted the case to a new tribunal. He held that:

"13 But even on that assumption, the power conferred by rule 36 is in terms confined to the “correction” of a statement of reasons. It does not extend to allowing the First-tier Tribunal to amplify or clarify its reasons, which is how the judge has expressly purported to exercise the power in this case.

14 What Judge Jacobs said in the AS case applies with even greater force to the present appeal. If one cannot classify the omission of nine lines of explanation as being in the same category of mistake as a typing error or a momentary lapse of concentration, one clearly cannot so classify the omission of nine paragraphs. Moreover, in this case, the nine additional paragraphs have been inserted for the sole reason of disputing or—to use the tribunal judge’s own word, “refuting”—the grounds of appeal. The fact that the original statement did not respond to submissions that had not been made at the time it was promulgated cannot possibly be regarded as a clerical mistake, an accidental slip or an accidental omission."

The tribunal had referred in its statement of reasons to the Medical Research Council Dyspnoea (breathlessness) Scale. Judge Poynter discusses the Scale,  holding that:

"24  I understand that the MRC Scale is of considerable utility in the management of COPD and, in particular, in keeping track of any deterioration in the condition. However, at least on its own, it is less well suited for determining whether a person suffering from breathlessness is virtually unable to walk for the purposes of entitlement to the higher rate of the mobility component of disability living allowance.

25  To begin with, the scale is self-administered. Patients are invited to tell their doctors which of the Grades they consider applies to them. The grading therefore does not represent a medical opinion and, as the NICE Guideline makes clear, is only one of a large number of factors relied upon by doctors to assess the severity of COPD.

26  A potential attraction of the MRC Scale for decision makers and tribunals is that it appears to be objective, a medical judgment that is capable of being expressed quantitatively and in black and white terms as a number on a scale. That is not so: a score on the MRC Scale is evidence from the claimant, not evidence from a doctor.

27 Once that is recognised, three further issues arise:

a. First, the evidence is likely to be affected by the well-known difficulties experienced by many people when estimating distance.

b. Second, the MRC Scale is seeks to assess the restrictions on a patient’s mobility caused by breathlessness. There will be cases in which breathlessness will not be the only factor limiting mobility. In such cases, if the test is properly administered, the grading will not necessarily represent the claimant’s overall walking ability but rather an estimate of that walking ability if breathlessness were the only limiting factor. The claimant may place themselves on, say, Grade 3, but nevertheless be virtually unable to walk because of musculo-skeletal problems

c. Third, each of Grades 1-4 represents quite a wide degree of disability. How, in particular, is a person who is able to leave the house and does not get breathless when dressing or undressing but who stops for breath before 100 metres, or after walking slowly for a minute, to categorise herself? (It may perhaps be argued that in practice there are few such people but the point remains valid if there are any). Such a person will probably appreciate the considerable degree of approximation indicated by the words “about” and “few” and place herself in Grade 4. That is likely to be so whether she walks for 40 metres before stopping, or 50, or 75, or 95. For the purposes of the MRC Scale all those distances amount to “about” 100 metres as indeed would 150—and perhaps 200—metres or even more. By comparison, until relatively recently, Grade 3 used to refer to the patient walking a mile before stopping.
Whether someone is virtually unable to walk depends on the circumstances of each individual case. However, by way of example only, many tribunals would not consider that a person whose mobility is only restricted by breathlessness and who could walk 100 metres before stopping to catch breath to be virtually unable to walk. By contrast many tribunals would reach the opposite conclusion if the same person had to stop after 40 metres. In both cases, the claimant would probably assess him or herself as Grade 4.

28 For those reasons, the MRC Scale, whilst perhaps useful as background evidence, is insufficiently precise on its own to form the basis of a decision that a claimant is, or is not, virtually unable to walk."

CDLA/134/2011 [2011] UKUT 336 (AAC): Need to consider when claimant “knew or could reasonably have been expected to know” that a change of circumstances should have been notified / need to confirm if surveillance was properly authorised

Judge Rowland
17 August 2011

The claimant had appealed against a decision that she was not entitled to DLA from January 2009 and that a recoverable overpayment had been made to her since that date.

In dismissing her appeal, a tribunal considered the effect of her physical problems on her entitlement to the care component and with the effect of her mental health on her entitlement to the mobility component,

However, in upholding the claimant’s appeal to him, Judge Rowland highlights regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 that required that the date from which the claimant’s DLA award fell to be superseded was the date on which she “knew or could reasonably have been expected to know that the change of circumstances should have been notified”. 

Judge Rowland then comments that:

“If a condition is variable or subject to a gradual improvement, pinpointing that date may not be easy.  In this case, in retrospect, the date from which the change was taken to have occurred was in January 2009, but it did not follow that the claimant should have realised that a material change had taken place at the time. 

The most striking change in the claimant’s condition was in her physical mobility but that was not actually material, given that there had been no award of the higher rate of the mobility component.  The change in the ability of the claimant to move her upper limbs was more relevant and required reporting, but the claimant could be expected to report it only once she realised it might be a medium-term improvement.

Moreover, if it were accepted that the claimant still needed the presence of someone for reassurance when outdoors or for at least a significant portion of the day (as to which the First-tier Tribunal made no finding), the question would arise as to whether the claimant could reasonably have been expected to realise that mere presence does not amount to guidance or supervision and that such improvement in her mental health as there had been was significant and should also be reported.” 

As in his judgment, the tribunal did not adequately consider the issues material to decisions under regulation 7(2)(c) Judge Rowland sets aside its decision and remits the appeal for rehearing.

In supporting the claimants appeal, the Secretary of State also submitted to Judge Rowland that the tribunal had erred in failing to make findings as to whether surveillance had been properly authorised for the purposes of the Regulation of Investigatory Powers Act 2000 (making reference to CIS/1481/2006 and CDLA/ 1838/2010). 

Judge Rowland finds that it is not necessary for him to express a view as to whether that submission was correct or whether it carried with it an implication that evidence of proper authorisation ought to be provided as a matter of course to the First-tier Tribunal in every case where surveillance evidence of any type is relied upon by the Secretary of State. 

However he does state that:

“… if the First-tier Tribunal did err as alleged, the error is only material if the lack of investigation would, or might, have resulted in a finding that the surveillance was not properly authorised.  Since the evidence necessary to show whether proper authority was given should all be in the possession of the Secretary of State, it seems to me that the Secretary of State ought generally to produce that evidence when submitting to the Upper Tribunal that the First-tier Tribunal has erred in failing to obtain it.”

CDLA/1052/2011 [2011] UKUT 464 (AAC): Need for tribunal to consider if attention is "frequent"

Judge Rowland
25 November 2011

In a short decision, Upper Tribunal Judge Rowland highlights the significance of a First-tier Tribunal finding that “the appellant did not require attention throughout the day” and not demonstrating that it had considered the correct test of whether she required “frequent attention throughout the day” -

“The word “frequent” is important and is to be distinguished from “continual”, which is used in section 72(1)(b)(ii) [of the Social Security and Benefits Act 1992] in relation to supervision.  The use of the word “frequent” is presumably intended to ensure that benefit is awarded only if the attention is required sufficiently often that the person providing the assistance must for most practical purposes be continually present, or at least in the vicinity, even though the attention is actually provided at intervals.

Although it may be the case that the First-tier Tribunal had that well in mind, the fact that it did not set out the correct test raises the possibility that it may not have done so.  That is of significance because it is not unlikely that, in this particular case, a different conclusion could have been reached had it asked itself the right question.  This is particularly so, having regard to its findings that the claimant, who suffered from depression, required prompting and encouragement to go out alone and with other functions.”

In remitting the appeal to be heard by a new tribunal Judge Rowland adds that the tribunal -  

“… appears not to have taken account of help the claimant might have required to ensure she followed a diabetic regime, which not only includes the taking of medication and physical exercise but also regularly checking blood glucose levels and adhering to a healthy and somewhat limited diet.”

Employment and support allowance

CE/108/2010 [2011] UKUT 157 AAC: Effect of compensation paid to disabled claimant due to death of her mother

Judge N J Wikeley
07/04/2011

The claimant had Down’s syndrome and had received a substantial payment of compensation (held on her behalf by the Court of Protection) after her mother was killed in a road traffic accident when she was 14 years old.

At the age of 22 she claimed income support.  With a tribunal having dismissed her appeal against the decision that she was not entitled to benefit - on the grounds that the compensation she had received was over the £16,000 capital limit - she appealed to the Upper Tribunal.

Following an analysis of relevant paragraphs of Schedule 10 to the Income Support (General) Regulations 1987 - that identifies capital that can be disregarded - Judge Wikeley also dismisses the claimant’s appeal.

In doing so he holds that -

  • the phrase “a payment made in consequence of any personal injury to the claimant,” (paragraph 12 of Schedule 10) could not apply to the claimant as her compensation award covered the loss of care previously provided by her mother rather than any personal injury to her; and
  • the phrase “compensation for the death of one or both parents where the person concerned is under the age of 18” (paragraph 44 of Schedule 10)  should be read to the effect that any such disregard only lasts as long as the person is aged under 18.

Judge Wikeley also dismisses the claimant’s human rights argument that the effect of paragraph 44 of Schedule 10 discriminated against disabled people who are more likely to need the care of a parent after the age of 18. This is on the grounds that a failure to make special provision for people in the claimant's position is not unreasonable or disproportionate.

CE/497/2010 [2011] UKUT 158 (AAC): Activity 11: remaining conscious during waking moments

This decision considers the different wording for this activity compared to that for IB.

The IB activity is

"Remaining conscious without having epileptic or similar seizures during waking moments."

The IB Descriptor is

"Has an involuntary episode of lost or altered consciousness at least once a day."

The ESA Activity is

"Remaining conscious during waking moments."    

The ESA Descriptor is

"At least once a week, has an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration."

Basically the decision holds that the test for altered consciousness as outlined in R(IB)2/07 (when he or she is no longer properly aware of his surroundings or his condition so as to be incapable of any deliberate act) cannot be applied to the ESA descriptor. This is because the revised ESA wording - "resulting in significantly disrupted awareness or concentration" - applies a different test.

This decision has now been reported as [2012] AACR 2.

CE/917/2010 [2011] UKUT 48 (AAC): Activity 3: bending or kneeling - Descriptors 3(b) and (c)

Any ability to perform these descriptors where they can only be achieved by holding on to or pushing up on an object such a piece of furniture must be disregarded apart from any assistance gained from using the hands to steady oneself or push up on the floor in the case of both descriptors or from a low shelf in the case of descriptor 3(b).

CE/1172/2010 [2011] UKUT 82 (AAC): Continence

This decision considers descriptor 10(a)(vii) – continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device and 'risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach the toilet quickly.'

Judge Lane found that the tribunal gave insufficient reasons for its decision on this descriptor. The tribunal held that the claimant did not satisfy descriptor 10(a)(vii) because although he had bladder urgency, he had not actually wet himself. The Judge states that an assessment of whether this descriptor is satisfied in this case should focus on the risk of the full voiding of the bladder if the claimant was not able to reach a toilet quickly, rather than whether this had actually happened.

Judge Lane goes on to suggest a series of questions that a tribunal should consider.

  1. Does the claimant suffer from a condition (or conditions) which, in the tribunal’s medical experience, may lead to a loss of bladder control? If so, a risk of losing control clearly exists. 
  2. Considering the evidence (including the ESA50, GP and medical reports provided by the appellant or obtained by the tribunal and the ESA85) is the loss of control likely to be such that the appellant cannot control the full voiding of the bladder?
  3. Has the claimant ever unexpectedly emptied his bladder fully?

“Although the descriptor is about risk and not the materialisation of the risk, it will generally be relevant to find out whether the claimant has ever unexpectedly emptied his bladder fully. If he has not, it may be because he never goes far from a toilet. On the other hand, if he has a normal lifestyle and still has never lost full control of his bladder, it may be that there is no real risk of it happening.  If he has lost control fully but infrequently, it may be that the appellant has learned techniques to minimise the risk to the point where it is too trivial to be legally significant, or that the instances of loss of control did not materially involve the condition of which he complains.”

