Selected commissioners' decisions and upper tribunal decisions from April 2008 to March 2009

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Click on the decision number to view the full decision.

Note: As from 3 November 2008 social security, tax credits and war pensions commissioners' decisions are known as decisions of the Upper Tribunal (Administrative Appeals Chamber). There is also a new numbering system. All social security and tax credits decisions will have a date, followed by UKUT, followed by the number of the decision, followed by (AAC) - for example CDLA/1525/2008 is also listed as [2008] UKUT 22 (AAC).

Commissioners are now also known as judges.

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

Armed forces compensation schemes/war pensions

CAF/2916/2006 [2009] UKUT 31 (AAC): War pensions child allowance (old scheme)

This decision discusses the causal evidence for the claimant's father's death from alcohol consumption. This decision has been reported as R(AF)3/09.

CAF/3934/2007 [2009] UKUT 51 (AAC): Allowance for lowered standard of occupation

An allowance for lowered standard of occupation (ALSO) can be reduced by any amount of service attributable pension (SAP) payable under Article 55 of the 1983 Service Pensions Order. This decision has now been reported as R(AF)4/09.

CAF/818/2008: Discharge on medical grounds

The claimant was discharged from the army on medical grounds in August 2005.

Regulation 37 of the Armed forces and Reserve Forces (Compensation Scheme) Order 2005 states that where someone is discharged from the forces on medical grounds there is no requirement to make a claim for compensation. The Secretary of State must decide whether an award should be made.

In this case the Secretary of State decided that the pain in his right leg was not caused or made worse by his army service. The tribunal disagreed but erred in its interpretation of regulation 37.

CAF/2752/2008 [2009] UKUT 57 (AAC): Right of appeal

In this decision the upper tribunal had no power to give permission to appeal because there had been no valid consideration of application for permission to appeal by a lower tribunal.

Attendance allowance

CA/2574/2007: Personal care - talking

The appeal tribunal applied a wrong principle of law in stating that talking to the claimant clearly did not qualify as personal attention in connection with personal care needs. It found that the claimant’s main carer, her daughter, spends most of the day in her mother's bedroom talking to her but stated that “this clearly does not qualify for personal attention with her personal care needs."

This was in error because the tribunal failed to consider the statutory test of needs for attention in connection with bodily functions as set out in R(DLA)1/07 and applied to narrow a definition of care needs.

CA/1546/2008 [2009] UKUT 23 (AAC): Carer's allowance and earnings

Only actual PAYE deductions from earnings count for the purposes of regulation 10(4) of the Social Security Benefit (Computation of Earnings) Regulations 1996, not potential PAYE liability. This decision has been reported as R(G)1/09.

Child benefit

CF/2266/2007 [2009] UKUT 18 (AAC): Child benefit - presence of child in UK

The decision concerns a claim for child benefit, made by a Portuguese national, for his two children who are resident abroad. It examines the interrelationship between section 146() of the Social Security Contributions and Benefits Act 1992 (requiring the presence of a child in order to receive child benefit) and Article 73 of Council Regulation EEC 1408/71 (regarding family members resident in another member state).

Compensation recovery

Disability living allowance

CDLA/708/2007: Residence and presence conditions - member of a family

The claimant has no rights under EC law, by virtue of being his sister's brother, as he is not a member of her family.

CDLA/1797/2007: Conflicting evidence from a school report

The claimant was diagnosed with attention deficit hyperactivity disorder (ADHD) but the school report, based on the 5 hours she was at school, indicated few problems. This conflicted with the evidence of the claimant's mother.

The tribunal held a paper hearing and relying on the evidence provided by the school, refused the claim. However given the disparity between the two sets of evidence it should have adjourned the case to allow the claimant's mother an opportunity to attend the hearing and provide further information. The case cites CDLA/3779/2004.

CDLA/2372/2007: Evidence of previous claim not before the tribunal

The tribunal refused to allow the claimants appeal but did not have any evidence before it of the claimant's previous award of high rate care and low rate mobility. The tribunal considered whether it should call for the papers relating to this previous award, but concluded that it had substantial medical evidence of the appellant’s current condition and would be hearing evidence from her and could proceed without any injustice or unfairness.

The tribunal erred because, following R(M)1/96, it had a duty to make the reasons for its decision understandable in cases, such as this, where the claimant contends that his or her condition has worsened.

"To my mind, that submission does not address the point, which is the claimant’s need to know why the decision is different from the previous decision. I entirely accept that the tribunal had evidence which was substantial and certainly sufficient to enable them to make a decision if there had not been a previous award.

The course of action they took, however, meant that the decision they made was made in ignorance of the evidence before a previous decision maker or tribunal which had caused that decision maker or tribunal to conclude that the claimant was entitled to a much greater award, and was also made in effect without regard to the claimant’s own evidence that her conditions had changed, if at all, for the worse.

This is not a case of considering the previous evidence but weighing it differently, or of there being an obvious explanation such as an improvement resulting from medical treatment or the observation of the exercise of a particular ability which had previously been found not to exist."

CDLA/2991/2007: Cooking test and nausea

Unless there are compelling reasons to do otherwise R(DLA)1/08 (CDLA/1256/2007) which states that feelings of nausea are relevant when considering the cooking test, should be followed rather than CSDLA/854/2003, which states that nausea when cooking is outside the scope of the notional cooking test.

CDLA/3585/2007: Relevance of Disability Discrimination Act (DDA)

The DDA is irrelevant because it does not apply to "judicial acts" carried out by decision makers, appeal tribunals and commissioners.

The decision also confirms that the effect of medication should be taken into account when considering the rules for DLA.

CDLA/3839/2007: Refusal to walk

The claimant, an eleven year old child, suffered from autism, epilepsy and severe learning disabilities. Whilst he was awarded the mobility component at the lower rate, his father appealed against the decision on the grounds that his son's frequent refusal to walk meant he should be deemed 'virtually unable to walk'.

The tribunal having dismissed the appeal, the claimant's father appealed to the commissioner. The commissioner, having carried out an analysis of relevant case law (R(M)3/86, R(M)2/78, CM/5/1986 and CM/98/1989) concluded that the tribunal erred in its interpretation of paragraph 8 of R(M)3/86.

The commissioner directed a rehearing and offered the following advice to the tribunal.

“First, there is a distinction to be drawn in respect of the difficulties that impair the claimant’s mobility. Any difficulties that arise from the claimant’s inability to control the direction of his walking must not be taken into account in view of Lees [Lees v Secretary of State (1985)]. Any difficulties that arise from the claimant’s refusal to walk can be taken into account. However, this distinction may not be easy to apply to the evidence. This case is an example. The evidence was that the claimant would refuse to enter or leave a store. The tribunal at the rehearing will have to decide whether he is unable to walk or just unwilling to walk in a particular direction.

Second, there is a distinction to be drawn in respect of the causes of those difficulties. This is not a case in which the claimant simply has autism. He also has severe learning disabilities and they may be attributable to a mental disability that contributes to his difficulties walking. To the extent that they are, the tribunal will have to disentangle and disregard them.”

CDLA/41/2008: Mobility problems in relation to care

The tribunal failed to make proper findings in relation to the claimant's need for attention with the bodily function of walking.

CDLA/496/2008: High rate mobility - seizures

This decision considers whether someone who has seizures can satisfy the high rate mobility component test. The commissioner agrees with the tribunal's findings that the claimant only satisfies the test for low rate mobility component but suggests that this is dependent on the number of seizures and their severity.

"On that basis, the tribunal’s conclusion in the present case was clearly correct. Until the claimant had a seizure, she satisfied the conditions only of section 73(1)(d) [low rate mobility component test] and not the conditions of section 73(1)(a) [high rate mobility component test], although there was then a short period, immediately after a seizure if the seizure took place out-of-doors, while she was unable to walk or virtually unable to do so when she could benefit from enhanced facilities for locomotion.

There then followed a period of recovery when she remained virtually unable to walk but at the same time was unlikely to make use of enhanced facilities for locomotion before the claimant once again satisfied only the conditions of section 73(1)(d) and the cycle started again. Leaving out of account the period when she would not use enhanced facilities for locomotion, the overwhelming majority of the time she satisfied only the conditions of section 73(1)(d) and not also the conditions of section 73(1)(a).

It might have been different if the claimant almost invariably had a seizure when walking even moderate distances out of doors, but that is not the case here."

CDLA/1450/2008 [2009] UKUT 37 (AAC): Applying for another component after age 65

This decision discusses whether the failure to award high rate mobility component when the claimant only had the relevant mobility needs post 65 is against the European Convention of Human Rights. The answer with regard to Article 8 and Article 1 of Protocol 1 is no. This decision has been reported as R(DLA)1/09.

CDLA/1461/2008: Residence and presence

The claimant was on DLA but settled in Cyprus and was considered to be no longer resident in the UK. The decision discusses the law prior to 24 September 2007 in relation to revisions and supersessions.

CDLA/1525/2008 [2008] UKUT 22 (AAC): Anorexia Nervosa and the mobility component

The disabling effects of Anorexia Nervosa can constitute physical disablement even if the root cause of the illness is "psychiatric" in origin.

CDLA/1588/2008 [2009] UKUT 5 (AAC): Tribunal member appears to be asleep

This decision follows the decision of the Court of Appeal in Stansbury v Datapulse plc, [2003] EWCA Civ 1951 that a hearing may be unfair even if a member of the tribunal only appears not to be awake or alert.

In the current case the lay member was observed by the representative to close her eyes for 1-2 minutes. This was raised in the application for leave to appeal to the Upper Tribunal and comments were sought from the Chairman and lay member. The lay member responded by saying :

"I most certainly did not fall asleep. Quite often I close my eyes to reflect and concentrate on the information being given by the Applicant."

Following Stansbury, Deputy Judge Mark found that the hearing was unfair.

".I consider that I have sufficient information to determine the matter on the papers. In the light of the representations of the lay member that she does close her eyes to concentrate on the information being given by the claimant, I see no reason to disbelieve the claimant's representative that he did observe her with her eyes shut in such a way as reasonably to give him the impression that she was asleep or at the lowest not listening to what was being said. Even with her eyes shut it would not have been difficult for a tribunal member who was concentrating on what was being said to demonstrate this by head movements and facial expressions. The lay member gives no indication that she was doing this, and I am satisfied that on the balance of probabilities her eyes remained shut in the way I have described for more than a minimal length of time.

I do not attach any significance to the chairman's statement that he did not see the lay member with her eyes closed. I would expect that for most of the time he would be concentrating on the claimant and the representatives appearing before him, rather than watching the lay member. Having read the comments of the chairman and the lay member, I am also not satisfied on the balance of probabilities that the lay member was in fact asleep, but I find that she did appear to be asleep or at the least she created the impression that her mind was elsewhere and she was not listening. Given the complexities of this case, including the matters to which I have previously referred, I consider that the impression that she created that she was not listening to what was being said for a significant period of time resulted in the hearing being unfair."

The tribunal had also failed to give adequate reasons for its findings related to night time care.

CDLA/1984/2008 [2008] UKUT 32 (AAC): cooking test - lack of sense of taste or smell

This decision follows R(DLA)1/08 in holding that the lack of a sense of taste or smell is relevant to the cooking test. This appeal failed because the lack of these senses, in themselves, were insufficient to prevent the claimant from cooking a main meal. The claimant could use other methods (e.g. use of eyes or employment of shorter storage times) to ensure that food was adequately cooked, edible or unburnt.

CDLA/2195/2008 [2008] UKUT 36 (AAC): virtual inability to walk - testing a claimant

The tribunal erred because it carried out an examination of the claimant. It set him a test to assess how good he was at estimating time by asking him during the hearing how long he had sat there. The tribunal was wrong to do this for a number of reasons.

  • It potentially crossed the line between carrying out observations of an appellant and conducting a physical examination. The tribunal had other ways of dealing with cases where there is insufficient information to reach a decision, such as asking for an examining medical practitioner report or deciding the matter on the available evidence provided by the parties.
  • The duty of a tribunal is to decide a case in an investigative way, not to provide evidence against a party that the other party has not provided.
  • There was nothing in the record of proceedings that indicated that the appellant or his representative were aware that he was being tested or that they were given any opportunity to comment on the conclusions that the tribunal drew from the test. In such cases R(DLA)8/06 should be followed.
  • It was unclear who carried out the test or whether it was conducted properly.

CDLA/2300/2008 [2008] UKUT 37 (AAC): Previous awards - relevance of R(M)1/96

The claimant was the victim of an assault which caused traumatic head injuries and other injuries, including blindness in one eye and substantial hearing loss in one ear. He spent the first nine months in hospital before moving into supported accommodation.

He had previously been awarded high rate care component and low rate mobility component but on review the care component was reduced to low rate.

The claimant appealed but the tribunal upheld the decision. This appeal to the upper tribunal succeeded because the lower tier tribunal failed to make sufficient findings of fact with regard to frequent attention (it had correctly considered continuous supervision). R(DLA)1/07 (thinking as a bodily function) was relevant in this case.

R(M)1/96 places a duty on tribunals to make the reasons for its decision understandable in cases where their decision is less generous than a previous award. But R(M)1/96 was not considered relevant to this case because the claimant was not arguing for the previous high rate care component to be reinstated but for an intermediate rate of benefit - middle rate care component. The tribunal therefore does not need to refer to a previous award.

CDLA/2349/2008: Tribunals must give reasons for short awards

In this case the tribunal heard the case on 15 May 2008 and awarded low rate care and mobility components, but ended the award on 7 May 2008. This did not give the claimant a chance to make a renewal claim.

Because the tribunal failed to give reasons for the short length of the award the commissioner extended it to 7 November.

"I am told that the appellant put in a new claim on 16 05 2008, the following day. Even if that were entirely successful there would be both a loss of disability living allowance fully for a week or more and a delay while payments of the allowance restarted. And it may be – I do not know – that loss of disability living allowance might trigger loss of other benefits or elements of benefits dependent on receipt of the allowance. Examples are disability and pensioner premiums of the income-related benefits.

Those effects follow directly from the tribunal decision. The choice of an award period that causes these effects has to be a positive decision needing clear justification. The tribunal offered none. A majority of the tribunal considered that the award ought to be a short award, but did not explain why it should be so short that it caused these consequences."

CDLA/2887/2008 [2008] UKUT 2 (AAC): The start date of fixed period awards

Section 71(3) of the Social Security Contributions and Benefits Act 1992 provides that finite awards of the care component and mobility component of disability living allowance must not be for different fixed periods. This decision states that the start dates for the fixed period award of each component do not have to be the same.

CDLA/2955/2008 [2008] UKUT 24 (AAC): Severe behavioural problems

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. High rate mobility was awarded by the Upper Tribunal judge.

CDLA/2997/2008 [2009] UKUT 6 (AAC): DLA, AA, MA: Duty to find facts to support a decision

The tribunal failed to do this.

"7. The tribunal's errors: The tribunal made material factual errors in dealing with the medical evidence which may have prejudiced the appellant's case significantly and which, in the circumstances, amount to an error of law. The main errors were as follows: the tribunal dismissed the medically documented condition of foot drop, regarding it as inherently improbable that, if the condition was as severe as it is claimed, then aids or a calliper would have been recommended. This was despite two reports to show that that this avenue was being pursued. The contradiction in the consultant's reports relating to pain from nerve compression was not addressed. The tribunal did not deal with the medical evidence on cerebral ischaemia, which may have accounted for the appellant's falls in addition to, or in combination with, the balance problem arising from her foot drop, numbness of the leg and cramping toes. It did not seem to appreciate the evidence that the appellant's wrist was permanently restricted, thus making suspect the tribunal's inference that the appellant would be able, after a time, to use a walking frame instead of a stick. It did not consider the evidence relating to the appellant's frozen shoulder, confining itself to the appellant's grip problem alone. It simply dismissed most of the medical evidence with the phrase 'there was little evidence that.'

8. This is not to say that the appellant would necessarily have succeeded had the tribunal properly analysed the evidence, but that the failure was such that the decision could not stand. It should be added that the tribunal also failed to deal adequately with the higher rate of mobility by not dealing with the issue of severe discomfort."

