Selected upper tribunal decisions from April 2010 to March 2011

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Click on the decision number to view the full decision.

• court decisions
• armed forces compensation schemes/war pensions
• attendance allowance
• child benefit
• compensation recovery
• disability living allowance
• employment and support allowance
• general
• home responsibilities protection
• housing benefit and council tax benefit
• incapacity benefit
• income support
• industrial injuries disablement benefit
• jobseeker's allowance
• pension credit
• pensions
• severe disablement allowance
• tax credits

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

Court decisions

the child poverty action group (respondent) v secretary of state for work and pensions (appellant) 2010 - recovery of common law overpayments

This Supreme Court judgment upheld the decision, won on appeal by the Child Poverty Action Group, on common law overpayment recovery.

Child Poverty Action Group (CPAG) had succeeded in overturning a decision allowing the Department for Work and Pensions to issue letters requesting repayment, at common law, of money paid by mistake where Section 71 of the Social Security Administration Act 1992 is intended to be used as a means of recovery.

The Government has announced its intention to change the law. Click on the link for a summary of the decision.

mcdonald, r (on the application of) v royal borough of kensington & chelsea [2010] - changing a care plan to save money

This decision, subsequently upheld by R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondent) concerns the right of a local authority to withdraw or amend care support where the recipient's circumstances are unchanged but where a cheaper alternative is available. Click on the link for a summary.

London Borough of Harrow v Nimco Hassan Ibrahim and the Secretary of State for the Home Department M and others v HM Treasury (European Court of Justice case C 340/08) - freezing of funds of persons with suspected terrorist links

The freezing of funds of persons with suspected links to Bin Laden, Al-Qaeda or the Taliban does not apply to certain social security benefits paid to their spouses. The regulation ordering funds to be frozen applies only to assets that can be used to support terrorist activities.

The regulation would apply if the wives concerned handed over those funds to their husbands instead of allocating them to their basic household expenses. See also the European Court of Justice press release 41/10.

Maria Teixeira v London Borough of Lambeth and the Secretary of State for the Home Department

These two European Court of Justice (ECJ) judgments give, in certain circumstances, someone a right to reside as the parent and primary carer of a child in education in a host Member State.

Secretary of State for Work & Pensions v Deane [2010] EWCA Civ 699 (23 June 2010)

This decision overturns CG/449/2008 [2009] UKUT 46 (AAC) which concerned carer's allowance and full time study.

CG/449/2008 discussed the meaning of regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976 (the ICA Regulations), which sets out when a claimant for carer's allowance (CA) is to be treated as receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992 and so not entitled to the allowance.

Judge Mesher considered that there were problems in estimating the number of hours a student studies, as a college or university might state a greater number of hours than the student. His view, following his interpretation of the case law above is set out in paragraph 32.

"In my view the most natural reading of the words of regulation 5(1) of the ICA Regulations is that they are directed to attending a course for 21 hours or more, in the sense of time actually spent in the activities specified in paragraph (2). That is the reading in fact supported by the judgments in Wright-Turner and Flemming.

Evidence as to the time that the authorities of the educational establishment in question expect or require a student to spend in the specified activities is important and relevant and may, depending on all the circumstances, lead to doubt about the reliability of a particular student's evidence that significantly less time is actually spent, but the fundamental test in law remains the time actually spent by the student.

In ICA and CA cases, claimants will often have a ready explanation for having spent significantly less time on study than the authorities expect, in the burden imposed by their substantial caring responsibilities. That distinguishes such cases from that of a student who simply relies on laziness or an ability to get through work quickly. However, the very readiness of the explanation means that it may need to be tested carefully."

CG/449/2008 was overturned in Secretary of State for Work & Pensions v Deane. The Court of Appeal held that, to construe regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for carer's allowance 'is receiving full-time education', and that:

"......concentration on the hours actually spent is the wrong approach. To construe Regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for CA "is receiving full-time education". A student will "receive" that which is provided. If in ordinary circumstances the course upon which the student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, then there must be, ….., "some presumption" that the recipient is in full-time education. There are always exceptions to the rule, for example, the student granted exemptions from part of the course but the task of the fact-finding tribunal is, having balanced what is offered and what is expected of the student against the student's actual performance of the demands made by the course, to look at the matter in the round and ask by way of testing the conclusion, is this applicant receiving full-time education?"

The DWP has issued guidance (Memo DMG 38/10).

Armed forces compensation schemes/war pensions

Attendance allowance

CA/2364/2009 [2010] UKUT 231 (AAC): Self funding and AA

This decision discusses the effect of a change of circumstances which potentially affects the self funding status of a claimant in residential care.

Child benefit

CF/395/2010 [2011] UKUT 11 (AAC): Duty of disclose

This decision examines a claimant’s duty to disclose to HMRC when information has already been given to a third party (the DWP). The claimant appealed against an overpayment of child benefit on the grounds that she had told officers of the DWP that her child had gone into care on two occasions and that, each time, officer had said that they would notify HMRC.

Judge Ward stated the DWP has an interest in, or responsibility for, the administration of child benefit because, under regulation 23 of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, the DWP has a role in the administration of child benefit. This includes the ostensible authority to make a representation that it will transmit information to HMRC, and to that extent modify the duty to provide information directly to HMRC.

Judge Ward held that the tribunal's reasons for its decision were inadequate and substituted his own decision. He found that the first officer the claimant saw did not undertake to notify HMRC, but that the second officer had made that undertaking. He also found that the claimant was still under a continuing duty to disclose, particularly if the no action was taken by HMRC following the initial disclosure.

Compensation recovery

Disability living allowance

CDLA/1173/2009 [2011] UKUT 12 (AAC): Recovery of overpayments - misrepresentation 

An assertion that a claimant misrepresented in a claim form requires some evidence of that misrepresentation, not merely that he received benefit to which subsequent findings suggest he was not entitled.

CDLA/1621/2009 [2010] UKUT 76 (AAC): Down’s Syndrome and mobility problems

The claimant was a child with Down’s Syndrome who was appealing to get her mobility component award raised from low to high rate. The tribunal failed to consider the physical effects of this condition when considering virtual inability to walk.

“23 If a claimant’s difficulty in walking ultimately has a physical cause, even if that physical cause is not some problem with, for example, muscle co-ordination or weakness or a physical injury to or defect in the relevant limbs, then it is possible that a claimant is still virtually unable to walk. In the present case the tribunal appears not to have paid attention to the words “physical condition as a whole”. Down’s Syndrome is a chromosomal abnormality. It can be seen under a microscope. It is part of the claimant’s “physical condition as a whole” .The approach of the First-tier Tribunal led to a failure to consider whether such difficulties as the claimant did have with walking (manifested in her behaviour) stemmed from her Down’s Syndrome. At the new hearing those acting on behalf of the claimant might wish to produce expert evidence dealing with this, although it would have to relate to this particular claimant.”

The decision makes reference and discusses R(M)3/86, R(M)2/78, Harrison v Secretary of State for Social services (as reported in R(M)1/88) and R(DLA)4/06. For more information on these see our disability living allowance and attendance allowance case law summaries pack.

R(M)3/86 is a decision of a Tribunal of Commissioners. It considers that behavioural problems arising from a physical source can constitute a "temporary paralysis" as far as walking is concerned and therefore be seen as a "virtual inability to walk". The decision also considered situations where a claimant who could not walk as opposed to claimant who would not walk, holding that it was for the tribunal “to determine whether a child’s propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement” (paragraph 8).

Commenting on this Judge Levenson noted:

"24. It seems to me that it is important not to read that principle in too literal a way. The thrust of the authorities is that if the reason a person will not walk is because of the effect of, for example, Down’s Syndrome, that comes into the category of being prevented from walking by the physical condition. This is consistent with the view of the Court of Appeal in Harrison v Secretary of State for Social Services (reported as an appendix to R(M) 1/88) upholding the Commissioner’s statement in paragraph 6 of R(M) 1/88 that even in a case of hysteria the tribunal was not bound to hold in every case that the hysteria was not a manifestation of the claimant’s physical condition as a whole."

The tribunal also erred in failing to properly consider whether the claimant qualified for high rate mobility on grounds of severe mental impairment, finding no evidence of “arrested or incomplete development of the brain”.

“28 However, this is a common but mistaken paraphrase of regulation 12(5), which refers to “arrested development” or “incomplete physical development of the brain”.  There are two aspects to this error. One is that a distinction is drawn between arrested development generally (not limited to the brain, although there must still be a physical cause) and incomplete physical development of the brain. The other is that “arrested development” does not mean arrested physical development (otherwise the regulation would say so, as it says “incomplete physical development”). Thus, regulation 12(5) can apply to a person who has arrested emotional or functional development which has a physical cause even if that cause is not related to the development of the brain.”

CDLA/1991/2009 [2010] UKUT 78 (AAC): Six month forward test - Aids and adaptations

With regard to the cooking test the tribunal failed to make sufficient findings about the effect of hot cooking conditions on the claimant's breathlessness. The tribunal also appeared to wrongly consider that the need for assistance from another person was the criteria for the cooking test, rather than the ability to cook a main meal.

Judge Ward cites CDLA/4214/2002 which states that steam and heat can be a factor in the cooking test where someone has breathing problems.

When considering attention for a significant part of the day as an alternative route to low rate care component the tribunal noted:

“[the claimant] is said to need motivation to get up when he is in pain and to dress himself.  We do not consider that encouragement to get  up and dress will amount to a significant portion of the day.  He may need help into and out of the bath but the occupational therapist has recommended a bath board and bath with a shower, these have not been fitted as he has moved house but we consider that with these aids he will not need the help of another person.”

In doing so it erred in not following CDLA/304/2007 which states that tribunals should consider what alternative help is reasonably available to the claimant both initially and throughout the six months period from the date the award would commence.

“13 Accordingly, the tribunal needed to consider whether, looking at the circumstances obtaining at that date, the bath board and bath with shower were likely to be provided within the 6 month prospective period.  To do this required further findings of fact, which would need to cover such matters as whether the claimant’s accommodation was owner occupied or rented and the available mechanisms (including funding) for installing the bath with shower and whether plans existed at the date of decision to move house, so as to be likely to result in delay to the installation of the bath with shower.”

CDLA/2060/2009 [2010] UKUT 33 (AAC): Deafness and Fairey

A tribunal considered that it was not possible to quantify the help the claimant required because of his hearing problems as these pervaded his life. It considered, 'globally', that the claimant required frequent attention throughout the day in connection with the bodily function of hearing.

The tribunal erred in law because it was not enough in this case to say that the claimant’s problems were pervasive. 

"It was necessary not only to break down the activities for which the claimant claimed to need attention, but to

a. articulate the nature of the assistance needed, which could vary considerably depending upon the activity in question,
b. give an indication of the frequency with which he required attention with the differing types of assistance he might need, and
c. assess how far the assistance was reasonably required." 

The basic principles applying to a deaf claimant’s need for attention in connection with the bodily function of hearing are set in R(A) 2/98 (the Fairey decision). Paragraph 7 of this decision has a neat summation of Fairey and some of the key case law which has followed from it.

“7 What can be drawn from the judgment is that attention in connection with sensory functions needed to engage in ‘normal’ or ‘ordinary’ activities is capable of counting as attention, but will not necessarily do so. 

Commissioners’ decisions following Fairey, or referred to in it without disapproval, have tended to conclude that it is not necessary in order to lead ‘a normal life’ for a deaf claimant to be able to communicate with others, at will, frequently throughout the day, in the way that a person who is not deaf might do (R(DLA) 3/02 [24] referring to CA/249/1992); that unusual but minor acts aimed at attracting a deaf person’s attention will generally not amount to attention simply because such acts they are not necessary in relation to a hearing person in the same setting (R(DLA) 3/02 [28-29] cf. R(DLA 2/02[34]). 

Speaking loudly or more clearly directly to a deaf person, or signing to him in a two-way conversation (at least where the signer is reasonably fluent) would be unlikely to amount to attention (R(A)2/98, Commissioner Sanders; CA/249/1992; CDLA/240/1994), though if the task became particularly onerous, it might indicate a need for an interpreter, and thus for attention (RDLA)2/02).   It is a question of fact and degree.” 

CDLA/2235/2009 [2010] UKUT 85 (AAC): Severe discomfort

The case concerned a claimant who argued that she was virtually unable to walk. In rejecting her appeal the tribunal preferred the evidence of the EMP to that of both her GP and her own evidence.

The tribunal erred for two reasons:

1. The statement of reasons failed to explain to the claimant why her evidence, and in particular her explicit disagreement with the EMP’s assessment of her walking ability, was rejected. 
2. The statement of reasons failed to show that it had applied the law correctly in  reaching its conclusions

On the second point the EMP appeared to be "operating on the principle that discomfort cannot be severe until it causes a person to stop walking, which is not the test under the legislation”.

“20.  The EMP’s observation here was not an observation about a distance that the claimant actually walked, it was his estimate both of the distance after which she might experience a degree of pain such that she would have to stop and of the distance after which she would experience severe discomfort.  The inference that he equated the onset of severe discomfort with having to stop walking is strong.”

In such a case the tribunal’s statement of reasons needed to give more  reasons for its conclusion, weighing  the EMP’s expressions of opinion and the other evidence, as a whole. 

As a result of this not being done the claimant did not know whether the tribunal’s own conclusion was prejudiced by that error and the statement of  reasons was inadequate.

CDLA/2803/2009 [2010] UKUT 130 (AAC): Backdating following a test case

This decision considers whether there is any statutory machinery to backdate entitlement to benefit where an application is made for a supersession of an award of disability living allowance some years after a successful appeal in a separate test case – in this case Mallinson v Secretary of State for Social Security [1994] (reported as R(A)3/94 (see our DLA law pack for more information).

The claimant was 78 and made a claim for DLA in 1992. Mallinson was heard in 1994 but the claimant only found out about the Mallinson decision in 2008. He then submitted a request for supersession. As a result of this the decision maker raised his award from low to middle rate care but only from the date of request for supersession.

The claimant appealed arguing that he should be entitled to the middle rate of the care component with effect from 21 April 1994, the date of the Mallinson decision. The appeal was rejected because the tribunal held that there was no machinery to backdate any award before a claim was made or an appeal lodged.

The Upper Tribunal found that the tribunal erred because such a mechanism did exist in the form of regulation 7(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).  This provides that:

“(6) Any decision made under section 10 [of the Social Security Act 1998] in consequence of a decision which is a relevant determination for the purposes of section 27 shall take effect as from the date of the relevant determination.”