CE/1222/2010 [2011] UKUT 216 (AAC): Activity 10 and 14

Judge J Mesher
1 June 2011

The claimant had irritable bowel syndrome and at both his WCA and on appeal was awarded 6 points for descriptor 10(a)(vii) on the basis that he “risks losing control” of his bowels.

There was evidence before the tribunal that there had been occasions when he had actually lost control of his bowels, rather than merely being at risk of doing so, and the appeal was allowed because the tribunal had failed to investigate how often this occurred, which might have brought him within either descriptor 10(a)(iii) or 10(a)(v).

The Secretary of State had argued that because the claimant had a degree of control of his bowels, so that he was usually able to get to a toilet in time, he could not qualify for those descriptors concerning actual loss of control. Judge Mesher held that the descriptors do not require “immediate, involuntary full evacuation of the bowel” but “can be satisfied even though the claimant is able to exercise control for a certain amount of time” before losing control.

The evidence also raised Activity 14, Memory and concentration. The claimant indicated that he sometimes lost concentration because of physical discomfort. Judge Mesher rejected the Secretary of State’s argument that the mental functions descriptors could only apply if the relevant problems stemmed from a mental health problem. He emphasised that Part 1 of Schedule 2 is headed “Physical disablement”, which points to the underlying cause of the effect on physical function. In contrast, Part 2 of the Schedule is headed “Mental, cognitive and intellectual function assessment”, which points to the nature of the function affected, regardless of the underlying cause.  There is no general restriction of the mental function descriptors to incapacity arising from a mental illness or disablement.

This decision has now been reported as [2012] AACR 5.

CE/1839/2010 [2011] UKUT 75 (AAC): Employment and support allowance Work Capability Assessment (WCA) activity 1: walking 

The claimant had low back pain and claimed that walking caused him severe discomfort. The tribunal erred failing to consider this in relation to the Activity 1 – the walking test.

Judge Ward states that activity 1 is concerned with walking without severe discomfort but that the discomfort does not have to have been brought on by the walking.

The test is whether regulation 19 (5) of the ESA regulations is met. This states:

"(5) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 2 [the limited capability for work activities], it is a condition that the claimant's incapability to perform the activity arises from—

(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.”

The claimant met the conditions of this regulation.

“14.  What the legislation does say, in regulation 19(5), is that it is a condition that (so far as relevant) “the claimant’s incapability to perform the activity arises from a specific bodily disease or disablement.” The claimant is said to have disc wear at L4/L5 disc level.  That seems to me to be capable of being “a specific bodily disease or disablement”, so if the claimant can establish an incapability, arising from that disease or disablement, to perform the activity of walking to the requisite extent of the descriptor, that seems to me to be the end of the statutory test.”

The Secretary of State also argued that any discomfort the claimant felt prior to walking should be disregarded but Judge Ward held that this was irrelevant to the test. The legislation does not say that the severe discomfort must have been brought on in consequence of the walking.  If it had meant that, it could have said so.

CE/1899/2010 [2011] UKUT 79 (AAC): Getting about - Descriptor 18

The Claimant had a stress related illness which had been caused by the circumstances in which she had been dismissed from her previous employment, in about April 2009.

The appeal was allowed because the claimant did not receive all the appeal documents. Judge Turnbull was reluctant to do this because, in his opinion,  the answers given on the ESA 50 questionnaire suggested that no points could properly be awarded. However the tribunal decided to award points for Activity 18(c) – for the majority of the time is unable to get to a specified place with which the claimant is familiar without being accompanied by another person.

The tribunal based this on the evidence that the claimant was fearful of seeing anyone involved with her former work and also did not like to see any reminders of her former employers: vans or lorries. As a result she would not, therefore, be able to visit her former employer’s premises, a specified place, at all or, at best, accompanied.

Judge Turnbull accepted the tribunals reasoning even if he did not agree with the conclusion but left open the question whether any of the descriptors in Activity 18 applied where the claimant’s only problem is in entering a building at the destination, as opposed to getting there.

CE/1992/2010 [2011] UKUT 61 (AAC): Employment and support allowance WCA

The Claimant suffered from fibromyalgia, back pain and carpal tunnel syndrome. Judge Turnbull allowed her appeal, firstly, because the tribunal was misconceived in its consideration of inconsistent evidence.

7. First, as the Secretary of State’s representative has emphasised in his submission in this appeal, the Tribunal did not find the Claimant’s evidence credible. The reasons for reaching that conclusion were summarised in paragraph 12 of the Statement of Reasons. The Tribunal there gave two examples of what it saw as inconsistency in the Claimant’s evidence. The second example was: “The appellant in her appeal claimed that she could not bend down; however in oral evidence the appellant said that she could bend most of the time.” However, the Secretary of State’s representative has drawn my attention to the fact that there does not appear to have been any claim by the Claimant that she could not bend down. This claim is said to have been made “in her appeal”. However, there was no such contention in the appeal form (p.9) or in the written submission (pp.63-5). On the contrary, in the submission it was stated that “[the Claimant] is able to bend from the waist but cannot, due to pain squat or kneel. However, she tires rapidly and would be unable to repeat this manoeuvre.” In her ESA 50 questionnaire the Claimant had said (p.20): “I can bend straight. I can’t squat or kneel.” I am unable, therefore, to understand where that particular inconsistency is said to arise; the claim for 6 points under descriptor 3(c) seems to have been made on the basis that she could not bend down with any degree of repetition, not on the basis that she could not do so at all. The Secretary of State submits, in effect, that that does not matter, because there are other inconsistencies in the Claimant’s evidence. However, although it is all a matter of degree, in this case the Tribunal in its reasoning relied on only two examples of inconsistency, and it was in my judgment significant that one of those appears to have been misconceived."

Also in relation to bending or kneeling, the tribunal rejected the submission concerning the ability to repeatedly and reliably undertake such actions because the word “sometimes” which appeared in the old PCA test was not present in the ESA test. Judge Turnbull did not believe the absence of the “sometimes” descriptor (6(c) of the incapacity for work descriptors) removed the need for the decision maker to take into account whether the claimant can perform a relevant activity with some degree of repetition in relation to the work capability assessment .

The second error was a failure to consider the claimant’s previous award of DLA higher rate mobility component, which would imply 15 points under descriptor 1(b). The Tribunal should, on its own initiative, have had before it the evidence on the basis of which that award was made.

The third error was that the tribunal should have dealt expressly with the representative’s submission that regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 – exceptional circumstances applied.

CE/2186/2010 [2011] UKUT 170 (AAC): Asperger's Syndrome - descriptor 20 (propriety of behaviour) and descriptor 21 (dealing with other people) - (pre March 2011 test)

Judge Michael Mark
1 April 2011

The claimant suffered from Asperger’s Syndrome and a tribunal had dismissed his appeal against the decision that he had failed the work capability assessment.
In setting aside the tribunals’ decision and remitting the appeal for rehearing, Judge Mark holds in relation to descriptor 20 (propriety of behaviour with other people) that the tribunal had failed to investigate –

  • whether the claimant either had a strongly disproportionate reaction to minor events or to criticism to the extent that he could manage overall day to day life when such events occur; or
  • whether he frequently demonstrated a moderately disproportionate reaction to minor events or to criticism, but not to such an extent that he cannot manage overall day to day life when such events occur.
    In addition, in relation to descriptor 21 (dealing with other people), he finds that the tribunal should have investigated the claimant's assertion that he found it hard to tell when other people are upset, but that he sometimes thought he may have upset them without knowing what it was that he had done.

Highlighting that this is a typical problem faced by those suffering from Asperger’s Syndrome, Judge Mark finds that –

“The question is whether his lack of awareness of that impact is such that it makes it difficult for him to relate to those people. The lack of awareness may either cause him to act inappropriately in the first place or to fail to respond appropriately following inappropriate behaviour. Difficulty does not equate to impossibility, and he can have difficulty relating to others despite the fact that others close to him will make allowances for his behaviour.”

CE/2323/2010 [2011] UKUT 454 (AAC): Consideration of mental health descriptors where no specific mental illness

Judge Ward
19 October 2011

This case concerned an ESA claimant who had ME. As a result of her ME she had difficulty concentrating, poor short term memory and difficulty making decisions. The tribunal did not award any points under the mental functions part of the WCA because her difficulties did not arise from a specific mental illness or disablement.

In finding that the tribunal was in error of law, Judge Ward followed CE/1222/2010 in holding that there need not be a specific mental illness and observed that there were “sound practical reasons for considering the functional difficulties experienced by a claimant, rather than having to explore elusive questions as to whether the source of that limitation is mental or physical in origin”.

However, although the tribunal had been wrong not to consider the mental descriptors, Judge Ward held that on the evidence the claimant could have scored no more than 6 points, and accordingly could not have succeeded in her appeal. The Judge therefore declined to set aside the tribunal decision, making the point that “the purpose of an appeal on a point of law is not to provide a second opportunity for giving evidence that could have been given the first time round”.

CE/2444/2010 [2011] UKUT 159 (AAC): Tribunal’s alteration of its statement of reasons

Judge Jacobs
15 April 2011

Following the claimant receiving the tribunal’s statement of reasons and requesting leave to appeal, the statement of reasons was amended to include reasons relating to the issues raised in the leave to appeal application. 

The presiding judge said that an extra nine lines had been omitted in the original statement due to “a clerical mistake or accidental slip or omission” and therefore she could add these due to the provisions of rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

Another judge then refused to review the tribunal's decision as it now contained no error of law.
However, Judge Jacobs holds that the additions to the statement could not be authorised under rule 36:

'Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted.

… It is difficult to classify the omission of a total of nine lines of explanation as in the same category of mistake as a typing error or a momentary lapse of concentration. For that reason, I decide that the changes made by the presiding judge were not authorised by rule 36.'

However, while Judge Jacobs finds that the reasons statement as originally drafted were inadequate - and the additions to it invalid - he nonetheless decides not to set aside the tribunal’s decision.
This is because he concludes that there is no reason why he cannot take into account the additional reasons that the judge gave:

“My decision is that technically the tribunal’s reasons were inadequate, but having read the evidence that was before the tribunal, and taken into account the tribunal’s reasons as disclosed by the judge, I consider that the decision itself was sound in fact and law. It is not appropriate to set it aside.”

CE/2541/2010 [2011] UKUT 224 (AAC): Whether ESA and DLA appeals can be heard together

Judge Williams
7 June 2011

The claimant had appealed two decisions - one that he did not qualify for ESA and the other that he was not eligible for DLA. Both appeals were heard together and dismissed. The record of proceedings showed that while the disability qualified member did not take part in the decision on ESA she did take account of all the evidence presented when contributing to the DLA decision.

In considering the claimant’s appeal, Judge Williams highlights that the Senior President of Tribunals Practice Statement on Composition of tribunals in social security and child support cases in the social entitlement chamber on and after 3 November 2008 (the “Composition Order”) mandates that, subject to limited exceptions:

  • a tribunal dealing with a DLA appeal must contain three members; and
  • a tribunal dealing with ESA appeals must consist of two members.

As none of these exceptions were relevant to these appeals Judge Williams holds that the tribunal erred in hearing both appeals together rather than consecutively as:

“That is a breach of the Composition Order. It is beyond question that “the tribunal” could hear the appellant’s appeals at the same session, and that different tribunals can have overlapping membership if they proceed correctly in handling each appeal. But that is not what happened here. Correct procedure involves, above all, correct composition. “          

He adds that the tribunal were not correct in saying that the disability qualified member did not take part in the ESA decision, since:

“The record shows that the tribunal interpreted this as meaning that all three members could take part in all aspects of the hearing, but that only two members could take part in the actual ESA decision. That is too narrow a view … the Composition Order applies to the whole process on the hearing day not merely the final decision making.” 

However, Judge Williams holds that it is where appeals listed in a single session have both a common appellant and a common respondent but require different constitutions, it is possible for the judge and the medical member to hear an ESA appeal either before or after the three members hear a DLA appeal.

He therefore concludes by setting out guidance as to matters including order of proceedings; evidence; and records of proceedings; and statements of reasons.

CE/52/2011 [2011] UKUT 317 (AAC): WRAC on linking claims

Judge Mesher
28 July 2011

The claimant was in receipt of income-related ESA including the work-related activity component (WRAC). He found full-time work and came off benefits, but the work only lasted just over a week. He reclaimed ESA, and was awarded the basic component only, pending a new medical assessment, but was told that if he passed the new assessment would be backdated to the date of claim. Before the new medical assessment could be carried out, the claimant found full-time work and came off ESA permanently. The DWP view was that he did not qualify for the work-related activity component because he had not been assessed on the new claim.