CDLA/3519/2008 [2009] UKUT 45 (AAC): Tribunal findings must relate to the law

In this decision the tribunal made several errors of interpretation. These were the tribunal's:

  • reasoning for rejecting medical evidence (it could accept part of the evidence without accepting the report as a whole)
  • criticism of the representative's description of the cooking test in a letter meant to obtain medical evidence (there is no requirement for this to be in precise terms though the tribunal should weigh the evidence according to the level of imprecision)
  • application of its own interpretation of the meaning of slow based on the medical evidence
  • failure to properly consider the claimant's neck pain in relation to the walking test

The decision emphasises the need to for a tribunal to stick to the law when analysing the evidence and making a decision.

"21. The proper approach for a tribunal is to apply the statutory test in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 - is the claimant virtually unable to walk? In applying that test, it has to take account of such of the factors listed there - time, speed, manner and distance of walking - as are relevant to the case.

In addition, it has to consider any other factor that affects how the claimant makes progress on foot out of doors. The legislation is drafted in broad concepts, not in terms of precise distances and times. [In this respect it is different from incapacity benefit and employment and support allowance, both of which require greater precision.]

22. In order to apply that test, the tribunal has to make findings of fact on the relevant factors. That involves analysing the evidence as a whole to the extent that it can properly be subjected to analysis. The findings of fact can be made with no greater precision than the law requires and the evidence allows. If that means that the findings cannot be expressed in terms of metres per minute or any other precise terms, so be it.

All that is necessary is that the findings should be sufficient to support the tribunal's decision whether or not the claimant is virtually unable to walk. It is my view that the findings may have to be expressed more generally than is the current practice of the First-tier Tribunal and that the Upper Tribunal should accept that this is all that is attainable, given the nature of the test and the evidence available to the tribunal.

This is not an excuse for poor quality analysis and fact-finding. It is, in fact, more demanding, because it does not allow tribunals to rely on illusory precision to find differences of opinion where they do not exist on a more rigorous analysis of the substance of the evidence."

CDLA/59/2009: [2009] UKUT 54 (AAC): Advance award

This decision considers the interrelationship between regulations 6(8) and 13A of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).

Regulation 6(8) allows the date of request for a DLA claim form to stand as the date of claim if it is returned within 6 weeks.

Regulation 13A gives the power to make an advance award of DLA if within three months of the date on which the claim is made the three months qualifying (backwards test) rule is satisfied.

Judge Jacobs considered that " the date on which the claim is made" was the date on which the claim was received.

CSDLA/168/2008: "Slip of the pen" corrections and late applications for a statement of reasons

This decision highlights an anomaly. Regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) is used to correct accidental errors, colloquially known as a slip of the pen.

The time limit for applying for a statement of reasons is normally three months from the date of the sending or giving of a decision but, where a regulation 56 correction is made, regulation 54(1) allows the time limit to restart from the date of correction . This could lead to some interesting situations as the commissioner noted (and offered his own remedy).

"A situation could therefore arise where a party does not request any statement of reasons until after a correction notice sought, say, some two years after the date of a tribunal hearing; this would seem to trigger a mandatory duty on a chairman to provide such a first statement of reasons, if thereafter requested in time.

Similarly, under regulation 58(1A) [which also refers to regulation 56 corrections], a correction long after the issue of a statement of reasons, could, within a month, lead to an application for leave to the Commissioner some years after a relevant tribunal hearing.

However, such cases must be rare and, in any event, the power under regulation 56 is discretionary. If no prejudice has been occasioned by the accidental error, in terms of arguably dissuading a party from either requesting a full statement or seeking leave to appeal to the Commissioner, until the error was realised, the answer is to refuse to make the correction. It would be wise for a clerk to refer any such matter to the chairman."

In this decision the claimant sought an extension to the time limit for requesting a statement of reasons because the clerk had recorded her as a Miss instead of a Mrs. However, as she had already previously applied for a statement of reasons, and been refused for being out of time, before she applied for a correction under regulation 56 regulation 54(1) did not apply.

CSDLA/574/2008 [2009] UKUT 40 (AAC) : Permission to appeal to the upper tribunal

Due to official error no permission had been granted for this appeal to proceed. Therefore the upper tribunal judge had no jurisdiction to decide the case. Permission could still be granted by the lower tier tribunal at a later date.


CG/37/2008: Recovery of overpayments - direct credit transfers

The tribunal, in its decision notice, ruled that the whole sum of £1,385.79 for a period from 8 February 2005 to 26 September 2005 was not recoverable because there had been no failure to disclose. However, it included £168.88 in this figure, which was part of a direct credit transfer overpayment decision. Direct credit transfer overpayments are subject to a different test (to failure to disclose) and the tribunal erred in failing to consider this test.

CG/449/2008 [2009] UKUT 46 (AAC): carer's allowance and full time study

This decision discusses in some detail 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.

In doing so it considers the findings in relation to regulation 5(1) as decided by the Court of Appeal of Northern Ireland (Wright-Turner v Department for Social Development [2002] NICA 2, reported as appendix 1 to R1/02 (ICA)) and the Court of Appeal of England and Wales (Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641, reported as R(G)2/02).

Regulation 5(1) prevents someone from getting carer's allowance where they are doing 21 hours or more study a week.

Regulation 5(2) defines relevant study for the purposes of regulation 5(1) as time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course.

Relevant study does not include any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

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."

This decision was allowed because the tribunal had concentrated on the meaning of full time education and failed to make findings on the number of hours of study.

The arguments and tests put forward in the earlier decision CG/3189/2004 were not followed.

Note: This decision was overturned in Secretary of State for Work & Pensions v Deane [2010] EWCA Civ 699 (23 June 2010). 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).

CG/607/2008: Earnings

This decision examines where the claimant is on carers allowance and is paid her regular weekly earnings each month. The employee's monthly payments were treated as each being a number of payments made in respect of single weeks.

CG/645/2008: Earnings

In this decision the commissioner emphasises the importance of establishing the nature of the claimant's contract when calculating earnings, in particular in this case whether there was a jobshare agreement in place.

CG/1239/2008 [2008] UKUT 23 (AAC): Treatment of holiday pay

The claimant retired from his employment on 30 November 2006, having last worked on 21 November 2006. His contractual payday was the 18th of each month. As that date fell on a Saturday in November 2006, he was paid on 17 November. On that date, he received his monthly salary and pay for seven days holiday that had accrued but not been taken.

The claimant made a claim for a carer's allowance to take effect from 1 December 2006. The Secretary of State made an award from 29 January 2007, but refused the claim for the inclusive period from 1 December 2006 to 28 January 200, based on the claimant's final payment.

Judge Jacobs dismissed the appeal holding that the tribunal had been correct in adopting the approach of Commissioner Turnbull in CG/4172/2001 that the phrase 'earnings of the same kind' in regulation 6(2)(a) of the Social Security (Computation of Earnings) Regulations 1996 should be interpreted as meaning ordinary pay with the result that the claimant's holiday pay should be attributed over a period ending on the day before the date on which his ordinary pay would have next been paid had his employment not ended.

This decision was appealed to the Court of Appeal as Cotton v Secretary of State for Works and Pensions [2009] EWCA Civ 1333 (14 December 2009) but was unsuccessful.

Home responsibilities protection

CHR/3855/2005: Right of appeal to commissioner - refusal to admit late appeal to a tribunal

This decision by a tribunal of commissioners finds that there is no right of appeal where a legally qualified panel member refuses to extend the one month time limit for appeals to a tribunal (late appeals). The decision cites and interprets Secretary of State for Work and Pensions v Morina and Borrowdale [2007], reported as R(IS)6/07. 

As a result of this decision the only recourse, in a case where a legally qualified panel member refuses to extend the one month time limit, is judicial review.

Housing benefit

CH/361/2006: Delay in applying to a rent officer

In this decision an overpayment of housing benefit was not held to be recoverable because it was caused by official error - namely the failure to refer a claim to a rent officer within three days of receiving it (or as soon as practicable thereafter).

The decision also discusses whether the benefit paid to the claimant was a payment on account or made as part of a decision. Notwithstanding the failure to refer the claim to a rent officer the commissioner decided that the payments were not on account.

CH/1672/2007: Payments required to be made because of couple's judicial separation

Only the claimant's net pension should be taken into account for housing benefit purposes once payments, under a court order, due the wife have been deducted.

"I am persuaded ….. that the proper interpretation of the relevant statutory test of income, in its ordinary sense, but also in the context of these arrangements, is that Mr K’s income should be regarded as the amount he has left from his occupational pension after he has passed on to Mrs K the sums he is required to pay to her from that pension under the High Court pension-splitting order. It is important in this context to appreciate that the High Court order was at the initiative of Mrs K and that, although Mr K consented to it at the time it was made, it is not in any meaningful sense a voluntary disposal of his income or a diversion of it for his own purposes either then or at any later stage."

CH/2233/2007: Capital held in trust

The claimant was found to have over £16,000 in savings, which he stated was being held in trust for his sons. Although the claimant's explanation for failing to declare the money was considered unsatisfactory and his appeal failed the chairman acknowledged that the claimant was asked to manage his son's money by his ex-wife. As a result the chairman was bound to make findings concerning this issue.

"11. In view of that apparent acceptance that the claimant did have at least some involvement with the inheritance money at the end of November 2004, and that the money he put into the undisclosed account had “arrived” from somewhere at that time, it was in my judgment incumbent on the chairman to go on then to address and make a clear finding on the crucial issue of whether the deposit cheque used to open the account in fact represented money then belonging to the claimant’s sons, derived from the will of their aunt, or whether it was money of the claimant’s own derived from some other source he had been dishonestly concealing.

12. Without such a finding, even given the unsatisfactory and confused nature of the claimant’s answers at the hearing which made his whole story sound unconvincing, and the chairman’s justified reservations about the worth of the documents he was shown, there was in my judgment no sound basis for his immediate conclusion reached without further analysis, that the claimant held the money in the undisclosed account beneficially for himself alone. .."

The claimant's appeal succeeded.

CH/2321/2007: Right to reside - ECSMA states

This decision discusses right to reside in relation to those coming from an ECSMA state. The commissioner found that the cliamant had no right to reside

This decision was taken to the Court of Appeal as Yesiloz (formerly Aykac) v LB Camden and Secretary of State for Work and Pensions [2009] EWCA Civ 415. The appeal was dismissed and has now been reported as R(H)7/09.

CH/2583/2007: Housing and council tax benefits recovery of overpayments

The main issue in this case is  the date the tenant ceased to live at a property and when she ceased to be eligible for housing benefit, based on evidence from both the landlord and the claimant.

CH/3160/2007 [2008] UKUT 18 (AAC): Recovery of overpayments

Amendments made under regulation 101 of the Housing Benefit Regulations 2006 to the law on recoverability of overpayments of housing benefit, which came into force in April 2006 apply to liability in respect of payments made before that date.

In the circumstances of this case, the difference is that under the former law the claimant and his landlord would, for the period when benefit was paid to the landlord, be jointly and severally liable to repay, whereas under the present law the claimant would be solely liable.

This decision has been reported as R(H)3/09.

CH/3240/2007: Official error - local authority submissions

The commissioner overturned this tribunal decision concerning housing benefit overpayments. The claimant ceased paying childcare costs and informed the local authority, who ignored this and continued to include them in its HB assessment. The claimant noticed this and continued to inform the local authority, but this information went both unheeded and unrecorded.

The commissioner ordered a rehearing so that the tribunal could question the claimant about her contact with the local authority. He also criticised the local authority's failure to supply relevant documentation, stating that this could be a breach of natural justice.

"If a local authority withholds information that is relevant to an appeal, it may be in breach of a principle analogous to natural justice, which was recognised by Lord Bridge in the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1989] 3 All ER 843 at 848. See also R(CS)1/99 at paragraph 8. And that alone is sufficient to justify a decision being set aside."

CH/3584/2007: Requests for information - reasonably required

This decision discusses this issue in relation to self employed earnings. It has now been reported as R(H)1/09.

CH/3590/2007: Referral to rent officers

This decision discusses situations where a local authority is required to refer a case to a rent officer, following an increase in a tenant's rent and situations where they are not.

CH/3691/2007: Tribunals - automatic presumption that evidence was correct

In this case the tribunal failed to make and record sufficiently clearly based findings to justify its conclusion that the claimant’s daughter was living as a non dependant adult in his household and in receipt of an income high enough to warrant the maximum deduction from his housing and council tax benefit being made.

The appeal should have been a complete rehearing by the tribunal in the exercise of its inquisitorial jurisdiction, but the tribunal wrongly began with the presumption that the local authority’s decision and the factual assumptions it embodied must be taken as correct unless proved to the contrary by the claimant.

CH/3777/2007: Meaning of estranged

The claimant separated from her husband and rented a property for herself and her two children. The husband remained in sole occupation of her former home. The separation was amicable, both she and her husband had come to an arrangement “around the children” and the couple hoped to get back together again at some time in the future.

The Council’s decided that, under regulation 44 of the Housing Benefit regulations (SI 2006/213) and paragraph 25 of Schedule 6, the claimant’s entitlement to housing benefit was limited to the first 26 weeks from the date of the separation, because after that the value of her interest in the former matrimonial home fell to be taken into account as capital.

The claimant appealed on the ground that the capital value should be disregarded indefinitely under paragraph 4(b) of Schedule 6, which states that any premises occupied in whole or in part by the former partner of the claimant as his home should be disregarded providing that the former partner is not a person from whom the claimant is estranged or divorced.

The claimant argued that she was not estranged because she was still on amicable terms with her husband. The tribunal accepted this and allowed her appeal. The council appealed to the commissioner who overturned the tribunal decision and substituted a decision to the effect that regulation 44 of the Housing Benefit regulations and paragraph 25 of Schedule 6 apply. In doing so he held that:

“the word “estranged” in this context implies no more than that the reason for the two people concerned no longer living together as a couple in the same household is that the relationship between them has broken down. It is not a necessary, or for that matter a sufficient, requirement to come within the term that dealings and communications between the two of them should be acrimonious.”

"Nor do I accept the argument that “estranged” requires an element of disharmony because otherwise it adds nothing to the reference to a “former partner” in paragraphs 4(b) and 25. There are occasions when two people in a continuing relationship may have to cease living together as a couple in the same household and so count for this purpose as “former partners” without there being any question of any estrangement between them: for example where one of them has to go into a residential care home, as in R(IS)3/96: compare R(IS)5/05 paragraphs 9 to 11.”

CH/3935/2007: Treating a revision as a supersession

The claimant claimed housing benefit and council tax benefit on 30 March 2005 when she was on the point of moving into new accommodation. Her daughter had recently been evicted and came to stay with her. Benefit was awarded from 4 April 2005.

The local authority first made a decision on 6 May 2005 and included a non-dependant deduction of £7.40 a week in respect of the claimant’s daughter. This was revised on 12 May 2005 to increase the deduction to £17 a week. On 2 November 2005, the local authority again revised its decision and restored the original deduction of £7.40 a week (the amount of the deduction depended on whether the daughter was working).

As the decisions of 12 May and 2 November were both revisions of the decision of 6 May, the proper subject of an appeal was the decision of 6 May as later revised. As the revision of 2 November reversed the revision of 12 May the decision under appeal was the decision of 6 May as revised on 2 November.

The tribunal misunderstood the nature of the procedural issues but the commissioner found no error of fact or law in the tribunal’s analysis and conclusion of the substantive issue of the daughter's normal residence.

As at 6 May 2005 the tribunal decided that no deduction was appropriate at that time, because the claimant’s daughter was not normally living with her at that stage. The commissioner could find nothing wrong in law or fact with the tribunal’s analysis.

The tribunal also decided that the daughter was normally residing with her mother by 2 November 2005 based on the evidence in a letter dated April 2006 to November 2007. It had the power to make a superseding decision to this effect.