The Mallinson decision was a “relevant determination” and so regulation 7(6) provided the machinery (which the First-tier Tribunal said was missing) to backdate entitlement to the middle rate of the DLA care component to the date of that judgment.

However Judge Wikeley warns that the new tribunal will have to consider whether there are actual grounds for supersession. The test for this is contained within CDLA/4099/2004 (at paragraph 6).

". the claimant must show not only that the decision was wrong but also that is it more probable that it was wrong due to the adjudicating officer taking a view of the law shown in Mallinson to be erroneous, than that it was wrong due to some other error of law or ignorance of, or a mistake as to, a material fact. That is no easy task." (para 14)

CDLA/2818/2009 [2010] UKUT 103 (AAC): Appeals against a refusal to set aside

A claimant mistakenly opted for a paper hearing. One was held within six days of the receipt of the decision maker’s submission. Her appeal was refused. Her representatives, on discovering this, requested the decision be set aside under rule 37 of the Tribunal Procedure (First-Tier Tribunal)(SEC) Rules 2008, which was refused, because no error of law was identified.

The claimant’s appeal to the upper tribunal was successful. Firstly decisions to set aside under regulation 37 are not excluded and are therefore appealable. Secondly there were two errors of law:

• A document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative – The tribunal had not received additional medical evidence which was to have been sent by the claimant’s representatives.
• There has been some other procedural irregularity in the proceedings - There was a procedural irregularity because under Rule 24(7) of the Tribunal Procedure Rules the claimant has one month from the date of the tribunal’s receipt of the decision maker’s submission to send in a written submission and additional documents. This was not possible because the paper hearing was held so soon.

CDLA/3182/2009 [2010] UKUT 183 (AAC): Tribunal exercise of discretion where an issue is not raised

This decision raises four questions:

First, does a tribunal have jurisdiction to deal with an aspect of an award that was not put in issue between the parties?

Second, if it does, in what circumstances may the tribunal exercise its jurisdiction?

Third, if the tribunal has jurisdiction, subject to what conditions may it exercise it?

Fourth, in what circumstances will there be an error of law in the tribunal’s decision to exercise its jurisdiction?

After a lengthy discussion of relevant case law Judge Jacobs concludes, with regard to the first three questions that:

• the tribunal has a discretion to consider issues that are not raised by the appeal;
• it does not matter whether the discretion arises under section 12(8)(a) of the Social Security Act 1998 or independently;
• the tribunal must exercise the discretion judicially;
• the points made by Mr Commissioner Rowland are relevant to that exercise, as is the public interest. Commissioner Rowland stated, in CDLA/884/2008, that ….

 “Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.”

Judge Jacobs further notes that if an award is removed by the Secretary of State, the claimant has the right to appeal on fact to the First-tier Tribunal. But if it is removed by the First-tier Tribunal, there is no right of appeal on fact and that Tribunals should bear this in mind when considering using discretion;

• if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;
• it is always good practice to explain why the tribunal exercised its discretion;
• an explanation may be required as a matter of adequacy of reasons.

With regard to the fourth question there will only be an error if the tribunal approached the issue incorrectly or if its exercise was perverse.

CDLA/22/2010 [2010] UKUT 210 (AAC): credibility and failure to properly consider evidence

The claimant believed she had been poisoned as a result of exposure to chemicals at work although a toxicologist could not pin down any particular condition to explain the many symptoms she described.  Despite this she was awarded incapacity benefit without having to undergo the personal capability assessment. 

Her appeal against a refusal to award disability living allowance was dismissed by the tribunal, who did not accept her account of her symptoms as credible. The tribunal’s decision was set aside because it failed to explain its decision adequately, and in particular to consider and explain the discrepancy between the respective outcomes of the incapacity benefit and the disability living allowance claims.

In relation to the issue of credibility Judge Wikeley follows CIS/4022/2007 which states that there is no universal obligation on tribunals to explain assessments of credibility in every instance but that there an obligation on a tribunal to give adequate reasons for its decision.

“33..…the fact that the appellant was found to be exempt from the personal capability assessment for the purposes of incapacity benefit in February 2009 could certainly not determine the outcome of a claim for disability living allowance made a few days later and decided the following month.  It was, however, a potentially material consideration, and certainly the evidential basis for the application of the exemption needed to be explored.”

CDLA/280/2010 [2010] UKUT 201 (AAC): Mobility component - severe mental impairment

The tribunal failed to find sufficient facts or give adequate reasons for a decision to award the highest rate mobility component on grounds of severe mental impairment. Judge Wikeley does a stage by stage examination of what is needed to satisfy the severe mental impairment test, citing relevant case law at each stage.

CDLA/636/2010 [2010] UKUT 202 (AAC): section 25 of the Tribunals, Courts and Enforcement Act 2007

Decision of a three judge panel.

This decision concerns the use of enforcement powers under section 25 of the Tribunals, Courts and Enforcement Act 2007, which allow the Upper Tribunal to impose penalties (including imprisonment) for refusing to attend a hearing. Upper Tribunal Rule 7 allows this power to be extended to include  failure to attend a Lower Tribunal hearing where this is referred to the Upper Tribunal.

The tone of the decision implies that tribunals should exercise caution when considering such referrals.

The lower tribunal requested a copy of the claimant’s medical records from her GP, Doctor M.  When these were not supplied the tribunal issued a direction requiring Doctor M to attend a hearing. The doctor did not attend and the tribunal allowed the appeal but issued a separate decision, referring the case to the Upper Tribunal under rule 7(3) of the Tribunal Procedure (First-tier Tribunal (Social Entitlement Chamber) Rules 2008 (‘the SEC Rules’) because of the doctor’s non compliance.

Doctor M said that he had not received the summons.

The Upper Tribunal accepted that Doctor M did not receive the notice to attend and so failure to comply did not warrant the exercise of enforcement powers under section 25 of the 2007 Act.

It also questioned the whether Doctor M needed to attend the tribunal. The tribunal should have investigated whether it was possible to proceed without the doctor’s records, before deciding to require the doctor to attend. Also the original directions were for Doctor M to provide a print-out of the claimant’s medical records and consultants’ letters.

“There is no suggestion that Doctor M needed to give oral evidence at the hearing and, in any case, the appeal was finally determined without either the medical records or Doctor M’s attendance.  An order to compel a practising doctor to attend a hearing should not be made without a very compelling reason for doing so, and in this case there is no indication of why it was considered that an order for Doctor M’s attendance at the tribunal was a necessary and proportionate response to his apparent failure to comply with the directions given at the first hearing of the appeal.”

The tribunal also failed to fully investigate whether the letter to Doctor M had been delivered to Doctor M’s address before referring the matter to the Upper Tribunal.

“…a cursory examination of the letter to Doctor M of 12 August 2009 would have shown that it misspelt his name and contained no indication of the address to which it was sent. The tribunal’s finding that Doctor M had “ignored the summons” could only be justified on the basis that the letter had actually been delivered to Doctor M’s address.  That was a matter which should have been investigated before the tribunal found Doctor M guilty of “a lack of professional behaviour”, and decided to refer the matter to the Upper Tribunal. Indeed, even if that investigation had established that Dr M had received the July notice, the tribunal would need to consider any explanation offered by the doctor and assess whether in the light of that explanation the matter did indeed warrant a reference to the Upper Tribunal.”

The Upper tribunal decided to make no order on the reference from the First-tier Tribunal and gave guidance to the Lower Tribunal on how to proceed when giving directions to attend in future.

19. …Tribunals must make clear in plain English what things must be done. They must also make clear the possible consequences of any failure to do what the tribunal has required. In order to make clear what may happen if the necessary things are not done we think it highly desirable, at the very least, that a statement under rule 16(4)(b) of the SEC Rules of the consequences of a failure to comply with a summons or citation should spell out the penalties that may be imposed for failure to comply. In England and Wales these include imprisonment, a fine, and sequestration of assets.”

The tribunal also breached rule 16(2)(b) of the SEC Rules because the summons did not include any provision for the payment of Doctor M’s expenses.

This decision has been reported as [2011] AACR 5.

CDLA/765/2010 [2010] UKUT 318 (AAC): Severe behavioural problems

In this decision the tribunal failed to fully investigate whether the claimant had severe behavioural problems for the purposes of high rate mobility component.

The decision discusses watching in some detail and cites:

• R(DLA)7/02 which states that the test is not satisfied if the environment or carer prevents disruptive behaviour taking place.
• R(DLA)9/02 where it was held that the claimant did not require another person to be watching over him because of his specially adapted room.
• CDLA/2955/2008 [2008] UKUT 24 (AAC) where the lower tier tribunal failed to consider the supervision provided by the claimant's father when she got up in the night and went downstairs. The father slept downstairs and was ready to intervene when necessary.

Judge Mark holds:

"11…..The issues for the tribunal to address for the purpose of 12(6)(c) [of the Social Security (Disability Living Allowance) Regulations 1991] are unpredictability of disruptive behaviour giving rise to the need for a person to be present and watching over him whenever he is awake.  Interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant.

10. If, however, the structured environment is such that there is no real risk of unpredictable violence or not such a risk as to make it reasonable for somebody to be present and watching over him whenever he is awake, then he cannot be said to need another person to be present and watching over him because of his unpredictable disruptive behaviour.  If, in practice, he is regularly left alone in his room for lengthy periods while awake, or is not watched over at school because of his unpredictable disruptive behaviour, then that would suggest that his behaviour is not unpredictable, or at least is not unpredictable to such an extent as to require another person to be present and watching over him whenever he is awake."

CDLA/892/2010 [2010] UKUT 384 (AAC): Duty to record majority decisions

There is no obligation for a tribunal to state in the decision notice that it has been made by a majority, rather than being unanimous. However, if a tribunal chooses to record that a decision was by majority there may be an error of law if what is stated is incorrect.

In this decision the tribunal erred because its record of proceedings stated that the decision to award low rate care component was by majority whilst the decision notice stated that the decision was unanimous.

Judge Mesher states that the tribunal could have corrected this but failed to do so and as a result were in error.

11. Applying those principles in the present case produces the following result. Although the tribunal's decision was by a majority, the decision notice stated that it was unanimous. That is on its face an error of law. However, it is an error that in my view could have been cured or rendered non-material if the subsequent statement of reasons had acknowledged the decision notice as mistaken, correctly set out that the decision was by a majority and given an adequate statement of the reasons of the minority member. Whether or not there was a formal correction of the decision notice (as would be desirable, and could cure the problem in cases of genuine mistake where no statement of reasons is produced) there would have then been an implicit correction. I do not think that the inconsistency between the original decision notice and the statement of reasons would then have been such as to leave sufficient sense of unfairness as to require the setting aside of the decision. But that did not happen here. The statement of reasons did nothing to acknowledge or correct the inaccuracy of the decision notice. Accordingly, the decision involved an error of law.”

CDLA/1153/2010 [2010] UKUT 375 (AAC): Wilful refusal to walk

The tribunal erred in failing to fully consider whether wilful refusal to walk was due to the claimant's Down's Syndrome.

"The tribunal considered that the child would be able to walk at least 50 metres though he might refuse to continue to walk.  It described this refusal as ‘a wilful act about which little could be done’.  Presumably the tribunal meant that his refusal was connected with the Down’s Syndrome.  If so, and since Down’s Syndrome is a chromosomal disorder which could be classified as a physical disorder of the brain, it was open to the tribunal to find that the child was virtually unable to walk.  His refusal might have been wilful, but so intricately tied up with the disorder that it was part and parcel of a physical disability and physical condition."

CDLA/1533/2009 cited.

CDLA/1295/2010 [2010] UKUT 401 (AAC): Low rate mobility and Crohns Disease

This was an appeal by the Secretary of State against a decision of the First-Tier Tribunal that the claimant was entitled to the middle rate of the care component of disability living allowance because he required repeated attention at night and to the lower rate of the mobility component because he required supervision when walking out of doors. The claimant suffers from Crohn’s disease. 

Judge Mark dismissed the appeal. His reasoning with regard to lower rate mobility component was:

“12. The evidence in the present case is not only that walking a few steps brought on the urgent need to go to the toilet but that if he had a sudden attack of diarrhoea the claimant would need to be taken home immediately as he could not walk let alone drive.  The danger of his becoming incapacitated by an attack of diarrhoea was a very real one, and it would leave him unable to continue.  For that reason, it appears to me ……. the claimant reasonably required supervision when walking out of doors and the tribunal came to the correct conclusion.”

The tribunal found that at night, taking a broad view, the claimant needed repeated attention and was thus entitled to the middle rate of the care component. The Secretary of State argued that this need was negated by the fact that the claimant was reluctant to wear incontinence pads. Judge Mark sidesteps this argument by referring to the usefulness of the pads as an aid.

"14. ….there is a finding of fact by the tribunal that “incontinence pads are never totally secure and the Tribunal did not see them as an answer to his problem.”  Both on that account and because the most that the pads would achieve would be to reduce the amount of time spent on some occasions dealing with the consequences of an accident, the causal link between the accidents and the need for repeated attention is not disturbed by the claimant not wanting to wear them. The attention required was not just changing bedclothes as the representative of the Secretary of State suggests in her submissions on this appeal, but also in cleaning the claimant and helping him to change.  The claimant was found to need such help when he had accidents both by day and by night.  It is plain that the two to three times a night, three or four times a week, that the claimant was found to need such help went beyond the number of times that he soiled the sheets and extended to all the times he soiled himself at night.  The tribunal was fully entitled to come to the conclusion that it did, and on this count also the appeal must be dismissed.  It also appears to me that the attention required on each occasion may well have been prolonged, even without changing the bed linen, although it was unnecessary for the Tribunal to address that question in view of its conclusion that the attention required was repeated."

CDLA/1491/2010 [2010] UKUT 452 (AAC): Recovery of overpayments - rehearing of entitlement

This decision highlights a potential problem for decision makers when an appeal against both an entitlement decision and an overpayments decision are heard separately.

This has advantages for the claimant because it means that the issues discussed within an entitlement appeal, if heard first, can be reargued in the overpayments appeal if the entitlement appeal is unsuccessful.

In such circumstances it would appear to be a good idea for a claimant to appeal against both the entitlement decision and any overpayments decision but not to actively pursue any request that both appeals be heard together.

The decision cites CA/2650/2006 in relation to this issue.

The claimant was awarded the higher rate of the mobility component and the highest rate of the care component of disability living allowance from 4 October 2000 for an indefinite period. This decision was superseded with effect from 19 November 2003 - the date on which she had started to work in a department store - by reason of a change of circumstances, namely an improvement in her condition. This decision was made on 21 August 2008.