Judge Mesher decided that the claimant was entitled to the work-related activity component from the date of claim, even without a medical assessment on the second claim.

This is because of the effect of Sections 4(4) and 4(5) of the Welfare Reform Act 2007, which set out the conditions of entitlement to the components of ESA. Section 4(4) provides that if the assessment period has ended and the claimant has been assessed as having limited capability for work-related activity then the claimant is entitled to the support component. Section 4(5) provides that if the assessment period has ended and the claimant is not entitled to the support component then he is entitled to the work related activity component.

Regulation 7(1)(b) of the ESA Regulations provides that where a period of limited capability for work is treated as continuous with an earlier period (as in this case), then the requirements in Sections 4(4) and 4(5) for the assessment period to have ended is removed. Since the claimant did not have a limited capability for work-related activity, and therefore was not entitled to the support component, he had to be entitled to the work related activity component.

Guidance has been issued on this decision (Memo DMG 25/11).

Now reported as [2012] AACR17.

CE/146/2011 [2011] UKUT 389 (AAC): Loss of IB case papers / need to adjourn for further evidence/ Burden of proof on Secretary of State

Judge Parker
15 September 2011

The claimant, who suffered from angina then myocardial infarction, had been in receipt of incapacity benefit (IB) from May 2001. Following a personal capability assessment, a decision was made in February 2010 to supersede and end his award.

While the claimant was then awarded ESA, following a work capability assessment it was decided that he did not have a limited capability for work.

The claimant appealed the above decisions and a tribunal heard both appeals together.

In the case of the IB appeal all previous personal capability assessment (PCA) papers were certified as lost by the Secretary of State, including the completed IB50 questionnaire by the claimant. In neither set of papers, however, because of the loss of IB papers and the very recent nature of the ESA claim, were there any medical reports other than those of the same ATOS healthcare professional (HCP) who, had interviewed and examined the claimant with respect to his IB and ESA claims.

Given the loss of the IB papers, the tribunal adjourned and issued directions to the claimant that he should:

  • make sure that the tribunal was sent any information he considered relevant;
  • let the Tribunal know in writing within one month whether he agreed with the HCP’s report; and
  • that he might think it important to send in other medical evidence, for example from his consultant,

However, at the rehearing the claimant was not represented and had taken no steps to obtain additional medical information for the tribunal to consider. Although the tribunal noted that it found it very difficult to obtain clear information from the claimant as to when he had problems with pains in his chest, it adopted the findings of the HCP and dismissed his appeals.

In upholding the claimant’s appeals to him, Judge Parker says that while a decision as to whether to adjourn a hearing involves a judicial discretion the overriding objective of the tribunal rules of procedure is for a tribunal to deal with cases fairly and justly:

“In the particular circumstances arising here, failure to adjourn with a direction to the Secretary of State to obtain, for example, hospital case notes, was erroneous in law.  The Procedure Rules give the First-tier Tribunal wide case management powers and issuing prehearing directions are very useful in appropriate cases.  However, in the IB HCP’s report, the claimant is described as having worked as a shotblaster and a spray painter; in the ESA HCP’s report, his last occupation is given as that of a security man.  He is unrepresented.  It must be very debatable whether such a claimant would read all of the direction notice sent to him which could unintentionally appear somewhat complex, lengthy and intimidating to one who may not previously have had any contact with a formal adjudicative process.”

Judge Parker then highlights that regulation 27 of the Incapacity for Work (General) Regulations 1995 and regulation 29 of the Employment and Support Regulations allow a claimant to satisfy their respective tests if:

“he 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 he were found capable of work/if the claimant were found not to have limited capability for work]”.

In this case, the Judge finds that:

“As the Secretary of State was not able to produce prior IB documents, and the medical condition claimed is one where regulation 27 (for IB) or regulation 29 (for ESA) is usually for consideration, (despite the fact that the DM in neither case expressed any overt regard to the application of these regulations other than a mechanical citation of them), this is a case where the interests of justice surely required an attempt to obtain medical evidence from other than one single HCP. 

Both parties have a duty under rule 2 to “help the Tribunal to further the overriding objective”, yet no prehearing directions had been sent to the Secretary of State in the IB appeal.  In all the circumstances, adjournment was required so that, for example, a report from the claimant’s GP could be obtained by the Secretary of State, with incorporation of any letters to the GP from the consultant.”

Judge Parker therefore remits both appeals for rehearing together by another tribunal. He also suggests that the files are put before a District Tribunal Judge before rehearing in order that the Secretary of State may be directed to provide further medical evidence.

CE/311/2011 [2011] UKUT 243 (AAC): Relevance of significant weight loss and treatment received to assessment of claimant’s mental health

Judge Ward
21 June 2011

The claimant, who suffered with depression, appealed against the tribunals’ decision to uphold the determination that she did not have a limited capability for work. 

In upholding her appeal, Judge Ward reasons as follows:

“There was evidence of (unspecified) recent weight loss and that the claimant, who at that time weighed approximately six stone, had a BMI (16Kg/sq m) which was very low on accepted indicators. 

The tribunal, which awarded 0 points under the physical and mental descriptors, was in my view obliged, in the exercise of its inquisitorial jurisdiction, to follow up the weight loss and low BMI, in order to determine whether they were a symptom of the as yet relatively untreated depression and to consider their possible relevance to the mental health descriptors.  If it could not do so, the claimant having elected a paper hearing, then in my view the tribunal was required to adjourn.”
 
The Judge then outlines that the decision appealed against was taken on 2 June 2010 and that there was evidence before the tribunal in the form of a letter dated 8 August 2010, that by the latter date the claimant’s weight was down to five stone.

However, he highlights that -

“The tribunal appears not to have considered the possibility that this could provide evidence of the rate of weight loss as at the date of decision and should have done so. The rate of weight loss was at least capable of providing evidence as to the claimant’s mental state at the date of decision, if it was that which was causing her to neglect her nutrition.”

Finally, the Judge holds that -

“The tribunal also erred in relation to the relevance of treatment received by the claimant after the date of decision.  By 25 June 2010 (23 days after the date of decision), she was receiving home visits and daily appointments from the mental health crisis team.  There was no indication that this was prompted by an exacerbation of sudden onset post-decision and it was therefore capable of providing evidence as to how the claimant’s mental health was at the date of decision. 

It appears that in relation to these issues the tribunal misdirected itself as to section 12(8)(b) of the Social Security Act 1998, as evidence coming into existence after the date of decision and evidence of events occurring after the date of decision may be considered if relevant to the circumstances obtaining at the date of decision: see R(DLA)2/01 and R(DLA)3/01.” 

CE/330/2011 [2011] UKUT 334 (AAC): Need for a tribunal to consider adjournment / oral hearing

Judge Mesher
18 August 2011

A tribunal dismissed the claimant’s appeal against the decision that he did not have a limited capability for work after a paper hearing.

The Secretary of State supported the claimant’s appeal to the Upper Tribunal as his ESA50 questionnaire was very sparsely completed and vague and that the First Tier Tribunal had erred by failing to consider whether to adjourn for further medical evidence (given the overriding objective of dealing with cases fairly and justly).

In upholding the claimant’s appeal, Upper Tribunal Judge Mesher highlights Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 that provides that:

(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless-

(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing."

As a result, Judge Mesher remits the claimant’s appeal for rehearing by a new tribunal saying that:

“I see the error of law in the present case in the inadequacy of the tribunal's reasons in failing to show that it had considered either the conditions in rule 27(1) for proceeding without a hearing or whether or not to adjourn to give the claimant an opportunity to attend or to produce further medical evidence.”

If a Tribunal does not hold a hearing and there is no record of proceedings, any statement of reasons must deal explicitly with the conditions in rule 27 (i) of the procedure rules.

CE/343/2011 [2011] UKUT 416 (AAC): Exceptional circumstances

Judge Poynter
11 October 2011

This case concerns the exceptional circumstances under which a claimant can be treated as having limited capability for work if there would be a substantial risk to health, and applies the existing incapacity benefit caselaw to the ESA scheme.

The claimant suffered from a renal condition as a result of which he experienced episodes of severe pain and frequent kidney stones.  The claimant was 17, had been on the learning disability register, and had few qualifications and little or no experience of work. As a result, he was only likely to be able to obtain manual work.  It was clear from both the claimant and the doctors treating him that working was likely to increase the frequency of episodes of severe pain. The tribunal noted that “his mental attitude was positive” and that he was trying to move forward with his life. They concluded that because of this there was no substantial risk to his health if he were found not to have limited capability for work.

Judge Poynter found the tribunal to be in error of law.  The Judge applied the judgements in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 and CIB/360/2007 (both incapacity benefit cases) and held that:

"17        There will be some cases in which it is possible to say that any type of work will give rise to a substantial risk to the health of the claimant or some other person. An example is provided by the recent decision of the Court of Appeal in Cattrell v Secretary of State for Work and Pensions [2011] EWCA Civ 572, in which a tribunal’s decision that any working environment would constitute a substantial risk to the health of claimant with a rubber and latex allergy was ultimately upheld. Another example might be the common case of an alcoholic or other drug addict who is undertaking an intensive and structured programme of rehabilitation that he would be unable to finish if he were obliged to work or to be available for, and actively to seek, employment.

18        In such circumstances, it will be permissible for the Tribunal to conclude that a claimant falls within regulation 29(2)(b) without going through the process required by Charlton. However, I doubt whether there are any cases in which a Tribunal could decide that a claimant did not satisfy that regulation without first identifying both the work that he might be expected to perform and the workplace in which he might be expected to perform it. Even if I am wrong about that, this is not such a case.

19        The Tribunal should therefore have followed CIB/360/2007 (as approved in Charlton) and :

a.         made findings as to the range or types of work for which the claimant was suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing; and then

b.         decided whether, within that range, there was work that he could do without the degree of risk to health envisaged by regulation 29(2)(b).

It erred in law by failing to do so. For that reason also, the tribunal’s decision must be set aside."

CE/398/2011 [2011] UKUT 447 (AAC): ESA transitional provision rules

Judge Wikeley
12 October 2011

In June 2009, following a personal capability assessment, a decision maker decided that the claimant was not incapable of work and so stopped her incapacity credits award. As a result, her income support claim was also ended.

Following this, in July 2009 she claimed ESA but was subsequently held not to have a limited capability for work.

The claimant appealed both the above decisions and her appeals were heard before the same First-tier Tribunal (FTT).

After focusing on the claimant’s health problems and their effects the FTT dismissed the claimant’s incapacity credits appeal.

However, it decided her ESA appeal on a more technical basis, with the FTT deciding that this second appeal did not concern an ESA claim at all.

Instead, citing transitional provision rules, the tribunal found that as her ESA claim had been made within 8 weeks of the end of the previous income support award the claimant had made an as yet undecided new claim for income support on the basis of incapacity.

The Secretary of State then appealed to the Upper Tribunal.

In giving his decision, Judge Wikeley identifies that the issues arising on this appeal are:

  1. was the claimant excluded by the relevant legislation from making a claim for ESA at the time she made it, and, if so,
  2. could the claim for ESA be deemed to be a claim for a benefit for which there was an existing award?

Judge Wikeley then considers, as did the tribunal, regulation 3(1) and 3(2) of the Employment and Support Allowance (Transitional Provisions) Regulations that provide:

“Claim by person entitled or potentially entitled to existing award

3)

(1) A person who is entitled to an existing award is excluded from making a claim for an employment and support allowance.”
           

(2) A claim for an employment and support allowance made by a person who would be entitled to an existing award if that person made a claim described in regulation 2(2), is to be treated as a claim for that award.”

He cites and concurs with CSE/511/2010 in which Judge May holds that:

“As far as Employment and Support Allowance (ESA) is concerned, where a person is entitled to Incapacity Benefit (IB), Severe Disablement Allowance (SDA) or Income Support (IS) on the grounds of disability, or who can make a linked claim for that benefit, that person is prevented from claiming ESA by regulation 3 of the Employment and Support Allowance (Transitional Provisions) Regulations 2008.