CH/4014/2007: Local authority's power to decided whether income support claimant "living together" with partner

In this case the DWP were investigating whether the claimant was "living together" with her partner. As the claimant was on income support she automatically qualified for housing benefit, the assessment of her applicable amount having been done by the DWP (section 130(1)(c)(i) of the Social Security Contributions and Benefits Act 1992).

As this assessment was done by the DWP the local authority has no jurisdiction to decide the cohabitation issue. However..

“Under regulation 11 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, S.I. 2001 No. 1002, a local authority has power to suspend a payment of housing benefit or council tax benefit if it appears to the local authority that an issue arises whether the conditions for entitlement to the benefit are fulfilled.

As I said at the beginning of this decision, the local authority has suspended payment of the claimant’s benefits, presumably under this provision. Also as I said, in my view there was ample material on the basis of which the local authority could properly conclude that it did so appear to the authority.

That uncertainty could be expected to be resolved by a determination by the Department of Work and Pensions of whether or not the claimant and the partner were indeed living together as husband and wife and if so, what the effect on the claimant’s income support entitlement was. The local authority’s exercise of the power of suspension is not affected by my decision.”

An argument following the approach taken in R(H)9/04 was rejected in this case because R(H)9/04 concerns section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 - liability to make payments in respect of a dwelling occupied as a home - which is not relevant to this case.

CH/4066/2007: Tribunal supplies inadequate statement of reasons

This case concerned a claimant who failed to declare capital. The resulting overpayment was held to be irrecoverable because the tribunal believed that the claimant neither caused nor contributed to the error. The commissioner rejected this, following an appeal by the council, because the tribunal had failed to record findings or issue either a statement of reasons or findings.

"The decision of the Leicester appeal tribunal on 2 November 2006 (Mr M T Coxon, chairman, sitting alone) must be held defective in point of law as the tribunal’s decision notice of that date, as reissued on 14 September 2007 with a manuscript addition by the chairman dated the previous day, fails to record sufficiently clear findings of fact and reasoning on the part of the tribunal on the material factual and legal issues in the case and no proper statement of findings and reasons has ever been issued, despite a timely request for such a statement made on behalf of the council on 9 November 2006, only a week after the date of the hearing itself. I set the decision aside and in accordance with paragraph 8(5)(c) Schedule 7 Child Support, Pensions and Social Security 2000 refer the case to a fresh tribunal for redetermination in accordance with the directions given below."

CH/4085/2007: Failure to attend an evidence of identity interview

The claimant was in receipt of housing benefit and council tax benefit. She subsequently informed the local authority that her husband had come back to live with her. At the time he was unlawfully present in the UK.

Under section 1(1B)(b) of the Social Security Administration Act 1992 the husband was required to apply for a national insurance number and supply sufficient evidence or information for this number to be allocated.

He failed to attend the evidence of identity interview arranged at the jobcentre for this purpose and as a result the local authority decided that the claimant was not entitled to HB/CTB due to the husband's failure to comply with section 1(1B)(b).

The commissioner held that there was no reason to supersede the decision to award benefit. The local authority should have suspended benefit pending enquiries into the husband's reasons for non-attendance of the interview. It should also have attempted to ascertain whether the husband's application for a national insurance number was genuine.

Note: The husband was required by law to apply for a national insurance number. There may not be a requirement that such a number be issued in these circumstances (see paragraph 27).

From 6 April 2009 The Social Security (National Insurance Number Information: Exemption) Regulations 2009 (SI 2009/471)provide that where a person is the partner of a benefit claimant who has no right to enter or remain in the UK and who is not entitled to social security benefits and does not already have a national insurance number ("NINO"), the claimant will not be required to state a NINO in relation to that person on a claim form.

CH/4262/2007 [2008] UKUT 7 (AAC): Tribunal procedure and practice

This appeal, involving an overpayment (the claimant had started work) was allowed because the tribunal had failed to consider certain evidence regarding the claimant's benefit entitlement.

The decision criticises the local authorities in relation to requirements under the new Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

"39... Rule 5(2) confers case management powers to give directions in relation to the conduct of the proceedings. That includes power to require a party to produce a bundle for a hearing (rule 5(3)(i)). And that means a properly constructed and indexed bundle, not just a collection of documents presented in no discernible order. A party is not entitled simply to ignore a direction. The proper course is either to comply with it or apply for it to be amended, suspended or set aside under rule 6(5). Rule 7(2) gives the Tribunal powers to take such action as it considers just for failure to comply with a direction.

40. These rules do not exist for their own sake. They exist, and must be interpreted and applied, to enable the Tribunal to deal with a case fairly and justly (the overriding objective). That includes ensuring, so far as practicable, that the parties are able to participate fully in the proceedings (rule 2(2)(c)). A benefit claimant cannot participate fully in the proceedings if the documents are presented in a way that even an experienced Tribunal Judge finds difficult to unravel and understand. This power gives legislative form to the practice followed by the social security appeal tribunals of taking an enabling approach to assist parties to understand and participate in the proceedings. It is now imposed not only on the Tribunal but also on the parties, who are required by rule 2(4) to co-operate with the Tribunal in furthering the overriding objective and generally."

CH/4/2008 [2009] UKUT 7 (AAC): Discretionary beneficiaries of trusts

Regulation 9(1)(e) of the Housing Benefit Regulations 2006 applies to a discretionary beneficiary of a trust in the absence of the exercise of a power of appointment.

CH/51/2008: Treatment of incapacity benefit where the claimant has an occupational pension

Summarised in paragraph 23

"The correct approach is to assess the claimant’s income based on (a) his gross occupational pension payments (see R(IB)3/05), (b) the actual rate of incapacity benefit in payment to him after any reduction by virtue of section 30DD of the 1992 [Social Security Contributions and Benefits] Act and (c) any other relevant income."

CH/426/2008 [2009] UKUT 34 (AAC): Capital held overseas

This decision discusses whether the claimant had a beneficial interest in money held in an overseas bank account and whether the capital formed part of a trust.

CH/758/2008 [2008] UKUT 30 (AAC):Self employment - treatment of drawings when business not making a profit

Where a business (in this case a husband and wife partnership) is not making any profit any drawings made for weekly or other expenses are not to be treated as income from self employment or as income other than earnings.

This decision has been reported as R(H)6/09.

CH/765/2008 [2008] UKUT 31 (AAC): HB payments made in error to claimant instead of landlord

This decision considers whether the landlord can obtain arrears of housing benefit where housing benefit was wrongly paid to the tenant.

CH/1076/2008: Payment of an annuity to separated spouse

The claimant received two annuity payments, or pensions, from Abbey Life, worth together about £10 a week, which were payable half yearly in advance. He stated that he was paying half the annuities to his wife, from whom he was separated. The Council decided that he was voluntarily giving his wife the money and that therefore he was depriving himself of that income and adjusted his housing benefit to take into account the full annuity payments as his income. He appealed.

The tribunal allowed Mr D’s appeal because there was either a constructive trust in favour of the wife or there was an actual trust of the income in favour of the wife. The council appealed to the commissioner, who decided in its favour, because the council made inadequate findings.

There was also insufficient information to decide whether the distribution of the annuity (which was in connection with his former employment) was bound by Section 91(1) of the Pension Schemes Act 1995. This has certain prohibitions against the assignment of occupational pensions.

CH/1330/2008: Earnings and expenses

This decision discusses the issue of "payments in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment" - regulation 35(2)(b) of the Housing Benefit regulations (SI 2006/213).

Under this regulation such payments are disregarded when assessing earnings. In this decision the claimant was employed as a care worker and worked anywhere within a particular London Borough.

The commissioner held that she had no actual place of employment and so allowed travel expenses paid by the claimant's employer, including journeys made between her home and the places she worked, to be disregarded under regulation 35(2)(b).

CH/1487/2008 [2009] UKUT 19 (AAC): Meaning of owner

The claimant was a tenant of a family property which she had a part interest in. The decision discusses the meaning of owner under regulation 10(2)(c) of the old Housing Benefit General Regulations (now regulation 12(2)(c) of the new regulations).

CH/1615/2008 [2009] UKUT 28 (AAC): Sums paid by a tenant for a bedroom occupied by an overnight carer

The decision discusses whether these are eligible for housing benefit in relation to regulation 10 of the Housing Benefit General Regulations 1987. The appeal by the claimant failed.

CH/1895/2008 [2008] UKUT 26 (AAC): Claimant has two tenancies in the same building

The claimant had a family of 12 and had tenancies on two adjoining flats, which her husband connected by knocking down a wall. The two tenancies were with different landlords but the claimant was effectively living in both properties at the same time.

She claimed housing benefit for both properties but was refused on the second one. The appeal tribunal overturned this decision and Judge Jacobs upheld this. A dwelling can consist of two tenancies on different properties, providing the claimant resides in both.

This decision has been reported as R(H)5/09.

CH/1973/2008: Property assigned to a close relative

In cases involving a land registry transfer of a property a tenant becomes liable to make payments to the new assignee. In this decision the claimant was, as a result of such a transfer, not liable for and overpaid housing benefit because she was responsible for the child of the assignee.

CH/2198/2008: Backdating and good cause

This decision discusses good cause with reference to relevant case law.

CH/2726/2008 [2009] UKUT 12 (AAC): Exempt accommodation

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

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

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

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

In this case the accommodation was not held to be exempt because it was provided by the claimant's carer, not a charity. The charity only organised or arranged for the accommodation to be provided by the carer. The accommodation was also owned by the carer.

Judge Turnbull gave no findings as to whether for the purposes of the definition of "exempt accommodation", the accommodation could ever be "provided by" someone other than the owner (or other person with the right to immediate possession) but suggests that such circumstances would be exceptional.

CH/2736/2008 [2009] UKUT 15 (AAC):Tribunal procedure and practice fair hearing

The background to this case is complicated but involves two claims made for housing benefit, the first by the claimant's partner and the second by the claimant himself, for two properties, both owned by the claimant's sons.

Both of these claims for housing benefit were refused, as were the subsequent appeals.

The appeal to the upper tribunal was on two grounds:

  • Whether the first tier tribunal should have gone ahead with the hearing, even though the appellant had previously agreed to short notice of the hearing date?
  • Whether the same chairman who had dismissed an earlier appeal by the appellant's wife on similar issues should have heard the second hearing?

Both appeals failed. With regard to the first ground the appellant completed the standard TAS1 questionnaire, ticking the box to the effect that he could attend a hearing at short notice if a cancellation arose. Judge Wikeley allowed that the appellant had a right of waiver but that he had not chosen this option

With regard to the second ground Judge Wikeley considered the case law in relation to bias and found that there was no evidence of bias because of the following factors:

"(i) Although the chairman had made findings which were adverse to the credibility of H, W and S1 in the decision of the first tribunal, those conclusions were expressed in moderate terms and were both explained and justified by reference to the evidence before him;

(ii) Although the issues before the two tribunals were related (as they were in CCS/1876/2006 and even more so in CIS/1599/2007), they were not identical (as in CSIB/85/2007);

(iii) Given the complex factual background, there was some justification for having judicial continuity in having the same experienced chairman hearing the two appeals;

(iv) The two hearings were conducted some 9 months apart."

CH/3571/2008 [2009] UKUT 20 (AAC): Property previously owned by claimant

The claimant had previously owned the property where he lived but sold it to a property company once possession proceedings were taken against him. The company. He and his family remained in the property as tenants.

His claim for housing benefit was refused under regulation 9(1)(h) of the Housing Benefit Regulations 2006 which allows a decision maker to treat someone as not liable to meet payments in respect of a dwelling where:

"he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than five years have elapsed since he or, as the case may be, his partner, ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership."

The appeal tribunal upheld the original decision but erred in the following ways:

  • it applied the wrong legal test, confusing the claimant's ability to continue to occupy the property without relinquishing ownership with whether or not he made sufficient enquiries and thus failed to apply regulation 9(1)(h) correctly.
  • it failed to deal with an argument put in the written submission and elsewhere to the effect that the waiting period for help with mortgage costs for IBJSA claimants and the limitations on what could be covered meant that any assistance would be too late and insufficient in amount to have enabled the claimant to forestall the possession proceedings on the timescale on which they were running.
  • the statement of reasons was "vastly different" from the written decision given on the day of the hearing.

Judge Ward directed that the new tribunal apply the interpretation of regulation 9(1)(h) set out in R(H)6/07.

CH/3801/2008 [2009] UKUT 27 (AAC): Proof that a decision was made

There is no requirement to produce a copy of an actual decision as proof that it has been made if this can be deduced from other evidence.

A submission writer's statement counts as evidence. If he or she made the decision then the evidence is based on personal knowledge. If not the decision maker could report and explain the contents of other evidence such as, in this case, computer printouts and notification letters.

The decision includes a useful discussion on past case law in relation to the status as evidence of tribunal submissions.

Incapacity benefit

CIB/4281/2006 [2009] UKUT 65 (AAC): Tribunal procedure - formulaic statement of reasons

This decision hinged on the medical evidence presented. The tribunal preferred the

"...evidence of the medical examiners on this point because of their skill and expertise in carrying out such examinations and in particular because they were considering the specific point raised in this appeal."

The judge found no fault with the tribunal's reasoning for its decision beyond giving a (mild) warning about future wording of statements of reasons, such as that quoted above.

"I am satisfied that the tribunal's decision is not erroneous in point of law. This decision may, nonetheless, stand as a warning to tribunals that the use of formulaic reasons may give rise to grounds of appeal rather than remove them."

CIB/2619/2007: Severe mental illness and the effects of medication

The claimant had bi-polar disorder and was originally assessed as exempt from the pca test on grounds of severe mental illness. Following completion of an IB50 and an examination she was no longer considered exempt and failed the pca test. 

It was argued, using the guidance contained within incapacity benefit handbook for approved doctors that the fact that she was on certain anti-psychotic drugs was sufficient for her to be considered exempt from the test but the tribunal took into account the effect of the medication when making its decision. The commissioner upheld this approach, stating that the examples contained within the guidance are indicators as to whether someone has severe mental health problems. If the claimant's anti psychotic medicines control the claimant's condition, without ill effect, the tribunal is entitled to consider this.

"Whilst this guidance describes a general approach it is important for all Medical Advisers to remember that each case must be considered on the individual circumstances.

In general chronic schizophrenia and long established bipolar affective disorder should cause little difficulty when it comes to an Exemption. Exemption for finite periods may be advised in acute short term psychoses, including those related to drug abuse, as well as bipolar affective disorder in young adults, many of whom return to work in remission."

The commissioner still allowed the appeal because the tribunal had insufficiently considered whether the claimant came within the exceptional circumstances rules (suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of anyone if you were found capable of work).

This decision has now been reported as R(IB)1/08.

CIB/3542/2007: Disputes over contributions and credits

The correct approach is summarised in paragraph 7.

"(a) It is for the National Insurance Contributions Office of Her Majesty’s Revenue and Customs to decide any question about the contribution record of a claimant for incapacity benefit.

(b) Any challenge to that decision on either an issue of fact or a question of law goes to a tax tribunal, not a social security tribunal. If an appeal involving a question about a claimant’s contributions comes before a social security tribunal, then the social security tribunal must apply regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This requires it to adjourn the appeal and refer the matter to the Secretary of State for onward reference to Her Majesty’s Revenue and Customs for decision. The tribunal may decide the appeal only after a decision has been received from Her Majesty’s Revenue and Customs.

(c) It is for the Secretary of State for Work and Pensions to decide any question about the interpretation and application of the Social Security (Earnings Factor) Regulations 1979 to the individual contribution record of any claimant for incapacity benefit.

(d) If a claimant disputes the decision of the Secretary of State on any issue of fact or law arising under the 1979 Regulations, then that dispute is to be decided by a social security tribunal. This includes any dispute about calculating the earnings factor attributable to a claimant under those regulations. If necessary, it is the task of the tribunal itself to check any disputed calculations."

This decision has now been reported as R(IB)1/09.

CIB/4232/2007: Previous medical evidence

This decision follows CIB/3179/2000 concerning the requirement to examine the evidence of a claimant’s previous favourable assessment when considering the present case.