On 5 September 2008 an overpayment decision was made that an overpayment of disability living allowance had been made totalling £25,934.80 in respect of the period 19 November 2003 to 19 August 2008, of which £24,569.80 was recoverable.

The claimant appealed against both the entitlement decision and the overpayment decision. These were heard separately. The entitlement appeal was dismissed. The overpayment appeal was heard later, together with an appeal against a newer ‘fresh claim' decision (which was allowed).

The overpayment appeal was dismissed but the tribunal erred because it failed to properly consider the claimant’s argument that it had made inadequate findings of fact, and applied the wrong test, when assessing whether she had satisfied the conditions of entitlement to the higher rate of the mobility component during the period 2003 to 2008.

The Secretary of State argued that the ground of appeal was misconceived in that it had already been determined by the entitlement appeal tribunal. As a result the claimant did not satisfy the conditions of entitlement to any rate of either component during the relevant period and those issues therefore did not fall to be considered in the overpayment appeal. Judge Turnbull disagreed.

"13. In my judgment the Secretary of State’s response is not well founded. The effect of s.17 of the Social Security Act 1998 is that the First Tribunal’s decision in the entitlement appeal was “final”, but the findings of fact or “other determinations” embodied in or necessary to the First Tribunal’s decision were not conclusive for the purpose of the Second Tribunal’s decision of the overpayment appeal.

14. That means that, in the overpayment appeal, the Claimant had to accept that she had no award of disability living allowance in respect of the period 2003 to 2008. That meant that she could not deny that the amount paid to her in respect of that period had been overpaid. The main additional matters which the Secretary had to establish in the overpayment appeal were (i) that the Claimant had failed to disclose a material fact and (ii) that if the Claimant had made proper disclosure the disability living allowance would not have been paid: see the terms of s.71(1) of the Social Security Administration Act 1992. In my judgment the fact that the Claimant was bound to accept, for the purposes of the overpayment appeal, that she had no award of disability living allowance in respect of the period 2003 to 2008, and therefore that there had been an overpayment, did not mean that she was bound by the findings of fact made by the First Tribunal to the effect that she did not satisfy the conditions of entitlement to disability living allowance during that period."

What this meant was that the claimant could argue that she satisfied the rules for DLA for the overpayment appeal even though the earlier entitlement appeal found that she was not entitled. If her argument succeeded any failure to disclose would not lead to an overpayment because her DLA would have been paid anyway.

Judge Turnbull found that the tribunal had failed to properly consider the claimant's contentions regarding entitlement. He found that the tribunal’s reasoning in relation to the mobility component was wrong in law because it did not properly consider both severe discomfort and the distance the claimant was able to walk.

There were also possible inconsistencies between the tribunal decision in the fresh claim appeal regarding virtual inability to walk and the finding, for the purposes of the overpayment appeal, that she was not virtually unable to walk.

The decision was remitted to a new tribunal.

CDLA/1838/2010 [2011] UKUT 14 (AAC): Recovery of overpayments misrepresentation

The claimant was awarded the higher rate mobility component from January 2001, which was removed from July 2006 based, in part, on video surveillance.

The first tribunal hearing his appeal decided that he had not been virtually unable to walk from the beginning of his claim and referred the issue of the overpayment back to the DWP. The DWP decided that he had been overpaid £12,139 for the period from January 2001 to October 2006 and that it was recoverable on grounds of misrepresentation of a material fact.

The claimant appealed against the overpayment decision but the second  tribunal disallowed this because he failed to attend.

A request was made to set the decision aside, giving the reason that his wife had made a mistake about the date of the hearing. The third tribunal refused this because the claimant had reserved a parking space for the day of the hearing and therefore must have known what day it was on.

The claimant then appealed to the Upper Tribunal against tribunal 2's overpayment decision and the decision by tribunal 3 not to set aside that decision.

The claimant appealed to the Upper Tribunal and was successful for the following reasons:

• The third tribunal decision was in error because there was a breach of natural justice. It failed to properly consider the claimant’s reasons and his solicitor’s arguments for non-attendance when set against the amount of overpayment involved. 
• The second tribunal was wrong to proceed with the appeal in the absence of the claimant without considering issues concerning the interests of justice, because of “the size of the overpayment at stake, the claimant’s good attendance record at precious hearings and  the inadequacy of the Department’s written submission in this appeal and the apparent absence of potentially significant evidence from the tribunal bundle..”
• The second tribunal was not bound by  the findings of fact made by the first tribunal. It was entitled to make different findings of fact, even on the same evidence, which might have meant that the overpayment was not recoverable.
• The second tribunal was wrong to accept the video evidence without making a finding as to whether the covert surveillance was authorised for the purposes of the Regulation of Investigatory Powers Act 2000.

CSDLA/356/2010 [2010] UKUT 456 (AAC): Mobility component and severe mental disablement -  watching over

This decision concerns the application of regulation 12(6)(c) of the Social Security (Disability Living Allowance) Regulations in relation to the severe mental impairment behavioural problems test for high rate mobility component. This requires the claimant to exhibit disruptive behaviour which “is so unpredictable that he requires another person to be present and watching over him whenever he is awake.”

The claimant's appeal was rejected because the evidence indicated that he could be left alone for long periods of time. In doing so Judge May followed his own decision - R(DLA)9/02 - which suggests that the carer is required to be actually watching the claimant all the time rather than simply be awake and available to intervene.

"15. In this case even if there is unpredictability in behaviour, if the claimant can be left for substantial periods on his own this would tend to support a conclusion that unpredictability was not such as to give rise to the requirement.  There was evidence in relation to baby monitors being placed in his room which suggests that presence and watching over in the sense suggested by myself in R (DLA) 9/02 was not required.  In my view the tribunal erred in law by misinterpreting the legislation.  “A routine for supervising his behaviour” as disclosed in the evidence was not, in my view, sufficient for the purposes of regulation 12(6)(c).  They erred in law by not following what is said in R (DLA) 9/02, though I accept that it was not cited to them."

Employment and support allowance

CE/2373/2009 [2010] UKUT 50 (AAC): Coping with social situations

This is an appeal against a decision regarding limited capability for work. Chiefly it discusses Activity 19 - coping with social situations. Judge Williams held that the tribunal failed to adequately deal with this descriptor, a decision supported by the Secretary of State. The decision makes a number of points:

• It notes the differences between (a) the questions on the ESA50, (b) the questions on the ESA85, and (c) the official terms of the descriptor – which requires that a decision maker and a tribunal pay attention to the terms of the statutory test as well as making adequate fact finding.
• It may not be enough simply to adopt the evidence contained within either the ESA50 or the ESA85 as determining the statutory test because of the differences in wording.
• Coping with social situations is considered in relation to ‘normal situations’ but these are not defined. The only guidance cited was that contained within DWP medical services policy (see paragraph 13) which is potentially a wide test.

“15. What is clear from the descriptor, and is echoed in the policy statement, is that the test of “normal activities” is potentially wide. I agree that the descriptor suggests that the activities to be contemplated are activities of “normal” people, not the previous activities of the claimant. At the same time, the wording of the descriptor suggests that the “overwhelming fear or anxiety” does not have to be experienced in respect of all normal activities. Nor does it have to occur continually to be significant. In this case, for example, the representative asked for consideration to be given to experiences either for “a majority of the time” or “frequently”. It is common ground that “frequently” means less than most of the time. It might fall somewhere near the “often” in the ESA50.

16. It is a question of fact whether an intermittent reaction at the level stated in the descriptor occurring either in temporal terms or in activity terms (or both) meets the test. For example, someone who is genuinely overwhelmed about the idea of going out – and rarely does so - may not be overwhelmed when making a phone call to a friend or neighbour or answering a call on a phone which (like so many phones now) tells her or him who is calling. It is at least arguable that someone who cannot go out most of the time for this reason meets this descriptor at least at some level even though he or she is prepared to sit at home and telephone. There is a balance to be struck between different social situations. Where there is evidence of significant problems with some social situations, there may be a need to explore a wider range of those situations to make a full judgment of the extent of the limitation.”

• There could also be a potential overlap between descriptor 18 (getting about) and descriptor 19 if the guidance outlined in paragraph 13 is followed when making decisions.

CE/191/2010 [2010] UKUT 266 (AAC): Activity 18: getting about

This was an appeal from a Secretary of State supersession which removed the claimants ESA and which was upheld by the tribunal.

The appeal concerned Activity 19: Coping with social situations  and Activity 18: Getting About.

With regard to Activity 19 the tribunal erred because it failed to explain its reasoning for accepting the disability analyst’s findings.

“12. What is important, however, is that a tribunal explains how it has reached its conclusions on the application of descriptors, probably in terms of clinical features but not necessarily so.  So long as there are sufficient findings of primary fact to underpin any inferences drawn and its process of reasoning is adequately explained a tribunal may not be faulted.  The present tribunal accepted the doctor’s findings after his formal examination of the appellant, as it was entitled to do, but did not give even a brief explanation of how this meant that satisfaction of activities such as Activity 19, which possibly applied on the basis of the claimant’s own evidence, had been successfully refuted by the Secretary of State.”

 With regard to Activity 18 the decision focused on the wording of descriptor’s 18(a) and 18(b).

18(a) Cannot get to any specified place with which the claimant is, or would be, familiar. – Score 15

18(b) Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person on each occasion. – Score 15 

The term “any specified place” was taken to mean anywhere at all whereas “a specified place” was taken to mean just one kind of place. This interpretation was important in the case of the claimant.

“15. In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains.  If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.”    

CE/313/2010 [2010] UKUT 244 (AAC): Functional approach to test and audited medical reports

This decision examines the correct approach to the interpretation and application of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) which lists the limited capability for work activities and the proper approach to evidence of a healthcare professional that has been amended by another on audit.

It holds that the correct approach to the ESA medical test is the same as that outlined in R(IB)2/03 (an earlier decision by this judge) which states:

"The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each."

Each activity is therefore concerned with a particular function of the body in relation to capacity for work.

In this decision there was a dispute as to whether the claimant satisfied manual dexterity descriptor 6(f) - Cannot do up/undo small buttons, such as shirt or blouse buttons. Judge Jacobs held that:

"14. The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.”

The second issue concerned a medical report completed by a registered nurse on 17 March 2009 which was amended following an audit by a doctor on 24 March 2009.

Judge Jacobs stated that the way that the report was presented to the tribunal and to the claimant was unsatisfactory and  “destined to give rise to suspicion and complaint”. Ideally, the tribunal should have asked the Secretary of State for a fuller explanation and for the original unaltered medical report in order to ensure that the “provenance of the evidence” is always clear so that the tribunal can properly assess it.

In this case however Judge Jacobs did not consider that the outcome was materially affected and the appeal was dismissed.

"24. The issue for me is whether in relying on the evidence in the form submitted the tribunal made an error of law in its decision. In this case, I am satisfied that it did not have any impact on the outcome. The sole issue on the descriptors that has been raised concerns manual dexterity. The nature of the claimant’s disability alone is a significant factor in applying my interpretation. The clinical findings are also relevant and they are not inconsistent with the claimant’s own evidence. He took a different view from that adopted by the decision-maker, but the difference arose from his interpretation of the descriptor.

25. I have considered whether other issues might have arisen if the claimant and the tribunal had been told the full history of the report. In the circumstances of this case, I can see no other issue that would have arisen, given the claimant’s disability and his own evidence of his difficulties."

CE/406/2010 [2010] UKUT 352 (AAC): WCA activity 15, 16, 19, 20, 21

The activities in dispute in this decision were 15 (execution of tasks), 16 (initiating and sustaining personal action), 19 (Coping with social situations), 20 (Propriety of behaviour with other people) and 21 (Dealing with other people).

For Activity 15 it was held that lack of motivation to begin tasks is immaterial. The decision also states that the way in which a tribunal approaches this activity may vary from case to case. Here the tribunal found that the appellant was routinely able to run her home and family, and therefore was entitled to infer that the appellant was not taking a longer time to complete her everyday tasks.  In these circumstances, the tribunal performed its inquisitorial role adequately and was justified in its conclusion. 

For activity 16 there was also no error of law. The tribunal only needed to decide whether the appellant could not initiate or sustain personal action without verbal prompting. 

"It did not have to decide whether she was able to perform at the highest level the appellant set for herself.  The evidence in this appeal was that she could.  The tribunal reasoned that although the appellant’s ability in this sphere was variable, she was nonetheless able to do everything necessary to run the household without verbal prompting from another.  The tribunal made adequate findings of fact and was clearly correct to find on the evidence before that she did so without verbal prompting."

The tribunal had also properly considered the medical report in relation to this activity and by implication, considered that at the date of decision the report did not reflect the appellant’s mental health condition.

For Activity 19 Judge Lane's reasoning follows CE/2373/2009 [2010] UKUT 50 (AAC). It was considered that the tribunal erred in law.

“22. In this appeal, the tribunal did not, on balance, deal adequately with the issues.  The Record of Proceedings records evidence that she has few friends, but she sees them sometimes; she shops (which requires social interaction on a number of levels), and takes her child to school (which may require interaction with other parents).  On the other hand, there was also evidence that she restricted herself to social activities which she had to perform to survive or meet her legal obligations.  While the tribunal would have been justified in finding that the appellant did not satisfy 19(a), she may have satisfied that (b) or (c) had she been questioned more carefully.  This might have given her either 9 or 6 points.”

For Activity 20 the tribunal erred because it failed to fully explore some of the statements made in the claimant’s self-assessment questionnaire (she wrote that she was always getting cross with her children for no reasons or for little things. 

“This does not appear to have been explored by the approved healthcare professional and was not explored adequately during the hearing or in the Statement of Reasons.  The tribunal failed in its inquisitorial duty in this respect.  It is possible that she may have been entitled to 6 points for 20(f).”

For Activity 21 the tribunal erred because did no more than state its conclusion without examining relevant evidence given by the appellant in her ESA50. 

CE/841/2010 [2010] UKUT 430 (AAC): Tribunal discretion to hold oral hearing

This decision discusses situations where a tribunal should consider holding an oral hearing when a claimant has opted for a decision to be made based on the papers alone.

[Note] Under rule 1(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, a hearing means an oral hearing, so that there is technically no hearing when a tribunal decides a case on the papers alone.

The claimant’s representative submitted that the First-tier Tribunal’s decision to find that the appellant no longer had a limited capability for work was erroneous in law on several grounds. These included failures:

1. to adjourn for further medical evidence;
2. to exercise its discretion judicially in determining the appeal as a paper case;
3. to consider the descriptors in activity 16 of the Limited Capability for Work Assessment (LCWA) under Schedule 2 of the Employment and Support Allowance Regulations 2008 properly; and
4. to consider other activities in the LCWA and evidence relating to them specifically raised by the appellant.

