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Selected commissioner's decisions from April 2007 to March 2008

This page is best viewed in our alternative colour  or print mode. Click on the decision number to view the full decision.

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

Armed forces compensation schemes/war pensions

CAF/857/2006: Misdiagnosis

The claimant was diagnosed as having "simple schizophrenia", a term which now refers to a form of depression rather than actual schizophrenia. The claimant claimed he was refused a pension based on misdiagnosis. The commissioner states that any official error regarding diagnosis should be decided on the basis of knowledge at the time of the decision.

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

CAF/1071/2006: Application for backdating

The tribunal was found to have erred in its decision but the commissioner substituted his own decision to the same effect, that the awards for disablement pension were reviewed but not revised. This decision discusses the rules for reviewing awards in some detail. This decision has been reported as R(AF)3/08.

CAF/2190/2006: Compelling presumption

The claimant suffered from “suppurative otitis” of the left ear and claimed that this was attributable to service. The tribunal dismissed the appeal, finding that the appellant suffered pre service otorrhoea, which was aggravated by service, though there was no reference made to the claimant’s entry medical.

The commissioner found that the tribunal had incorrectly applied Article 4(3) of the 1983 Service Pensions Order (now Article 40(4) of the 2006 Order) when making its decision, which provides:

“Subject to the following provisions of this Article, where an injury which has led to a member’s discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.”

The statutory presumption created by Article 4(3) is known as the “compelling presumption” because it presumes something to be the case unless evidence is supplied to the contrary.

The commissioner held that the condition “suppurative otitis media” is associated with perforation of the ear drum, but that the tribunal’s reasons for its decision did not deal with the issue of why the entry medical report failed to mention perforation of the ear drum if that condition existed at the date of the appellant’s enlistment.

"The tribunal’s reasons for dismissing the appeal are very brief, but the chairman gave much fuller reasons for the tribunal’s decision when refusing the application for leave to appeal. Assuming that I am entitled to take those reasons into account as supplementing the reasons given immediately following the hearing (which I very much doubt), I am still not satisfied that they establish that Article 4(3) was correctly applied. Although those reasons do refer to the absence of any indication of abnormality in the record of the entry medical, they simply treat that as one piece of evidence, which is then weighed with the other documentary evidence. Since Article 4(3) of the 1983 Service Pensions Order created a compelling presumption in favour of the appellant that he did not have that condition on entering service, the correct approach was for the tribunal to consider whether the other documentary evidence was of such cogency that it displaced the compelling presumption and established beyond reasonable doubt that the appellant was in fact suffering from suppurative otitis media before entering service. In considering that question, the tribunal had of course to take into account the appellant’s reasons for disputing the reliability of those documents."

CAF/2478/2006: Gulf war syndrome

The tribunal (PAT) erred in law by failing to explain its conclusion that Gulf War syndrome was not a discrete pathological entity and by failing to explain its view of the arguments and evidence put forward by the claimant.

The commissioner also noted that none of the documents or submissions form medical services or the secretary of state dealt with the implications of the Martin case and the concession made on behalf of the secretary of state and acted on by the PAT there [Daniel Martin was a former soldier who was awarded a disability pension for Gulf War Syndrome (GWS). The Pensions Appeal Tribunal (PAT) said GWS could be used as an "umbrella term" to cover the ailments suffered by Daniel Martin].

CAF/2792/2006: New issue put to the claimant at appeal

The tribunal’s decision was erroneous in point of law because it did not give the claimant the opportunity to comment on the significance of a submission that his hearing loss did not occur through all frequencies.

CAF/2797/2006: A new condition resulting from aggravation of an earlier condition by service.

The issue was summarised in paragraph 7.

"The tribunal in this case was dealing with an entitlement appeal in respect of the condition “thrombophlebitis right knee”, governed by Article 5 of the 1983 Service Pensions Order, and identified that condition as being separate from the condition “varicose veins”. If they were satisfied that the appellant was suffering from a new condition, the tribunal ought to have decided whether the appellant had raised a reasonable doubt in his favour that the new condition resulted from service aggravation of his varicose veins, and should have upheld the rejection of entitlement in respect of that condition only if they were satisfied beyond reasonable doubt that the appellant would have suffered from the condition even if his varicose veins had not been aggravated by service. In failing to consider that issue, the tribunal erred in law and their decision must therefore be set aside."

The decision cites Owen v Minister of Pensions and National Insurance (1966) 5 WPAR 699.

CAF/2858/2006: Allowance for lowered standard of occupation (ALSO) - consideration of London weighting earnings

This appeal is about the allowance for lowered standard of occupation (ALSO) under Article 15 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006.

Article 15(1) provides that where a member of the armed forces is in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience he shall be awarded an allowance for lowered standard of occupation at the appropriate rate.

The claimant was subsequently employed by the British Legion and the calculation of his ALSO involved comparison of his earnings from this employment with that of his captain's pay. The tribunal was correct in considering his London weighting as part of his Legion earnings but erred in placing too much emphasis on whether this was taxable. It also failed to carry out a "like for like" comparison of the two occupations, including whether a similar allowance would have been payable to an officer of the claimant's rank stationed in central London on a long-term basis.

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

CAF/2867/2006: Whether award made on a new claim or review

The tribunal erred in law in failing to consider whether a should have been, reviewed on the ground of official error, so as to entitle the appellant to backdating of his award in respect of post traumatic stress disorder to the date of the original awarding decision.

The claimant had been shot whilst serving in Kenya during the Mau Mau uprising and had been awarded a pension based on his physical injuries and anxiety. This anxiety had subsequently been diagnosed as post traumatic stress disorder. As the state of medical knowledge in relation to post traumatic stress disorder, at the time of the original decision, requires expert medical knowledge, the case is referred back to a new tribunal.