However, a person who has had their IB disallowed and is appealing against that decision is not prevented by Reg 3 of the ESA (TP) Regs 2008, or by any provision of the Welfare Reform Act or the ESA Regulations 2008, from making a claim for ESA. If ESA is awarded before the IB appeal is heard, then there is no provision to prevent the payment of that award, whether it is contributory-based or income-related.”

In therefore upholding the Secretary of State’s appeal, Judge Wikeley holds that:

“In this case there was no existing award and also no potential for an existing award.  It followed that regulation 3 did not operate so as to convert the claimant’s ESA claim of 20 July 2009 into a claim for e.g. income support on the grounds of incapacity.  The claim of 20 July 2009 was a claim for ESA, pure and simple.  The FTT was wrong to hold otherwise and in particular erred in law in holding that the claim of 20 July 2009 was a claim for income support on the basis of incapacity which had to be remitted to the Secretary of State for decision.”

He concludes by directing that a new tribunal must hear the claimant’s second appeal and determine if she has entitlement to ESA on the grounds of having a limited capability for work.

CE/428/2011 [2011] UKUT 386 (AAC): Treatment of conflicting evidence in ESA50 and WCA medical report

Judge Ovey
21 September 2011

The claimant suffered from anxiety, depression, heroin misuse, incontinence and asthma and had claimed ESA. Following a work capability assessment medical examination it was determined that he did not have a limited capability for work.

While he had elected to have an oral hearing of his appeal against this decision, the claimant did not attend and when telephoned asked that the tribunal proceed in his absence.

The tribunal considered the evidence of the claimant’s ESA50 questionnaire, his letter of appeal, a written submission from his representative and the ATOS healthcare professional’s medical report.

In dismissing his appeal, the tribunal recorded that:

“Where the evidence given by the appellant was in conflict with the evidence given in the examination for the purpose of the WCA the tribunal preferred the evidence of the WCA as being more probable and reliable.  This was because we found that the WCA was an assessment specifically directed to considering ESA descriptors, and we found it to be independent and not self serving, in contrast to the evidence of the appellant.”

In setting aside the tribunal’s decision, Upper Tribunal Judge Ovey, after citing the findings of CIB/2308/2001, states that:

“Wherever there was a conflict of evidence, the tribunal preferred the evidence of the report, because it was an assessment specifically directed to the descriptors and was independent and not self-serving. Although the claimant’s representative had challenged certain of the recorded statements and had specifically identified four descriptors for consideration (with alternatives for two of them), the tribunal made no attempt to address any of the descriptors individually, except by finding that the 6 points awarded were the maximum which could reasonably be awarded.”

She continues in the claimant’s case that approach led to the following difficulties:

“(1)      … in reaching her conclusions on the mental health assessment the health care practitioner inevitably had regard to many of the statements made by the claimant, although equally inevitably she had regard to her own observation of the claimant during the examination.  It seems, therefore, that it must have been part only of the claimant’s evidence (presumably that contained in his questionnaire and his representative’s letter) which the tribunal regarded as self-serving, but no attempt was made to explain that;

(2)       descriptor 18(d), in respect of which the claimant was awarded 6 points, is very similar to descriptor 18(c), the difference being that the former refers to being “frequently” unable to get to a specified place without being accompanied and the latter to being “for the majority of the time” unable to do so.  The claimant’s representative specifically asked that descriptor 18(c) be considered, but the tribunal did not give any specific explanation for regarding 6 points as the maximum;

(3)       while descriptor 18 is concerned with the ability to go to familiar places, descriptor 19 relates to the ability to engage in normal activities, including going to new places and engaging in social contact.  The tribunal was asked to consider whether the claimant was precluded from normal activities by overwhelming fear or anxiety either for the majority of the time or frequently.  That descriptor was not specifically addressed at all, although as a matter of common sense if the claimant needs to be accompanied to go to a familiar place it might be thought he would equally have difficulty with going to an unfamiliar place.  Indeed, the health care professional stated in her summary of functional ability that “mental state examination suggests the client’s anxiety and depression causes mild disability with their ability to get to familiar places and get to unfamiliar places.”  It was said in [CE/2373/2009] that there is here a potential overlap which again requires adequate fact finding.  I agree.”

However, after considering all the available evidence herself, while Judge Ovey holds that the claimant should score 12 descriptor points this is insufficient for him to satisfy the limited capability for work test.

In addition, she concludes that despite the claimant’s heroin use, anxiety and depression and incontinence that “on his own evidence he can manage to get up, use the bathroom, get dressed and usually to cook at least snacks”. Therefore in her view he would be capable of performing straightforward and structured unskilled work so that there was no substantial risk to his health if he was found capable of work. 

CE/609/2011 [2011] UKUT 507 (AAC): No voluntary control of bowels - consideration of the effect of medication

Judge Ward
22 December 2011

In dismissing the claimant’s appeal a tribunal had found that he did not meet descriptor 10(a): Has no voluntary control over the evacuation of the bowel.

This was on the grounds that -

“… he was not using a stoma and his chemotherapy had ceased.  His bowels were clearly controllable with his medication and he only experienced difficulties as a result of trying to reduce the dose.” 

The Secretary of State supported the claimant’s appeal to the Upper Tribunal arguing that such bowel control that he had appeared to be effected by means of the medication and not by the claimant’s own conscious will which was what the expression “voluntary control” in activity 10a was directed towards. 

The authority cited for this was CIB/14210/96, which in turn relied on the decision of Commissioner Walker in CSIB/38/1996, where the latter held that voluntary control was control that involved the operation of the will and that chemical control by means of medication did not amount to “voluntary control.”

However, Upper Tribunal Judge Ward disagrees with the Secretary of State’s view and instead accepts the finding of R 2/00 (IB) in which the commissioner said:

“As regards Commissioner Walker's decision in CSIB/38/96, if he meant that all medication must be disregarded in determining whether or not a claimant has voluntary control, I do not share his views.  Medication can enable a person to exercise control by will where previously he could not have done so.  If a person acquires or regains control by will over the emptying of bladder or bowel, however the ability to exercise that control was brought about, he cannot, in my view be said to have "no voluntary control".”

CE/1217/2011 [2011] UKUT 449 (AAC): Reasonable use of a walking stick / reasonable use of other aids and appliances

Judge Levenson
20 October 2011

In this decision, Upper Tribunal Judge Levenson considers the application of Regulation 19(4) of the Employment and Support Allowance Regulations 2008 that provides:

“In assessing the extent of a claimant’s capability to perform any activity … the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.”

He holds that the correct approach is as follows:

“If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it.

If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”

Judge Levenson adds that there must be an explanation of how the aid or appliance could help the particular claimant:

“The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.”

He then distinguishes this case from his earlier decision in CIB/14499/1996 in which the claimant had been prescribed an aid (coated spectacles) and he had held that the phrase “if such aid is normally worn” must be “understood to refer to whether the aid is normally worn by people in that situation acting reasonably in all the circumstances”.

However, the tribunal in this case had assessed the claimant’s walking in relation to him using a walking stick when he never used one and when there was some evidence to suggest that he had been medically advised not to use one.

As the tribunal had not sufficiently explained why it considered that it nevertheless was reasonable for the claimant to use a walking stick in these circumstances Judge Levenson holds it had therefore made an error of law and remits the appeal for rehearing.

In doing so, Judge Levenson comments that:

“In my experience it is often the case that people who use a walking stick without advice on whether and how to use one are a menace to themselves and to others.”

CE/1826/2011[2011] UKUT 492 (AAC): Whether claimant’s ability to pick up an object “with either hand” excludes the use of both hands

Judge Turnbull
19 December 2011

A tribunal had found that the claimant could not be awarded points referring to the ability to pick up an object “with either hand” as she could pick up and move things using both hands.

In upholding her appeal, Upper Tribunal Judge Turnbull finds that the tribunal erred as the wording of the descriptors required an answer as to whether a claimant can perform the activity with either hand alone, and that the fact that the claimant could do it with both hands together does not prevent points being scored.

Note: In the revised Schedule 2 to the Employment and Support Allowance Regulations 2008 which came into effect from 28 March 2011 the words “with either hand” are removed from the equivalent descriptors, suggesting that the claimant would not have won the appeal under the new test.

General

CG/2739/2009 [2011] UKUT 103 (AAC): Duty to disclose ineligibility for carers allowance where AA and State Pension cease

The claimant was in receipt of income support and carer’s allowance on the basis that she cared for her mother, who was in receipt of retirement pension, attendance allowance and possibly state pension credit.  On 14 November 2008, her mother went into a care home and, on 28 November 2008, that arrangement became permanent.

On 2 April 2009, the Secretary of State superseded the original decision awarding carer’s allowance, which had been made on 13 January 1996 (when the benefit was known as invalid care allowance), and decided that the Appellant had ceased to be entitled to carer’s allowance from 29 November 2008 because she had ceased caring for her mother for at least 35 hours a week.

On 10 April 2009, the Secretary of State decided that there had been an overpayment of carer’s allowance at the rate of £50.55 pw for 16 weeks from 1 December 2008 (the first Monday after 29 November 2008) until 22 March 2009, amounting to £808.80 in total, which was recoverable from the Appellant under section 71 of the Social Security Administration Act 1992 because she had “failed to disclose” to the Carer’s Allowance Unit the “material fact” that she was no longer caring for her mother for at least 35 hours a week.

The claimant appealed, stating that she had written “to DWP” on 15 November 2008 to say that her mother had been admitted to the care home and that she had confirmed that to a liaison manager on 8 January 2009.  She attached a copy of the letter from the Pensions Service arranging a meeting with the liaison manager and a photocopy of a letter dated 15 November 2008, addressed “To DWP” saying –

“I wish to inform you that my mother … has been admitted to a care home trial, which will become permanent.  If it doesn’t, I will let you know.”

The decision was not revised because it was unclear to whom the letter had been sent and stating that it had not been received by the Carer’s Allowance Unit. The tribunal, at the subsequent hearing, did not even accept that the letter dated 15 November 2008 had ever been “sent and or received by the Department”, pointing out that, not only did it not bear the address to which it was said to have been sent but it also did not include the address of either the Appellant or her mother.  It dismissed the appeal.

The main argument proposed in the upper tribunal appeal was that a person cannot fail to disclose a material fact for the purposes of section 71 if the person to whom disclosure is to be made already knows that fact and that, in this case, the Carer’s Allowance Unit must have known of the cessation of payments of attendance allowance due to the electronic link that exists between the Attendance Allowance Unit and the Carer’s Allowance Unit.

As it turns out, although there is a direct link and automated process regarding claims for CA, DLA and AA this automated process is routinely not applied for payment cases where AA is combined with State Pension. Therefore, in such cases, a broadcast would not be issued via the interface to the CA Unit.”

Had there been a computer prompt in the present case, this could have had legal consequences for any failure to disclose, which would have led the issue to be judged by a three-judge panel. However this was not clear and the claimant was still under a duty to disclose to the appropriate office. 

"28. However, it is clear from Secretary of State for Work and Pensions v Hinchy [2005] UKHL 16; [2005] 1 W.L.R. 967 (also reported as R(IS) 7/05)  that any failure of the Secretary of State to establish a link between the Pensions Centre and DLA/AACS or CACS could not remove a claimant’s statutory duty to report to the Carer’s Allowance Unit material facts that might affect his or her entitlement to carer’s allowance.  It is also clear from Duggan v Chief Adjudication Officer (reported as an appendix to R(SB) 13/89) that, even if a failure by the Secretary of State to establish an appropriate link, or to operate such a link properly, could be said to have been a cause of an overpayment, it would not prevent a claimant’s failure to disclose material facts from also being an effective cause of the overpayment in a case such as this.  Accordingly, it is unnecessary for me actually to decide whether or not there should be a system in place to ensure that the fact that a Pension Centre has implemented a decision made at the Attendance Allowance Unit is fed back to the Attendance Allowance Unit and the Carer’s Allowance Unit.  That is a matter for the Secretary of State and those who exercise oversight over the way he discharges his administrative functions.”

The appeal was allowed regarding the amount of actual overpayment. This was reduced to take into account that the claimant was entitled to income support as a carer for eight weeks after she ceased to be entitled to carer's allowance.