CIB/3179/2000 states that it was no longer necessary for a tribunal to compare its findings with a previous assessment to see whether a ground for review was established, but does not accept that assessments made two or three years previously were not relevant because they shed no light on the claimant’s capability at the date of the supersession decision.

“The potential relevance of the previous assessment in the present case is highlighted by the further submission to the tribunal that the decision maker has regarded the clinical findings and observations contained in the previous assessments but chose to give greater weight to the medical assessment of 30th May 2007 as it was a much more contemporaneous appraisal of the claimant’s abilities. I can see nothing in the papers before the tribunal which supports that submission....

Having regard to those various matters, I conclude that the tribunal failed to give adequate reasons for its decision and so erred in law. Accordingly, I set the decision aside."

The decision also criticises the use of standardised "mantra like" statements made by tribunals.

CIB/8/2008 [2009] UKUT 47 (AAC): Overpayment where claimant's spouse working

In this decision it was held that there was a breach of Article 6 of the European Convention of Human Rights because of the unreasonable time (5 years) it took for the appeal to be heard. However Judge Lane still found that the claimant had been overpaid £1792.86 because he failed to inform that his wife was working.

CIB/62/2008: Destruction of tribunal documents because of delay by the claimant - Procedures presumed correct

The claimant contacted the clerk to the tribunal over eight months after a refusal to set aside a decision to award a paper instead of an oral hearing. By this time the tribunal file had been destroyed, in line with legal procedures.

The commissioner decided that, as there was nothing improper about the destruction of the papers, there was a strong presumption that procedures had been properly followed when deciding the type of hearing. The papers were no longer available because of a delay by the claimant who would need to provide "strong alternative evidence in order to rebut that presumption".

Leave to appeal was refused because the appeal had no prospects of success.

CIB/516/2008: New medical opinion - ignorance of old decision

The tribunal erred because it was not informed of a previous IB credits award, won on appeal. As a result it was unable to consider all the evidence available.

"I do not call in question the well-established principle that it is not an error of law for a tribunal to fail to find a fact (even if true) for which there is no evidence before them. But the issue in the present appeal does not merely concern the tribunal’s failure to find as a fact that there had been a previous favourable personal capability assessment. Their ignorance of the previous personal capability assessment prevented them taking it into account, as they would have obliged to do had they known of it, in deciding whether the Secretary of State had discharged the burden of showing that an award of incapacity credits was no longer justified. In the result, the tribunal adopted the correct approach, but not to all of the legally relevant material."

CIB/1006/2008: Correct terminology for various medical professionals and inaccuracy of clock on electronic 85s

The tribunal erred in not looking at specific mental health descriptors when they were put in issue and failed to weigh all the evidence about those descriptors in coming to their conclusions.

The timing of an examination as stated on the electronic IB85 said that the examination and interview ended at 13:38.

The claimant gave evidence that it actually ended not later than 13:35, using evidence of a mobile phone bill (he phoned his mother after leaving the examination room). The commissioner saw this as evidence of other potential errors.

“I had understood that approved doctors cannot themselves alter the times set by the computers used to generate IB85 reports. If that is so, then the error must have been generated either by the software driving production of the IB85 report or by the operation of that computer itself.

On either ground, this error in the way the IB85 report was generated raises the question whether there are other errors in the report. And it is directly relevant to the weight to be put on the report as evidence. Both form grounds of appeal.

The report timings were specifically put in issue. They cannot be dismissed for any of the reasons stated by the tribunal. The tribunal should have made findings about them or adjourned for an oral hearing or further evidence…”

This commissioner was also a stickler for the proper terminology describing approved doctors and medical advisers.

“The tribunal’s statement of reasons repeatedly uses the wrong terms when describing those who gave the medical reports.

The doctors who complete IB85 forms are approved doctors (and, now, approved disability analysts). I assume that the tribunal is referring to them when referring to “medical advisers”.

There are no reports of medical advisers (those who give advice to decision makers on the papers) in the papers.

The tribunal also refers to EMP reports, but there are none in the papers. (Examining Medical Practitioners prepare reports for disability living allowance decisions).

I assume its reference in its reasons to “two reports by medical advisers” and “two reports by EMPs” are duplicative references to the two IB85 reports. That leaves the tribunal’s generalised comments about “medical advisers” being trained in assessing incapacity “based on information … on observation and on a clinical examination” looking out of place.”

So now we know. However note that CDLA/1588/2008 refers to DLA doctors as approved disability analysts, not EMPs. So now we don't know.

CIB/1361/2008: Descriptor 17(a) Mental stress as a factor in giving up work

Giving up an academic college course does not count as giving up work. The decision is more circumspect about vocational courses.

"I accept that there may well be some difficult borderline questions. For example, many college courses involve work placements (and a childcare course may be just such a course). I think it must ultimately be a question of fact as to whether a course with such a vocational element amounts to “work” for the purpose of regulation 17."

CIB/1381/2008: Exceptional circumstances - evidence that you need a major surgical operation/therapeutic procedure

Regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) states:

"there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the personal capability assessment."

Tribunals should not use hindsight when deciding this issue as the wording does not allow it. CIB/5978/1997 should not be followed as it refers to an earlier wording of this regulation.

The decision also criticises the guidance contained within the Incapacity Benefit Handbook for Approved Doctors (2004) on this part of regulation 27 and discusses what constitutes medical evidence.

“Whether there is medical evidence that it is required is also a question of fact, in the sense that the medical evidence must exist. No attempt has yet been made to deal with this point in this appeal. The opinion of an appropriate medical practitioner that the operation is required is sufficient to meet the test. The approved doctor may disagree as to the requirement but, for the reasons given by Collins J in Moule, his or her opinion is not decisive. He or she does not have to be satisfied personally that the operation is required. Nor does a decision maker. It is enough that an identified medical practitioner is satisfied.

Whether the operation is likely to occur within three months is a matter to be decided on informed opinion at the relevant time. The wording of the Handbook and the submissions still reflect the pre-1997 law and not the current test. The issue is to be decided without the benefit of hindsight. A practical approach will take account of the nature of the injury and operation and of NHS waiting list practices in the area. Questions a tribunal may consider include: Has the claimant been referred to a specialist for surgery by the general practitioner? Has the specialist seen the claimant about the operation? What are the plans? Are there relevant NHS targets? The fact that an operation is cancelled or delayed or that a specific date is not yet fixed does not prevent the test as currently worded from being satisfied where the actual operation takes place more than three months after the examination.”

Guidance has been issued in relation to this decision ( DMG 28/08) .

CIB/2177/2008 [2008] UKUT 39 (AAC): activity 11: hearing

The tribunal made two errors of law . Firstly it failed to follow R(IB)6/03 and enter a reason, in the record of proceedings, for refusing to adjourn the appeal.

Secondly, when considering the claimant's ability to hear it failed to distinguish between hearing achieved with a hearing or other aid and compensatory actions such as lip reading. Lip reading is not hearing.

CIB/2533/2008: Duty to notify where postponement refused

Two days before her oral hearing the claimant asked if it could be postponed because she felt ill. This was refused by a chairman (not the chairman of the tribunal) on the day of the tribunal. There was no indication that the claimant was told in writing or otherwise.

The claimant attended the hearing, accompanied by her sister. The papers suggest that the tribunal was aware of the decision not to postpone but there was nothing to indicate that this was notified to the claimant by the clerk or the tribunal or that the tribunal asked her about it.

This was an error of law.

“…the matter should have been raised by the tribunal with the appellant. This is because regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 requires both a request for a postponement made before a tribunal hearing, and the response to the request, to be notified in writing. It also requires that the matter be drawn to the attention of the tribunal by placing before it both the request and the notification of refusal. It is not enough that the decision not to postpone is placed before the tribunal if it has not been notified.”

CIB/3117/2008 [2009] UKUT 56 (AAC): failure to attend medical examination because it could not be taped

The claimant attended a medical but was not examined because the doctor would not allow him to make a single tape of the proceedings.

Medical Services guidance allows a medical to be taped but only if certain procedures are followed:

"Claimants may request that their interview and assessment by a Medical Services doctor in respect of a benefit claim be recorded either on audio or videotape.

Such a request can only be agreed with the prior consent of the HCP [health care professional, in this case an examining doctor], and then only if stringent safeguards are in place to ensure that the recording is complete, accurate, and that the facility is available for simultaneous copies to be made available to all parties present.

The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made.

The equipment must have facility for reproduction so that all parties can retain a copy of the tape.

The responsibility for meeting the cost of the above requirement rests with the claimant."

Judge Wikely found that the claimant had not failed to attend a medical without good cause and that the tribunal had erred in finding he had.

"19. There is no suggestion in the present case that the appellant's insistence on tape-recording the examination on his own terms, rather than the Department's terms, would render it 'useless for the purpose for which it is required.'

To that extent the tribunal was clearly wrong to find that 'The examination could not be conducted under [the appellant's] conditions'. It could have been so conducted. Rather, the issue was that the conditions that the appellant was seeking to impose were in conflict with the Departmental policy about tape-recording such examinations.

21. In addition, the tribunal in the present case made no findings as to the reasonableness or otherwise of the official policy about tape-recording medical examinations. It simply assumed that the Departmental policy was reasonable and that therefore the appellant had not shown good cause for refusing to submit to the medical examination.

The tribunal also failed to consider whether the appellant had been given an adequate opportunity to consider his options in the light of the stated policy. Although the Medical Examination Centre proforma reporting the incident has a box ticked to say that the appellant "refused" a new appointment, it is by no means clear that he was actually offered one and, if so, on what terms."

The decision that the tribunal should have made was that the Department should offer the appellant a fresh appointment and at the same time set out in writing the conditions they insist on for tape-recording a medical examination.

The decision also discusses the pros and cons of official policy on recording and suggests other remedies available (eg written notes kept by a third party).

CIB/3499/2008 [2009] UKUT 26 (AAC): Incapacity benefits activity 5: rising

This decision reaffirms that the test should be applied to the type of chair specified in the test - upright, with a back but no arms.

CIB/3586/2008 [2009] UKUT 30 (AAC): Appeals to upper tribunal

This decision covers appeals to the upper tribunal where a request for a statement of reasons was refused on the grounds that it was not made in time.

CIB/3598/2008 [2009] UKUT 36 (AAC) : Incapacity benefits exemptions

The claimant, who had agoraphobia, appealed against a decision that she was not exempt from the personal capability assessment under regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) (General) Regulations 1995. This regulation exempts those who have:

"a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person's mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment."

Judge Lane I considered that the tribunal erred in law by failing to give sufficient reasons for its decision that the appellant did not have a severe mental illness for the purposes of the regulation but then substituted a decision to the same effect.

"12.The question under regulation 10(2)(e)(viii) is not simply whether the appellant's agoraphobia is severe, but whether she has a severe mental illness involving mental disease which severely and adversely affects a person's mood or behaviour and which severely restricts her social functioning or his awareness of her immediate environment.' I find that the evidence does not support this, by reference to her daily activities, lack of indication of mental disease (as opposed to mental illness), lack of treatment by mental health professionals, lack of appropriate medication, lack of evidence that her mood or behaviour is severely affected other than going out of doors, or that her social functioning is severely affected.

13. I do not consider that a tribunal could have come to any other conclusion than that regulation 10(2)(e)(viii) was not satisfied."

CSIB/164/2008: Exceptional circumstances

The claimant was forced to give up his job at a school and argued that he satisfied the exceptional circumstances test contained within regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995.

This allows that a person who does not satisfy the personal capability assessment shall be treated as incapable of work if he suffers from specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work.

The Tribunal found that when the claimant could avoid working in his previous very stressful occupation, he was quite well, but, as noted by his GP, his medical symptoms would return if he were to return to his previous employment. Accordingly he did not satisfy the test of exceptional circumstances within regulation 27.

"The appellant may have worked with children since 1968. However, the issue under regulation 27(b) is whether he has established on a balance of probabilities that, once 196 days of incapacity have passed, (where the relevant test is the “own occupation” test, as set out in s.171B of the Social Security Contributions and Benefits Act 1992), there would be substantial risk to someone if he is expected to work in a job which is different from his former job but is otherwise suitable, having regard to his health, qualifications and experience..... Use of an initial “own occupation” test makes plain that, thereafter, the concept of work is much broader than a claimant’s previous employment and that this affects also the interpretation of that concept under regulation 27(b)."

The claimant failed to establish that regulation 27(b) applies to his circumstances.

CSIB/495/2008 [2008] UKUT 29 (AAC): mental health descriptor 18(a) - cannot look after himself without help from others

The claimant argued that her counselling and prescription of anti-depressants constituted "help from others" in relation to descriptor 18(a).

Judge Gamble found that the counselling and the repeat prescriptions enable her to maintain an acceptable level of self-care and therefore do not constitute direct assistance from another person. The counselling provided was also too remote to satisfy the descriptor.

"I reject the argument narrated in paragraph 8 above. Given that descriptor 18(a) is concerned with necessary self-care to obviate self-neglect, the "help from others" envisaged by it can, in my view, take two forms. Firstly, that help can be provided by physical attention to a claimant with e.g. feeding, washing or bathing or taking medication. Secondly, especially given that the descriptor relates to mental disability, it can also be provided by psychological prompting and/or encouragement to ensure that a claimant performs such tasks himself. I specifically hold that the assistance suggested by the claimant's representative to be within descriptor 18(a) is not such prompting and encouragement. More generally, it is too remote to be encompassed by the descriptor. It lacks the immediacy and intimacy which it envisages and requires."

In reaching this decision he considered CIB/5336/2002, CIB/4196/1997 and CIB/5336/2002.

Income support

CIS/213/2004 and CIS/241/2004: Property held in France

The decision discusses the relevance of English and French law in relation to putative and constructive trusts. Commissioner Turnbull held that the putative trust was more closely connected with the law of France than with the law of England . This case was taken to the Court of Appeal as Martin v Secretary of State for Work and Pensions [2009] EWCA Civ 1289 (27 November 2009) but was dismissed.

CIS/1132/2006 [2009] UKUT 43 (AAC): Intercalating student

The denial of income support to a pregnant intercalating student nurse during her pregnancy was not contrary to Article 14 of the European convention of Human Rights. This decision has been reported as R(IS) 7/09.

CIS/1481/2006: Witholding of fraud surveillance evidence

During a fraud investigation, video surveillance evidence of the claimant had been obtained which then led to taped interviews of the claimant by DWP officers. During one of the interviews, the claimant was told that her human rights were suspended.

Following a fraud investigation summaries of the contents of video surveillance evidence and a transcript of the fraud interview were used as the basis for disallowing a claimant's income support entitlement.

The claimant requested disclosure of the surveillance video and audio tapes of the interviews but this was refused. The claimant appealed and some notes on the findings of the surveillance were provided as part of the appeal papers but the video and audio tape evidence was not provided to either the claimant or the tribunal.

The commissioner upheld the claimant's appeal.

"These proceedings are legal proceedings. And they are proceedings to which the Human Rights Act applies without any exceptions. Further, they are proceedings in which the burden of proof is on the Secretary of State.

"None of the reasons given by the appeals officer or by the Communications Director present any basis whatsoever for the usurpation by them from the judicial authorities of an exclusive right, regardless of the wishes of the other side or of the role of the tribunal, to choose to discharge that burden of proof by selecting the evidence that the tribunal is offered and refusing to disclose any other evidence.

C, and any similarly placed appellant, is entitled to the disclosure of all evidence held by the other party that is relevant to the decision under appeal. If there is a problem, such as that of a pending criminal prosecution, then the tribunal must be informed of it and asked for directions. Anything else is a denial of justice."

Guidance has been issued (Memo DMG 34/08).

CIS/1934/2006: Whether a worker after an absence of two years

The claimant is an Italian national of Ethiopian origin. She had worker status until she returned to Ethiopia for two years. This was held to be too long a time to retain her status (see . However the claimant may have had a right of residence as a work seeker.