CAF/3748/2006: Disablement due to self inflicted injury

The claimant had served in the Royal Air Force and was the mechanic of an aircraft which crashed with loss of life in a widely reported accident in 1994. On 3 June 2005 a decision was made accepting depressive illness and post traumatic stress disorder (PTSD) as attributable to service, and internal derangement of the left knee as aggravated by service, and the appellant was assessed as 50% disabled.

A further claim for “laceration of the right hand with tendon damage” was rejected by the tribunal, who considered that a physical injury which results from a psychological condition which is attributable to service is too remote a consequence of service to fall within the scheme.

The commissioner disagreed, citing Freeman v Minister of Pensions and National Insurance [1966], which concerned a sailor who committed suicide following the amputation of his legs.

There were also discrepancies in the claimant’s reasons for lacerating his hand.

“These vary from being affected by a low flying aircraft, anger at recent documentation from the Veterans Agency, anxiety at an impending social services inquiry regarding the risk (because of (the appellant’s) PTSD) to their unborn baby, and a flashback.”

Under article 41(5) of the 1983 Service Pensions Order 1983, if upon reliable evidence, a reasonable doubt exists whether the conditions of entitlement are fulfilled, the benefit of that reasonable doubt is to be given to the appellant. Following R v Department of Social Security ex parte Edwards (CO/2281/1990) the commissioner decided in favour of the claimant.

“I take the view that the objective circumstances of the accident give credence to the appellant’s case that his injury was caused by an outburst of anger resulting from his psychological condition. The cut to his finger damaged a tendon and was more severe than would be expected if the appellant possessed normal self-control and was injured merely accidentally.”

CAF/882/2007: Breach of natural justice - Veterans Agency letters

The letters sent to the claimant failed to tell her that her hearing would be heard in her absence.

It was also arguable that there was a breach of the principles of natural justice and possibly of Rule 20(2) of the Pensions Appeal Tribunal ( England and Wales) Rules 1980 (the PAT Rules). These rules allow a hearing to take place in the claimant’s absence but place a duty on the tribunal to give adequate reasons for doing so.

CAF/1099/2007: Meaning of "service" in Class B release cases

The claimant was a wireless operator and took part in operations with Bomber Command against Germany in 1944 and 1945 and also in the questioning of prisoners of war, rising to the rank of Flight Sergeant. On 19 February 1946 the claimant was released from service under Class B. Class B releases were made into specific occupations, in this case farm work. If a person released under Class B discontinued the employment to which he had been directed (except for ill-health), the release would be revoked and the person recalled to service. The claimant did work on a farm at Bucklersbury where in 1947 or 1948 he had an accident in which he caught his left hand in a hay baler, causing injuries leading to the amputation of his left little finger.

He sought to claim that this injury was received whilst still in service. The commissioner did not accept this and concluded that the claimant had not established on the balance of probabilities that he was serving as a member of the armed forces at any date which could possibly be relevant in relation to the connection to service of the injury to his left hand.

“It is clear from the conditions stated in the `Release and Resettlement' booklet and in RAF Form 2520/25 that on release under Class B a person remained under quite significant obligations relating to the armed forces. It was quite clear that a person had not been finally discharged from service and became a member of the reserve forces, on special terms specific to the class of release. In that sense, the person might be said still to be a member of the armed forces. But I have no doubt that, in the terms of the definition of service for Service Pensions Order purposes, the person was not serving as a member of the armed forces.”

CAF/1133/2007: Appeal made out of time

The commissioner decided that the tribunal had no jurisdiction to hear the appeal. The decision discusses the relevant law regarding late appeals.

CAF/1569/2007: Duty to obtain evidence

The claimant stated that he was treated for Malaria whilst in the services. He asked the Veterans Agency (VA) to obtain evidence from a named witness to prove this. The VA was correct in refusing this but committed a breach of natural justice because it failed to inform the claimant that the responsibility to contact the witness lay with him.

"A PAT has no power to obtain written evidence directly, rather than through the parties, except in the case of an expert opinion on a difficult medical or technical question under rule 15 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (the PAT Rules). In the absence of any evidence that the claimant was informed of that responsibility, either in relation to the specific evidence or in general terms that were clear enough, there was a breach of natural justice in the PAT of 31 January 2007 proceeding to make a decision without having given the claimant a further opportunity to produce evidence from his fellow-serviceman."

CAF/2026/2007: Agreement of all parties

This appeal, by the claimant, succeeds because all parties agreed that the decision of the tribunal was wrong in law.

CAF/2150/2007: Whether travel to work counts as being on duty

This is a claim for a pension under the new armed forces compensation scheme which came into effect April 2005.

Sergeant T was an army cook who died in a motorcycle accident whilst reporting for duty. He had traveled to work early because he was worried about the reliability of the cooks under him (army stores had gone missing).

The commissioner considered articles 9 and 10 of the the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005 (SI 2005/439).

"Article 9 deals with cases in which death was caused by service. Article 10 deals with cases that do not fall within article 9, because the death was not caused by service. It deals with circumstances which would not normally be considered as part of service as a member of the forces."

He concluded that Sergeant T's death occurred whilst he was in service but that this was not the predominant cause of his death. At the time of his death he was not on duty, he was reporting for duty.

An argument that he was responding to an emergency was also rejected. The need for supervision lest stock should go missing was not sufficiently serious to amount to an emergency.