Arguments 1 and 2 were rejected. Arguments 3 and 4 were upheld and the appeal remitted for rehearing.

On argument 1, the tribunal had to consider Activity 11 - involuntary episodes of lost or altered consciousness. As the claimant did not complain of this in the self-assessment questionnaire and only suffered from migraine the tribunal was “not obliged to speculate on the unlikely, let alone to consider adjourning for evidence on such a long shot”. 

On argument 2, rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 requires a First-tier Tribunal to hold an oral hearing of a matter disposing of the proceedings unless (a) the parties have consented to, or 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. 

Judge Lane considered situations where a tribunal might override a claimant’s request for a decision to be made based on the papers alone:

“10. What is fair may vary with the jurisdiction of the tribunal concerned.  In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice.  This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand.  In other types of tribunal where appellants are represented, a less interventionist approach is likely to prevail.”

Guidance on this is contained within rule 2 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008. These rules also require a tribunal to give adequate reasons for its decision.  A failure to explain why discretion on an oral hearing was not used may involve an error of law.

“15. Whether the lack of reasons on this issue would be an error of sufficient gravity to warrant setting the decision aside would depend on all the circumstances of the appeal.  The error might be seen as immaterial if any tribunal acting rationally would have heard the case on the papers.

16. In the general run of cases involving paper hearings, there may be nothing in the factors in rule 2(2) to suggest to a fair-minded tribunal that the appellant’s election should not prevail. 

17. I consider that to be the case here.  It was not enough that the appellant was a shy person who did not like meeting new people.  She was not unable to do so, as the tribunal pointed out, as shown by her attendance at the medical examination centre for her assessment.  This was simply not enough to indicate that it would not be fair to comply with her choice.” 

Argument 3 was upheld. The tribunal failed to deal with Activity 16 - initiating and sustaining personal action - adequately.  The tribunal misdirected itself by applying the wrong test and considering whether the claimant could perform activities without the support or assistance of another person. It also failed to take account of the appellant’s evidence as given in the ESA50. 

The tribunal also failed to deal adequately with Activity 19 - coping with social situations – because it made no reference to the appellant’s evidence and why it rejected it as not satisfying the requirements of any of the descriptors.   

Argument 4 was upheld because the tribunal failed to deal with Activity 21 - dealing with other people - at all, though the appellant raised it in her ESA50. 

Finally Judge Lane noted, for the benefit of all parties’, that the correct test for Activity 15 - execution of tasks - does not concern a lack of motivation to begin tasks. Lack of motivation is, however, relevant to the descriptors for Activity 16.

CE/903/2010 [2010] UKUT 301 (AAC): Activity 11 and alcohol misuse

Activity 11 concerns remaining conscious during waking moments. The claimant had a history of depression caused by alcohol misuse. Judge May rejected the claimant's appeal because he failed to establish a specific bodily disease or disablement which would enable the claimant to score points for this descriptor.

Activity 11 requires that the specific bodily disease or disablement be physical, whereas depression is a mental health condition. The claimant provided no other evidence of physical disability brought on by alcohol misuse.

The decision also rejects R(DLA)6/06 as relevant to the work capability assessment.

CE/1005/2010 [2010] UKUT 340 (AAC): Burden of proof during assessment phase

The claimant was suffering from depression but scored no points, based on the approved disability analyst's (ADA) report. This decision was made during the assessment phase. 

The claimant questioned the:

• inadequate time spent on the ADA examination
• refusal of the tribunal to adjourn to enable a fuller mental health assessment to be carried out by a better qualified person than the ADA, and to challenge the admissibility of the ADA’s report
• tribunal’s failure to address the question of the burden of proof which is said, in the case of an existing award, to be on the Secretary of State

The examination was a short one (22 minutes) but, following CIB/908/2003, it was held that this was sufficient.

"15…….In the present case, the assessment took 22 minutes. There was no dispute that the claimant suffered from depression.  It is plain that as a registered nurse the ADA had no mental health qualifications.  Any opinion she expressed therefore in relation to the claimant’s mental health would be of little or no value. She was trained, however, to question him as to the effects of the depression on his ability to perform the relevant descriptors and she did report on his answers.  There is no suggestion that the factual information that was provided is not admissible evidence, or that she failed to ask the right questions, except that in my view she might perhaps have asked more specific questions as to whether there was any specific place that he could not go to without being accompanied. 

16. In any event, any deficiency in her questioning, or indeed any failure to conduct the examination properly does not invalidate the assessment procedure.  It simply means that the tribunal should consider whether the resulting report, or some part of it, can be relied on at all, and if so, what weight should be given to it.  A medical examination is not a requirement before a decision is taken by the Secretary of State but an option available to him (see regulation 23(1) of the ESA Regulations).”

It was held that the ADA had gathered enough relevant information sufficient to provide a basis for the decision maker to supersede the initial award made during the assessment phase. The tribunal also heard further evidence from the claimant, his GP and his counsellor. 

"On the basis of the claimant’s own evidence it was clear that he did not score any points for any of the descriptors and his claim had to fail.  I can see no reason why the tribunal should have adjourned for a mental health assessment on the facts of this case and it was right to refuse to do so.  If the claimant had wanted to provide a full mental health assessment, he had had 7 months in which to obtain one, and there is no suggestion that he had made any attempt to do so, or that it could have affected the outcome of the appeal bearing in mind his own evidence."

Judge Mark also states that during the assessment phase, following R(IB)2/09, (paragraph 46) there is no formal burden of proof on either side (paragraph 17).

Note: previous case law - R(S)/13/54 & R(S)13/52 - states that at the beginning of the claim, the burden of proof lies with the claimant.

CE/1032/2010 [2010] UKUT 295 (AAC): Tribunal procedure and practice - fair hearing

This decision succeeded for the reasons summarised at paragraph 3.

“The same medical member of the First-tier Tribunal sat with different presiding judges in this case on 25th June 2009 and 8th December 2009, and on the earlier occasion considered the papers in preview with the judge. Thus the medical member had already discussed the case with a judge and therefore should not have sat on the later occasion. This was a breach of the rules of natural justice and fair procedure.”

CE/1084/2010 [2010] UKUT 409 (AAC): Human rights law article 6 (fair hearing) 

This decision concerns a claimant with mental health problems, who used methadone and drank 8 cans of strong cider a day.

Judge Mark found that the claimant had been deprived of a fair hearing because of misleading advice given by the DWP and his own apparent failure to understand and deal with appeal procedures.

The tribunal errors were:

• failure by the DWP to contact the claimant’s doctor
• incorrect advice given by the DWP
• breach of Article 6 of the European Convention on Human Rights
• errors in considering Activity 16 and Activity 18

Failure by the DWP to contact the claimant’s doctor - The claimant had stated that he wanted the DWP to contact his doctor and had named his doctor as his representative.

“21……if he has named the doctor as the person to be contacted to make an appointment, as requested in the form, it is not for those arranging the assessment to ignore the request without first checking what the claimant is trying to say either with him or with the doctor if necessary to ensure that he is not to be involved.”

22. The same comment applies to the nomination of the doctor as the claimant’s representative.  The Secretary of State submits that the claimant is again mistaken as to what his doctor will do.  It is not for the DWP to make such an assumption without even telling the claimant.  Had the DWP made contact with the doctor, which was plainly the claimant’s intention, then it is likely in the present case that a report would have been provided for the tribunal which could well have been material.”

Incorrect advice given by the DWP – Judge Mark accepted the claimant’s assertion that he had approached Jobcentre Plus for advice regarding the First-Tier Tribunal appeal and had been told that he did not need to do anything, which was misleading. 

23…. That was bad advice. Although it is said that proceedings before the First-Tier Tribunal are not adversarial in the same way as court proceedings, there is to a degree at least a perceived conflict of interest between the Secretary of State and the claimant, and it is plainly desirable that the claimant should have independent advice, particularly when he has mental health problems.  Further the advice that nothing needs to be done is very misleading.  It is only true in the sense that the appeal will proceed even if he does nothing.  It is common knowledge that appeals have a significantly greater chance of success if the claimant attends than if there is a paper hearing, and even without his attendance it must be in his interests to obtain a medical report if it is available and is likely to support him.  It ought also to be painfully apparent that a claimant with serious mental problems would be well advised to get help in presenting his case.”

Breach of Article 6 of the European Convention on Human Rights (fair hearing) – Finally, taking all of the above errors into account Judge Mark held:

“29. In this case, taking into account all the facts, I am satisfied that the waiver of the right to an oral hearing was ineffective.  Bearing in mind the bad advice given by the person at the Jobcentre, the claimants’ mental problems, his difficulties dealing with his appeal as described above, the fact that his problems in dealing with it were so manifest, the failure of both the DWP and the tribunal service to communicate with the claimant’s doctor either in respect of the appointment for a medical examination or as his nominated representative, and the likely consequences of that failure, I conclude that the claimant did not have a fair hearing of his appeal as required by article 6.  On that account also, the decision of the tribunal must be set aside.  It is irrelevant for this purpose how far the tribunal was or ought to have been aware of these problems, although it appears to me that it ought to have been alerted from the papers before it to all but the bad advice.”

Activity 16:initiating and sustaining personal action - The tribunal failed to consider descriptor 16(b) which would have gained the claimant 15 points.

Activity 18: getting about – The tribunal’s reasoning was in error.

"16. I also have some difficulty in following the reasoning of the tribunal in relation to descriptor 18, as the fact that the claimant will on occasions, if he has to, go out and buy his own alcohol in a local shop is not a very good reason for a conclusion that he is frequently unable to get to a specified place with which he is familiar without being accompanied by another person.  Indeed, he appears to have been familiar with the examination centre but claimed that he could not get there unless accompanied by another person.  He then arrived with his father.  The test in this respect is not any specified place with which he is familiar (as in descriptor 18(a)) but a specified place with which he is familiar."

CE/1737/2010 [2011] UKUT 21 (AAC): Limited capability for work related activity

The claimant had hereditary spastic paraplegia with serious mobility problems and also suffered from degenerative lumbar spine disease. She was considered to have limited capability for work but not limited capability for work related activity (the support group).

The claimant appealed against that decision on the basis that she was entitled to descriptor 1(c) of Schedule 3 to the Employment and Support Allowance Regulations 2008. This places anyone in the support group who cannot manually propel a wheelchair more than 30 metres without repeatedly stopping, experiencing breathlessness or severe discomfort.

The tribunal disallowed the appeal because she spent time in the gym, moving from one machine to another. It also rejected supportive evidence from her GP.

Judge Wikeley held that the tribunal's reasoning was inadequate. On the evidence of the claimant’s time in the gym he noted that the claimant...

“25... used special gym equipment for people with disabilities. It is said that she explained that her arms and legs were placed in the machines and the machines then manipulated the limbs rather than the other way round. This account would appear to be consistent with the tribunal judge’s abbreviated note that the 'machine does all the work'. It is difficult then to see how the tribunal could conclude that she was herself 'pulling it like a rowing action for 3 minutes'. There were also no findings as to what assistance, if any, the carer provided at the gym. All this amounts to an error of law.”

In relation to the rejection of the GP’s medical evidence Judge Wikeley accepted that the inconsistency of the GP’s evidence with a registrar’s report was a matter of judgment for the tribunal but noted that the GP had expressly stated that he had 'had a good look at her records'. Also the tribunal made no mention of DWP's own medical report of which there were only three pages in the appeal bundle with no clinical findings at all. The tribunal erred in not adjourning the hearing to see the full ESA85 medical report.

The tribunal also made no findings on variability, which was referred to in the GP’s evidence. In doing so, the tribunal should have had regard to regulation 34(2) of the ESA Regulations 2008 which, in broad terms, appears to put on a statutory footing for ESA purposes the 'reasonable regularity' test approved by the Tribunal of three Social Security Commissioners in reported decision R(IB) 2/99 in the context of incapacity benefit.

The decision also discusses how descriptor 1(c) is considered in the DWP's Training and Development ESA Handbook.

CSE/121/2010 [2010] UKUT 245 (AAC): Relevance of Moyna

The case concerned manual dexterity descriptor 6(e) - Cannot physically use a conventional keyboard or mouse". Judge May considers that the approach taken in the key DLA decision Moyna v Secretary of State for Work and Pensions might be useful when analysing evidence.

“5…In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation. 

In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot.  It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email. 

The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands. 

I consider that Mr Olsen’s argument is too extreme and I do not accept it.  The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna. It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor.  There are no absolutes by which “can” and “cannot” can be defined.  In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c).  Accordingly I set their decision aside.  I am persuaded that the appropriate disposal is to remit the matter to a freshly constituted tribunal.”

General

CG/61/2009 [2011] UKUT 2 (AAC):  Meaning of full time education

Following Secretary of State for Work and Pensions v Deane [2010] EWCA  Civ 699, a university course which is considered by the educational establishment to be full time education may be defined as full time , regardless of the actual attendance or study hours.

The DWP has now issued guidance on this decision (Memo DMG 04/11).  

CG/187/2009 [2010] UKUT 200 (AAC): Bereavement benefits for non-married partner

The meaning of spouse for the purposes of section 36 of the Social Security Contributions and Benefits Act 1992 (which covers bereavement benefits) refers to a husband or wife, not a non married partner.

The difference in treatment between married and unmarried survivors for the purposes of bereavement benefits is not so disproportionate in favouring formal legal marriage over unmarried cohabitation as to amount to unlawful discrimination for the purposes of the Human Rights Act 1998.

CG/1505/2009 [2010] UKUT 45 (AAC): Duty to disclose

The claimant was in receipt of carer's allowance. She was awarded an increase in state retirement pension when her husband reached 65, which she failed to disclose to the Carer’s Allowance Unit (CAU). Even though she argued that the Pension Service had told her that they had notified the CAU (they didn’t) she was still under a duty to notify them. As a result she was held to be liable for the resulting overpayment.

CG/2659/2009 [2010] UKUT 218 (AAC): Earnings - where claimant paid monthly

This carer's allowance claim concerned a situation where the claimant's earnings were reduced part way through a month. Judge Rowland held that, in this case, the whole month should be treated as a single payment rather then to consider the earnings as two separate payments (one at a reduced rate and one at a full time rate (see CG/607/2008 where an employee's monthly payments were treated as each being a number of payments made in respect of single weeks).

It was correct to treat the earnings as a single monthly payment because the claimant was paid an annual salary which was broken down into monthly payments.

This decision has been reported as [2011] AACR 7.

CG/230/2010 [2010] UKUT 219 (AAC): Validity of marriage for bereavement benefits.