"..the difficulty in this case was caused by the Secretary of State’s failure to ask the right questions when the claimant made her claim or his failure to be represented at the hearing before the tribunal to challenge the claimant’s evidence.

The claimant had shown a willingness and ability to work in the past and having three-year-old twins does not prevent a person from working. The tribunal was obviously satisfied that she was genuine in her claim to be looking for work and there is no reason to suppose that, at least within a short period of returning to the United Kingdom, she could not have arranged child care so that she had a genuine chance of being employed again for more than 16 hours a week, which in my view would be sufficient to be “genuine and effective.”

Assuming she is a work seeker the claimant must also be habitually resident in the United Kingdom if he or she was to be entitled to income support.

“The claimant had clearly ceased to be habitually resident in the United Kingdom between March 2003 and April 2005 and I accept Mr Kolinsky’s submission that the claimant had to have been resident in the United Kingdom for an appreciable period after her return before she could again be said to be habitually resident here.

The Secretary of State appears to accept that, conventionally, such an appreciable period is between one month and three months (see R(IS)7/06) and I take the view, having regard to the fact that the claimant was returning to a country of which she was not a citizen but which she plainly intended to make her home in circumstances where her absence had always been intended to be temporary, that a period in the middle of those extremes would be sufficient. I find that she became habitually resident from 23 June 2005."

CIS/1390/2007: Housing costs - new loan to provide accommodation for male and female children aged 10

Paragraph 4(10) of Schedule 3 of the Income Support (General) Regulations 1987 (SI 1987/1967) allows a claimant to take out a new loan to provide accommodation for male and female children who are both aged 10. R(IS)5/01 requires that this be the sole reason for taking out such a loan, though there may also be other reasons.

The claimant failed to establish that the need for separate living space for the two sexes was her sole reason for the new loan. In addition, at the time of the decision, the girl in the household would not have been 10 for another 6 years, by which time the boy would have been classed as a young person, so it is arguable that paragraph 4(10) would not apply.

CIS/1502/2007 [2009] UKUT 38 (AAC): Temporary work and worker status

This decision discusses whether someone doing temporary work is classed as a worker rather than a work seeker. In this case the work was considered to be too marginal.

CIS/1599/2007: Fair hearing - Same chairman hearing entitlement appeal and overpayment appeal involving same issues

The case concerned a claimant who had a second home and who claimed that it belonged to his son. Summarised in paragraph 14.

“The claimant in this case was in one sense advantaged by having the same tribunal as previously, because it gave him the opportunity to plug the gaps in his case on the previous occasion, for example, by providing evidence that his son’s grandmother had paid his son the money with which to buy the house.

However, it is clear both from the record of proceedings and from what the claimant told me at the hearing before me that the chairman went further than was required by AMEC [AMEC Capital Projects Limited v Whitefriars City Estates Limited 2005]. He did not simply reconsider his earlier decision in the light of any new points or fresh evidence advanced by the claimant, but instead conducted a complete rehearing of the case and gave reasons for his decision which were based entirely on the evidence given at the second hearing.

There is no suggestion that the chairman behaved towards the claimant in a hostile manner, nor can I find any reason to believe that the chairman did not approach his task with a completely open mind. There is therefore nothing in my view which would lead a fair-minded and informed observer to doubt the chairman’s impartiality and objectivity, notwithstanding that he had decided the entitlement issues adversely to the claimant in the earlier appeal.”

This decision has now been reported as R(IS)1/09.

CIS/1773/2007: Right to reside - ECSMA states

This decision discusses right to reside in relation to those coming from an ECSMA state.

CIS/1854/2007: Right to reside

The case concerns a Portuguese national. He was a lone parent with two children, one of whom was severely autistic and needed constant care. He had previously lived and worked in this country before going abroad.

The decision considers various arguments on behalf of the claimant concerning right to reside (retained worker status, permanent right to reside and Baumbast and R v Secretary of State for the Home Department) but rejects them all.

CIS/2100/2007: European Union law - whether claimant dependent on son

The claimant is Somali in origin and has Dutch nationality. She first came to the United Kingdom in June 2001 and received benefit until she left in June 2003. She returned to the United Kingdom in January 2006 and claimed income support on 12 May 2006.

A decision-maker determined that the claimant did not have a right to reside in the United Kingdom but an appeal tribunal found that the claimant had a son who was a worker and went on the consider if the claimant had a derived right of residence. It decided that she had not.

In doing this it failed to make relevant findings concerning the dependency of the claimant to her son. The commissioner sifts in detail through the relevant case law and arrives at the following conclusions:

  • A person is only dependent who actually receives support from another.
  • There need be no right to that support and it is irrelevant that there are alternative sources of support available.
  • That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.

CIS/3101/2007, CIS/3102/2007, CIS/3103/2007 and CIS/3104/2007: Capital - foster payments

The case concerned a claimant who was a foster parent, who was paid both a fee for herself and a Boarding Out Allowance for the foster child(ren).

She did not spend all the money that she received from the local authority in the week to which it related. The result was that sums accumulated. She also received payments from relatives of the foster children to be used for their benefit in due course, which she put into a separate account.

It was argued that savings from the Boarding Out Allowance to meet future expenditure did not count as capital because the Allowance was held on trust for the claimant’s foster children and also that the unspent money belonged to the local authority.

The local authority took the view that it was legally difficult to claim title to any money once it was paid out, the normal course of action being to cease payment and seek to de-register the foster carer if there was an abuse of the payment system.

The commissioner did not accept that the Boarding Out Allowance was held in trust.

"My conclusion is that the Boarding Out Allowance was held as part of the claimant’s general pool of income and capital. That allowed her the flexibility to use the money as her needs and those of the children required without restricting the use of any particular portion to specific purposes."

Payments made by the local authority to the claimant as a foster carer are income when received, but are disregarded under paragraph 26 of Schedule 9 to the Income Support (General) Regulations 1987 and paragraph 27 of Schedule 7 to the Jobseeker's Allowance Regulations 1996.

The issue was whether these payments subsequently became part of the claimant’s capital for the purposes of IS/JSA and at what point.

There are two approaches. R(IS)3/03 states that income becomes capital at the end of the period in respect of which it was paid. CIS/515/2006 uses a "balance sheet approach" that allows for the transfer of sums of money which are not then counted as capital.

When deciding precedent the commissioner rejects the approach taken in R(IS)13/01...

“where there are two conflicting decisions of equal status and the earlier decision was fully considered in the later decision, the later decision should be followed unless the judge was convinced that the later decision was wrong …”

and follows Re Taylor (a bankrupt) [2007] which states that the correct approach now is for a judge...

“to make his decision on the merits of the submissions put before him, giving appropriate weight but no more to authorities which may be persuasive but which, by law, are not binding. The point is of particular importance where the issue of law is one of jurisdiction. … It is in the exercise of discretion, not rulings on “black-letter law” that consistency at first instance has a particular inherent value.”

The commissioner preferred the authority of R(IS)3/93 because:

  1. it is a reported decision, which shows that the majority of the Commissioners at the time considered that it was at least broadly correct.
  2. its reasoning is sound as given that a resource has to be either income or capital, it must become capital when it is no longer income.
  3. income support legislation failed to carry forward an express provision in supplementary benefit law that disregarded savings made out of income in order to meet personal living expenses and the expenses of the home.
  4. the approach in CIS/0515/2006 draws on the Commissioner’s experience in business and tax. In those contexts, it may be appropriate to identify capital on an annual basis but income support is a weekly benefit and a much shorter timescale is appropriate. The timescale fixed by R(IS) 3/93 is consistent with the allocation of income to a particular period.

The tribunal:

  • did not err in finding that there was no trust.
  • did not err in preferring R(IS)3/93.
  • erred in its findings on the claimant’s Nationwide account holding money which she said was paid to her by the relatives of children in her care for their benefit.
  • erred in its findings on advance payments made by the local authority to the carer.

This decision has now been reported as R(IS)9/08.

CIS/3486/2007: Use of computer records

The claimant failed to notify his loss of DLA middle rate care component. Hehad been previously advised via letter INF4 to inform the DWP of any change of benefits but stated that he did not remember getting this.

Proof that the INF4 was prepared for despatch was supplied via DWP computer printouts. The tribunal had no difficulty understanding them.

"12. It does not follow from that finding that this information that was uploaded onto the computer was necessarily correct. It is possible that for some reason the documents never were posted. It is also possible that for some reason they were posted but not received. However, the tribunal was entitled, once it was satisfied as to the meaning of the computer entries, to find that in the ordinary course of events they would have been posted and would have been delivered. If there was evidence, for example, that a particular office was in a chaotic state or that its computer records were unreliable, then a tribunal may conclude that the computer records did not establish that what was said to have been posted was in fact posted. So too, the tribunal would need to take into account evidence that the documents had not arrived at the supposed destination."

"13. In the present case, the evidence of the claimant was that he did not recall receiving the letters or INF4 leaflets, and that some of his post was misdelivered, but he accepted that he had received letters at some point from the income support office, and he was clearly receiving letters from the DLA office. Given his mental condition and all the evidence, which the tribunal took into account, it was entitled to conclude that on the balance of probabilities he had received the uprating letters and accompanying leaflets."

The commissioner also found that the claimant was under an obligation to disclose his loss of DLA.

This case is distinguishable from R(IS)2/96 which concerned an unintelligible computer record of a standard form leaflet being sent to the claimant.

CIS/3505/2007 [2009] UKUT 25 (AAC): Person from abroad - registration as a work seeker

The work focused interview does not constitute registration for work.

CIS/3611/2007: Childrens' capital

Reg 14 of the Social Security (Payment on account, overpayments and recovery) Regulations 1988 also applies to the capital of dependent children and young persons. This applies to income support claims made before April 2004, where support for children and young persons is not provided though child credit.

CIS/3891/2007 [2009] UKUT 17 (AAC): Right to reside - mental illness

The claimant suffers from schizophrenia and received treatment under the mental health act. This decision discusses whether he had a right to reside under Article 18 of the the EC treaty. Judge Jacobs concludes that he does not and sets out his conclusions on Article 18.

40. My conclusion is this. Article 18 of the EC Treaty confers a right to reside on all Union citizens. That is subject to limitations. Those limitations are not expressed in Directive 2004/38, but they are implicit within it.

I have identified some of the aims of those limitations. They show that, in part, they aim to restrict the duty on a host State to provide access to its social assistance system for those who are not and have not been part of the labour market of that State. They achieve this aim by limiting the Union citizen's right to reside, while leaving the citizen free to stay in the country, subject only to the limited powers of expulsion.

The Directive thereby reconciles freedom of movement with control over the social assistance budget through the denial of a right to reside. It creates a comprehensive code of conditions and limitations for those who are not economically active.

I can see no scope for arguing that there is a lacuna in that code either in the form of a general category of case to which the claimant belongs or in the particular circumstances of this individual case. In terms of the scope of EC law, his position is no different from anyone else who is unable for the time being to join the labour market on arriving in a host State. Nor are his circumstances marginal such that he satisfies the conditions for a right to reside in substance, if not in form.

41. The claimant has a legitimate interest to be protected. He is a vulnerable person who is entitled to the protection of the State. He has a legitimate expectation that he will be cared for and treated during his illness. That expectation has been fulfilled under the Mental Health Act 1983, regardless of the fact that he does not have a right to reside. However, that expectation operates outside the scope of EC law, just as other expectations that might be met under other domestic legislation, such as the National Assistance Act 1948.

CIS/3960/2007: European Union law - claimant caring for son

There were two arguments made by the claimant.

Firstly the claimant argued that she was involuntarily unemployed, and so retained her status of worker. The tribunal was right to reject this argument, but erred in relying on the normal meaning of ‘involuntary’, overlooking the case law that gives this word a particular meaning.

“In its normal meaning, what matters are the circumstances that cause a person to become unemployed. Under the case law, what matters is whether the claimant remains in contact with the labour market: see R(IS)12/98. In this case, the claimant withdrew from the labour market in order to care for her son. In those circumstances, her employment was voluntary.”

Secondly the claimant sought to use Baumbast and R v Secretary of State for the Home Department: to confer a right to reside to her as a parent of a child attending school. But the child was in a nursery which does not count as a school.

CIS/4022/2007: Adequacy of tribunals’ reasoning on issues of credibility

This decision 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.

The decision also discusses three procedural issues:

  • the absence of a presenting officer
  • the claimant's insistence on not hearing her partner's evidence
  • whether those giving evidence in this case should have been required to swear or affirm

CIS/4144/2007: European Union law - claimant's wrongly advised to claim income support

Summarised in the following paragraphs.

"Claimants regularly tell tribunals that they were advised by the Jobcentre to apply for income support rather than jobseeker's allowance because they are lone parents. That advice, if it is given, is to their detriment. What can the tribunal do in these circumstances? The answer depends on whether the claimant was entitled to a jobseeker's allowance at the time when the advice was given.

If the claimant was not receiving a jobseeker's allowance and was advised to claim income support, there may be a right to some compensation for bad advice. That is outside the tribunal’s jurisdiction and it can only draw it to the claimant’s attention. The tribunal has no power to treat the claim for income support as a claim for a jobseeker's allowance. In some cases, it is permissible to treat a claim for one benefit as a claim for another under regulation 9(1) of, and Schedule 1 to, the Social Security (Claims and Payments) Regulations 1987. However, claims for income support and jobseeker's allowance are not within those provisions.

If the claimant was receiving a jobseeker's allowance and was advised to claim income support instead, the claimant has the right to appeal against two decisions: (i) the decision terminating jobseeker's allowance; and (ii) the decision refusing income support. Given the time taken to decide the income support claim, it is likely that an appeal against decision (ii) will be made outside the one month allowed to appeal against decision (i) by regulation 31 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, it is possible to extend time under regulation 32. The tribunal should always consider whether: (a) the terms of the appeal against (ii) are capable of covering (i); and (b) whether time should be extended under regulation 32. These are issues for consideration at the rehearing."

CIS/4237/2007: Accession worker on maternity leave

Accession workers on maternity leave are still classed as workers for the purpose of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219).

CIS/4299/2007: European Union law - permanent residence

All periods of residence, including periods as a work seeker, prior to 2 October 2000 (the date when the Immigration (European Economic Area) Regulations 2000 came into force) count when seeking to establish permanent residence.

Note:This decision was taken to the Court of Appeal as Secretary of State for Work & Pensions v Lassal [2009] EWCA Civ 157 (10 March 2009).

Article 16 of EC Directive 2004/38 requires that a person should have resided 'legally' for a continuous period of five years. The Court of Appeal rejected the Secretary of State's contention that a continuous period of five years' residence in the UK which came to an end prior to 30 April 2006 - the UK implementation date for Directive 2004/38 – could not give rise to a right of permanent residence.

It then referred the following question on the correct interpretation of Article 16 to the European Court of Justice:

“Is Article 16(1) of Directive 2004/38 of the European Parliament and the Council of 29 April 2004 to be interpreted as entitling that EU citizen to a right of permanent residence by virtue of the fact that she had been legally resident, in accordance with earlier Community law instruments conferring rights of residence on workers, for a continuous period of five years which ended prior to 30 April 2006 (the date by which Member States had to transpose the Directive)?”

The opinion presented in Case C162/09 - Secretary of State for Work and Pensions v Taous Lassal was:

"108. On the basis of the foregoing considerations, I propose to the Court that it answer the question referred as follows:

Article 16 of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States …….. is to be interpreted as meaning that a Union citizen who resided legally for a continuous period of five years in a host Member State, before expiry of the period for transposition of the directive on 30 April 2006, has a right of permanent residence, in so far as she was not absent from that Member State for a period exceeding two consecutive years."

The DWP has now issued guidance (Memo DMG 03/11).

Following thise decision the Government has made changes to the right to reside rules under The Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547).

CIS/4304/2007: European Union law free movement

The claimant was a Dutch national, with three children, born in 1984, 1986 and 1992. The elder two children moved to the United Kingdom in 2004 and the claimant followed with her youngest child on 12 March 2005. She worked as an office cleaner, for two hours a day five days a week, for a period of two and a half months.