Housing benefit

CH/2822/2009 [2011] UKUT 41 (AAC): Contrived tenancy

This decision considers whether the letting of an annex by parents to their disabled son was on a commercial basis. The parents had built an annex which they claimed was to be let out to provide additional income. Their son, Steven, who had a moderate learning disability, stayed in the annex on the understanding that he would move out when it was let. The parents claimed that they decided to let the property to Steven and claim housing benefit on the advice of Steven’s social worker.

The tribunal (and decision maker) found that the arrangement was not on a commercial basis. The main dispute of fact at the hearing was whether Mrs G (the mother) was correct in saying that their intention at the time of purchase was to let the Annex on the open market in order to generate income, and that there was no intention to allow Steven to remain in the Annex on a permanent basis until it was suggested otherwise by the social worker. Judge Turnbull accepted Mrs G’s contention because it was supported by evidence from the social worker and the team manager of Essex County Council’s learning disability team

Judge Turnbull also held that on the balance of probability, there was an oral agreement, intended to be legally binding, that Steven should pay rent for his occupation of the Annex. However he also came to the conclusion, on balance, that this tenancy was not on a commercial basis.

“I think that the informality with which it was granted, and the other features which I referred to ……., as well as the lack of inquiry into the lawfulness of the occupation as a separate dwelling, are symptomatic of the fact that this was not an arrangement on an arm’s length basis. It was an arrangement between parents and their son, who was highly dependent on them. Although, as I have found, there was a legally binding tenancy, including an obligation to pay rent, entered into for the purposes of providing Steven with accommodation which he required and of providing Mr and Mrs G with income which they required, the reality was that none of the provisions of the agreement would ever be, or need to be, relied upon by Mr and Mrs G or by Steven, as against each other. The tenancy came into being solely for the purpose of claiming housing benefit.”

CH/3186/2009 [2011] UKUT 44 (AAC): Housing and council tax benefits

This decision considers whether a landlord has the right of appeal as a “person affected by the decision” under rule 9 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685).

CH/107/2010 [2011] UKUT 156 AAC:Determining maximum rent under LHA rules

Judge N J Wikeley
7 April 2011

The claimant and his father occupied a property as joint tenants. However, in practice the claimant had sole use both of his bedroom and of the attic room.  He also had access to the whole house as he was his father’s carer.  However, his father only went upstairs to the first floor occasionally and because of his disability he was unable to use the attic room.

Judge Wilkes, following a detailed analysis of regulation 13D(2) of the Housing Benefit Regulations 2006, upholds the claimant’s appeal against the tribunal’s decision that he was only entitled to housing benefit at the one bedroom shared accommodation rate.

However, he also dismisses the claimant’s own contention that he should be awarded the higher one bedroom self-contained rate.
 
Instead he reasons that he should be awarded LHA at the two-bedroom rate. This is on the grounds that not only were the claimant and his son joint tenants but that regulation 13D(2) provides that they should both be deemed “occupiers” of the property.

CH/322/2010 [2011] UKUT 136 (AAC): Housing and council tax benefits payments that are eligible for HB

This decision considers the meaning of ‘sheltered accommodation', for the purposes of paragraph 8 of Schedule 1 to the Housing Benefit Regulations 2006. Under this definition charges relating to communal areas are met by housing benefit.

Judge Levenson concludes that tribunals and decision makers should not be too rigid when deciding such issues. The fact that the term “sheltered accommodation” is left undefined means that it is not to be given a narrow or technical meaning.

“32. “Sheltered accommodation” clearly means something more than ordinary accommodation or shelter, otherwise the distinction would not be made in paragraph 8 of Schedule 1 to the regulations. This can only really mean that it is accommodation provided for people who are in some way (and probably for some defined reason) more vulnerable than most people are, or are vulnerable in a particular kind of way.”

In allowing the claimant’s appeal he stated that First-tier Tribunal went wrong in unduly emphasising the presence of a warden/manager and an alarm system and more significantly have gone wrong in emphasising a need for the accommodation to be self-contained.

“By definition we cannot be talking about totally self-contained accommodation, because the relevant provisions of Schedule 1 only come into play if there are common rooms that have to be lit, heated and cleaned. I see absolutely nothing in the regulations that prevents housing benefit being available for these costs because a claimant could happily chose not to ever use any of these common rooms. Indeed, that would be perverse – to say that the less need there is to use such rooms, the more likely it is that housing benefit should cover their cost.”

He also added..

"35. There are some types of accommodation that are clearly not “sheltered accommodation” – such as (and these are only examples) (a) accommodation of the type that most people probably occupy which is not designed for any kind of vulnerable person or where there is absolutely no special provision, (b) residential or nursing care homes, (c) standard student accommodation  and (d) other types dealt with by other provisions of the housing benefit scheme. However, unless accommodation is excluded by virtue of being in one of those categories, a broad view should be taken of the meaning of “sheltered accommodation” for these purposes and, in my opinion, it certainly includes the type of accommodation occupied by the claimant."

Judge Levenson cites CIS/1460/1995 in support of his conclusion but does accept that all the conditions quoted (obiter) in that decision need apply.

CH/1073/2010 [2011] UKUT 301 (AAC):Meaning of liability to a “former partner”

Judge Mesher
29 July 2011

As part of her divorce settlement, a court ordered that the claimant and her children should continue to occupy the property that she jointly owned with her ex-husband. However, after falling in to substantial debt she reluctantly sold her interest in the property to him and then rented it back.

With a tribunal having dismissed her appeal against the decision not to award her housing benefit she appealed to the Upper Tribunal.

In giving his decision Judge Mesher outlines that the relevant legislation to be regulation 9(1)(c)(i) of the Housing Benefit Regulations 2006 that provides -

“(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where –

 (c) his liability under the agreement is –

(i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners; or

(ii) to his partner’s former partner and is in respect of a dwelling which his partner and his partner’s former partner occupied before they ceased to be partners;”

In dismissing the appeal, Judge Mesher reject’s the claimant’s submissions that regulation 9(1)(c) –

  • should be read as applying only to an immediate former partner and that that required liability to the former partner to have arisen immediately on their ceasing to be partners; or
  • was ultra vires as the parliamentary procedures were not properly observed.

The claimant also submitted that regulation 9(1)(c) should only apply where liability arose immediately on separation of the partners. This was on the grounds that it as it otherwise disproportionately affected women - as women were more likely to be given an interest in the matrimonial home on divorce and, if forced to sell to the ex-spouse, would apparently be automatically excluded from housing benefit eligibility no matter how genuine the circumstances or how long ago they ceased to be partners.

However, Judge Mesher also rejects this argument reasoning that any difference of treatment of the kind alleged did not amount to discrimination contrary to article 14 of the European Convention of Human Rights because it was justified as a proportionate response to a legitimate aim (the prevention of abuse of the housing benefit scheme).

This decision has been reported as [2012] AACR 16.

CH/1312/2010 [2011] UKUT 198 AAC: Whether extra amount of LHA should be awarded where two disabled children need separate bedrooms

Judge C. Turnbull
5/5/2011

The claimant lived with his wife, their son and two daughters, both of whom needed separate bedrooms as a result of their disabilities.

With a tribunal having dismissed his appeal against the decision that he could only be awarded the three bedroom rate of local housing allowance (LHA) he appealed to the Upper Tribunal.

In doing so the claimant argued that the provisions of regulation 13D(3) of the Housing Benefit Regulations 2006 - that meant that only one bedroom could be allowed between his two disabled daughters - were discriminatory and should be modified under the Human Rights Act.

In dismissing the appeal, Judge Turnbull discusses and approves of CH/2823/2009 (IB v Birmingham City Council) that held that the discrimination experienced by a disabled claimant - who needed an overnight carer but could not be awarded an extra bedroom for LHA purposes - was objectively justified.

Judge Turnbull similarly finds that differences between this appeal and CH/2823/2009 are not such as to enable him to say that the reasoning in that case does not apply. As a result, he determines that any prima facie discrimination in this case is also objectively justified.

However, as was the case in CH/2823/2009, Judge Turnbull says that he will give the claimant permission to appeal to the Court of Appeal if he requested.

CH/1334/2010 [2011] UKUT 148 (AAC): Appropriate maximum benefit and disability

The decision considers whether the regulation prescribing the calculation of an appropriate maximum benefit was incompatible with the Human Rights Act 1998 because it failed to take account of the essential housing needs of all severely disabled claimants. It concerned a couple who lived alone in a two bedroom flat but needed a second bedroom because the claimant had a leg amputated above the knee in 2008 and needed a wheelchair and hoist around her bed.

The decision follows CH/2823/2009 in rejecting the argument.

CH/1961/2010 [2011] UKUT 160 AAC: What is suitable alternative accommodation for claimant living in supported accommodation

Judge Ovey
15 April 2011

The claimant and her baby lived in a supported hostel for vulnerable young mothers. Her original claim for housing benefit was made on the basis of her then rent of £133.57 per week rent. However, a few months afterwards her landlord increased the rent to £178.31.

A rent officer determined that the new rent was significantly high and as a result the local authority made a decision that housing benefit of only £106.83 per week could be paid. Following a tribunal upholding the claimant’s appeal against the decision the local authority appealed to the Upper Tribunal.

Judge Ovey finds that the tribunal judge was correct that the local authority erred in not including the claimant's need for support when considering the issue of suitable alternative accommodation for her and her child -

“I approach the matter on the footing that the concept of suitable alternative accommodation is intended to enable the identification of accommodation in which the claimant, having moved to it, could reasonably be expected to continue living (ignoring for this purpose any questions of security of tenure).

… On the information before me, it does not appear that the Council took into account the specific housing needs of the claimant, as opposed to the housing needs of any woman of the claimant’s age currently occupying a single bedroom and using shared facilities. “

However, he also highlights that paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 states that no deduction should be made unless suitable accommodation is available and it is reasonable to expect the claimant to move. In deciding the latter, he holds that the only relevant factors are provided by paragraph (9)(b) i.e. -

'(i) the claimant’s prospects of retaining his employment; and
(ii) the education of any child or young person … if such a move were to result in a change of school.'

As the tribunal took into account issues other than these two factors Judge Ovey holds that it did err in law and so remits the appeal for rehearing.

CH/2228/2010 [2011] UKUT 43 (AAC): Rent on two homes

The claimant suffered from schizo-effective disorder and obsessive compulsive disorder and could not move into a new flat until it had been painted and re-carpeted.

He claimed for rent for both properties on the grounds that these were 'necessary adaptations to the dwelling to meet the claimant's disablement needs' under regulation (8)(c)(i) of the Housing Benefit Regulations 2006.

A tribunal allowed his appeal against a refusal to pay benefit for both his old flat and his new flat but Judge Jacobs that the tribunal erred as under R(H)4/07 carpeting and decorating are not considered adaptations.

The decision also suggests the following definitions in relation to necessary adaptations.

  • disablement includes mental as well as physical disablement;
  • the word 'necessary' means 'reasonably required', rather than 'essential'; and
  • the provision does not apply if the necessary works have to be carried out in a way that takes account of the claimant’s disablement - it is the adapting of the dwelling that has to be necessary, not the manner in which it may have to be carried out

CH/2325/2010 [2011] UKUT 177 AAC:‘De jure’ directors, ‘de facto’ directors and ‘shadow’ directors

Judge N J Wikeley
28/4/2011

In a highly complex decision, Judge Wikeley discusses the factors in whether a claimant's husband was the ‘de jure’ 'de facto', or 'shadow' director, of the company which was her landlord.  In remitting the case to a new tribunal he issues detailed directions and specifies further evidential issues that it may need to explore.

CH/2615/2010 [2011] UKUT 242 AAC: Whether overpayment recoverable

Judge Paines
17 June 2011

The claimant had appealed a decision that she had been made a recoverable overpayment of housing benefit and council tax benefit from May 2008 to July 2009.

A tribunal had accepted that the overpayment was caused by official error as she had informed the local authority of the increase in her child tax credit award.

However, it dismissed her appeal on the grounds that she should have reasonably realised that she was being overpaid. This was on the grounds that she should have compared more carefully the notification letters sent to her in March 2008 and November 2008 that detailed what her weekly income had been taken to be.

Judge Paines sets aside the tribunal’s decision on the basis that its logic was flawed as the contents of a notice sent in November 2008 could not give grounds for the claimant to have been reasonably expected to realise that she was being overpaid prior that date. 