This decision concerns entitlement to bereavement benefits for a claimant, who lived in Bangladesh and whose husband had lived in both Bangladesh and Great Britain.

The tribunal failed to properly consider the deceased's domicile at the time of his marriage. Under section 11(d) of the Matrimonial Causes Act 1973 the marriage would have been void if it was entered into outside England and Wales, which it was and the husband was at the time of the marriage domiciled in England and Wales.

CG/1154/2010 [2011] UKUT 3 (AAC): Meaning of full time education

This decision concerned a claimant on a non-university 'entry to employment' course. Judge Ward upheld the tribunal's decision not to consider the course full time even though the establishment claimed that it was. This was because the tribunal had carefully considered the facts and considered the course was not full time. It also held that a placement was not part of the course. Secretary of State for Work and Pensions v Deane was also considered but the level of the course in this case was way below the university course referred to in that decision.    

The DWP has now issued guidance on this decision (Memo DMG 04/11).  

CSG/192/2010 [2010] UKUT 287 (AAC): Maternity benefits

This case concerns the operation of UK and EU law in relation to a claimant who was entitled to maternity allowance and was living in Poland.

Home responsibilities

Housing benefit

CH/3677/2008 [2010] UKUT 222 (AAC): Supported housing

This decision concerns a claim for additional housing costs when the landlord introduced a concierge service which consisted of two security guards.

The local authority restricted the claimant’s eligible rent on the grounds that the amount attributed by the landlord for the management and administration of the concierge service was excessive. Judge Poynter upheld this and the subsequent tribunal decision

"35) In an appeal where the claimant engages with the Tribunal and seeks to justify the disputed charge with detailed evidence, it will often be impossible to conclude that a charge is excessive without also knowing by how much. (Although, even then, there may well be cases where a charge is manifestly so far on one side of the line between proper and excessive that it is possible to conclude that it is excessive without being able to identify precisely where the line lies.)

"36) But this is not such a case. As the tribunal noted, those representing ET [the claimant] were asked time and time again by Rossendale and the tribunal to provide the necessary details to justify the management and administration charge but failed to do so.

The tribunal had to reach a decision on the evidence available to it and that evidence sought to justify the disputed charge on the basis that two members of ‘on-site’ staff, who one would normally expect to be working to provide support for the residents there (or to provide management and administrative support for others performing that function) were instead spending 43.7% of their time (30.6 person hours a week between them if one assumes a standard 35 hour week) to support and manage two security guards providing a routine concierge service.

In the absence of further evidence, that is inherently implausible: so much so, that it gives the unfortunate impression that the landlords were attempting to inflate the claim by loading it with the cost of administrative and managerial time that is actually spent providing other, ineligible, services. In my judgment, the tribunal was entitled to conclude that the management and administration charge was manifestly excessive even though it did not have sufficient evidence to put a precise figure on what a proper charge would be."

As the claimant was seeking to supersede an existing award of housing benefit so as to increase the level of eligible service charge included in that award the burden was on her to show that the increased service charges were eligible. As she had not provided sufficient information the tribunal was correct to treat the entire charge as excessive.

The decision also considered whether an amount attributed for covering bad debts and voids was eligible to be met by housing benefit. Judge Poynter held, following CH/3458/2006, that in principle it could but that the rate will vary from case to case and that it cannot be assumed that a standard figure can apply.

"49) What this comes down to is this. Where a provision for voids or bad debts has been included in the rent, issues are unlikely to arise. The provision will not be separately identified and will be allowed if the rent, taken as a whole is not excessive.

However, there will be cases in which a provision for voids and bad debts properly forms part of a charge for services (and I do not understand CH/3548/2006 to hold the contrary). In such cases—at least where the point is put in issue—it will be for the claimant to show on a balance of probabilities that the rate at which provision has been made is not excessive having regard to the likely levels of void periods and bad debt.

In the case of an existing scheme, the evidence required will usually be the levels of void periods and bad debt experienced in the past. In a new scheme, evidence will have to be provided by reference to other, similar, schemes. It follows that claimants will usually require the co-operation of their landlords to provide the necessary evidence.

50) Where no evidence, or insufficient evidence, is produced, it will be open to local authorities and tribunals to disallow the provision on the ground that it has not been shown to be eligible. Where sufficient evidence is produced, the rate at which the provision is eligible to be met by housing benefit will be a matter of judgment for the decision maker. A provision may reflect past experience of void periods or bad debts but nevertheless be excessive. That would be the case, for example, where landlords experienced a high void rate because, overall, they were charging a high rent and/or service charges for sub-standard property and/or services."

CH/270/2009 [2010] UKUT 79 (AAC): Appeals against rent officer determinations

The claimant, who had severe mental health problems, and her husband moved to a privately rented three bedroom property. The Rent Officer determined that this was too large for their needs. The claimant appealed and the tribunal allowed this on the grounds that the couple needed a spare bedroom because of the claimant's health problems. The local authority then appealed to the Upper Tribunal.

The decision states that although there is no right of appeal against a rent officer's determination there is a right of appeal against the information, provided as a basis for that determination, by the local authority.

In this case the information provided by the local authority was correct. Based on this information the rent officer was right in determining, under the Rent Officers (Housing Benefit Functions) Order 1997, that there was no scope for discretion in determining the appropriate size of dwelling. The tribunal erred in applying such a discretion. The couple were only entitled to one bedroom and one other room suitable for living, not a spare bedroom.

CH/872/2009 [2010] UKUT 306 (AAC): Housing and council tax benefits recovery of overpayments

This case concerns the wrongful removal of HB based on a supersession decision to remove the claimant's IS, which was not formally sent to the claimant.

CH/1153/2009 [2010] UKUT 247 (AAC): Housing and council tax benefits liability, commerciality and contrivance

The decision concerns the claimant’s entitlement to housing benefit for a property she had occupied as her home since August 2003 where the rent was paid to a trust of which she was a named beneficiary. The relevant law is regulation 9(1)(e) of the Housing Benefit Regulations 2006 (formerly regulation 7(1) of the 1987 regulations).

The tribunal rejected the council’s submission that regulation 9(1)(e) and (f) of the 2006 Regulations applied, since it found that the claimant’s liability was to a company.  It concluded, however, that the claimant’s liability to pay had been created to take advantage of the housing benefit scheme, and on that basis upheld the decision of the council.

Judge Mark found that the tribunal had erred in its reasoning on all counts and remitted the case for rehearing.

CH/1608/2009 and CH/3000/2009 [2010] UKUT 208 (AAC): Foster children count as occupiers for LHA purposes

This decision has been reported as [2011] AACR 6.

These two decisions find that a foster child, although not a member of a claimant's family, should still be treated as an occupier for the purposes of the application of the size criteria in Local Housing Allowance (LHA) cases (for more information on this see section 4.4 The number of bedrooms you need in our Factsheet F44 - housing benefit).

Note: Housing Benefit and Council Tax Benefit General Information Bulletin - HB/CTB G11/2010 stated:

"This decision is contrary to DWP policy and amending legislation will be brought forward at the earliest opportunity to put the situation beyond doubt."

This has now been introduced as the Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) Regulations 2010 (SI 2010/2449). These clarify that children who are being fostered by a claimant are not treated as occupying the claimant’s dwelling.

CH/1923/2009 [2010] UKUT 462 (AAC): Payments to claimant - overriding interest

This decision concerns the payment of arrears of HB to the claimant in circumstances where there is an overriding interest and the effect of a Tomlin order in such a case.

A Tomlin order is a court order in the English civil justice system under which a court action is stayed, on terms which have been agreed in advance between the parties and which are included in a schedule to the order.

CH/2197/2009 [2010] UKUT 129 (AAC): Temporary absence of student from home

A student, who is absent from the parental home for less than 13 weeks (or 52 weeks in certain circumstances) can still be treated as occupying that home. This decision has now been reported as [2010] AACR 40.

CH/2263/2009 [2010] UKUT 43 (AAC): Contrived tenancy and landlord's intent to seek possession

A local authority decided that the claimant had failed to provide sufficient information regarding her claim and so her claim was defective. It also decided that as a result she had been overpaid housing benefit since 2004.

In support of these decisions it informed the claimant in writing that it was believed she either had no liability to pay rent, or that the tenancy was not on a commercial basis and was contrived. This was in part due to there being no evidence of the Landlord's intention to recover possession.

Judge Wikeley held that the tribunal was wrong in law because it had not adequately identified and dealt with the two decisions under appeal and also because it found that, as the claimant had lived for so long at the property without paying rent, there was no liability to pay rent. He then substituted his own decision allowing the claimant's appeal.

In doing so he considered the issue of the Landlord's intention to recover possession, finding that the council failed to discharge its burden of proof with regard to revising the original benefit award on the basis that there was either no liability to pay rent or that it was a contrived or commercial tenancy..

"I am not persuaded by the City Council's argument that the landlord’s apparent willingness to renew the agreements and his failure to take enforcement action is evidence either that there was no liability in the first place or that the agreement was non-commercial in nature. ......The appellant is obviously a person of limited means and the landlord and his agents may well have taken a rational economic view, borne of actual experience in the present case, that they were more likely to see their money if they desisted from seeking to press for the tenant's eviction and gave her time to pursue her appeal. It is also relevant that since at least January 2008 the appellant's representative has been liaising with the landlord's agent and pressing them to remain patient. As the representative points out, the appellant reclaimed housing benefit in late 2007; the tribunal hearing was over 18 months later and 'none of this delay was attributable to her. During all this time the landlords were being told that she expected the appeal to be heard soon.''

As the claimant had shown that she was entitled to benefit on her new claim, made in 2007, he held that the claimant was entitled to benefit from November 2003 and that the alleged overpayment of benefit is not recoverable.

CH/2270/2009 [2010] UKUT 234 (AAC): Compensation

This case consider the proper treatment of arrears or compensation payments made by local authority employers in respect of equal pay, equal treatment, sex discrimination or similar claims, when the employee in question has also been in receipt of means tested benefits over the period in question. The payments are treated as income, even if paid as a lump sum. This decision was taken to the Court of Appeal as Minter v Kingston Upon Hull City Council and Potter v Secretary of State for Work and Pensions but dismissed.

CH/2297/2009 [2010] UKUT 57 (AAC): Housing and council tax benefits recovery of overpayments

The claimant informed the local authority that her husband had started a new job (following a period of illness) and that his wages had increased. The local authority wrongly assessed these wages and awarded too much benefit. The decision discusses official error and the extent to which the claimant contributed to this, citing R (Sier) v Cambridge CC [2001] EWCA Civ 1523.

Judge Howell considered that the claimant could not 'reasonably have been expected to realise' that she was being overpaid due to the local authority's mistake. This was partly because of her difficult personal circumstances and also because it would not have been reasonable for the her to realise that the benefit the council confirmed three times as payable, after it had been given the correct figures, still included an overpayment due to the miscalculation of the weekly earnings her husband had been receiving.

This decision has now been reported as [2010] AACR 27.

CH/2307/2009 [2011] UKUT 16 (AAC): Fair Hearing/ breach of natural justice

An adjournment was required where the claimant at an oral hearing which the Local Authority did not attend, gave evidence unexpectedly which was materially different from the evidence he had given previously. The matters on which he gave evidence were ones for which the Authority was likely to hold records. The Local Authority was entitled to an opportunity to rebut his evidence.

CH/2469/2009 [2010] UKUT 64 (AAC): Council tax benefits backdating and good cause

This decision emphasises that tribunals should not apply an objective test when considering good cause. It cites and follows CH/2198/2008 which emphasises a subjective approach to the test.

CH/2735/2009 [2010] UKUT 190 (AAC): Reporting a change of circumstances

At the time of the decision under appeal the claimant was under a duty to report a change of circumstances in writing. In actual fact she informed the relevant office orally but this information was not acted upon. The resulting overpayment was however held to be due to official error because the Local Authority had, at no time, informed the claimant that such notifications had to be in writing.

CH/2731/2009 [2010] UKUT 254 (AAC): LHA payments to landlord

This concerns a tribunal's decision to award payments to a landlord instead of a claimant because of the claimant's inability to manage his affairs.

Any payments already made to the claimant were required to be offset against anything otherwise payable to the landlord following the tribunal’s revised decision. 

CH/2823/2009 [2011] UKUT 23 (AAC): Human rights law article 14 (non-discrimination) 

This decision finds that the refusal to award the two-bedroom rate of local housing allowance (LHA) to a disabled student and his carer was not unlawful under the Human Rights Act 1998, by virtue of Article 14 of the European Convention on Fundamental Rights and Freedoms (prohibition of discrimination in relation to enjoyment of Convention rights) read in conjunction with Article 1 of Protocol 1 (peaceful enjoyment of possessions).

CH/510/2010 [2010] UKUT 453 (AAC): Capital held in trust

The claimant argued that part of the money held in her bank/building society account belonged to her daughter. The local authority and subsequent tribunal disagreed with the result that it was decided that she could not receive HB because her capital exceeded £16,000.

The tribunal erred on three points:

• It made inadequate findings of fact as to whether the legal and/or beneficial interest in the daughter’s funds in question had been transferred to the claimant.
• It failed to fully consider whether the mother was holding the funds in trust for her daughter.
• It made insufficient findings of fact as regards the actual amount of capital held by the claimant and in particular whether it exceeded £16,000 at all times.

CH/1530/2010 [2011] UKUT 22 (AAC): Service charges - communal gardens

The cost of maintaining a communal garden can be an eligible service charge if payment of this element of the service charge is a condition on which the right to occupy the dwelling depends (regulation 12(e) of the Housing Benefit Regulations 2006). Communal garden charges may also be considered to be services connected to the provision of adequate accommodation (Schedule 1 para 1g of the Housing Benefit Regulations 2006) and therefore an eligible service charge.

Incapacity benefit

CIB/1743/2009 [2010] UKUT 386 (AAC): Tribunal powers to reject pca medical report

In this decision the claimant considered that the pca report should have been excluded. A tribunal has powers to do this under rule 15(2) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 but Judge Lane suggests that this would be unlikely to happen.

“18 Approached from both the general principle of civil evidence that relevant evidence is admissible (unless obtained in breach of legal privilege) and from the overriding objective, it is difficult to see how a PCA report could be excluded as unfair except in the most unusual of circumstances.  The report is patently relevant to the proceedings.  It goes to the central issue of the claimant continuing incapacity for work.  The evidence is obtained lawfully and a claimant must participate in the examination if he wishes payment of benefit to continue.  Re-examining a claimant at a later date will not necessarily give the tribunal an accurate view of the appellant’s condition at the relevant date (the date of the Secretary of State’s original decision).  The tribunal has the expertise to judge the value of the report.  In the instant appeal, the report also agreed in its main respects with the appellant’s own assessment.”