She then claimed and was awarded jobseeker's allowance. In September 2005, her youngest daughter enrolled at her local school. Jobseeker's allowance remained in payment until 8 January 2007. She then became ill and claimed income support on 12 January 2007. On 5 March 2007, the Secretary of State refused the claim on the ground that the claimant was a person from abroad whose applicable amount was nil.

The claimant argued that she had a right to reside as a family member of her eldest child (a daughter), who began a university course in September 2005 and who from 8 May 2006, worked full-time during the vacations and on Saturdays during term time. The eldest child’s hourly rate was £7.50 and she helped her mother financially as far as she was able to. The tribunal recorded that the work done was genuine and effective and not marginal and ancillary but erred because it failed to consider whether the claimant was dependent on her daughter.

The claimant also argued that she had a right to reside as a former worker with a child at school, relying on Baumbast and R v Secretary of State for the Home Department . The tribunal accepted this argument as an alternative basis for allowing the appeal but was wrong to treat the issue as depending on the time when the child installed herself in the United Kingdom.

The commissioner stated that there is also two issues related to Baumbast.

  • Firstly, whether Directive 2004/38 is exhaustive of the rights of residence or whether there is still scope for reasoning such as that in Baumbast.
  • Secondly whether Baumbast depends on the parents remaining self-sufficient or in work.

These issues have been referred to the European Court of Justice by the Court of Appeal in London Borough of Harrow v Ibrahim [2008]. If the outcome of the rehearing depends on Baumbast, the tribunal will have to decide whether to stay the case to await the outcome of Ibrahim.

The claimant also argued that she retained her worker status, because she was temporarily unable to work as a result of an illness or accident. The tribunal, having already allowed the appeal on other grounds, did not find it necessary to deal with argument but questioned whether the claimant could retain worker status on the ground of illness when she had been unemployed immediately before she became ill. The commissioner discussed this argument in relation to regulation 21AA of the Income Support (General) Regulations 1987. See also CIS/1951/2008.

CIS/4312/2007: Looking after a family member who is temporarily ill

The word “temporarily” does not exclude those with long term conditions such as, in this case, someone who has renal failure and needs dialysis.

"The focus of the wording of the regulation is not on the permanence of the condition which a person has. It is on the duration of the “illness”, or the way that the condition is manifested or the effect that it has at any one time. A person may have a permanent condition (such as heart disease) but not be ill except at particular times (such as during the weeks following a heart attack or during or following a severe attack of angina). Such an approach is consistent with that taken by the Commissioner in CIS/3890/2005…”

Once it has been established that the illness is temporary it is up to the Secretary of State to reconsider the matter periodically to decide whether there has been a change of circumstances, taking a broad view of the period under consideration.

CIS/43/2008: Carer of child not entitled to child benefit

On 19 November 2006, the claimant began to look after her granddaughter, who had failed to settle with her mother when the family moved home. The stress of her behaviour was worsening her mother’s depression. On 21 November 2006, the claimant claimed income support but was not awarded child benefit until 8 January 2007 (prior to this date the child’s mother was getting it) and the Secretary of State has accepted that the claimant then became entitled to income support.

However income should have been paid from 21 November 2006 under Paragraph 3 of Schedule 1B which allows a person who is looking after a child because the parent of that child is ill to be treated as responsible for a child.

This decision has been reported as R(IS)11/08.

CIS/88/2008: Backdated decision affects housing costs

As a result benefit was awarded from that date, but it did not include any amount in respect of interest payable on her mortgage as this was taken out whilst she was in receipt of income support.

The claimant appealed but this was dismissed by the tribunal. The commissioner held that the tribunal correctly interpreted the legislation and did not go wrong in law.

He suggested that as the claimant had been poorly advised by the officers at JobCentre Plus she may be entitled to compensation, though this is outside the jurisdiction of the appeal tribunal and of the Commissioner.

CIS/102/2008: Alternative accommodation more suited to the special needs of a disabled person

The decision considers in detail loans taken out "to acquire alternative accommodation more suited to the special needs of a disabled person". It follows CIS/14551/1996.

The claimant lived in London with her son until 2004. They moved to the North West in the same year to live with the claimant’s mother (the grandmother). In 2006 the claimant applied for a mortgage for just over £50,000 from a building society to help purchase a shared ownership property through a housing association.

The claimant has a child with Asperger’s Syndrome. The claimant’s mother also shares some of the caring responsibilities.

The tribunal’s decision erred for two reasons.

CIS/14551/1996 (at paragraph 12), states that “the fact that the new accommodation is more suited to the special needs of the disabled person need only be one of the reasons for the acquisition. It does not have to be the sole or predominant reason.”

The tribunal found that the reason for the purchase was not to acquire accommodation more suited to the disabled person’s needs but rather to facilitate the grandmother’s wish to sell the old property.

“The difficulty with this approach is the leap from the finding that the financial circumstances of the mother and the grandmother were a key factor in forcing the sale of the old property to the assumption that the mother’s purchase of the new property was not in part at least “to acquire alternative accommodation more suited to the special needs” of C. As Mr Commissioner Mesher noted, the latter motive does “not have to be the sole or predominant reason”.”

CIS/14551/1996 at paragraph 12, states that “the new accommodation only has to be more suited: there is no test of whether or not it was reasonable to acquire the new accommodation”.

The tribunal found that the unsuitability of the grandmother’s property “arose entirely from the way in which the accommodation was used” which in turn was down to the claimant’s selfishness in wanting to have her computer set up in a bedroom, which could have been used by her mother.

“The basis for the chairman’s finding of the mother’s selfishness is not entirely clear. In her evidence at the hearing the mother stated that she could not use the box room as she was a student and the room was not big enough to have both a bed and a computer set up in there. As she was studying on a college course, it is not immediately obvious that she could have the computer set up in the lounge, where there would doubtless be other distractions (e.g. television and conversation) when she was trying to study. The point does not appear to have been put to the claimant in those terms. Be that as it may, in my judgment the real problem is that the chairman was applying an overriding test of reasonableness to the determination of the paragraph 4(9) question, to the exclusion of the proper statutory question, which was whether the new property was “more suited” to C’s special needs, comparing the old and new accommodation.”

This decision has now been reported as R(IS)12/08.

CIS/184/2008: European Union law - registration as work seeker

Completion of the right to reside questionnaire in association with a claim for income support is not registration as a jobseeker.

CIS/185/2008: Right to reside

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

CIS/185/2008 states that a residence permit issued under regulation 15 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) confers a right of residence to someone until it is revoked although this does not mean that the permit could not be revoked by the Secretary of State for the Home Department upon the person ceasing to qualify for a permit.

The commissioner was also inclined to the view that a right of residence recognised by permit was also guaranteed by Council Directive 68/360/EEC and held that the claimant had a right of permanent residence under Article 18(1) of the EC Treaty.

This case was appealed to the Court of Appeal under the name Secretary of State for Work and Pensions v Dias. The appeal was heard on 1 July 2009 and the case was been referred to the European Court of Justice.

This was heard as Secretary of State for Work and Pensions v Maria Dias (ECJ Case C-325/09)

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

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

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

CIS/259/2008: Right to reside - ECSMA and ESC states

This decision discusses right to reside in relation to those coming from an ECSMA or ESC state.

CIS/352/2008: Right to reside - transitional protection

This decision discusses a situation where a wife separated from her husband but argued she had a right to reside because of transitional protection under regulation 6 Social Security (Habitual Residence) Amendment Regulations 2004.

CIS/359/2008 [2008] UKUT 25 (AAC): Refusal to revise a decision

The decision of an appeal tribunal was set aside because it had no jurisdiction to hear an appeal concerning a refusal to revise a decision made by a decision maker.

CIS/488/2008: Housing costs

“In the end, I have concluded that the tribunal ought not to have dealt with this case as a paper hearing, but ought to have made its own enquiries, so far as the claimant could assist, into the nature of the problems with the structure and state of repair of the building, so as to determine whether the work included the repair of any unsafe structural defects undertaken with a view to maintaining the fitness of the dwelling or the building or any part of the building for human habitation. The claimant lived in the block and was in a position where she could be expected to have some information as to the state of the cladding and the need to replace doors and windows, even if that information was relatively limited.”

The decision consider Kerr Vs Department for Social Development, R vs Stoke-on- Trent ex p Highgate project and R(IS)2/07.

CIS/492/2008: Mortgage loan taken out between claims

The claimant took out a loan to buy the 60% beneficial interest in his house. Paragraph 4 of Schedule 3 of the Income Support (General) Regulations 1987 (SI 1987/1967) allows housing costs to be paid on loans that are incurred when a claimant is no longer on income support providing a subsequent IS claim is not made within 26 weeks.

The claimant's loan was found to have been incurred whilst he was no longer on income support but as his subsequent claim for IS was within 26 weeks of the previous claim it was not eligible for housing costs.

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

CIS/498/2008: Overpayments and the diminishing capital rule

When considering the amount of an overpayment tribunals should take into account the diminishing capital rule. This case concerned a claimant who failed to disclose capital belonging to her son. CIS/3611/2007 states that the diminishing capital rule also applies to children's savings.

CIS/546/2008: Recovery of overpayments and offset of benefits

This decision discusses the offset of overpayments under regulation 13 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (SI 1988/664).

In this case the claimant was a lone parent, on income support, who failed to declare that her partner had moved in with her. The tribunal should have offset the amount of additional income support, that would have been payable if the claimant made the correct claim as part of a couple, from the overpayment incurred for failure to declare.

CIS/601/2008 [2009] UKUT 35 (AAC): Right to reside

This decision discusses in detail the European and domestic law regarding this issue. The claimant had three periods of employment and two periods on jobseeker's allowance before claiming income support. The appeal was successful and the case referred back to the tribunal.

CIS/608/2008: Right to reside

This decision considers whether the claimant's husband retained his status as a worker when he gave up his job in anticipation of leaving the country.

CIS/612/2008: European Union law - durable relationships

The claimant argued that he was in a durable relationship but the tribunal did not agree. The commissioner held that a durable relationship:

  • was an EC concept
  • the term durability was "ambiguous as to the time frame by reference to which it must be determined and relates to the relationship rather than the partnership"
  • requires that the claimant has leave to remain in the UK

The commissioner held that the tribunal was entitled to find that the relationship was not durable and that it was not disproportionate for the tribunal to not take into account any circumstances not obtaining at the time of the decision (section 12(8)(b) of the Social Security Act 1998).

CIS/731/2008: Author's income - Public Lending Right

Income from the Public Lending Right (PLR) is to be treated as self employed earnings. Note that this decision predates changes in the law, affecting PLR payments, which came into effect from 7 April 2008.

CIS/865/2008: European Union law - accession states

The claimant is Latvian and subject to the Accession (Immigration and Worker Registration) Regulations 2004, which provides that only work undertaken for an authorised employer for an uninterrupted period of 12 months can confer worker status.

The claimant produced some evidence of registration, but not sufficient details to show whether she satisfies the conditions to be a worker.

The decision also discusses the relevance of the Trojani case - Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) (Case C-456/02), [2004] ECR I-7573.

CIS/868/2008: Work seeker not classed as a worker by doing voluntary work

The claimant, originally from Somalia, was claiming jobseeker's allowance, which he was allowed to do as a work seeker. When he claimed income support this was refused because he did not have the right to reside and was not considered a worker.

The claimant had done some voluntary work but this was "outside the “economic” form of activity for remuneration with which the category of worker for the purposes of European Community Law and Article 39 of the EC Treaty is concerned".

CIS/1039/2008: Person from abroad - retained worker status and previous part time work

The appeal was referred to a new tribunal. The claimant is required to furnish full details of work done to establish that it "represents the pursuit of an effective and genuine economic activity" as opposed to being "on such a small scale as to be purely marginal and ancillary".

CIS/1042/2008: European Union law - maternity and self employment

The Accession (Immigration and Worker Registration) Regulations 2004 do not apply to the self-employed. The claimant is a citizen of the Slovak republic, who worked as a fitness instructor on a self-employed basis until three weeks before the birth of her child.

Her claim for income support was wrongly refused on the ground that the she did not have a right to reside as she had not registered her work under these regulations.

As she intended to resume her self-employment after her maternity period, she remained a self-employed person under regulation 21AA(4)(b) of the Income Support (General) Regulations 1987.

CIS/1107/2008: Backdating - incorrectly issued visa

The claimant, a man who had Somali nationality, applied to the British Embassy in Addis Ababa for entry clearance to come to the United Kingdom to join his wife. The Embassy issued him with a visa valid for two years, which wrongly placed a restriction on having recourse to public funds. It should have allowed him indefinite leave to remain as on the basis of family reunion, with no restriction on recourse to public funds.

The claimant entered the UK on 25th September 2006 and sought legal advice from the Trafford Law Centre, which gave the opinion, in writing, that an incorrect visa had been issued and that it would take this up with the Home Office and the Embassy, but the letter said nothing about entitlement to benefit. A correct visa was not issued until 1st February 2007. The Law Centre informed the claimant of this in a letter of 5th February 2007.

The claimant was incapable of work and on 8th February 2007 he made a claim for income support, asking that it be backdated to the date of his entry into the United Kingdom. On 11th March 2007 the Secretary of State refused to backdate the claim with no apparent consideration being given to the specific circumstances.

The commissioner allowed the backdated claim.

Regulation 19(4) of the Social Security (Claims and Payments) Regulations 1987 allows up to a maximum extension of three months, to the date on which the claim is made, where any of the circumstances specified in paragraph (5) applies or has applied to the claimant; and as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

Regulation 19(5)(e) states situations where

“the claimant was given written advice by a solicitor or other professional adviser, a medical practitioner, a local authority or a person working for a Citizens Advice Bureau or similar advice agency, which led the claimant to believe that a claim for benefit would not succeed”

The commissioner held that in this case regulation 19(5)(e) included the British Embassy in Addis Ababa and so regulation 19(4) was satisfied and the claim could be backdated.

“It seems to me that this list is wide enough to include the officials in the visa section of the British Embassy in Addis Ababa, who are professionals and give advice to applicants as well as processing decisions. The visa documentation included a written restriction on recourse to public funds. This would lead any claimant to believe that a claim for benefit would not succeed and amounts to advice that such a claim would not succeed.”

CIS/1215/2008: Injury benefit paid as part of a NHS pension is not a personal injury payment or disregarded compensation

The personal injury payment was made to a retired dental surgeon who claimed it was a payment that was paid to him under Schedule 9 Paragraph 15(5A)(c) of the Income Support (General) Regulations 1987 (SI 1987/1967). These are payments from a trust whose payments are made in consequence of any personal injury to the claimant .

The commissioner rejected this argument as the payments were contractually made by the NHS, from an NHS fund rather than a trust whose payments are made in consequence of any personal injury.

CIS/1733/2008: Capital Valuation

This case was concerned with both the calculation of the deceased claimant's National Savings Certificates and whether she had knowledge of them (they were found in a bag in her wardrobe).

The commissioner refused leave to appeal as the arguments raised had no prospects of success.

CIS/2054/2008 and CIS/2946/2008 [2009] UKUT 44 (AAC): Residence and presence conditions

This decision considers whether a residence permit issued before 30 April 2006 confers a right of residence from that date (it doesn't) and whether a registration certificate issued has the same effect as a residence permit (it doesn't).

CIS/2074/2008, CIS/2466/2008 and CH/2463/2008 [2008] UKUT 8 (AAC): Living together as husband and wife - consideration of sexual relationship

In R(G)3/1971 established three tests when determining whether a couple were living together as husband and wife. These were:

1. their relationship in relation to sex
2. their relationship in relation to money
3. their general relationship.

Although all three are as a rule relevant, no single one of them is necessarily conclusive.

In this case the tribunal erred in law in either failing to consider the couple's sexual relationship or in failing to apply the three tests in R(G)3/1971.

CIS/2095/2008: Failure to disclose

This case concerns a lone parent who became a student and correctly informed the DWP of her change of circumstances. She was then later told that she had been overpaid IS for failing to disclose. She wins the case at commissioner level with the help of a team of solicitors.