In directing that the appeal be reheard by a new tribunal, he outlines that -

“The live issues in the case seem to me to be (a) which of the overpayments in the period covered by the local authority’s decision “arose in consequence of an official error” and (b) whether the claimant “could not, at the time of receipt of the payment or of any notice relating to the payment, reasonably have been expected to realise that it was an overpayment”. 

Deciding both of these issues requires a tribunal to focus on the time of the payment or payments and/or of a notice or notices relating to it or them.  The previous tribunal was amply justified in deciding that the local authority’s failure to act upon the June 2008 notification to it of the increase in the claimant’s CTC was an official error, but it did not ask itself which of the overpayments made in the period to which the recovery decision relates arose in consequence of that error.”
Judge Paines concludes by directing that –

“… the focus has to be on the points in time at which the claimant received notice of payments of benefit (the payments themselves appear to have been made directly to the landlord); it is her state of mind on those dates that is relevant.  The local authority should provide that information to the new tribunal so that, in the event of the tribunal concluding that at any point in time the claimant could reasonably be expected to realise that overpayments were occurring, it can decide which payments are affected.”

CH/171/2011 [2011] UKUT 144 (AAC): Claimant unable to act for herself

The claimant was born in June 1991and has been profoundly physically and mentally disabled from birth. Her parents felt that they could not afford to continue providing care and support unless they could receive rent from their daughter to offset the mortgage payments they are having to make in respect of their adapted home. They entered into a tenancy agreement between the claimant’s father and the claimant in which the father is described as the landlord and the claimant as the tenant.

Judge Mark held that this was void for the purposes of housing benefit because the claimant had no liability to pay rent by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge.  Nor is there any other basis on which any liability for rent could be imposed on her prior to the date of the decision because the parents, at the time did not have the authority of the Court of Protection.

Incapacity benefit

CIB/1325/2009 [2011] UKUT 390 (AAC): Contributions and migrant workers

Judge Ward
29 July 2011

One of the difficulties in establishing rules for co-ordinating social security provision for migrant workers within the EU is that the various member States have a variety of approaches to national insurance. This case concerns a Polish national who worked in the UK for several months before falling ill and returning to Poland. He claimed sickness benefit in Poland but was refused on their contribution grounds, and was also refused UK incapacity benefit on our contribution grounds.

Judge Ward analyses the provisions of Regulation (EEC) 1408/71 dealing with the aggregation of contributions under different systems, and explains some of the terms used in the Regulation.

NB – although Regulation 1408/71 has been replaced by Regulation 883/2004 the relevant provisions are very similar.

This decision has now been reported as [2012] AACR 27.

CIB/24512010 [2011] UKUT 234 (AAC): Whether disclosure of work to examining doctor is sufficient disclosure

Judge C. Turnbull
16 June 2011

The claimant had been in receipt of incapacity benefit from November 2001. However, she then worked as a lollipop lady for 9 hours per week from June 2003 to October 2007.

With a tribunal having dismissed her appeal against a February 2008 decision that she had been made a recoverable overpayment of incapacity benefit she appealed to the Upper Tribunal.

Citing the Court of Appeal’s judgment in Hooper, Judge Turnbull sets aside the tribunal’s decision so that the Secretary of State could provide evidence to a new tribunal either that information had been given to the claimant that:

  • placed her under an obligation to disclose the work when she started it; or
  • placed her under an obligation to disclose the work at a later date.

The claimant had maintained that she had disclosed the fact that she was working to the examining doctor when undergoing a personal capability assessment.

In considering this, Judge Turnbull holds that the question whether the Claimant made an adequate disclosure by telling the examining doctor must be judged in the light of the precise terms of the information which was provided to the claimant as to what (and how) she should disclose.       

However, on the assumption that the information was unspecific as to how the disclosure should be made (e.g. “you should tell us if …), he inclines to the view that disclosure to the examining doctor was not sufficient, even on the (presumably very unusual) footing that the medical in fact took place in the same building as that from which the claimant’s incapacity benefit was administered (as appears may well have been the case):

“The reason for that is that, although the claimant would have been entitled to assume that the doctor would record what she said about doing work, and that the doctor’s report would come before a decision maker, she was not in my judgment entitled to assume that the decision maker would read the statement about work. That is because, if the doctor’s view is that the claimant scores the necessary 15 points, the decision maker is not usually, as a matter of common sense, going to need to scrutinise the report in any detail. It would be an unusual case where the decision maker would feel unable to agree with the doctor’s opinion that the claimant scores the necessary 15 points, even where the claimant has been able to undertake some work.

It seems to me that it would be very questionable even to a claimant without detailed knowledge of the benefit system whether an examining doctor’s record of a claimant starting work would actually be read by the decision maker. Whether proper disclosure to the Secretary of State has been made must be considered in the light of all the circumstances of the case, including those which I have just mentioned.”     

CIB/419/2011[2011] UKUT 385 (AAC): Weight to be given to medical report by an ATOS nurse with no mental health qualifications

Judge Ovey
23/9/2011

The claimant suffered from depression, bladder problems and leg pain. With a tribunal having dismissed her appeal against the decision that she was fit for work she appealed to the Upper Tribunal.

Among her grounds of appeal were that the tribunal had erred:

  • by rejecting that the Secretary of State could not discharge his onus of proof as the health care professional (HCP) who had carried her personal capability assessment was a nurse who had no qualifications in mental health; and
  • by refusing to adjourn to establish what, if any, training the nurse had been given in mental health.

In rejecting these submissions, Judge Ovey holds that:

“(1)      the Secretary of State is not precluded as a matter of law from relying on the report of a registered nurse who has no specific qualifications in mental health issues over and above the training given to all HCPs who are registered nurses as containing sufficient evidence to establish that a claimant no longer satisfies the conditions for an award of incapacity benefit;

(2)       whether or not the particular individual does have specific qualifications in mental health may be relevant to the weight to be attached to a report by an HCP who is a registered nurse.  The tribunal’s starting point, however, should be that the HCP has been trained to at least the level regarded as necessary by the Department of Work and Pensions if the HCP is to be competent to carry out a mental health assessment;

(3)       where an adjournment is sought so that evidence about the HCP’s qualifications can be obtained, the matters to be taken into account by the tribunal should include how it is said that the relevant evidence will help it in assessing the weight to be given to the report in question;

(4)       the issue before the tribunal will be whether reliance can be placed on the particular report.  Evidence from within the report itself or other evidence relating to the particular claimant may therefore be more helpful in assessing the weight to be given to the report than general evidence about the level of training which has been received.”        

However, Judge Ovey does set aside the tribunal’s decision, and direct that the appeal to be reheard, after finding that there was “significant material to suggest that however competent the HCP might be in general, she had not performed this particular examination competently”. 

This was in part because no mention was made of the claimant’s bladder problems or leg pain in the HCP’s examination report.

CIB/837/2011 [2011] UKUT 434 (AAC) : Consideration of PCA descriptor “cannot hear well enough to understand someone talking in a normal voice on a busy street”

Judge Turnbull
17 November 2011

A First Tier Tribunal had found that the claimant scored a total of 12 points from the physical activities of bending and kneeling, standing, walking/stairs and rising from sitting.

However, in dismissing her appeal against the decision that she was not incapable of work, it found that she did not score 8 points in relation to the hearing descriptor “cannot hear well enough to understand someone talking in a normal voice on a busy street”.

In considering her further appeal, Judge Turnbull highlights the findings of the commissioner in CIB/590/1998 who held that the hearing descriptors had to be considered in the light of what is reasonable and said that -

“It is not reasonable to say that a claimant can understand someone talking in a normal voice in a busy street if he can gain that understanding only by making frequent requests for repetition of what has been said.”

Judge Turnbull then continues that -

“Whether a person satisfies the descriptor “cannot hear well enough to understand someone talking in a normal voice on a busy street” is plainly a question of degree. It must necessarily be determined on a somewhat “broad brush” basis, for a number of reasons.

First, the amount of noise in a “busy street” will vary according to how busy the street is, and what type of traffic is going past at the particular moment.

Secondly, some “normal voices” may be easier to hear and understand than others.

Thirdly, there is in the nature of things unlikely to be evidence, other than from the claimant himself, going directly to whether the claimant can hear in a busy street. The examining doctor and the tribunal will certainly not be able to observe the claimant attempting to hear in a busy street, as opposed to a quiet room.

Fourthly, there are of course an almost infinite number of gradations between being able to hear clearly every word which is being said in a busy street, and not being able to hear any of the words. In order to “understand” someone talking it is not usually necessary to hear every word. Provided that most of the words can be heard, the rest will probably be obvious from the context. Further, an occasional need to ask for repetition cannot mean that the claimant “cannot hear well enough to understand ….”

In dismissing the claimant’s appeal, Judge Turnbull considers that the claimant’s hearing difficulties were not such as to merit the award of the contended descriptor.

This was because she had not discussed her hearing difficulties with her GP, not considered a hearing aid and had told the tribunal that if in a busy street she probably could hear conversation but may have to ask person to repeat words “once or twice”.

CSIB/580/2011 [2012] UKUT 30 (AAC): Whether given claimant’s mental health problems and heroin addiction there would be a “substantial risk” to his health should he be found capable of work

Judge Parker
20 January 2012

The claimant suffered from mental health problems and was a heroin addict.

In dismissing his appeal, Judge Parker rejects the contention that he should uphold it under Regulation 27(b) of the Social Security (Incapacity for Work) General Regulations 1995 on the grounds that there would be a “substantial risk” to his mental or physical health should he be found capable of work.

In doing so, Judge Parker reasons as follows -

“I do not accept that the tribunal failed to make sufficient findings about the range or type of work of which the claimant was capable.  The tribunal found that the appellant could work as a general labourer; the representative’s contention, “that a heroin addict with ankylosing spondylitis would have no realistic prospect of obtaining work as a general labourer”, is flawed given the tribunal’s premise that the latter condition caused no functional impairment whatsoever.  This was enough to justify the conclusion that there is work which would not give rise to any substantial risk, backed up by the information that he had been a general labourer in the past and when he was also a heroin addict.  Whether the representative or the Secretary of State is right that assembly line work is barred because of drug testing, or possible, there was a sufficient underpinning of an inference that regulation 27(b) was not satisfied by the finding in respect to his capacity as a general labourer.

There is no suggestion, expressed or implied, in the tribunal’s reasoning, that a perceived ability for the claimant to come off heroin was in itself a bar to satisfaction under regulation 27(b); the primary plank of its reasoning was that, because in the past he had worked, despite being a heroin addict, with no indication that this gave rise to any substantial risk, that therefore this remained the probable position as a heroin addict at the relevant date.  The representative is correct that the application of relevant statutory criteria must be considered as at the date of the decision under appeal.  However, the main issue under regulation 27(b) is whether there is work which the claimant could safely perform; insofar as a claimant is necessarily not working at the date of the decision under appeal, this inevitably looks to the future.  Consequently, it is rational for a tribunal to consider what would, or could, be the claimant’s situation in the event he took up work.  Once the tribunal decided that, because the claimant had been able to stop taking heroin in the past there was no reason why he could not do so again, this inevitably affects the range of jobs potentially open to him when looking forward from the date of the relevant decision.”

Income support

CIS/2274/2009 [2011] UKUT 227 (AAC): Power to quash regulations as ultra vires

Judge H Levenson

This case concerned a lone parent who was home educating her 14 year old twins. She was in receipt of income support as a lone parent, but this was withdrawn when the regulations were changed so that lone parents could only claim income support if they had children under the age of 12.

The claimant argued before the Upper Tribunal that the income support regulations were ultra vires because they conflicted with S7 of the Education Act 1996 (which provides for home schooling) and that the change in rules breached the Human Rights Act 1998 because of discrimination on the grounds of sex.