The claimant’s appeal was successful because the tribunal failed to properly consider descriptors under Activity 8 as well as the medical evidence. Judge Lane considered that this was due to the claimant being unrepresented.

“5 Concessions for unrepresented appellants on descriptors:  Asking an unrepresented appellant to identify which descriptors are in issue can be fraught with difficulty.  While a claimant may have no difficulty in conceding that consciousness is not in issue where his problems concern his feet, he may have difficulty keeping in mind the scope of activities which appear to the untrained eye to be similar, but which are legally quite separate, such as manual dexterity and lifting and carrying.   As a consequence, the claimant may end up agreeing to a restricted range of activities which do not represent his problems correctly.  This is what appeared to have happened here.  The appellant did not have a chance to put his case fully.”   

CIB/2151/2009 [2010] UKUT 73 (AAC): Perceived bias 

This appeal by the claimant was successful for two reasons:

1. The tribunal failed to make sufficient findings of fact and failed to give adequate reasons for preferring the report of the examining medical practitioner (EMP) to the expert medical reports provided on behalf of the appellant.
2. There was a breach of natural justice in terms of a real risk of perceived bias in terms of the composition of the tribunal. 

On the first ground the tribunal failed to give sufficient consideration to a 25 page GPs report.

“A substantial part of that report concerned the mental health descriptors, with Dr K reviewing the evidence, making findings and expressing an opinion with respect to whether particular descriptors applied.  I acknowledge that Dr K seems to have misunderstood how the scoring system operates, in that Dr K appeared to believe that if a 2 point-descriptor was partly met then 1 point might be awarded.  That aside, Dr K’s report was clearly a detailed report which needed to be addressed.  Indeed, although the report was prepared in December 2008, Dr K expressly stated that his findings were equally relevant to the appellant’s circumstances as at July 2008.”

The second ground was more complex and Judge Wikeley did not accept all the arguments advanced.

The circumstances around which this perceived bias arose involved the claimant’s representative.  

The claimant had taken advice on a criminal injuries compensation claim (CICA), which was still to be resolved, from a firm of solicitors. The claimant’s representative had previously worked for this firm and in that capacity had actually obtained psychiatric reports used in a previous incapacity benefit appeal.  This representative then left the firm of solicitors. The parting was not amicable.

The claimant’s representative’s father was at one time the senior partner in the law firm.  Two of the First-tier Tribunal’s fee-paid tribunal judges in the district concerned were also current or former partners.  One of them, was the representative’s uncle, who took no part in the tribunal.  The other (ex-)partner chaired the claimant’s appeal tribunal (He had retired from the partnership  4 months before the tribunal hearing).

Following CCS/557/2005 and with reference to Porter v. Magill, Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] and The Guide to Judicial Conduct (October 2004) Judge Wikeley considered there was a likelihood of perceived bias in this case. The Guide to Judicial Conduct states:

“Past professional association with a party as a client need not of itself be a reason for disqualification but the judge must assess whether the particular circumstances could create an appearance of bias” (paragraph 7.2.6).

43. It is not clear from the terms of paragraph 7.2.6 whether it is confined to the situation where the judge himself or herself had a personal past professional association with a party as an individual client or whether it also covers the situation where the party has been a client of the judge’s firm.  However, the latter interpretation is probably the better one, given the realities of modern legal practice.  Furthermore, as the Court of Appeal stated in Locabail UK v Bayfield Properties: “in any case there is real ground for doubt, that doubt should be resolved in favour of recusal”

Judge Wikeley concluded that a fair-minded and informed observer would be concerned about the risk of bias because the chair had been senior litigation partner in a law form which was still dealing with the claimant’s CICA claim. He did consider that the former professional relationship between the chair and the claimant’s representative to be relevant in terms of perceived bias.

He directed that there be a rehearing which should not involve any tribunal judge or medical member who sat on previous hearings.

In addition he directed that the representative’s uncle should not sit on the panel. The Guide to Judicial Conduct advises:

“A judge should not sit on a case in which a member of the judge’s family (as defined in the Bangalore principles) appears as an advocate” (paragraph 7.2.8)."

Strictly speaking this does not cover an uncle/niece relationship as The Bangalore Principles of Judicial Conduct define the judge’s family as including “a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge’s and who lives in the judge’s household”. However Judge Wikeley considered that “in the particularly complex and fraught circumstances of this appeal it would not be appropriate for [the representative’s uncle] to conduct the re-hearing.”

CIB/2230/2009 [2010] UKUT 72 (AAC): Supersession - decison before law change

The old form of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in force on the date of the decision under appeal only allowed a supersession on the basis of a medical report from a doctor. From 30 October 2008, after the date of the decision, an amendment replaced 'doctor' with 'health care professional'.

The claimant was examined by a registered nurse and, as a result of her report, it was decided, on 1 October 2008, that she was capable of work.

Following CSIB/340/2009, Judge Mesher held that there were no grounds to supersede the incapacity decision on the basis of a medical report from a nurse because at the time of the decision the old rules still applied.

Judge Mesher also held, following R(IB)2/04, the tribunal was not bound to set aside the Secretary of Sates decision but could  have considered whether there were other grounds for supersession.

CIB/2431/2009 [2010] UKUT 143 (AAC): Use of relatives as interpreters

The official interpreter failed to show up at an appeal but the claimant’s son offered to act as interpreter. The tribunal rejected this offer, instead offering to postpone the appeal or proceed with a paper hearing. The claimant requested the paper hearing which was unsuccessful.

In this decision Judge Lane reaffirmed that there is no absolute rule which requires an independent interpreter. The First-tier Tribunal Bench Book states that the use of ..

"a relative acting as an interpreter is permissible provided that he understands what is required, i.e. that he should simply translate the questions accurately and relay to the tribunal the answers given by the appellant in his own words without comment or explanation.  This is sometimes difficult to get across, and particularly in cases where credibility is in issue it may be preferable to adjourn with a direction…However, each case must be considered on its merits and there is certainly no rule which requires a tribunal to adjourn for an official interpreter, and a tribunal could be criticised for adjourning if there is a relative or friend willing and able to undertake the task"

The tribunal erred because it was under a duty to ascertain whether it could proceed with the son as interpreter, but instead offered the claimant a choice between...

“longer delay, on the one hand, and non-participation in her appeal on the other. She was faced with ‘Hobson’s Choice’, that is to say, no choice at all.” 

CIB/2631/2009 [2010] UKUT 290 (AAC): Incapacity benefits mental health descriptors

The tribunal accepted the findings of the examining health care professional (HCP) in relation to the mental health descriptors and made no reference in the statement of reasons to the claimant's oral evidence which contradicted some of the HCP’s findings.

The tribunal also stated that nothing in the claimant's manner suggested that he was in 'psychological discomfort of any kind'. Amongst the evidence was a letter from the claimant’s consultant psychologist stating that “although [the Claimant] appears contained in his demeanour, he suffers from severe psychological difficulties including depression, sleeping difficulties and anxiety.”

The tribunal erred in failing to make reference to the oral evidence.

“12.... If the claimant has given evidence to the tribunal which, in the tribunal’s view, confirms the HCP’s conclusions, then it will generally be sensible for the tribunal to say so, however briefly. If he has given evidence which on the face of it is contrary to those conclusions, the tribunal will in general need to say what it makes of that evidence. ……But it will rarely be satisfactory for the tribunal to make no comment at all on the substance of the oral evidence given by the claimant in relation to the mental health descriptors.”

The appeal was therefore successful. However Judge Turnbull went on to state that he would have also allowed the appeal on the ground that the tribunal erred in disregarding the consultant psychiatrist's caution about the claimant's demeanour.

“If the Tribunal was going to attach the significance which it did to the manner in which the Claimant gave his evidence (as opposed to the substance of his answers), I agree that it should have adverted specifically to Ms Mahtani’s [the consultant psychiatrist] caution, which was one to which she plainly attached importance.”

CIB/2882/2009 [2010] UKUT 128 (AAC): Activity 14

The claimant suffered from a number of medical conditions including diabetes, angina, high blood pressure and extreme fatigue. He also weighed 22 ½ stone.

He passed the personal capability assessment in 2006 but was given a further assessment in 2008 and failed.

For this latter assessment he claimed to have difficulties with the activities of sitting, rising from sitting, bending or kneeling, standing, walking, walking up and down stairs, reaching, lifting and carrying, seeing and speaking, and having problems with fits or something similar (activity 14) and coping with his toilet needs. 

When he appealed he mentioned that he suffered from unpredictable episodes of falling asleep in relation to Activity 14.

“When I feel fatigued and fall asleep these like I am having a controlled black-out. Someone told me those are mini comas brought on by my sugar levels.  It has happened to me in the supermarket. I suddenly fell asleep and was then awake to find myself stumbling about. I was only looking intensely at a shelf for a product and this happened. I’ve been asked to leave places like the café or library because of falling asleep.”

After several adjournments the claimant failed to attend a hearing because he fell asleep. The tribunal went ahead without him and decided to uphold the Secretary of State's decision on the following grounds:

1. the EMP assessment that the claimant’s choice of descriptors was not correct was based on solid grounds, namely, what he was told by the claimant and his observations and examination (Judge Ovey noted the inadequacy of some aspects of this EMP assessment);
2. there was no evidence from the claimant that he scored physical points other than his bare assertion;
3. the tribunal found that it could not place reliance on the claimant’s own account of his problems.  To support that conclusion, the tribunal relied on his having said that he had fits or something similar at least once a day, on the basis that his problem with tiredness was to be likened to a fit.  The tribunal did not accept that as a correct description. The claimant] was asked to fill out a questionnaire to ascertain where his problem registered on the Epworth Sleepiness Scale. In this he stated that he would never fall asleep in a car, while stopped for a few minutes in traffic. The Tribunal felt that this reply meant that the napping did not sound in a “Remaining conscious” descriptor.”

Judge Ovey held that the tribunal was wrong in law to rely solely on the claimant's assertion that he never fell asleep whilst driving without reference to his other evidence and had given inadequate reasons for its conclusion in relation to the claimant's evidence on Activity 14.

The tribunal also made an error in law in not taking into account the claimant's previous medical assessment.

“…..the tribunal’s statement that there was no evidence from the claimant, save for his bare assertions, that supported his contention that he scored points on the physical descriptors may be literally accurate but ignores entirely the fact that a previous independent medical assessment had found that he satisfied the personal capability assessment. Further, the tribunal rejected the claimant’s own evidence of his problems without reference to the support that his evidence had previously received from an independent medical examination. It follows that the tribunal made an error of law, either in failing to take into account the fact of a previous favourable medical assessment or, if the tribunal did take that fact into account, in giving inadequate reasons by not referring to that assessment.”

CIB/3061/2009 [2010] UKUT 97 (AAC): Previous medical report in support of claimant's evidence

The tribunal erred because it failed to make sufficient findings when rejecting the claimant's evidence as "entirely implausible". This failure was due to the evidence contained in a previous medical report which appeared to corroborate some of the claimant's statements.

CIB/1219/2010 [2010] UKUT 408 (AAC): Regulation 27(b)

The claimant, was a 64 year old man, described by the tribunal as being “said to suffer from anxiety and depression, alcohol dependency, social phobia and asthma”.  He was appealing against a decision to award only 8 points in respect of the mental health descriptors. He had not worked for 16 years and was anxious that returning to work would make his condition worse.

Following Charlton v secretary of state for work and pensions Judge Mark found that the tribunal erred in failing to consider whether regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 applied - substantial risk to the mental or physical health of any person if he were found capable of work.

He then substituted his own decision, awarding IB, by awarding 2 points (to the existing 8) for OPc – Mental problems impair ability to communicate with other people.

"21.....I am satisfied, however, that the claimant’s ability to communicate has been impaired as a result of his depression and that he is entitled to an additional 2 points in respect of descriptor OPc.  That brings his total to 10 points, with the result that I am able to substitute my own decision that the claimant is incapable of work."

CIB/1595/2010 [2010] UKUT 433 (AAC): DLe - Sleep problems interfere with daily activities

The claimant's representative submitted that the health care professional HCP had found that the claimant “adjusted her daytime activities to fit in with her sleeping pattern” and had also documented that the claimant usually slept poorly because of “thinking about things”.

The representative also cited CIB/23/2009 which states that a HCP finding that a claimant adjusts daytime activities to fit in with a sleeping pattern was “tantamount to an interference" with the activities of the claimant and satisfied the test for DLe.

Judge Jupp held that the tribunal failed to fully consider this descriptor but felt that the wording “adjusted her daytime activities to fit in with her sleeping pattern” alone was insufficient to establish that DLe was satisfied and that it may also be a standard phrase in an electronic 85 (in which case it should be removed).

The decision follows CIB/5336/2002 which states in paragraph 14:

“14. The claimant’s representative argues that interference is not limited to preventing the claimant undertaking daytime activities. I accept that argument. Daytime activities may be prevented completely, or only be possible at certain times of the day, or be possible but only very intermittently or very slowly. All of these are potentially ways of interfering with the activities. Any of them is sufficient to satisfy the descriptor. This is subject to two qualifications. First, they must result from sleeping problems. Second, as with the word ‘cannot’ in descriptor 15(a), the issue depends on the proper use of language. When is a change in the activities undertaken or the pattern that would otherwise be followed an interference? A minimal change may not be sufficient to amount to an interference. So, for example, the fact that the claimant cannot start her daytime activities until a little later than normal or needs a rest at some time during the day, is not necessarily sufficient to satisfy the descriptor. Nor would it be necessarily be an interference just because the claimant has to change the time or order in which she performs the activities. This is a question of fact and degree, turning on the proper use of language”.

But Judge Jupp emphasises the final sentence regarding fact and degree and the proper use of language and goes on to state that without further evidence, the phrase “adjusts daytime activities to fit in with sleeping pattern” is not conclusive.

CIB/1682/2010 [2011] UKUT 9 (AAC): Permitted work

For the purposes of regulation 17(4) of the Social Security (Incapacity for Work) (General) Regulations 1995, 52 weeks work refers to an unbroken period of 52 weeks beginning on the first day on which work is done.

In relation to regulation 17(3)(b) of the Social Security (Incapacity for Work) (General) Regulations 1995, the head teacher of a primary school would not normally be a person employed by an organisation engaged in the provision or procurement of work for persons with disabilities for the purpose of supported permitted work.

“39. The regulation …. simply refers to a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities. I do not think that necessarily justifies a requirement that the organisation be wholly engaged in this way, but the wording of the regulation does suggests that the organisation’s main purpose must be the provision or procurement of work for persons who have disabilities.”