Attendance allowance

R(A)1/07 (formerly CSA/164/2004): payment of AA whilst in Scottish residential care

Commissioner's decision R(A)1/07 suggests that if care home and nursing care allowances are the only help that someone gets towards their residential costs they can keep their disability living allowance or attendance allowance.

Note: Following on from R(A)1/07 and R(A)2/07 new regulations have been passed. Under SI 2007/2875 - The Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 2007, where any qualifying services provided for a person in a care home are met, in whole or in part, out of public or local funds under a specified enactment, DLA care component or AA will not be payable.

R(A)2/07 (formerly CSA/469/2005): payment of AA whilst in Scottish residential care

Commissioner's decision R(A)2/07 states that home and nursing care allowances should be considered as part of any accommodation costs, which would mean that someone would lose your their disability living allowance or attendance allowance if they receive these allowances.

Note: Following on from R(A)1/07 and R(A)2/07 new regulations have been passed. Under SI 2007/2875 - The Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 2007, where any qualifying services provided for a person in a care home are met, in whole or in part, out of public or local funds under a specified enactment, DLA care component or AA will not be payable.

CA/3943/2006: Continence - emergency alternative measures

The tribunal failed to make findings of fact on the claimant's medical condition, the effects of medication and the use of a commode. The claimant was using a bucket instead of an upstairs toilet. The commissioner's view was that this was an emergency measure rather than the use of a commode in an appropriate location.

CSA/694/2007: Providing transport to social activities

This does not count as attention with bodily functions.

"It seems to me that in these circumstances, the tribunal were right to conclude that, driving the claimant to places of social activities, did not fall within the ambit of attention. Whilst it is accepted that the import of R(A)2/98 [Secretary of State v Fairey and Cockburn v CAO], and other authorities is that attention is not restricted to the necessities of life and can encompass what enables a claimant to carry out a reasonable level of social activity, the essential prerequisite is that what is provided must be what can in law be properly regarded as attention. That is not the case here in relation to driving because transporting the claimant in a motor vehicle lacks the degree of physical intimacy required."

Child benefit

CF/1863/2007: Right to reside

The claimant was entitled to claim child benefit because she had a right to reside under the EEA regulations through her father.

"The claimant is a direct descendant of her father and was under 21 at the date of the child benefit claim and decision. Accordingly, she satisfied the definition of "family member" without the need to satisfy any further condition about actually being a dependant of her father. Thus, if her father was a qualified person, with a right to reside under the Regulations, so was the claimant. "

CF/1968/2007 and CF/2102/2007 : Definition of crown servants overseas for child benefit purposes

The claimant claimed child benefit for his son and was refused because he was not regarded as residing in the United Kingdom. The point was also made that his son was not in Great Britain at the time of claim. He had a second son and applied once more for child benefit. This claim was also refused, the reason given that that he was not ordinarily resident in Great Britain.

The claimant appealed against both decisions on the grounds of appeal that he was ordinarily resident in Britain at the time. He also argued that at both times he was a Crown servant working abroad and so entitled to be regarded as ordinarily resident. At the time of the first claim for child benefit the claimant was working for the British Embassy abroad as a consular correspondent. He was later appointed Honorary British Consul.

The tribunal rejected his appeal but the commissioner found that it had erred for a number of reasons. Under regulation 30 of the Child Benefit (General) Regulations 2006, for the purposes of section 146(1) of Social Security Contributions and Benefits Act 1992, a Crown servant posted overseas shall be treated as being in Great Britain if, immediately prior to his posting or his first of consecutive postings, he is ordinarily resident in the United Kingdom; or if immediately prior to his posting or his first of consecutive postings, he was in the United Kingdom in connection with that posting.

The commissioner found that the claimant was a Crown servant because in his capacity as both consular correspondent and Honorary British Consul.

The tribunal had also failed to adequately consider both the claimant’s ordinary residence and the residence of his children.

CF/2826/2007: Tribunal jurisdiction - child benefit refused because of a subsisting award

On 1 December 2006 the claimant made a claim for child benefit in respect of his two children. Benjamin and Lucy. He stated that he had separated from their mother in 2003, and that Benjamin had been living with him in Winchester since February 2006 and Lucy since September 2006. He stated that before those dates the children had been at boarding school and had had their base with their mother (in Southampton). The mother was in receipt of child benefit up to 1 December 2006.

The decision concerns the power of the tribunal to award child benefit where there is an existing award to another claimant. Paragraph 1 Schedule 10 of the Social Security Contributions and Benefits Act 1992 allows the previous claimant to have underlying entitlement for a period of three weeks from the date actual entitlement ceased.

This decision sets out the correct approach in these cases and is summarised in the following paragraphs.

“Where a claimant (B) is refused child benefit on the ground that there is a subsisting award (in favour of A), and appeals:

(1) As regards any period prior to the date of B’s claim in respect of which benefit has at the date of claim already been paid to A: unless, by the date of the decision refusing B’s claim, either (i) HMRC has made a decision that the benefit paid to A is recoverable or (ii) A has voluntarily repaid the benefit, the appeal tribunal deciding B’s appeal does not err in law in failing to make findings (and indeed has no jurisdiction to make findings) as to whether A was entitled to the benefit. The reasons are simply that (a) the tribunal has no jurisdiction to revise or supersede A’s award and (b) it would have no jurisdiction to award benefit to B in respect of that period. See paragraphs 23 to 29 above.

(2) However, as regards (i) any period within 3 months before the date of B’s claim in respect of which, at the date of that claim, benefit had not already been paid to A and (ii) the 3 week period after the date of claim: the appeal tribunal is required to decide whether A had ceased to have underlying entitlement. If A had ceased to have underlying entitlement, he did not have priority and the tribunal, even though it has no jurisdiction to supersede the award in favour of A, should award benefit to B.”