In dismissing the appeal, Judge Levenson held that:

a. The Upper Tribunal has jurisdiction to determine whether subordinate legislation is invalid as being beyond the scope of the enabling power (paragraph 21);

b. the Upper Tribunal also has the power to find subordinate legislation to be invalid if it conflicts with statutory rights already enacted by other primary legislation (paragraph 27) but only in cases where there is no other reasonable way to exercise such rights;

c. However, section 7 of the Education Act 1996 does not create a specific right to home educate and its provisions do not render the relevant changes to the income support regulations ultra vires or invalid (paragraph 28).

d. Subject to giving all parties a fair opportunity to make submissions on the relevant points, Convention rights must be considered by the First-tier Tribunal and the Upper Tribunal no matter the stage at which they are raised by the parties (or, in a relevant case, even if they are not raised by the parties) (paragraph 41).

e. The Upper Tribunal is free (and is often obliged) to consider points of law on matters other than human rights law even if they have not been raised before the First-tier Tribunal (paragraph 47).

f. Article 1 of protocol 1 was engaged in the present case where the claimant’s circumstances had not changed but there was a change in the law that meant that she lost the entitlement that she had previously had (paragraph 55).

g. A disproportionate number of female claimant will have had their lives made more difficult compared with the number of male claimants (paragraph 60) and this merits an examination of whether the changes in the regulations pursue a legitimate aim in a proportionate way, although such a difference of treatment requires a high threshold of irrationality or disproportionality before the courts will interfere (paragraph 61)

h. The Secretary of State has provided a rational explanation for the policy of the law in this case and  the methods of achieving the objectives of that policy are proportionate, The legal position in the present case is well within the wide margin of appreciation that the state has in the implementation of social policy and in economic matters (paragraph 64).

CIS/1269/2010 [2011] UKUT 102 (AAC): Capital Disregards: personal injury compensation

This decision concerns the meaning of “in consequence of” personal injury where damage payments are not directly obtained. The law firm was negligent in serving notice outside the limitation period and so had to be sued by another law firm.

CIS/1759/2010 [2011] UKUT 28 (AAC): Substitution of statement of reasons

This decision considers whether the substitution of a statement of reasons by the Tribunals Service was lawful. Originally it was claimed that the decision notice was also the statement of reasons but following an application for leave to appeal, the Tribunals Service wrote to say that the decision notice was not a full statement of reasons, and attached a new statement.

Judge Ward held that rule 34(2)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) allows a statement of reasons to be given as an addendum to a decision notice but that a District Tribunal Judge cannot simply issue a new statement but must instead carry out a review under section 9 of the of the Tribunals, Courts and Enforcement Act 2007.

CIS/2429/2010 [2011] UKUT 200 AAC: Whether living as a couple in the same household / Overpayment

Judge Lane
18 May 2011-07-21

The claimant had appealed against the tribunal’s decisions that she was not entitled to income support as a lone parent and that she had been overpaid through having misrepresented that that she was a member of a couple in the same household.

In dismissing the claimant’s appeal, Judge Lane outlines that -

“The appellant’s case was that she and her husband did not have any relationship and did not even live in the same house.  He was no more than a visitor. Her husband’s evidence about his living arrangements during the interview under caution was so far fetched that it did nothing to bolster her explanation.  No tribunal could have accepted their accounts. 

Once the foundation of the appellant’s case was rejected, the conclusion that the appellant and her husband were members of the same household was inescapable.  All that was left was a married couple who were living together as married couples do, in a domestic establishment tied by the bonds of marriage and family.  The only distinction was that they were not telling the truth about doing so.” 

As a consequence, she holds that the tribunal were correct not to  embark upon any further “elaborate fact finding exercise” and its conclusion that they did live in the same household derived from the rejection of their claim to be living apart was valid. 

In addition, Judge Lane rejects that the tribunal erred in law in that it made technical errors in relation to the process by which the decisions relating to the awards of income support were revised and/or superseded (as required under section 71(5A) of the Social Security Administration Act 1992).

Whilst the Secretary of State had made an error in the procedure used to change the original income support entitlement decision she holds that this was not a case in which the decision was so lacking in coherence that it cannot be corrected.

Judge Lane also finds that the Secretary of State had done enough to relate the rates of payment at each stage to the award, and that the decision sets out sufficiently the amounts to which the appellant was entitled in each benefit period.

CIS/2249/2010 [2011] UKUT 387 (AAC): Severe disability premium / burden of proof

Judge Parker
15 September 2011

The claimant was awarded income support from 2007 on the grounds of incapacity. As she lived alone and was in receipt of the middle rate of the care component of DLA she was awarded the severe disability premium.

However, in 2010 a decision maker held that she was no longer entitled to the severe disability premium from June 2009 because her son had been claiming jobseeker’s allowance from then and had stated that he lived at her address. 

The claimant appealed stating that she had a poor relationship with her son and that he stayed only one night “here and there”. His post had always come to her address as he could trusted no-one else.

She requested a paper hearing of her appeal explaining that she was in too much pain to attend and submitted details of her medication.

A tribunal dismissed her appeal preferring the decision maker’s submission and stating that while the claimant had not been heard she had elected not to attend an oral hearing.

Judge Parker first outlines that is was an issue of fact and degree as to whether the claimant’s son was “normally resident with” her but that he must have lived with her for long enough to regard sharing her house in a common household as his usual home.  The relevant factors included: the relationship between the parties, how much time was spent at the claimant’s address, where post was sent, where clothes and other belongings were kept, the length and pattern of stays with the claimant and whether there was another home. 

While acknowledging that these are not going to be easy matters to determine, Judge Parker says that it is important to remember that the decision under appeal must have been a supersession so that the burden lay on the Secretary of State to establish the facts justifying that supersession:

“This is not to say that adverse inferences may not be drawn against the claimant if the evidence justifies that but, in the final analysis, the Secretary of State must show that it is more probable than not that the son normally resided with the claimant between the relevant dates.” 

Judge Parker finds that the tribunal erred in not at least considering whether to adjourn in order to give the claimant one more chance to attend at an oral hearing once it had clearly communicated the importance of this to her and why.

He continues that:

“If the tribunal had provided rational reasons why, having considered the matter, it considered it inappropriate to adjourn for an oral hearing, that would be different, but the tribunal erred by failing even to raise and address the matter.”

In summarising his decision, Judge Parker concludes as follows:

“The tribunal’s decision is thus set aside for its failure, expressly or by implication, to make sufficient findings on the issue disputed with respect to the claimant’s entitlement to SDP viz whether the son normally resided with her in the relevant period.  It is for the Secretary of State to make out the case for supersession.  There will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal.  My jurisdiction is limited to issues of law so my decision is no indication of the likely outcome of the rehearing.”

CIS/291/2011 [2011] UKUT 373 (AAC): Effect of Immigration Tribunal's decision on social security right to reside decisions

Judge Jacobs
12 September 2011

The claimant in this case came to the UK in December 2007 on a two year marriage visa with a condition that she had no recourse to public funds. The marriage appears to have broken down as a result of domestic violence. When the claimant applied for indefinite leave to remain, the Home Office refused.

The claimant appealed, and the Immigration Tribunal allowed her appeal in May 2010. She claimed income support in June, but was refused in July on the grounds that she was a person subject to immigration control. In September 2010 the Home Office stamped her passport to show that she had indefinite leave to remain.

Judge Jacobs held that the Immigration Tribunal’s decision had no effect until her passport was endorsed by the Home Office. It was only when the passport was stamped that the claimant ceased to be a person subject to immigration control. Accordingly she was not entitled to income support at the date of her claim.

The case highlights a difference between the way social security and immigration tribunals work. When a social security tribunal allows an appeal it makes the decision the DWP should have made. When an immigration tribunal allows an appeal it overturns the existing decision, but it is left to the Home Office to formally make the decision the tribunal has indicated.

Industrial injuries disablement benefit

CI/1565/2010 [2011] UKUT 448 (AAC): Industrial injuries benefit where a claimant has worked in the same occupation in more than one EU state.

Judge Ward
13 October 2011

This case looks at the EU rules concerning which country is responsible for industrial injuries benefit where a claimant has worked in the same occupation in more than one EU state.

This case concerned a claimant who had worked in the building trade in both the UK and Ireland. He developed lung cancer as a result of exposure to asbestos.

Article 57 of Council Regulation (EEC) 1408/71 (now replaced by Article 38 of Regulation (EC) 883/2004) provides that where a person who has an occupational disease has been exposed to the same risk in more than one Member State he must claim from the last of those States where the conditions for benefit are satisfied.

In this case the claimant’s exposure to asbestos had been much greater in the UK than in Ireland, where he had last worked. The tribunal decided that the claimant was entitled to claim from the UK because his level of exposure to asbestos in the UK was far more significant. The Secretary of State appealed on the grounds that, if employment in both countries carried a risk of exposure to asbestos, then the claim should be made to Ireland as the last State of employment.

The Commissioner initially agreed with the Secretary of State, holding that:

"in my view the reference to “the same risk” in the heading is not looking at whether there was the same level or degree of risk, a matter which it would be very hard to quantify with the necessary degree of exactitude.  Rather, I consider that (as befits a heading) it is effectively shorthand for the risk that arises where a person “pursue[s] an activity which by its nature is likely to cause that disease “, as set out in the body of Article 57.  If a person has pursued such an activity in more than one Member State it is therefore the “same” risk.  It follows that the Secretary of State is correct in his primary contention and that the First-tier Tribunal erred in law."

However, the Commissioner also found that lung cancer is not a prescribed occupational disease in Ireland, the conditions of entitlement under Irish law were not satisfied and accordingly the claim fell to be determined under UK law.

CI/1581/2010 [2011] UKUT 105 (AAC): Reduced earnings allowance

This decision discusses a situation where someone was considered to be not incapable of following an occupation of an equivalent standard to their former regular occupation – in this case an underground mineworker - based on the level of their current earnings compared to the earnings of the relevant grade of mineworker. 

CI/2239/2010 [2011] UKUT 450 (AAC): Correct approach for new prescribed industrial disease

Judge Ward
27 October 2011

This decision concerns the correct approach to assessment for the purposes of disablement benefit when a new disease is added to the list of prescribed industrial diseases.

The claimant was a coal miner who developed osteoarthritis of the knees in around 1985. At that time osteoarthritis of the knees was not a prescribed disease for coal miners, but on 13 July 2009 it was added to the list as Prescribed Disease A14.

The claimant made a claim for disablement benefit and was assessed as 10% disabled from 13 July 2009 for life, that date being chosen because it was the date the disease was first prescribed. The claimant appealed unsuccessfully to the tribunal because he felt his disablement should be assessed from the onset of the disease in 1985.

Judge Ward dismissed the claimant’s appeal holding that “because a claimant cannot have any right to disablement benefit (or reduced earnings allowance) before 13 July 2009 it is not “necessary” (as used in para 7) to specify more particularly the period, other than to say that it began at a date before 13 July 2009 and then go on to assess the degree of disablement from that date.”

CI/747/2011 [2011] UKUT 465 (AAC): Need for a tribunal to give adequate reasons for its decision

Judge Rowland
24 November 2011

While a First Tier Tribunal accepted that the claimant had pain in her neck and her left arm it took the view that it was more likely that the pain was entirely due to constitutional degenerative disease of her spine unrelated to her industrial accident. 

However, in remitting her appeal to be heard again, Upper Tribunal Judge Rowland holds that the tribunal had given inadequate reasons for its conclusion, explaining that:

“In my judgment, the First-tier Tribunal should have explained why the fact that the claimant had developed pain in other parts of her body some considerable time after the accident - and, it would appear, from a different or unknown cause except as regards her knee - was regarded as more significant than the timing of the onset of symptoms.”

Judge Rowland concludes by highlighting the importance of a tribunal explaining its decision adequately -

“The amount of reasoning required from a tribunal depends very much on the facts of the individual case and, in particular, the arguments advanced before it.  It is a good rule of thumb that the principal arguments advanced by the losing party should expressly be addressed in the statement of reasons.  This is required as a matter of fairness because it is only by giving reasons that the tribunal can demonstrate that it has in fact given proper consideration to the arguments.” 

Jobseeker's allowance

CJSA/3067/2009 [2011] UKUT 63 (AAC): Capital - two accounts in the same bank

This is a decision of a three judge panel. The claimant had two accounts with the same bank, one in credit of £7,700.09 and the other overdrawn by £1,994.90. The decision maker and the tribunal applied tariff income for the full £7,700.09, disregarding the amount overdrawn. The claimant argued that the overdrawn amount in one bank account should have been offset against the credit in the other. The three judge panel agreed but found that in order for a decision maker to arrive at a decision in such cases they must examine the terms and conditions applicable to the relevant accounts.