Income support

CIS/3282/2007 [2010] UKUT 263 (AAC): Human rights law Protocol 1 (protection of property)

The claimant was transferred to Broadmoor Hospital in 2005 under Sections 47 and 49 of the Mental Health Act 1983. He was paid income support (IS) until 10 April 2006 when the law was changed in respect of those detained under Section 47, removing entitlement to IS..

The claimant argued that this breached Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR) as it deprived him of a 'possession'.

Judge Howell held that following Stec & others v UK

“6….the protection of Article 1 of Protocol 1 attaches only to those welfare benefits to which an individual has an assertable right under domestic law, not anything wider. The Article does not include a right to acquire property nor does it restrict a Constracting State’s freedom to decide whether or not to have in place any form of social security scheme or to choose the type or amount of benefits to provide under any such scheme.”

“7. It must in my judgment follow that …the ability of a State to legislate so as to alter the conditions of entitlement to welfare benefits for periods in the future is unrestricted by Article 1, even though the result is that some people who had hoped they would go on acquiring possessory rights to cash welfare benefits in those future periods, having had them for periods in the past, may not after all do so.”

CIS/339/2009 [2010] UKUT 131 (AAC): Pregnancy and retention of worker status

“This appeal principally concerns what impact (if any) the law of the European Union has in relation to a national of a Member State who comes to the UK, works, begins a course of study, becomes pregnant, works again and who then, finding that in the later stages of her pregnancy she is unable to continue working, claims income support.”(paragraph 1)

The claimant sought to rely on Article 7 of EC Regulation 1612/68 which provides that EU workers should enjoy the same social and tax advantages as national workers. However Article 7 of EC Regulation 1612/68 was amended by EC Directive 2004/38 and under Article 7 of the Directive she does not come not come into any of the categories it sets out.

The claimant also could not rely on Article 10a of EC Regulation 1408/71 which that provides that 'special non-contributory benefits' (including  income support) should be paid under the legislation of the Member State where the person resides.  Judge Ward held that can only apply to a person who is habitually resident and a person, such as the claimant, who does not have the right to reside cannot be habitually resident (see CIS/3182/2005)

CIS/151/2010 [2010] UKUT 189 (AAC): Social fund funeral payments 

The claimant (Mrs C) made a claim for funeral payment in respect of a close friend, Mrs H. The Secretary of State refused the claim because the invoice for the funeral bill was addressed to Mrs H's step-niece (Mrs G).

Judge Wikeley held that the tribunal failed to investigate further and establish whether Mrs G was acting as agent for Mrs C and also that the responsible person does not need to be named on the account and the funeral director need not know that the person instructing them is an agent.

CIS/381/2010 [2010] UKUT 265 (AAC): Residence and presence conditions right to reside

The claimant, who is a Dutch national, came to the UK in 2000 at the age of 11. His parents had been in receipt of income support (IS) since before 2004 when the right to reside test was introduced and as a result were given transitional protection from the test. This does not however infer that either parent had a right to reside at the time when the IS award was made.

The claimant applied for income support in his own right in January 2008, which was refused on the ground that he did not have a right to reside. The appeal tribunal allowed the claimant's appeal so the Secretary of State appealed to the Upper Tribunal. The appeal was successful.

The claimant's argument that under Article 16 of EC Directive 2004/38, he had a permanent right to reside because he had lawfully resided for 5 years was rejected because in this case the claimant could only acquire permanent residence as a dependent family member of someone who has a right to reside. For this to apply one of his parents must have a right to reside but there was no evidence that either of them has ever had such a right.

It was also argued that the claimant had a right to reside under Article 18 of the Treaty of Rome which confers a right of residence where it would be disproportionate to imply from the subordinate legislation that there is no such right. This too was rejected.

17. The rights that derive from that legislation essentially have their origin in economic or related activity. They are extended to family members of those who are or have been economically active. Apart from an initial three months, they do not arise from mere presence in the United Kingdom. The factors identified by the judge as being in the claimant’s favour do not have their origin in any economic activity by either the claimant or his family. Moreover, given how recently Directive 2004/38 was made, it is reasonable and appropriate to assume that the European legislators considered that in current conditions the scope of rights to reside beyond an initial three months should remain ultimately founded in economic or related activity. To the extent that the judge relied on proportionality in this case, he made an error of law. It cannot apply to the claimant’s advantage.”

CIS/384/2010 [2010] UKUT 428 (AAC): Living together as husband and wife or civil partners

Like CDLA/1491/2010 above, this is another situation where the issues from an earlier entitlement appeal are reargued in a later overpayments appeal.

The earlier appeal (Tribunal 1) by the claimant was against a decision that she was living with Mr S. This was unsuccessful. She subsequently won an appeal against the overpayments decision which followed (Tribunal 2). That tribunal decided (as reported in paragraph 4):

"I find that [the claimant] has not lived as husband and wife with [Mr S] at any time.  They have enjoyed a close relationship of longstanding more akin to that between a brother and a sister than anything else.  There have been unusual aspects to their relationship and they have each performed compromising acts on behalf of the other but I cannot find, on balance, that they have lived together in the manner submitted by the Secretary of State.  It follows from my decision that benefit has not been overpaid to [the claimant] The question of recoverability does not arise."

The Secretary of State appealed to the Upper Tribunal but this was dismissed. Judge Wikeley found that the decision made by Tribunal 2 did not involve a material error of law and so was not wrong in reaching a conclusion.

"62. The bottom line, therefore, is that Tribunal 2 believed the claimant (and Mr S) whereas Tribunal 1 did not.  This is a classic jury question for the tribunal of fact (the First-tier Tribunal).  It is axiomatic that it is not for the Upper Tribunal to interfere with the findings of fact made by Tribunal 1 or by Tribunal 2."

CIS/616/2010 [2010] UKUT 240 (AAC): Right to reside - self employment

The claimant, who was Polish, claimed income support in October 2008. She said that she had been self-employed from January 2006 to December 2008 but had reduced her hours shortly before the birth of her child in January 2008.

“According to her letter of appeal, she worked from January 2006 to December 2008, when she had to stop…. After a period of voluntary work, she used her language skills to support Polish and Slovak children in various schools, being paid on invoices for each hour of work. Towards the end, she worked for a single school. That work ended in February 2009 through lack of funding. She was able to produce details of her income from one school for the period August 2007 to March 2008 …. She had not been able to obtain evidence from other schools, because they were closed for the summer. She said she had sent in bank statements, but they were not in the papers. She did not say to whom she had sent them.”

From this patchwork of evidence the tribunal decided that the claimant was still self-employed at the time of the claim. The Secretary of State applied for permission to appeal, arguing that a claimant who is not working cannot be self-employed and that there is no concept of retained status as a self-employed person.

Judge Jacobs held that there is no concept of retained self-employed status while a person is looking for work. It is possible to retain worker status in those circumstances (under Article 7(3) of EC Directive 2004/38 and regulation 6(2) and (3) of the Immigration (European Economic Area) Regulations 2006), but not self-employed status. Judge Jacobs did not accept that a claimant who is for the moment doing no work is necessarily no longer self-employed.

“5) Self-employment is not confined to periods of actual work. It includes natural periods of rest and the vicissitudes of business life. This does not mean that self-employment survives regardless of how little work arrives. It does mean that the issue can only be decided in the context of the facts at any particular time. The amount of work is one factor. Whether the claimant is taking any other steps in the course of self-employment is also relevant. The claimant’s motives and intentions must also be taken into account, although they will not necessarily be decisive.”

The tribunal erred because it had insufficient, detailed information about the amount of work that the claimant was doing during relevant the period and had also failed to give an adequate explanation for its decision.

CIS/1726/2010 [2010] UKUT 291 (AAC): Recovery of overpayments        

The claimant argued that the effect of a prior tribunal decision that an overpayment was not recoverable because S.71 (5A) of the Social Security Administration Act 1992 was not satisfied was binding on future overpayment decisions for the same period. Judge Parker rejected this. The tribunal decision declared the original overpayment decision to be invalid but did not prevent the Secretary of State from beginning again with a new overpayment process.

CIS/1751/2009 [2010] UKUT 42 (AAC): Social fund funeral payments 

This decision considers regulation 10(1)(a) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 which covers assets of the deceased available to a responsible person, who is not a personal representative of the estate, a beneficiary or a relative.

CIS/1839/2009 [2010] UKUT 157 (AAC): Social fund funeral payments

This decision concerned the treatment of the proceeds of the deceased's insurance policy (or similar) which fell to be paid to the claimant and should therefore be taken into account when calculating a funeral payment.

CIS/2648/2009 [2010] UKUT 77 (AAC): Social fund funeral payments  - separated couples members of the same household

This case concerned a couple who separated because of the husband's drinking problems but intended to live together again. They were deemed to be still living in the same household.

CIS/330/2010 [2010] UKUT 308 (AAC): Proper approach to loans for repairs and improvements

Paragraph 16 of Schedule 3 of the Income Support (General) Regulations 1987 allows loans for repairs and improvements to the dwelling occupied as the home to be regarded as eligible housing costs where 'repairs and improvements' means specified measures 'undertaken with a view to maintaining the fitness of the dwelling for human habitation'.

This was an successful appeal by the Secretary of State against a tribunal decision allowing £40,000 in housing costs under paragraph 16 of Schedule 3. The Tribunal’s decision was set aside for inadequacy of reasoning. What makes the decision useful is the guidance provided on:

• the meaning of  ‘maintaining the fitness of the dwelling for human habitation’
• the meaning of the word ‘provision’
• the meaning of ‘damp proof measures’ and ‘insulation’
• the level of evidence required to satisfy paragraph 16 of Schedule 3.

CIS/544/2010 [2010] UKUT 345 (AAC): Definition of care home

This decision has been reported as [2011] AACR 16.

This decision considers whether a residential college comes within the definition of care home for the purposes of regulation 42(4A) of the Income Support (General) Regulations 1987. These allow any notional income to be disregarded in full under paragraph 66 of Schedule 9 to the same Regulations.

Judge Wikeley held that…

“20. The First-tier Tribunal concluded that the college was “first and foremost an educational establishment... [and] therefore should not be treated as a care home”.  In doing so it erred in law; the two concepts are not necessarily mutually exclusive.  There is no suggestion in either the Care Standards Act 2000 or in the Income Support (General) Regulations 1987 that a care home ceases to be a care home by virtue of fulfilling some other function, unless there is an express statutory exception in the primary or secondary legislation.”

The college was a care home within section 3 of the Care Standards Act 2000 because it provided 'accommodation, together with nursing or personal care' for 'persons who are disabled or infirm' within section 3(1) and 3(2)(c) of that Act. It was also not excluded by any of the specific exemptions listed in section 3(3)(a)-(c) of the Act and that...

“22.Section 3(3) also makes provision for an establishment not to be a care home if it is of “a description excepted by regulations”.  At the material time regulation 3 of the Care Home Regulations 2001 (SI 2001/3965) specified certain types of establishment as being excluded from the definition of care home.  The only possibly relevant exception is in regulation 3(1)(d), which refers to “an institution within the further education sector as defined by section 91(3) of the Further and Higher Education Act 1992”.  However, according to regulation 3(3), that exception itself does not apply if

“(a) the establishment provides accommodation together with nursing or personal care to any person; and
(b) the number of such persons is more than one tenth of the number of students to whom it provides both education and accommodation.”

23. Whether or not the college falls within the complex definition of a further education institution in section 91(3) of the Further and Higher Education Act 1992, it is plain from the tribunal’s findings and the evidence on file that the college falls within the ‘exception to the exception’ as set out in regulation 3(3).  As the tribunal also noted, the college was the subject of an inspection report by the CSCI (now the Care Quality Commission), demonstrating that it was registered as a care home under section 11 of the 2000 Act.”

Judge Wikeley set aside the decision of the tribunal and remade the original decision to the effect that the claimant was entitled to income support as his income did not exceed his applicable amount.

CIS/1133/2010 [2010] UKUT 382 (AAC): Diminishing capital

In this decision the tribunal was in error because it went ahead with the hearing in the absence of a presenting officer and because of the inadequacy of the Secretary of State’s written submission to the tribunal. As a result the claimant could not reasonably be expected to understand the case that he had to meet.

Industrial injuries disablement benefit

CI/1386/2009 [2010] UKUT 198 (AAC): Industrial diseases A4 (task-specific focal dystonia)

Cervical dystonia does not come within the definition of 'task-specific focal dystonia'.

This decision has been reported as [2011] AACR.

CI/1553/2009 [2010] UKUT 84 (AAC): Reduced earnings allowance - seasonal work in retirement

The claimant was a seasonal worker, employed at a museum, who was in receipt  of reduced earnings allowance (REA). In August 2007 he became 65. In July 2007 he reported that he would stop work on 30 October 2007, although in reality this was a seasonal break. He was subsequently re-employed by the museum in March 2008.

Under regulation 2 of the Social Security (Industrial Injuries) (Regular Employment) Regulations 1990 he was unable to continue to receive REA because:

He was not under a contract of service which required him to work for an average of 10 hours or more per week in any period of five consecutive weeks – his contract ceased in October
He was not undertaking gainful employment for an average of 10 hours or more per week in any period of five consecutive weeks – he had a gap of over five weeks before he resumed work.

CI/1810/2009 [2010] UKUT 144 (AAC): Tribunals findings regarding expert opinion

The claimant was arguing that exposure to “toxic fumes”,whilst on duty as a fireman 18 years ago caused him to suffer from chronic fatigue syndrome. His appeal on this ground failed but Judge Wikeley found that the tribunal had failed to deal adequately with the submitted expert medical evidence. He cited the following caselaw as guidance:

Hampshire County Council v JP [2009] UKUT 239 (AAC) – a decision of an upper tribunal  three-judge panel which states:

“where there is a crucial disagreement between experts and ‘the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other’ (Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 (CA))” (at paragraph 39)." 

[This decision has been reported as [2010] AACR 15.]

BB v South London & Maudsley NHS Trust and Ministry of Justice [2009] UKUT 157 (AAC) - another upper tribunal  three-judge panel

“Adopting what was said in English v. Emery Reimbold & Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409, the essential requirement is that what the tribunal says should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the decision. The tribunal should provide an explanation as to why it has accepted the evidence of one expert and rejected that of another…”

In remitting the appeal back to the lower tier tribunal, Judge Wikeley states that the tribunal will need to consider three things - the expert(s), the area of expertise and the evidence. He makes a number of suggestions regarding this:

• As regards the expert, the tribunal will need to consider each expert’s qualifications, expertise and experience on the issue which is material to the appeal.
• As regards the area of expertise, the tribunal will need to bear in mind the limits to which the doctors’ areas of expertise can actually provide answers to the issue in the appeal.
• As regards the expert evidence itself, the tribunal will need to examine the factual basis and the soundness of the experts’ respective reasoned opinions.
• It is also relevant to consider whether the expert’s evidence is consistent with the views of the profession.