CIS/2258/2008: Permanent residence and absences abroad

An EC citizen can acquire the right of permanent residence after having continuously resided in the UK for five years under article 16 of Directive 2004/38/EC. Continuity is unaffected by temporary absences abroad but these absences do not count when assessing the amount of time someone has resided in the UK.

For example someone who had resided in the UK for five years but spent six months of that time abroad would still need to reside in the UK for another six months to satisfy the five year rule.

CIS/2287/2008: Diminishing capital

The claimant had received income support from February 2003 to September 2007. He was found to have failed to declare capital and as a result there was an overpayment of £19,364.48.

He reclaimed IS in December, declaring £750 in savings, but this claim was refused on the ground that he had previously had a large amount of capital and had not explained how this had reduced.

The claimant appealed. The tribunal disallowed the appeal. The commissioner upheld the decision of the tribunal and stated the following:

  • the decision of the Court of Appeal in Leeves v Chief Adjudication Officer, reported as R(IS)5/99, applies to the classification of an asset as capital;
  • there is no formal diminishing rule for actual capital, but a similar result can be attained using inferences in the fact finding process; and
  • regulation 14 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 reduces the amount of an overpayment that is recoverable. It does not affect the fact of the amount of capital that the claimant retains for the purposes of a later claim.

CIS/2457/2008 [2008] UKUT 28 (AAC): Personal allowances for children

The claimant ceased to have entitlement to child benefit but the decision of the tribunal was in error because it had insufficient information about when payment of child benefit ceased.

CIS/2635/2008 [2008] UKUT 5 (AAC): Grant of indefinite leave to remain

A decision to allow indefinite leave to remain operates from the date it is granted, not the date it is first applied for. In this case the claimant was refused benefit because she applied for indefinite leave to remain in January 2006, then claimed IS in February 2007, but was only granted leave in April 2008.

CIS/2833/2008 [2009] UKUT 2 (AAC): Claimant ceases to be in receipt of carer's allowance

In this case the claimant, who was caring for his wife, failed to notify this change of circumstances, which took place on 2 September 2005, until 10 October 2007. As a result a sum equal to that for carers allowance continued to be deducted from his income support during this time.

The DWP amended his award from 10 October 2007. He appealed to get his IS backdated to 2 September 2005. The tribunal allowed his appeal relying on regulations 7(2)(bc) and (bd) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

These state:

"(bc) subject to paragraph (bd), where the decision is advantageous to the claimant and is made in connection with the cessation of payment of a carer's allowance, the day after the last day for which that allowance was paid;

(bd) sub-paragraph (bc) shall only apply to the disabled person whose benefit is affected by the cessation of payment of carer's allowance."

The tribunal erred in its reasoning by stating that the "the disabled person" referred to in paragraph regulation 7(2)(bd) could be the claimant's wife. It can only be the claimant. Regulations 7(2)(bc) and (bd) do not exist to aid someone who's carer's allowance has ceased but rather to aid the person being cared for to obtain severe disability premium when payment of carer's allowance ceases.

CIS/3308/2008 [2009] UKUT 22 (AAC): Capital given to daughter

This decision discusses the claimant's intention in transferring a sum of money to his daughter. It suggest five options for a new tribunal to consider:

  1. If the appellant loaned money to his daughter, he would obtain in its place a "chose in action", which is a legal right to sue on the debt. The value of the chose would be based on what it would be worth if sold to a third party. A third party would not pay full value for a loan which he or she might be unable to recover in full.
  2. If the appellant loaned the money with no expectation of getting it back, he would, in effect, have reduced the value of the chose to £nil. The question of notional capital and deprivation of capital would then become relevant.
  3. If the appellant gave the money to his daughter outright the tribunal would have to decide whether this was a deprivation of capital for the purposes of regulation 51 of the Income Support (General) Regulations 1987.
  4. Whether his daughter could be a bare trustee holding the money for her father absolutely.
  5. Whether the whole transaction was simply a sham.

CIS/3529/2008 [2009] UKUT 52 (AAC): Duty to disclose and decision of pca exemption without medical panel member

The claimant appealed against a decision that she had failed to disclose that her child no longer lived with her in 2003, creating an overpayment of £11,000.33.

It was accepted that she had phoned the DWP in 2003, had been informed that the computers were down and that someone would contact her (which did not happen). The tribunal found that she had not discharged her continuing duty to notify a material change in circumstances although she had telephoned the original notification.

In deciding this the tribunal were wrong. The continuing duty to notify only applies where a claimant had made a notification to a different office than the one dealing with the benefit in circumstances where it is reasonable to expect this information to be passed on.

In this case the claimant had informed the right office and so there was no further duty to inform. As a result the overpayment was not recoverable.

The claimant also argued that she had continuing entitlement to income support on grounds of incapacity. She had a history of alcoholism (which was why her child was removed from the household).

Judge Wikely considered ways in which incapacity could be determined. The original tribunal consisted of a single member, which would be improperly constituted to decide personal capability assessment or exceptional circumstances decisions. In such cases an appeal would have to be referred to a new two person tribunal.

Regulation 10 decisions (exemptions) can be heard by the original one person tribunal. Equally, in such a case the upper tribunal judge could substitute his own decision, which is what he did.

He decided that the claimant satisfied regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) General Regulations 1995 (SI 1995/311) - severe mental illness. The claimant was therefore still entitled to income support on grounds of incapacity for work.

Industrial injuries disablement benefit

CI/732/2007: Declaration of accident - vaccinations

A tribunal decided that the claimant's hepatitis B vaccinations, given in the course of her work were not to be considered industrial accidents. It noted that if it could be established on the balance of probabilities that they caused or exacerbated the claimant's health problems, they could be considered as industrial accidents.

Section 29(4) Social Security Act 1998 applies only to declarations that an accident was or was not an industrial accident. It does not apply to decisions that a declaration is not to be made.

If in the future the claimant were able to come forward with better scientific or medical evidence of a possible connection between Hepatitis B vaccinations and her particular medical conditions, she would not be excluded from being able to claim industrial injuries disablement benefit because of a decision that she had not suffered any industrial accidents.

CI/1654/2008: Industrial accidents arising in the course of and out of employment

The claimant applied for a declaration of an industrial accident under section 29(2) of the Social Security Act 1998. She had an accident in a hotel whilst taking a shower in preparation for a training session.

The tribunal decision was set aside because the panel was wrongly constituted (the medical member should not have sat where the decision concerned the declaration of an industrial accident) but the commissioner substituted his own that the claimant was not entitled to a declaration of an industrial accident.

It was required that the accident arose in the course of and out of the claimant’s employment. The commissioner decided that the injury arose by accident in the course of her employment as she was required to be at a hotel in order to carry out the training session and was preparing herself to be presentable at that session.

However, he did not accept that the accident arose out of the claimant’s employment. The claimant’s employment did not expose her to any hazard that was additional to, or exceptional when compared with, the risk that anyone else would run who was taking a shower or using a hotel bathroom.

CI/1961/2008: Industrial disease A12 (carpel tunnel syndrome)

The tribunal failed to adequately explain why the claimant's work failed to meet the test.

CI/2428/2008 [2008] UKUT 35 (AAC): C23 (primary neoplasm of the epithelial lining of the urinary tract)

The Secretary of State appealed against the tribunal decision in favour of the claimant on the grounds that the tribunal had failed to explain why it rejected the evidence of the Government chemist. Judge Williams considered the letter supplied by the chemist to be of limited value as evidence. The Secretary of State subsequently conceded that the decision was not made in error.

"11. The grounds of appeal for the Secretary of State against that decision questioned the adequacy of the tribunal decision. The core of the grounds of appeal, cutting out the legal reasoning, was that the tribunal had not explained why it had not agreed with the Government Chemist. I granted permission to appeal to consider the nature of the prescription for this disease and the relevance of the terms of the evidence of the Government Chemist. I drew attention to the report of the Industrial Injuries Advisory Committee report leading to the current prescription of C23. As the appellant was not represented, I drew attention to other published evidence about this disease and its links to the relevant chemicals and activities published by the United Kingdom National Institute of Health and the US Department of Labor.

12. I am pleased to say that I have now received a submission for the Secretary of State to the effect that while the Secretary of State maintains that the submission that the decision of the tribunal was inadequate, the Secretary of State now concedes that the conclusion the tribunal reached was one that it was entitled to reach on all the evidence and so should stand. As the Secretary of State no longer maintains that the decision is in error, I do not need to explore the tribunal's reasoning further or decide if it was inadequate."

CI/2897/2008 [2008] UKUT 12 (AAC): Industrial diseases A12 (carpel tunnel syndrome)

For prescribed disease A12 (carpal tunnel syndrome) paragraph (b) of the prescription in the Schedule to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 requires that the claimant has repeated palmar flexion and dorsiflexion of the wrist for at least 20 hours per week for a period or periods amounting in aggregate to at least 12 months in the 24 months prior to the onset of symptoms, where "repeated" means once or more often in every 30 seconds.'

The tribunal rejected the claimant's appeal because it found that a particular degree of flexion was required to satisfy the prescription in paragraph (b).

Judge Jacobs disagreed but stated that such evidence might be relevant to other questions that arise on a claim in respect of this disease.

"It is possible that the degree of movement involved in the claimant's employment is relevant to other questions. It may be relevant, as part of the occupational history, to the medical condition question. It may also be relevant to the causation question. But it is not relevant to the prescription question."

This decision has been reported as R(I)1/09.

CI/3482/2008 [2009] UKUT 41 (AAC): Prescribed disease A11 - sensory and manipulative loss

From 1 October 2007, two alternative diagnostic tests were created for prescribed disease A11. the first was a rewording of the old episodic blanching condition, and the second a new condition of sensory and manipulative loss, with numbness or tingling.

The appeal tribunal misdirected itself by holding that the only diagnosis question relevant for it to consider on this claim for disablement benefit made on 22 October 2007 for prescribed industrial disease A11 was that of episodic blanching, and not the recently introduced alternative condition of sensorineural loss.

CI/190/2009 [2009] UKUT 59 (AAC): Appeal regarding the declaration of accident

This appeal succeeded because the tribunal making the decision was wrongly constituted.

"Where the application is for an accident declaration alone, the proper constitution of the tribunal comprises a legally qualified chairman alone, under regulation 36(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

"This is a point often overlooked by tribunals, and this particular tribunal was comprised of both a first tier judge and a medical member who, as it happens, played a full part in the hearing. The tribunal was improperly constituted and their decision cannot stand."

CSI/541/2008 [2009] UKUT 39 (AAC): Industrial diseases A11 (vibration white finger)

The tribunal failed to indicate whether the blanching criteria was considered under the transitional rules, as was appropriate in this case.

Jobseeker's allowance

CJSA/1439/2008 [2009] UKUT 16 (AAC): Right to reside

This decision discusses worker status in relation to a claimant who had a contract of employment but was on sick leave and subsequently resigned because she was unfit to continue her duties.

CJSA/1556/2007 [2008] UKUT 21 (AAC): Living expenses allowed under a restraint order

The claimant had a restraint order preventing him from accessing his capital. Under the terms of the order he was allowed to withdraw sums of up to £250 a week. This was treated as income and the claimant's JSA disallowed.

Judge Turnbull held that the £250 was not to be treated as income and that although the claimant was a beneficial owner of his capital the market value of his frozen asset was probably nil.

Based on this decision, paragraphs 29335 and 29337 of the Decision Maker's Guide are incorrect.

CJSA/3513/2007: Death of tribunal chair

This decision outlines the procedure to follow, where someone wishes to appeal to a commissioner and the tribunal chair dies before a statement of reasons is issued.

CJSA/3583/2007 [2008] UKUT 4 (AAC): Misrepresentation - Badly drafted claim form

The claimant is a citizen of Mexico and was given limited leave to remain on the condition that he have no recourse to public funds. He was employed as a care assistant from 2002 to 2005. For some time he received funds from Mexico but in August 2005 the receipt of funds was disrupted because of the effects of a hurricane in his home area in Mexico . The disruption lasted for less than 6 weeks.

On 1st September 2005 he claimed JSA as from 15th August 2005. The claim form did not ask specific questions about his immigration status except to ask whether he had come to live in the United Kingdom within the previous two years and whether he was an asylum seeker. He marked the reply boxes "no" to both of these questions. On page 41 of the form there is a heading "Other information", under which there is a statement "Please use this space to tell us anything else you think we might need to know". The claimant made no statement in the space provided.

He was awarded JSA, which was revised when his immigration status was known. The Secretary of State sought recovery of benefit on the grounds of misrepresentation, arguing that the claimant should have entered his status in the "Other information" section. However Judge Levinson upheld the claimant's appeal.

"17. There are circumstances in which a failure to reply can amount to a misrepresentation, but these would generally involve a failure to reply to a specific question. I simply do not see how a failure to comment on a statement such as "Please use this space to tell us anything else you think we might need to know" can amount to a misrepresentation.

18. It is well established than in a recoverability case the burden of proof is on those seeking the recoverability decision, in this case the Secretary of State. Here the Secretary of State has failed to ask appropriate questions on the JSA claim form, has speculated on Home Office procedures without seeking evidence of how they were applied in the present case, and throughout this case been either careless or lazy in presenting the case."

CJSA/4053/2007 [2008] UKUT 40 (AAC): Self employed earnings/remunerative work

This decision sets out a number of steps to consider when someone is self employed and engaged in remunerative work:

  • whether or not he or she is still "employed" as a self-employed earner or, in other words, whether or not he or she is still trading
  • whether, in the particular week(s) in issue, the claimant is "engaged in remunerative work (works for at least 16 hours per week) or part-time employment".
  • where the claimant works is in remunerative employment, whether earnings are to be taken into account

This decision has been reported as R(JSA)1/09.

CJSA/968/2008: European Union law - accession states

This decision concerns the calculation of the 12 month period.

CJSA/1965/2008 [2009] UKUT 9 (AAC): Students resitting exams

A student who resat his exams but who was not expected to attend college was still a student for the purposes of regulation 15 of the Jobseeker's Allowance regulations. Judge Jacobs did not consider this to be discrimination under Article 14 of and Article 1 of Protocol 1 to the European Convention of Human Rights.

The claimant's course was for three years of full-time study, with an expected date of completion in 2009. He failed to pass his first year examinations and was allowed to resit them in August 2007. He again failed to satisfy his examiners and was allowed to retake the year in 2008. The result was to extend the period of his course by one year, so that it now had an expected date of completion in 2010.

"the issue in this case is whether a student resitting a year who is not required to attend college should be treated differently from a student is required to be in attendance. This is the point made by the claimant. It has not been overlooked by the Government, as the wording of the jobseeker's allowance legislation shows. The Government has taken the policy decision that the person remains a student and that studying for the resitting of examinations should be supported, if at all, from the education budget. That was a legitimate choice in human rights law."

Pension credit

CPC/204/2006: Service charges

This decision discusses how an award of state pension credit or income support which is based on estimated service charges should be adjusted when the actual amount of service charges for which a claimant is liable is finally determined. It also discusses the time within which an application for such an adjustment must be made. This decision has now been reported as R(PC)2/08.

CPC/1072/2006: Right to reside

This decision looks at the right to reside rules in relation to Article 3 Regulation (EEC) 1408/71. For more information see the Supreme Court decision summary patmalniece (fc) (appellant) v secretary of state for work and pensions.

CPC/3396/2006: Backdated credit for asylum seekers

Section 123 of the Immigration and Asylum Act 1999 provided for regulations to be made which allowed means tested benefits to be paid retrospectively to asylum seekers who were found to be refugees. Such regulations were made in relation to income support, housing and council tax benefit, child benefit and tax credits.

No regulations were made under section 123 in relation to state pension credit, which from 6 October 2003 replaced income support as the means tested benefit of last resort for persons aged 60 and over.