CF/2871/2007: Meaning of parent

A person in whose favour a residence order is in force under the Children Act 1989 counts as a “parent” of the children concerned for child benefit purposes under Part IX Social Security Contributions and Benefits Act 1992.

Compensation recovery

CCR/2232/2006: Negligent medical treatment

The claimant fractured a leg in his home, which was not the subject of a compensation claim. The claim was made against subsequent negligent medical treatment of another fracture discovered following an X ray. The hospital denied liability but paid £50,000 to the claimant, of which £18,734.91 was offset to cover his IB and DLA payments. Arguments that the payments of those benefits were for the original leg injury, not the hospital's alleged negligence were rejected. In fact identifying the actual injury was less relevant than establishing that the hospital had felt the need to pay compensation.

"The key has to be identifying whether the payment of £50,000 gross by the Trust was paid in consequence of an accident, injury or disease. ...In my view, where a claim is made for compensation for personal injuries and a payment is made in settlement of that claim without there being anything to identify any specific elements making up the global payment, one must look to the claim as the primary factor in identifying what the payment was made in consequence of. Here, the claim was made in respect of the adverse physical effects on the claimant from 1 August 2001 onwards, said to have been caused by the negligence of the surgeon in the carrying out of the operation of 30 January 2001 and of other employees of the Trust in not taking reasonable steps after that operation to get the deformity corrected. That was the claim that was still in being when the settlement was agreed. ...Nor, in the light of the Trust's refusal to say what it regarded the sum of £50,000 as made up of, was there any evidence that the payment was made otherwise than in consequence of the claim as then still in being. The word "injury" is wide enough to include those adverse physical effects on the claimant and is not in my judgment limited to an identification of particular acts or omissions that caused injury."

CCR/2658/2006: Recovering benefits from common law damages

This case considers how the Social Security (Recovery of Benefits) Act 1997 should be applied where a claimant recovers damages at common law in respect of psychiatric injury alleged to be caused by an employer and also statutory compensation for unfair dismissal.

The claimant was a PE teacher who had been dismissed following allegations of inappropriate behaviour with four female pupils. The education authority failed to fully investigate these allegations and the claimant claimed damages as well as unfair dismissal.

The commissioner held that 1997 Act applies only to common law damages, and not to statutory unfair dismissal compensation under the Employment Rights Act 1996. Benefits paid by the State were recoverable following the claimant's success in recovering damages from his employer.

Disability living allowance

R(DLA)2/07 (SB v Secretary of State [2006] EWCA Civ 89 - formerly CDLA/3742/2004) : Offset of arrears arising out of a benefits suspension

Payment – offset under regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 – whether arrears resulting from the suspension of payments pending the making of an award superseding a previous award can be offset against an overpayment arising as a result of the subsequent award

The claimant suffered from autism and received DLA middle care and lower mobility components. In September 2001 he began boarding at a residential college funded by the Learning and Skills Council, continuing to live with his parents during school holidays and half-terms. He was therefore not entitled to the care component except during the vacation periods. When the change of circumstance came to light, on renewal of the DLA claim by SB’s father on 27 May 2003, the payment of the care component was suspended under regulation 16(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 pending investigation. A decision was issued on 13 October 2003, described as superseding the award of 14 July 2000, ruling that no care component was to be paid for the period SB was in the residential home and that any DLA already paid should be treated as paid on account of that benefit awarded. The suspension was lifted but no payments were made of the care component unpaid since May 2003. On January 2004 the overpayment was found not to be recoverable but calculated to include the amount of care component due for the summer of 2003 (£529) as a sum which could be offset against the overpayment. The tribunal, on appeal from the claimant’s father, upheld the decision that the overpayment was not recoverable; this involved also upholding the decision that the arrears due could be offset against the overpayment although the tribunal’s reasons did not address this issue. The claimant appealed and the Secretary of State requested that the Commissioner address the legitimacy of offsetting the sum relating to the later period against the overpayment held to be irrecoverable. The Commissioner accepted the Secretary of State’s argument that regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (the Regulations) entitled the decision-maker to offset the arrears and dismissed the appeal. The claimant appealed to the Court of Appeal. It had been argued at all stages by both parties that the October decision superseded the original decision with retrospective effect and both parties sought a determination as to the proper construction of regulation 5 on that basis.

Held, allowing the appeal, that:

1. regulation 5(1) allows for overpayments to be offset against “arrears” of entitlement “under the subsequent determination”. However the Regulations were passed pursuant to section 71(6)(b) of the Social Security Administration Act 1992 which empowers the Regulations to deal with “arrears” payable “by virtue of the subsequent determination”. The sum in this case was in arrears, not by virtue of the subsequent determination on entitlement but by virtue of the decision to suspend payments and/or by virtue of a delay in reaching a decision as to the amount of the overpayment (paragraphs 24 to 26);

2. regulation 16(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 draws the line at allowing recovery of recoverable overpayments against arrears due to suspension of payments and, while the same distinction is not drawn in the 1988 Regulations in relation to non-recoverable overpayments, any interpretation should reach a logical result which will not be seen as arbitrary or capricious (paragraphs 27 and 28);

3. even if the decision of October 2003 had entirely replaced the July 2000 decision, the entitlement to £529 for the summer months was not arrears of entitlement under (or by virtue of) the subsequent decision, but was arrears by virtue of the suspension of payment directed in May 2003. The determination in October 2003 was simply determining that, during the period of overpayment, that overpayment should be being treated as paying on account that now held to be due (but in arrears) over that same period (paragraph 30).