The decision only applies where a claimant’s capital consisted of bank accounts with the same bank.

CJSA/828/2011 [2011] UKUT 428 (AAC): The correct approach for the First-tier Tribunal and the Upper Tribunal when dealing with Human Rights cases where the only possible remedy is a declaration of incompatibility

Judge Charles Turnbull
8 November 2011

The case concerned a JSA claimant who was formerly self-employed and who was refused contributory JSA because Class 2 and 4 contributions, which are paid by self-employed workers, do not count for JSA purposes. Only Class 1 contributions as paid by employees are taken into account for JSA purposes. The claimant argued that this was discrimination contrary to Article 14 of the European Convention on Human Rights and also a breach of Article 1 of Protocol 1 to the Convention (the right to possessions).

The rule as to which contributions count for JSA is set out in Sections 1 and 2 of the Jobseekers Act 1995. The Human Rights Act requires all legislation to be read in a way that is consistent with the Convention if possible. It also allows for secondary legislation (e.g. Regulations) to be struck down if it cannot be interpreted to comply with the Convention, but primary legislation (i.e. Acts) cannot be struck down. The only remedy for a breach of Human Rights in an Act is a “declaration of incompatibility”, which does not prevent the Act having effect, and can only be made by the High Court, the Court of Appeal or the Supreme Court.

In this case, the provisions of the Jobseekers Act were clear and unambiguous so that, if a breach of the Convention were to be established, the only possible remedy would be a declaration of incompatibility. The earliest stage at which this can be done in the benefits adjudication system is the Court of Appeal on appeal from the Upper Tribunal.

Since the Tribunals could not grant any remedy Judge Turnbull considered whether Judicial Review in the High Court was a more appropriate route of challenge, but concluded that the normal social security appeals process should be followed. He considered that the claimant’s case was arguable, but since the Upper Tribunal could not grant any remedy, he went on to say that

“The extent to which it is appropriate for the Upper Tribunal, in a case where the only possible remedy would be a declaration of incompatibility, to enter into the merits of the claimant’s contentions that legislation infringes the Convention must in my judgment depend on the circumstances of the particular case… It does not seem to me that there is any point in my purporting to decide points that are arguable, when I would have no jurisdiction to grant any remedy. I therefore dismiss the appeal without further ado”.

The Judge also indicated that he was not inclined to give permission to appeal to the Court of Appeal, since he felt that it was better for the Court of Appeal itself to decide whether permission should be granted.

Pension credit

Pensions

CP/3638/2006 [2011]1 UKUT 324 (AAC) : Uprating of category B pension on death of spouse where claimant resident abroad

Judge Paines
5 August 2011

The claimant, who was resident in Canada, was in receipt of a category B retirement pension based on her husband's contributions. However the pension was 'frozen', as her husband's own entitlement had been, at the 1975 rate and, following his death on 27 May 2002, the DWP determined that she should continue to be paid at a reduced rate.

Her appeal had been remitted for final determination by the Upper Tribunal by the Court of Appeal in Secretary of State for Work and Pensions v Yates [2009].

Following a lengthy and detailed discussion of the relevant legislation and its compatibility with the European Convention of Human Rights, Judge Paine upholds the claimant’s appeal concluding that –

“Mrs. Yates was entitled, following the death of Mr. Yates, to a pension paid at the rate that would have been paid to a man who had been married to a woman whose relevant circumstances (apart from sex) were the same as Mr. Yates.”

Tax credits

CTC/1023/210 [2011] UKUT 199 AAC: Whether a decision that no tax credits claim made is appealable

Judge Turnbull
16 May 2011

The claimant had been awarded child tax credit for the 2006/2007 tax year. In April 2007, HMRC issued her with an “annual declaration” notice under section 17 of the Tax Credits Act in respect of her income for the year 2006/2007.

However, the claimant failed to return the Section 17 annual declaration before the statutory required date of 31 July 2007 and as a result no award for child tax credit in respect of the year 2007/2008 was made to her.

She then sought help from her local Citizens Advice Bureau (CAB) who wrote to HMRC on her behalf.

The CAB letter accepted that no annual declaration had been returned but highlighted the possibility of her making the declaration by 31 January 2008 if good cause for the delay could be shown and accepted - as provided for by regulation 11(3)(aa) of the Tax Credits (Claims and Notifications) Regulations 2002 (the 2002 Regulations).

It also gave reasons for the delay - the effect of the claimant’s disabilities - and details of both her 2006/2007 and 2007/2008 income.

HMRC replied solely to reiterate that no tax credits award could be made due to the non-return of the annual declaration by 31 July 2007.

A tribunal who dismissed the claimant’s on the grounds that she had not made a valid child tax credit claim.

In a lengthy and detailed decision, Judge Turnbull also dismisses her appeal, finding that -

“As regards the reliance on the CAB letter, the First-tier Tribunal was in my judgment entitled to find as a fact that no separate form of declaration was enclosed with the CAB letter. Further, it was in my judgment clear that the CAB letter did not itself amount to “declaration …… in writing in a form approved by the Board for that purpose” within the meaning of regulation 34(2)(a) of the 2002 Regulations.

That means that the CAB letter could only have amounted to a claim if it was accepted by HMRC as sufficient, pursuant to the discretion given to it by regulation 34(2)(c) of the 2002 Regulations. I do not see how the First-tier Tribunal could have jurisdiction to decide anything more, in relation to the exercise of that discretion, than whether or not HMRC had in fact decided to accept the CAB letter as sufficient.”

Judge Turnbull goes on to explain that -

“The effect of my decision, therefore, is that, in so far as the First-tier Tribunal had jurisdiction in this case, it was entitled on the facts before it to decide that the claimant had not submitted a claim on the required form prior to 31 January 2008, and therefore was right to dismiss the appeal. The exercise by HMRC of its discretion whether to accept the CAB letter as a sufficient claim was capable of challenge only by way of judicial review. Because HMRC did not decide to accept the CAB letter as a sufficient claim, HMRC did not need to consider, under reg. 11(3)(aa), whether there was “just cause” for the delay."

However, he concludes by stating that -

“I expressly leave undecided, because it does not arise, the question whether a decision by HMRC as to whether there was just cause is capable of challenge by way of appeal. It is in my view well arguable that the words “in the opinion of the Board” in regulation 11(3)(aa) do not prevent an appeal tribunal itself deciding whether there was just cause.”

CTC/2107/2010 [2011] UKUT 467 (AAC): Whether EC rules permit joint child tax credit claim where only of a couple resides in the UK

Judge Howell
29 November 2011

While the married couple in this case were both UK nationals they lived apart: the husband being ordinarily resident in the UK, but the wife being resident in Spain. 

They made a joint claim for child tax credit in 2008/2009 but this was refused on the grounds that they did not meet the eligibility conditions in section 3 of the Tax Credits Act 2002 as -

a) the wife though responsible for the children could not make or join in making a valid claim for child tax credit for them because she was not in the UK; and

b) the husband though in the UK could not make or join in making a valid claim under section 3 either, because he was not the person “responsible” for the children himself, and because of (a) was not able to make a claim jointly with the person who was. 

With a tribunal having dismissed their appeal the couple appealed to the Upper Tribunal.

Upper Tribunal Judge Howell highlights that it was “beyond dispute” that under domestic law that the couple had no child tax credit entitlement.
This meant that the only question was therefore whether EU law enabled their joint claim to succeed by entitling the wife to take part in it, overriding the residence condition in section 3 so far as she is concerned.

In addition, this in turn depended only on whether she was within the provision in Article 73 of Council Regulation 1408/71/EEC that an “employed person subject to the legislation of a member state” is to be entitled to family benefits (which include child tax credits) in respect of members of his or her family residing in another member state.

Therefore the material issues for him to decide were Judge Howell says were -

  • whether the wife was during 2008-9 “subject to the legislation” of the UK as the “competent state” for social security purposes; and
  • if so, whether she counted as an “employed person”.

He then explains that -

“If the answer to both of those questions is yes, … Article 73 requires the wife, as a UK national residing in another EEA country in exercise of her EU free movement rights, to be entitled to claim child tax credits in respect of her children residing in Spain despite the condition in the national legislation about her own residence.  For both of those questions the effect of her being in receipt of incapacity benefit … was of fundamental relevance because it implies a UK work and social security contribution record and continuing insurance entitlement.” 

Judge Howell concludes by upholding the couple’s appeal as –

“The further submission on behalf of HMRC … now confirms that on the true facts as now known the answers to both of those questions was indeed yes and that the UK was the competent member State in relation to her social insurance for the year 2008/9 as she was not employed or self employed in Spain at that time.  It follows that she was entitled to participate in the joint claim by virtue of Article 73 of EU Regulation 1408/71, disapplying the national condition about her own residence, and a decision must be given confirming their entitlement to the child tax credits for that year.”  

CTC/2520/2010 [2011] UKUT 322 (AAC): Whether child tax credit can be exported to another EEA country

Judge White
8 August 2011

The dispute in this appeal centres on whether child tax credit in the circumstances of this case is an exportable benefit under Regulation 1408/71, as applied to Iceland, one of the three countries of the European Economic Area (Iceland, Liechtenstein, and Norway).

Regulation 1408/71 is extended to the three EEA countries under the European Economic Area Agreement.

The claimant was in receipt of a Category A state retirement pension. On him moving permanently to Iceland in February 2009, HMRC stopped payment of his child tax credit (CTC) on the grounds that he was no longer in the United Kingdom.

In considering the claimant’s appeal, Judge White outlines that Article 77 of EC Regulation 1408/71 encompasses two categories of benefits:

(a) family allowances for persons receiving pensions for old age, invalidity or an accident at work or occupational disease; and

(b) increases or supplements to such pensions in respect of the children of such pensioners, with the exception of supplements granted under insurance schemes for accidents at work and occupational diseases.

Citing CTC previous case law, Judge White finds that it has already been established that CTC does not constitute a family allowance within the meaning of that term in Article 77.

However, he then explains that –

“The issue before me is accordingly whether, in the particular circumstances of this case, child tax credit can be regarded as an increase or supplement to Mr W’s State retirement pension. If it is, then it is exportable under the provisions of Regulation 1408/71. If it is not, then it is not exportable, and HMRC were entitled to withdraw payment of child tax credit when Mr W and Mrs J moved to Iceland.”

Reviewing the introduction of CTC, Judge White holds that it is the direct successor of the increases in retirement pension provided for in section 80 of the Social Security Contributions and Benefits Act 1992.

This, taken with the fact that state retirement pension is included the calculation of income for the purposes of calculating CTC means, Judge White concludes that –

“… in the particular circumstances of this case, namely, where Mr W is in receipt of a State retirement pension, child tax credit constitutes an increase or supplement to that pension payable in respect of children of the pensioner. This brings child tax credit within the second limb of Article 7. Since the child tax credit falls within Article 77, it is payable in Iceland.”

In final remarks, Judge White outlines that in a supplementary response to him HMRC stated –

“HMRC would like to confirm that they have no jurisdiction in the tribunal’s decision to stay further consideration of the instant case however would like to advise …that the issue will be resolved when the new EC co-ordinating regulation (883/2004) enters into force because, in general, pensioners will be entitled to ‘family benefits’ from the Member State paying their pension. So from the date of implementation, UK state pensioners living elsewhere in the EEA will be able to claim both Child Benefit and Child Tax credit”

Highlighting his disagreement with this, Judge White says –

“Regulation 883/2004 entered into force on 1 May 2010. But it entered into force only for the 27 Member States of the European Union, and not for the three additional countries which make up the European Economic Area, one of which is Iceland. The advice quoted above is accordingly erroneous.

So far as I can discover, the necessary legislation at European level has not yet been adopted to extend the provisions of Regulation 883/2004 to Iceland, Liechtenstein and Norway. Until that happens, the position of those living in the three EEA countries will continue to be governed by Regulation 1408/71.

Until Regulation 883/2004 is extended to the three EEA countries, the more advantageous position which HMRC describes (and which flows from a broader definition of family benefits in the new regulation) will only apply to nationals of the 27 Member States of the European Union.”

This case has been reported as [2012] AACR18.

Ken Butler, Keith Venables and Martin Inch - 26 November 2012