The question in this appeal is whether, notwithstanding the absence of any such regulations relating to state pension credit, Article 14 of the European Convention on Human Rights, when read with Article 1 of Protocol 1 (A1 P1) of the Convention, entitled the claimant as a successful asylum seeker aged over 60 to have her award of state pension credit backdated to the date when she made her claim for asylum.

The commissioner concludes that there is no effective remedy to give the claimant even if he were to decide that the lack of any state pension credit provision corresponding to regulation 21ZB of the Income Support (General) Regulations 1987 was in breach of Article 14, read with A1 P1.

Although the power existed to make provision for backdated awards of state pension credit for refugees, it was never exercised, and to interpret section 123 of the 1999 Act as if the power had been exercised would be “an improper incursion across the boundary between interpretation and legislation”.

This decision has now been reported as R(PC)1/08.

CPC/1370/2007: Income as capital

The claimant was found to have failed to disclose capital. But in calculating the overpayment the decision maker wrongly counted payments of retirement pension (£419.72) as capital.

"If the payment of £419.72 to the claimant on 3 October 2003 were to be treated both as giving rise to a weekly income of £104.93 as at 6 October 2003 and as in full a part of her capital, that would give rise to a real double-counting. It also seems to me that it would be odd, to say the least, for particular forms of income not to count or to be disregarded as income, only for the amount of any payment to count as capital immediately on its receipt. Such effects should only be allowed if clear legislative words leave no alternative. The legislative words here fail that test by a long way."

This decision has now been reported as R(PC)3/08.

CPC/1872/2007: Residence and presence conditions - maintenance undertaking

The claimant applied for leave to remain as a sponsored immigrant but this was turned down because she had supported herself financially and lived with her husband in China and at the time of her application her husband was still alive. Following representations from the daughter's MP the claimant was given indefinite leave to remain.

The claimant subsequently claimed pension credit, which was awarded, but then removed on the grounds that she was a sponsored immigrant. The claimant argued that, although she had applied as a sponsored immigrant, she had in fact been given indefinite leave to remain.

The commissioner held that if it could be established that indefinite leave to remain had been granted on the assumption of sponsorship then the claimant would be subject to immigration control and unable to receive pension credit.

“it was open to the decision maker to find that leave to remain was given to the claimant as a result of the maintenance undertaking given by her daughter in connection with her application under Immigration Rule 317, provided that the evidence established the necessary causal connection between the giving of the undertaking and the grant of leave to remain.”

In this case it was decided that the DWP had not “played their part” in the investigative process, so, in the absence of causal evidence the claimant was not a person subject to immigration control.

This decision has now been reported as R(PC)1/09.

CPC/2134/2007: European Union law - residence before accession

The claimant is Lithuanian. Lithuania joined the EU on 1 May 2004. The claimant arrived in the United Kingdom on 28 January 2000. The commissioner held that although she was present in the United Kingdom for more than five years at the date of the claim, she does not have a permanent right of residence.

“That right is conferred by EC law and neither the claimant nor her daughter has exercised any EC right since Lithuania acceded to the EU. They came here before then and not in the exercise of any EC right. And since then they have not exercised an EC right.”

Residence before accession cannot be taken into account (see CIS/1794/2007, paragraph 25).

The commissioner also discussed whether the claimant was dependent on her daughter (who was working) but concluded that she is not financially dependent on her and the evidence did not show any other significant material reliance, apart from eating meals together.

The commissioner also held that the daughter was not an EC worker as she came to the UK in the exercise of other rights and has taken up work here outside the context of EC law.

CPC/3373/2007: Offset of self employed loss against other income

The claimant was 74 years old and worked as a self-employed writer, publisher and photographer. However, that self-employment had generated a loss in recent years.

The claimant maintained that he was entitled to offset the loss from his self-employment against his other sources of income with the result that his income would be below the appropriate minimum guarantee with the consequence that there would be some entitlement to the guarantee credit.

He first used this argument at a tribunal on 10 November 2004 (Tribunal 1). Tribunal 1 found in his favour. The Secretary of State did not agree with that decision but, failed to appeal against the decision within the prescribed time.

When the claimant submitted his accounts for the year ending 31 March 2006 these showed that his net loss from self-employment had increased in comparison with the previous year. The Secretary of State took the view that this provided him with grounds upon which to supersede Tribunal 1’s decision. The superseding decision was that the claimant was not entitled to pension credit (SPC) from 27 March 2006.

The Secretary of State’s decision was upheld by a second tribunal on 13 March 2007 (Tribunal 2). Tribunal 2 accepted that there were grounds upon which to supersede Tribunal 1’s decision and also disagreed with Tribunal 1 on the issue of whether the claimant’s losses from self-employment could lawfully be offset against his other income when calculating his entitlement to SPC.

The claimant appealed to the Commissioner. The commissioner agreed that law does not allow the claimant to offset the loss from his self-employment against his other sources of income but his appeal was still allowed. Tribunal 1 was wrong in law but:

  1. the Secretary of State failed to appeal this decision.
  2. the Secretary of State has no powers to revise the decision of a tribunal.
  3. the Secretary of State cannot supersede a tribunal’s decision on grounds of error of law.
  4. the Secretary of State could supersede a decision based on a relevant change of circumstances but the commissioner did not accept that the change was relevant.

“…the change of circumstances was not relevant. Indeed, it could be argued that, correctly analysed, there was no change at all. As the claimant’s losses from self-employment do not fall to be offset against his other income then his net profit from self-employment for every year in which he sustained a loss (including the years ending 31 March 2005 and 31 March 2006) was nil. That is so irrespective of the size of the loss. It is the figure for net profit that is taken into account in the SPC calculation. That figure was nil for the previous year and is nil for the current year. The only reason that there appears to have been a change is that Tribunal 1 erred in law and, as I have already explained, there is no power to supersede its decision on that ground.”

“The point can, perhaps, be summarised by saying that the Secretary of State cannot have it both ways. If, as he maintains, the level of the claimant’s losses is irrelevant for the purposes calculating entitlement to SPC, then it cannot also be the case that a change in that level is relevant for the purposes of establishing grounds for supersession.”

The claimant remains entitled to SPC by virtue of Tribunal 1’s decision and will remain so until grounds for supersession are found to remove that entitlement even though Tribunal 1’s decision is wrong in law.

CPC/3764/2007: Right to reside

This decision looks at the right to reside rules in relation to the principle of proportionality.

CPC/3992/2007: Backdating leads to loss of housing costs - misinformation by visiting housing officer

The claimant and his wife decided to relocate to a cheaper part of the country and bought a property in Lincolnshire in 2005. They took out a mortgage of just over £105,000 on 7 July 2005 to assist with the purchase. In February 2006, the claimant completed a claim form for state pension credit. One of the Department’s officers visited the claimant and helped him complete the claim form, explaining that backdating for up to 12 months was available.

The claimant applied for his claim to be backdated for a full year back to February 2005, with the result that his housing costs were not included. It was held that this was correct following CPC/3226/2005, which states that the circumstances covering the whole period of the backdated need to be considered. As the date of the award predates the claimant’s mortgage these costs are not payable.

The claimant can apply for compensation on grounds of official error (misinformation by the visiting officer). In the event that an application under the extra-statutory scheme does not produce a satisfactory outcome the claimant can lodge a complaint with the Parliamentary Commissioner for Administration (“the Ombudsman”).

CPC/4173/2007: European convention - Article 14 (discrimination)

The claimant was 76 and was married to a husband, age 61. She was not awarded savings credit because their combined income fell short of the threshold. The husband's incapacity benefit is ignored in this calculation but the the commissioner held that was not discrimination under Article 14 (the rules regarding IB apply equally).

Arguments concerning the different treatment because of the husband's age also failed.

"The real complaint, it seems to me, is not the treatment of the incapacity benefit but the fact that as a man between the ages of 60 and 65 the claimant’s husband has not yet qualified for his own retirement pension; while a woman of identical age would be receiving it, and if she were the partner of a person of the claimant’s age applying for pension credit, the pension would be qualifying income and count towards the savings credit threshold.

This is certainly different treatment according to the sex of at least one of the persons involved but again I am not persuaded that it amounts to discrimination against the claimant of the kind prohibited by Article 14 of the Convention and rendered unlawful by the Human Rights Act.

The differential pension ages maintained by the United Kingdom for men and women during the present gradual phasing-out period are accepted as permissible under the Human Rights Convention and a matter for the national legislature to determine; and the difference of which the claimant complains is no more than the necessary consequence of the particular circumstance that she happens to have married a man so much younger than herself. There is no illegality in the way he is treated as compared with a woman of similar age; and her own position is identical to that of a man who happens to have a male civil partner the same age as her husband."

CPC/571/2008 [2009] UKUT 55 (AAC): Duty to notify during the assessed income period

Irish state pension is excluded from any assessment during the assessed income period.

CPC/891/2008: Validity of marriage

This case covers with the assessment of evidence relating to a claimed Yemeni marriage.

CPC/1433/2008: Income support and state pension credit other: state pension credit

The claimant was a Portuguese national who joined one of her (adult) sons in the United Kingdom. She successfully claimed jobseeker’s allowance, but when she made a claim for state pension credit when she became 60 years of age she was refused because she was not a person with a right to reside in the United Kingdom.

The claimant’s appeal to the tribunal was made on the basis that the son with whom she resided was a qualified person, and she was a dependent family member in the ascending line.

The commissioner decided that the claimant was not a family member under regulation 2 of the State Pension Credit Regulations. She then considered whether the claimant was her son’s dependent using European case law ( LebonChen , and Jia).

Paragraph 37 of the Jia decision the court states:

“In order to determine whether the relatives in the ascending line of the spouse of a community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the community national.”

The claimant was not considered to be her son’s dependent as there was no evidence of the appropriate level of support.

“…I think the biggest problem for the claimant in establishing that she is a dependent of her son is that the need for material support did not exist in her State of origin. The Secretary of State disputes even that there was any dependency when in the United Kingdom because the claimant was awarded jobseeker’s allowance and supported herself on this.

That the claimant was her son’s dependent while he was himself in receipt of means tested benefit is, I accept, unlikely, but at least during the period when her son was in work I would consider it probable that he provided her with at least some of the basic needs of life – for example, the roof over her head.

However, for much of the time the claimant was in the United Kingdom, both she and her son were dependent on means tested state benefits, and the tribunal did not address how, in these circumstances, it reached its factual conclusion concerning dependency.”

Note: This decision was taken by the claimant to the Court of Appeal as Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 (14 December 2009). The claimant's appeal was successful. It was held that any requirement that a need for material support must pre-exist in the state of origin restricted the worker's right of movement.

".. if a particular interpretation of the Directive would mean that a national of a Member State might realistically be discouraged from leaving that state and going to another Member State to work or if, when working or having worked, in another Member State, he might be encouraged to leave, that would not be consistent with the purpose of the Directive, or give effect to it. It seems to me there is substance in Miss Mountfield's submission that the Secretary of State's interpretation of Articles 2(1) and 3(1) could realistically result in a person deciding not to move to another Member State to work or, having moved, to be encouraged to return to his state of origin. A Union citizen who wishes to work in another Member state may be deterred from doing so if he knows that his elderly, but not then dependent mother, will not be regarded as his dependent for the purposes of Article 2(2) if she joins him and later becomes dependent upon him. If, in spite of that, he has left his state of origin, he may then be encouraged to leave his host state for his state of origin to enable his then dependent mother to be supported. As Eind and Metock make clear, no impediment should be placed in the way of a Union citizen which might realistically deter him from choosing to work in (for example) a city in another Member State , as opposed to one in his state of origin. If in the first case his dependent mother would not be supported and in the second she would, that would in my view amount to such an impediment." (paragraph 59)

CPC/1446/2008: Shared accommodation and the severe disability addition

The claimant lives in a granny flat attached to her son's property. She was refused the severe disability addition because she was held to be "normally residing" with her son and daughter in law because she shared a kitchen with them.

The decision discusses related case law preferring CSIS/652/2003 and CIS/2532/2003 over CSIS/185/1995 both because of approach (whether the claimant was normally residing with someone else) and legal precedent.

"The general approach is that where there are two conflicting decisions of equal status and the earlier decision was fully considered in the later decision, then the later decision should be followed unless the judge is convinced that the later decision is wrong e.g. because some binding authority had not been cited (see R(IS)13/01 at paragraph 4). On that basis the presumption is that CSIS/652/2003 (and by implication CIS/2532/2003) should be followed in preference to CSIS/185/1995."

CPC/3379/2008 [2008] UKUT 34 (AAC): severe disability addition

This decision concerned a claimant who moved out of her own home to live with her son, rather than enter residential care. She appealed against a decision to remove her severe disability addition but the appeal was denied.

The claimant was confined to her bedroom through disability but Judge Rowland still considered that the claimant was normally residing with her son.

"15. ..where a claimant in receipt of attendance allowance lives in the same building as other members of his or her family, it seems to me that it will be unlikely that they are living in separate households because the purpose of living in the same building will usually have been precisely so that the claimant can receive the attention or supervision that entitlement to attendance allowance implies is needed from those other members of the family, at least to some extent. There will, of course, be exceptions, but often the degree of independence there will be will not be significantly greater than one would usually expect where adults are living together in a household other than as husband and wife.

16. Thus, the key question where a single person seeks to have an additional amount in respect of severe disability included in his or her minimum guarantee when living in the same building as other people is whether he or she lives in the same household as those other people. They are only to be treated as living in the same household if they have a shared right to use accommodation other than a bathroom, a lavatory or a communal area. Actual use of accommodation is evidence of a right to use it but is neither necessary nor conclusive.."

CSPC/677/2007: Member of a religious order

The decision discusses whether the claimant was fully maintained as a Carmelite nun and therefore not entitled to pension credit.


CP/3638/2006: Residence and presence conditions - category B retirement pension

This complex decision examines entitlement to category B pension where the category A recipient moved to Canada and married whilst abroad, then subsequently died.

The issue concerns the circumstances in which, under the social security legislation, a recipient of a "Category B" retirement pension who is resident abroad can take advantage of increases in rates arising under up-rating orders as an exceptional case under Social Security (Persons Abroad) Regulations 1975 ("the Persons Abroad Regulations").

It was appealed as Yates v Secretary of State for Work and Pensions [2009] EWCA Civ 479. The Court of Appeal allowed the appeal of the Secretary of State for Work and Pensions against the determination of Social Security Commissioner Mesher that the claimant, Mrs Yates, was entitled after her husband's death to receive a pension calculated by reference to rates current in the uprating year in which her husband died.

CP/98/2007: Gender recognition

The prior award of additional pension is not affected by the issue of a full gender recognition certificate after the claimant is age 65.

CP/1792/2007: Contributions and credits

The case concerns a dispute over the allocation of credited contributions. This decision discusses the tribunal's duty:

  • to check assumptions (such as informal computations done by computers when a pension claimant’s records are checked) .if challenged.
  • under regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to adjourn the case without decision and refer the matter to the Secretary of State for onward reference to HMRC for further information or clarification.
  • following R(IB)2/04, to correct defective decisions.

Severe disablement allowance

Tax credits

CTC/591/2008: Backdating late claims and the Race Relations Act

The claimant was self employed and delayed making a claim because his accounts were not finalised. As a result he was unable to get the claim fully backdated.

His argument that the tax credits laws were against the Race Relations act were rejected as the tribunal had no jurisdiction to decide this.

CTC/2608/2008 [2009] UKUT 24 (AAC): Human rights law article 14 (non-discrimination)

It is not discriminatory to pay child tax credit to the principal carer rather than the "substantial minority carer". In this case the minority carer's children resided with him for three days a week over a two year period.

This decision was upheld at the Court of Appeal - see Humphreys v HM Revenue and Customs [2010] EWCA Civ 56 (11 February 2010) and also in the Supreme Court - see Humphreys (FC) v The Commissioners for Her Majesty's Revenue and Customs.

CTC/2878/2008 [2009] UKUT 42 (AAC): Backdating of the disability element

Full backdating (rather than 3 months) of the disability element in cases where DLA goes to appeal requires that the claimant notifies the HMRC that a claim is made.

Martin Inch - 17 July 2012