CDLA/2379/2005: Perceived bias - examining doctor who previously sat as a panel member

The decision concerns a case where the EMP had sat with the Chair on three occasions in the previous two years prior to the hearing. It follows the tests for perceived bias laid out in CSDLA/364/2005 but rejects that decision's "principled approach" when deciding bias. The principled approach was based on the decision outlined in Lawal v Northern Spirit Ltd [2003] which was considered narrow in that the House of Lords was asked to address the matter before it as a point of principle without regard to all the surrounding circumstances.

Instead the commissioner follows two other decisions. Firstly, in the Cunningham case an EMP sitting once or twice a long time ago would not be considered to give rise to the perception of a real possibility of bias. Secondly, Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] guards against any rigid rule when deciding bias.

"It would be dangerous and futile to attempt to find or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided ."

In the current case the EMP had last sat as a panel member three and a half months before the claimant's hearing. Based on the facts of the case the commissioner found that this lapse of time was insufficient to remove a doubt as to bias.

This case has now been reported as R(DLA)3/07.

CDLA/3376/2005: Attention needs for someone who is blind

The tribunal misdirected itself in two ways. It failed to consider help given outdoors as attention and it excluded evidence by applying a test of context (help with cooking, cleaning, shopping, domestic duties etc) rather than considering whether it was help with bodily functions.

The decision cites a number of other key decisions - Mallinson, Fairey, Cockburn, Ramsden and Moyna.

CDLA/561/2006 & CDLA/1032/2007 : Brief statement of reasons

This is a decision with a complicated history. An initial appeal to commissioners lapsed following the reinstatement of a struck out decision. In the subsequent appeal it was argued that the tribunal's statement of reasons was brief and inadequate, but the commissioner rejected this. The tribunal's decision could be adequately discerned from the statement of reasons and the other documents in the case, notably the medical report. It may be good practice to provide more detailed reasons but it was not an error of law not to do so.

CDLA/1945/2006: Official error - Mallinson

The claimant argued that the decision on her claim in 1995 failed to take account of the Mallinson decision (communication considered as a bodily function). The test for this is set out in CDLA/4099/2004.

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

The claimant's argument failed. Firstly, in 1995 she was issued with DLA434, a claim form which specifically covered Mallinson issues and there is no reason to suppose that the decision maker failed to consider the evidence on this form. Secondly, the claimant failed to make an appeal at the time.

CDLA/1983/2006: Dyslexia is a problem of the bodily function of the brain, not seeing

Following R(DLA)1/07 (formerly CSDLA/133/2005) where thinking is considered as a bodily function, this decision states that previous attempts to link dyslexia to problems with seeing are incorrect. It discusses previous case law referring to dyslexia. The decision refers to CDLA/3204/2006.

CDLA/2715/2006: Tribunal's consideration of the facts

The commissioner found no error of law in the conclusions the tribunal reached from the facts. The decision discusses the use of evidence of normal walking speeds as produced by the Road Research Laboratory (100 metres can be walked by a fit person in 1 minute 16.9 seconds).

“The quoted figure provided a benchmark of a “normal” speed against which the tribunal’s view of the expected speed of the claimant’s walking, expressed in an easily understood form, could be compared.”

CDLA/2470/2006: Mobility and severe behavioural problems - extreme behaviour

Claimant did not satisfy the severe behavioural problems rules as outlined in regulation 12(6)(a) and (b) of the Social Security (Disability living Allowance) Regulations 1991 (S.I.1991/2890). These state that such behaviour must be extreme and regularly require someone to intervene and physically restrain the claimant to prevent physical injury or damage to property.

“…the evidence in this case is that there are substantial periods of each day when the claimant is quite well behaved. Moreover, even when he is not, he often does not require physical restraint and, when he sits down and refuses to walk, the intervention required to get him to move may be the opposite of “restraint” and will not necessarily be required “to prevent him causing physical injury to himself or another, or damage to property”. There is really no evidence that his behaviour is generally or regularly “extreme” and I am very doubtful that he even falls within the scope of regulation 12(6)(b). The occasions when he actually requires physical restraint to avoid injury or damage are probably not sufficiently frequent for that to be regarded as a regular requirement but the occasions when his behaviour is “extreme” are fortunately even rarer, notwithstanding that eternal vigilance is required and caring for the claimant must be very wearing for his parents."

CDLA/3204/2006: Dyslexia - stages of seeing and interpreting information

Seeing a screen can be analysed into at least four stages. Impairment and a resulting disablement can occur at any of these stages. Problems with dyslexia occur at the fourth stage - the interpretation stage. Although the decision refers to seeing the approach is consistent with that in CDLA/1983/2006.

CDLA/3461/2006: Six months forward rule and renewal claims

Section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992, which states that a condition must continue for a period of at least six months applies to renewal claims.

"In my judgement, a renewal claim for disability living allowance is, for the purposes of the above statutory provision, a fresh claim for benefit. That means that the six months prospective test applies from the date from which any renewal award would commence."

CDLA/3585/2006: Statement of reasons must be sufficient for claimant's understanding

The claimant had previously been in receipt of DLA care component but had then had the award removed. The tribunal's statement of reasons were inadequate because the reasons were insufficient to enable the claimant to understand why the new decision was different. However, the commissioner substituted a new decision refusing the DLA award.

CDLA/3899/2006: Criminal supervision and treatment order - psychiatric medical reports

The claimant had been put under a supervision and treatment order when he was found unfit to stand trial for a crime. The tribunal was held to have properly considered the evidence obtained from psychiatric medical reports in relation to this crime. It also correctly restricted its consideration of the crime itself to the question of how far it was right to say he was suffering the physical disabilities he had been claiming.