CI/2980/2009 [2010] UKUT 207 (AAC): Industrial diseases A14 - relevant occupation

Prescribed disease A14 refers to osteoarthritis of the knee for those who worked underground in a coal mine for a period, or aggregate periods, of at least 10 years in one of the following occupations:

- before 1.1.86 as a coal miner or 

- on or after 1.1.86 as a:

• face worker working on a non-mechanised coal face or
• development worker or
• face-salvage worker or
• conveyor belt cleaner or
• conveyor belt attendant.

The claimant, who qualified as an electrician, worked in mines from 1980 until 1981. This decision seeks to give guidance to tribunals in deciding whether a claimant fitted into a prescribed occupation. Judge Wikeley held that the tribunal erred in failing to explain clearly why the claimant’s occupation as an electrician did not fall within the definition of “coal miner” before January 1, 1986 or, after that date, within the terms of the occupations of “face worker…development worker or face-salvage worker”. 

Paragraphs 66 and 67 give a summary of his findings and recommendations.

"66. The general guidance above on the application of the prescription test for diseases prescribed under the Schedule to the 1985 Regulations may be summarised as follows:

(1) In interpreting the occupational requirements for a prescribed disease, “it would be wrong to give to those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as result of their occupation” (Secretary of State for Social Security v Davis [2001] EWCA Civ 105 at paragraph 23 per Rix L.J.);

(2) Just as the statutory language should not be “artificially narrowed”, so too it should not be “artificially widened” (CI/207/2004);

(3) The focus must always be on what the claimant actually did, not what his job was labelled (Janicki v Secretary of State for Social Security, also reported as R(I) 1/01, and CI/2668/2002);

(4) Courts and tribunals may have regard to relevant Industrial Injuries Advisory Council reports as an aid to construction where legislation has been enacted to implement a recommendation in the report (R(I) 15/75, Davis, Janicki and Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC)).

67. In addition, the more specific guidance set out above on the application of the prescription test for PD A14 may be summarised as follows:

(1) In considering a claimant’s employment before January 1, 1986 under paragraph (a), three questions may need to be addressed:

(i) was he a coal miner?
(ii) was he working underground in a coal mine?
(iii) how long was he so working?

(2) In considering a claimant’s employment on or after January 1, 1986 under paragraph (b), careful findings of fact will need to be made about the actual work carried out to establish whether it falls within one or more of any of the following occupational categories, namely a (i) face worker (but only if working on a non-mechanised coal face); (ii) development worker; (iii) face-salvage worker; (iv) conveyor belt cleaner; or (v) conveyor belt attendant;

(3) The claimant’s formal job title and pay grade are not conclusive as to the issue of categorisation; furthermore “the fact that the workforce employed in the business is designated, classified or graded by reference to function, training or skills … does not of itself justify a conclusion that each separate designation, classification or grading involves a separate occupation” (R(I) 3/78);

(4) Contrary to the Secretary of State’s submission, there is no separate requirement in relation to periods either before or after January 1, 1986 to the effect that the claimant’s occupation must have “involved the person in question kneeling and squatting whilst under load for prolonged periods of each day”;

(5) Tribunals may need to consider whether or not the statutory presumption in regulation 4 of the 1985 Regulations as to causation applies in any given case;

(6) In deciding whether a claimant has worked for an aggregate of 10 years or more in a relevant coal mining occupation or occupations, tribunals may need to consider whether there have been any lengthy periods of absence from work, e.g. due to strike action."  

CI/2992/2009 [2010] UKUT 142 (AAC): Date of onset  - supersession of an earlier decision

The appeal tribunal's decision was wrong in law because it failed to adjourn a hearing because a pre-existing decision regarding vibration white finger needed to be superseded first.

CI/2005/2009 [2010] UKUT 101 (AAC): Reduced earnings allowance and retirement

Where someone has been in receipt of two awards of reduced earnings allowance (REA) because they have sustained two industrial injuries they will only be entitled to a single award of retirement allowance on retiring.

Jobseeker's allowance

CJSA/475/2009 [2010] UKUT 90 (AAC): Single status payments

This decision discusses how lump sum payments made to compensate the claimant for the fact that she had been paid less than male colleagues performing a comparable job should be treated. These payments are sometimes known as ‘single status payments’.

The payment was held to be income and that this income payment should be treated as paid on the first day of the benefit week in which it as practicable to take it into account. Guidance has been issued (Memo DMG 31/10).  This decision was taken to the Court of Appeal as Minter v Kingston Upon Hull City Council and Potter v Secretary of State for Work and Pensions but was dismissed.

CJSA/2893/2009 [2010] UKUT 221 (AAC): Seasonal unemployment and earnings

The claimant was self employed and, because of the seasonal nature of his work, he stopped work in about November each year, before beginning again in March.

The decision concerns the operation of regulation 51 of the Jobseeker's Allowance Regulations 1996 that provides for the number of hours in which the claimant is engaged in work to be determined.

Following R(IS)15/01,  R(JSA)1/03 and R(JSA)5/03  Judge Paines held that the tribunal was correct in looking at the claimant's earnings over a year, it erred in looking at the wrong year's earnings. He then set the tribunal's decision aside and substituted his own that, having regard to the correct figures, the claimant's earnings still exceeded his applicable amount.

This decision has been reported as [2011] AACR 9.

CJSA/403/2010 [2010] UKUT 459 (AAC): Loans for repairs and improvements

This decision considers the provision of facilities for preparing and cooking food. 

CSJSA/340/2010 [2010] UKUT 451 (AAC): Right to reside - Self-employed status whilst looking for work

This decision considers whether a claimant retained his self-employed status whilst seeking self-employed work and as a result had a right to reside in the UK. The tribunal thought he did and Judge Agnew agreed:

“3. I agree with the tribunal that a self-employed person does not necessarily cease to be self-employed just because they do not have any contract for work at that particular time.  If a self-employed person is actively seeking self-employed work, then I consider that they can be held still to be self-employed.  Clearly it is a question of fact and degree and maybe if a self-employed person has not been able to find work for a period of time and there is little prospect of finding such work in the future a tribunal might hold that at some date he ceased to be self-employed because there was no realistic prospect of getting such employment in the future.  In the present case the finding is that the existing contract ended in the summer of 2009 and the application for JSA was made on 30 September 2009.  If one assumes summer meant June, then the claimant was only 3 months without self-employed work, albeit he continued to look for it.  I consider that against the finding that he continued to seek self-employed work throughout this period that the tribunal was entitle to find that he “never terminated his activity as a self-employed person”.

Judge Agnew also agreed with the tribunal that the present case was different from R (on app Tilianu) and Secretary of State for Work and Pensions [2010] EWHC 313 (Admin), because in Tilianu there was no consideration of whether or not accepted self-employed status had been retained. However he noted that, in Tilianu, it was suggested that the distinction between 'worker' and 'self-employed' might not be as clear cut as appears to have been accepted in the past.

Pension credit

CPC/1648/2009 [2010] UKUT 95 (AAC): Exporting pension credit abroad under regulation 1408/71/EEC

Pension credit is not exportable because it is a special non-contributory benefit within Article 10a of Regulation 1408/71 which is payable only to those living in Great Britain. This decision has been reported as [2010] AACR 39.

CPC/1957/2009 [2010] UKUT 241 (AAC): Capital Disregards: home and other premises

This decision considers whether the 52 week capital disregard starts from the date capital received or from the date the claimant entered UK. The claimant  moved to Spain in 2005 but returned in March 2008 after selling her property in Spain. She received the proceeds of that sale in March 2007.

Under paragraphs 17 and 19 of Schedule 5 to the State Pension Regulations 2002 capital could only be disregarded for 52 weeks from when the capital was received. The claimant made a claim for pension credit on June 2008 and this was refused on the basis that she had capital of £50,000 and that the 52 week disregard period had passed (in March 2008).

The claimant argued that this 52 week period should start from the date the claimant entered UK but Judge Jupp held that this could not be extended.

“25) The Regulations themselves are not drafted to distinguish between claimants returning to United Kingdom and those who have remained here throughout, as they could have been had this been intended. If the claimant were to be given the benefit of a longer period whilst she and her husband actually held the funds, that in itself might possibly discriminate against those who had remained in United Kingdom throughout the period.”

CPC/2582/2009 [2010] UKUT 134 (AAC): Capital Valuation 

The claimant was separated from his wife who occupied a property which they jointly owned. The decision maker decided that the claimant's share of the property should be based on half of its market value minus a standard allowance of £10 for sale expenses.  This was upheld at appeal but Upper Tribunal Judge Levenson, citing R(IS)5/07, found that the tribunal had failed to consider the effect on the market value of the continued occupation of the property by the other joint tenant.

CPC/2696/2009 [2010] UKUT 156 (AAC): Habitual residence and VSO

Judge Levenson held that a claimant who moved to India to carry out Voluntary Service Overseas was still habitually resident in the UK.

Pensions

Severe disablement allowance

Tax credits

CTC/1518/2009 [2010] UKUT 288 (AAC): Child tax credit

This decision considers whether education outside UK counts when linking periods of full time education. It considers the situation as at December 2007.

CTC/1699/2009 [2010] UKUT 159 (AAC): Tax credits and family credit couples and joint claims 

PD and CD, were a married couple who shared a household and claimed tax credits during the 2006/2007 tax year. The claim and award were based on the estimated joint income of the couple. PD and CD separated on 15 September 2006. A revised decision awarding child tax credit and working tax credit to PD and CD for that period was issued.

PD, who had care of the children claimed tax credits for the rest of that year. Following the reconciliation at the end of the year PD appealed.

There are two main issues in this decision:

Firstly the tribunal erred in failing to notify CD of the hearing.

The First-tier Tribunal (Social Entitlement Chamber) Rules 2008 state that where a couple make a joint claim and only one of the couple appeals against a decision on that claim, the other is a respondent to that appeal.

The claimant (PD) was appealing against a tax credits decision concerning her and her former husband. Rule 27 of the First-tier Tribunal (Social Entitlement Chamber) Rules required that the husband (CD) be notified of the hearing as a respondent.

Secondly Judge Williams found that despite this error the tribunal had acted correctly in taking into consideration CD's earnings in the relevant tax year after his separation from PD (see R(TC)1/08).

CTC/1853/2009 [2010] UKUT 49 (AAC): Tax credits disabled workers

Claimants outside the UK but inside the European Union are not entitled to claim child tax credit (CTC) because it was not defined as a 'family allowance' under EC rule, specifically EC Regulation 1408/71

However it was noted that from May 2010, Regulation 1408/71 is replaced by Regulation 883/2004 which would allow those in the claimant's circumstances to be able to benefit as a result of its new definition of 'family benefit'.

See also the later CTC/3179/2009 which suggests that this decision was wrongly decided.

CTC/3179/2009 [2010] UKUT 323 (AAC): Child tax credit payable to person living in EC country

The Claimant was aged 60. He and his wife were granted a residence order in respect of their granddaughter (Dominique), aged 6. They were awarded child tax credit in respect of Dominique from 6 April 2005 but then subsequently moved to Spain in October 2006, taking Dominique with them.

Claimants outside the UK but inside the European Union are not entitled to claim child tax credit (CTC) because it is not defined as a 'family allowance for persons receiving pensions for old age, invalidity, or an accident at work or occupational disease' in Article 77.1 of EC Regulation 1408/71.

Had Dominique been the claimant’s child, as opposed to grandchild, Judge Turnbull suggests that the case might have fallen within the subsequent words of Article 77.1: “and increases or supplements to such pension in respect of the children of such pensioners.”

“The relevant “pension” in the present case was incapacity benefit. In view of the way in which it is calculated, it may possibly be correct to regard child tax credit as and “increase or supplement to” incapacity benefit.”

He suggests that if this is the case CTC/1853/2009, where the claimants were the parents of the child, would have been wrongly decided.

CSTC/299/2010 [2010] UKUT 400 (AAC): Main responsibility test

This decision concerns the 'main responsibility' test where care shared between two parents. The claimant was appealing against a decision that her former partner was mainly responsibility for her younger son, aged 17.

The tribunal erred in rejecting the written evidence of the 17 year old son.

“4……..The view taken by the tribunal in relation to the reliability of the evidence of the younger son appears to be exclusively based upon general perception by the tribunal of evidence given by children in family disputes rather than to the specific evidence given by him as an individual. 

It is to be noted that at the time he gave his evidence he was seventeen years old and there is no indication on the face of the written evidence that he was not telling the truth in relation to what he said.  What he said was material to the issue before the tribunal and I am not satisfied that the explanation for the treatment of his evidence is safe. 

The conclusion in paragraph 14 is in my view dependent to a material extent in the rejection of the evidence of the younger son.  I use the word reject advisedly as not giving “the necessary weight” to it in the context in which it was given is in effect to reject it.  In these circumstances as the matter was material to the issue concerned I hold that the tribunal’s decision errs in law and must be set aside.”

The tribunal also erred in following CTC/4390/2004 which suggests that when looking at two seemingly equally balanced claimants a tribunal should look at the one who would benefit more from the claim. As a result the claimant was considered not to have the main responsibility because her income was higher.

Judge May rejected this.

"8. It is not clear from that decision [CTC/4390/2004] the extent to which there was any competition between the parents concerned before either the tribunal or the Social Security Commissioner……..

....However, I do not consider that where there are competing claims and the parents have not themselves reached agreement as to which of them should receive the tax credit consideration as to which parent would receive the greater benefit, is a legitimate consideration in determining the issue as to which of them has the main responsibility for a particular child. 

In-so-far as the Commissioner in CTC/4390/2004 was suggesting that which household would obtain the greater financial credit was a legitimate consideration for the purposes of the “main responsibility” test, I disagree with him and decline to follow him. 

The tax credit for a child is paid to a parent and not to that child.  The parent will apply that credit for the benefit of the child in the context of his or her general household expenditure including items which are general to the household such as accommodation, heating, lighting and items which are particular to the child such as clothing. 

It can therefore be seen that it would be both illogical and wrong to prefer one parent over the other for the purposes of the credit on the basis of their respective incomes and the effect that these would have in the calculation of any award.  It is not a factor which is pertinent to a decision as to which parent has main responsibility, neither is consideration as to an award to which parent would save the public purse."

Martin Inch - 7 June 2012