CDLA/4032/2006: Documents relating to a previous award not available

The claimant was awarded the DLA higher rate mobility component in 2004 but this was later removed, following an examining medical practitioner's report. Her mobility problems prevented her from attending the tribunal hearing, so a paper hearing was held and the appeal was dismissed. The tribunal erred because it had no papers relating to the earlier award and so could not properly explain to the claimant why her benefit could not be renewed despite her contending that her condition had not changed or worsened (cites R(M)1/96 in support of this approach). It is suggested that a domiciliary hearing should be considered by the new tribunal.

CDLA/4351/2006: Cooking test - use of a Baby Belling and microwave

These can count for the cooking test if they are used to produce a labour intensive main reasonable daily meal.

CDLA/671/2007: Revision of Mobility Allowance award

The claimant had been in receipt of Mobility Allowance since 1989 but was subsequently videoed walking a half a mile to the pub, something he achieved within 10 minutes.

There was a question as to whether there were powers to review a transitional decision (see CDLA/2999/2004) but it was held that revision was allowed under CDLA/1570/2004.

CDLA/1256/2007: Nausea and the cooking test

Feelings of nausea are relevant when considering the cooking test. The claimant suffered from primary biliary cirrhosis and felt sick at the thought of preparing or cooking food. This decision takes the opposite view to CSDLA/854/2003, which states that nausea when cooking is outside the scope of the notional cooking test. .

"In the Claimant’s case her nausea is a symptom of her disability, and if, when applying the cooking test, one were to leave it out of account, one would not be “calibrating the severity of her disability” accurately."

CDLA/1313/2007: Likely to continue for six months

This decision found that the tribunal had not erred in its consideration of the facts of the case. At the time of the decision the tribunal found that the claimant did not satisfy the disability conditions for DLA mobility. It also found that the claimant was unlikely to satisfy the disability condition for the following six months.

The claimant's condition deteriorated at a later date but the tribunal was right in not considering this as it cannot take into account circumstances which occurred after the decision maker's decision.

CDLA/1576/2007: Oath helping

The tribunal erred in dismissing evidence from three witnesses as "oath helping" - evidence which serves to bolster a the claimant's credibility. Oath helping is inadmissible in criminal law (R v Turner 1975 and R v Robinson 1994) but is permissible at appeals, which are not bound by the same proceedings.

CDLA/1715/2007: Inadequate EMP report

The appeal succeeded because Commissioner Ovey found that the tribunal had failed to fully consider the claimant's walking and continence needs. At issue was its over reliance on an EMP report, which stated that the claimant had been observed walking (in a small room) 50 metres, with little discomfort and reported no problems with continence (the claimant stated that she had informed the doctor that she used a commode).

CDLA/1880/2007: Failure to consider evidence

The tribunal found that the claimant did not have mental health problems but erred in failing to consider the evidence of a letter stating she suffered from depression.

CDLA/2084/2007: Tribunal intention to reduce an award

The claimant had osteoarthritis of the right hip and claimed disability living allowance in 2004. She was awarded the higher rate of the mobility component of DLA and the highest rate of the care component.

In January 2006 she completed a renewal claim form. The decision-maker made a fresh award with effect from March 2006, at the lower rate of the mobility component and the middle rate of the care component.

The claimant appealed. Her first tribunal adjourned to obtain fresh evidence from an EMP. A second, differently constituted, tribunal removed both components of her award.

The tribunal erred in two ways. Firstly it failed to give adequate notice to the claimant of an intention to reduce an award.

"The claimant was appealing against the Secretary of State’s decision of February 2006, which had awarded the claimant some DLA, but not as much as had been awarded to her in 2004. The issue raised by the appeal was whether the February 2006 award was too low, not whether it was too high.

This meant that the tribunal were not obliged to consider whether the February award was too high, but had power to do so. However, R(IB)2/04, which is referred to in the commissioner’s reasons for granting leave and in the Secretary of State’ submission to the commissioner, makes it clear (a) that a tribunal must reach a conscious decision to make use of its power under section 12(8)(a) to consider whether an award is too high and (b) that in order to comply with the claimant’s right to natural justice and a fair hearing, the tribunal must warn the claimant that they are thinking of considering whether the award should be cancelled or reduced; that is in order to give the claimant an opportunity to prepare his or her case and also an opportunity to consider whether to withdraw the appeal and at least keep the award that the Department gave."

Secondly it did not fully consider severe discomfort.

“The tribunal’s conclusion that the claimant was not virtually unable to walk was based on a combination of the claimant’s statement in the claim form that she could walk 300 metres and the report of the EMP. The EMP’s conclusion that the claimant could walk 250 metres before the onset of severe discomfort was qualified by the EMP’s finding that pain would cause her to stop five times over this distance for 15-30 seconds. The claimant had also qualified her statement about walking 300 yards by the statement at page 84b, accompanied by a photograph (page 154), to the effect that she had to stop after crossing the width of her street. The statement of reasons does not refer to the need for these stops. The commissioner who granted leave to appeal found it arguable that the tribunal had not properly considered whether the claimant’s ability to walk 250 metres was only achieved at the cost of severe discomfort. The Secretary of State has submitted that the tribunal made insufficient findings of fact."

CDLA/2203/2007: Misrepresentation

The claimant was given an indefinite award of the highest components for both care and mobility but was subsequently found to have misrepresented her needs on the claim form (a representative had filled it out on her behalf).

The tribunal held that the decision maker (Secretary of State) should have only awarded the claim for a year instead of making an indefinite award and decided that the claimant was only guilty of misrepresentation for a year, the overpayment for the rest of the period being due to the Department's flawed decision.

The commissioner rejected this. The Secretary of State's decision was reasonably made, given the evidence available at the time of the original decision (the tribunal's award of low rate care was overturned for the opposite reason).

However, even if the Department's decision had been flawed, it would not have broken the "causal link" established by the claimant's original misrepresentation, which meant that the overpayment liability, subject to the decision of the new tribunal, would still extend beyond a year.

CDLA/2288/2007: Precedent on an issue of fact rather than law

The case concerned the award of the mobility component on grounds of severe mental impairment and behavioural problems. The claimant was diagnosed as having autism but the tribunal stated that there was no evidence of arrested development of the brain.

Commissioner Jacobs stated that the tribunal went wrong in law because its reasons were wrong. It should have followed previous case law in reaching its decision, in particular that of Commissioner Rice (CDLA/1678/1997).

“Mr Rice made a finding that was based on evidence from an acknowledged national expert that was not challenged before him, was later accepted as correct before the Court of Appeal [M(a child) v Chief Adjudication Officer (reported as R(DLA) 1/00)]”

Commissioner Jacobs then considers that the traditional understanding of precedent, decisions that are binding only for the propositions of law that they embody, should be reconsidered in some cases to apply to findings of fact.

This applies in the current case where CDLA/1678/1997 established as a fact that autism is caused by “…a state of arrested development or incomplete physical development of the brain…” and so falls within the definition of severe mental impairment contained in the relevant legislation. The decision is therefore useful in similar cases.

However Commissioner Jacobs then considers extending the notion of precedent of fact to other cases. Here the decision becomes more problematic.

In support of this he cites asylum case law (Shirazi v Secretary of State for the Home Department [2003] and Januzi v Secretary of State for the Home Department [2006]) and case law concerned with discretion (Merchandise Transport Ltd v British Transport Commission) because they show the willingness of the courts to allow decisions on issues of fact and judgment to have a degree of authority.

He concludes that “there is no general doctrine, either in the courts or tribunals, that recognises the existence of a category of precedent that is authoritative on issues of fact.” but that “such a category would, though, be consistent with general principles and, as this case shows, would meet a need.”

He is, however, mindful of the pitfalls of applying factual precedent in appeal. Such an approach might be useful in appeals where previous case law contains evidence from experts which inarguably establishes a fact. He implies that a tribunal should not challenge this expert interpretation unless it can show that the consensus amongst the experts in the particular field has changed – presumably either by referring to publications in academic literature or specific evidence from another expert.

The Commissioner was unwilling to identify other situations where the case law could establish matters of fact.

"Lacking as I do the foresight of a prophet, I do not intend to define the limits within which factual precedent should operate. It is sufficient for me to say that, whatever those limits may be, the decision in CDLA/1678/1997 falls within them. The tribunal was wrong in law not to follow it."

In addition to the above the tribunal also erred in its interpretation of the Associate Specialist Paediatrician's evidence.

CDLA/2423/2007: Walking speed

The claimant, a 7 year old girl had hypertrophy of the right side of her body. In 2002 she was awarded high rate mobility component on ground of virtual inability to walk. This was based on the evidence of the EMP report as the claimant's other estimated that she could walk half a mile without discomfort.

A renewal form was completed in 2006. This time the mother said the child could walk 3 miles in 30/40 minutes on a good day. The decision maker found her no longer virtually unable to walk. The tribunal agreed (at a paper hearing).

The commissioner found that the tribunal had erred in accepting the mother's evidence because of its improbability.

"As I stated when granting leave to appeal, the average walking speed of an able-bodied adult woman under the age of 50 is 3.1 miles per hour (source: Research on Road Traffic (HMSO 1965)). Such a woman would cover a distance of 3 miles in a little over 58 minutes. The walking speed that is implied by the tribunal’s finding is between 4.5 and 6 miles per hour. It is overwhelmingly improbable that an eight year-old girl with well-documented physical defects in her legs should have a walking speed that exceeds that of an able-bodied adult woman by a factor of between 45% and 93%."

In the absence of other evidence the tribunal should have adjourned the paper hearing and asked the mother to attend an oral hearing.

"As this was a case in which an oral hearing was necessary for the tribunal to reach a decision, it should have adjourned with directions that such a hearing be held and explained to the appellant’s mother why it was necessary for her to attend.

A further reason for directing an oral hearing of this appeal was that the appellant is a child who did not have the benefit of professional advice or representation. I am sure that her mother has done her very best to explain the appellant’s case but, through no fault of her own, she does not appear to have any particular experience of how the social security system operates and may not realise the importance of expressing herself with precision when dealing with the Department. It is also clear that she shares the difficulties experienced by many people when estimating distance and time. As the main problem facing the tribunal was the inconsistency and improbability of the mother’s evidence, those considerations should have weighed heavily in favour of an oral hearing: a tribunal should be careful not to permit the interests of a child to be prejudiced by inadequate representation."

CDLA/2466/2007: low rate mobility and panic attacks

Where there is evidence that panic attacks are unpredictable, supervision might be needed most of the time as a precautionary measure.

The decision also discusses how the evidence of Disability Analysts - doctors and health care professionals undertaking assessments for state benefits - should be treated.

CDLA/2625/2007: Tribunals reasons for decision adequate

The claimant's appeal failed. She suffered from chronic fatigue and depression and had difficulty completing her claim form (this was done in pencil and was illegible in places).

The tribunal was found to have properly considered all evidence, namely oral evidence from the claimant, a psychiatrist and her GP.

"The tribunal could only decide her case on the evidence she presented to it, and this evidence, whether it gave a true representation of her abilities or not, showed her to be a person suffering considerable physical, mental and emotional problems, but it did not show her to be a person whose functional abilities were so severely limited as to satisfy the very stringent criteria for award of any component of DLA."

CDLA/2738/2007: Borderline decision making

The claimant had been awarded high rate mobility component but sought the care component when her claim was renewed. The high rate mobility component was renewed but the care component was refused. She appealed and the tribunal found that she was not entitled to both components. The commissioner substituted a decision awarding high rate mobility component but not the care component. The main reasons were summarised in paragraph 5.

“It is the lack of explanation for not accepting the Secretary of State’s unchallenged decision in respect of the mobility component that is the flaw in the tribunal’s decision. This was a borderline case. The tribunal was entitled to take the view that the claimant was not virtually unable to walk but the Secretary of State was equally entitled to take the opposite view. Where a tribunal’s findings are not materially different from the Secretary of State’s and the Secretary of State’s conclusion in favour of the claimant is not perverse, a tribunal should be slow to interfere and must, in accordance with the R(IB)2/04, give reasons for considering it necessary to do so. No reasons were given in this case and the claimant was entitled to some explanation for the sudden loss of entitlement to a benefit she had been receiving for more than five years.”

CDLA/3093/2007: Failure to record an issue in tribunal proceedings

The tribunal erred, when refusing a request to adjourn, in not recording both the request and reason for refusal in the statement of reasons and record of proceedings.

“In such cases a tribunal is making two decisions. The first is to start the proceedings despite being asked to adjourn – in effect either to hear the application at length or to postpone it until the substance has been explored. The second is to make a full decision without adjourning. There is nothing on the record about either decision. The application to adjourn was clearly relevant to the proceedings. It was expressly in issue. The tribunal should have recorded that the application was made somewhere in the tribunal record. And it should at least have recorded briefly its decision on the application. The absence of any note of the application or note or explanation of the tribunal’s decision is itself an error of law.”

CDLA/3292/2007: Conflicting medical evidence using different criteria

When considering severe discomfort test the tribunal referred to the examining medical practitioner’s (EMP) assessment, which stated that:

“whilst she had some discomfort on walking, [the claimant] was able to walk 100 metres before the onset of severe discomfort, although she [might] require a halt after 50 metres”;

As support to this the tribunal cited the evidence of the claimant’s own GP, which was set out as being that:

“her walking ability varies according to the level of pain experienced and … realistically she can probably walk only 50 to 100 yards without being in severe pain”.

The commissioner found that the tribunal had erred in treating two sets of evidence as if they both applied the same criteria. In the GP's case the test appears to be a more stringent "severe pain" test.

"On the basis of the authorities on what constitutes being virtually unable to walk, this case is on the borderline. It is therefore of particular importance that the findings of fact should be made having strict regard to the various elements of the statutory criteria and that the reasons should be adequate to explain the acceptance or rejection of evidence. I conclude that in this difficult case, the tribunal’s reasons were not adequate, in that they involved treating two pieces of medical evidence apparently given on the basis of different legal tests as being consistent with each other without explanation. In that respect, there was an error of law on the part of the tribunal."

CDLA/3301/2007: Grounds for supersession not established and incorrect decision notice

This decision was summarised in paragraph 8.

"The tribunal failed to deal adequately with the supersession question. The Secretary of State made the decision, and therefore the burden of showing it was rightly made rested on the Secretary of State. The ground on which the award was superseded was not identified by the Secretary of State and it was not identified by the tribunal....."

"The tribunal’s decision both on the decision notice and in the statement of reasons for the tribunal's decision disagree with the corrected decision notice which was subsequently issued. This is a fundamental flaw. The decision notice itself, in the standard format – which is very ill suited to recording accurately decisions made on supersession – simply stated that the claimant was not entitled to either component of DLA from 5 October 2006. The statement of reasons for the tribunal’s decision made it clear that it had considered the lowest rate care component and did not accept that the claimant satisfied the conditions for this award. The decision under appeal was the Secretary of State’s supersession. It removed the award of middle rate care component and substituted lowest rate care. Therefore the tribunal, in addition to dealing with the supersession question identified above, also needed to identify the grounds for its own supersession. It did not do this. When the DWP raised a query about the decision notice, the tribunal chairman purported to correct it to say that the claimant remained entitled to the lowest rate care component, but only ‘because no warning was recorded that she might lose her award’. The facility of correcting a decision notice does not enable the tribunal to change the decision. It allows accidental errors, and slips of the pen to be corrected. It does not enable a completely different decision to be substituted. In changing the decision notice in this way the tribunal chairman was unilaterally replacing the unanimous decision of the tribunal with a decision made by him alone."

CDLA/3898/2007: High rate mobility and blindness

Following Lees v Secretary of State for Social Services a claimant cannot qualify for high rate mobility component by virtue of being blind. This decision states that there is also no qualification for high rate mobility component when anxiety is allayed by guidance or supervision from another person.

CSDLA/364/2005: - Perceived bias - examining doctor who previously sat as a panel member

The EMP had sat with the tribunal chair once or twice in the last five years. In Lawal v Northern Spirit Ltd [2003] it was stated:

"The principle to be applied [for perceived bias] is that stated in Porter v. Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?"

"In Lawal the House of Lords decided that if the barrister had previously sat with a member of the Tribunal on only one occasion that would be enough to give rise to a complaint of apparent bias. The question in this case is whether it is enough that the EMP in the case has sat once with the tribunal chairman as the medical member of the tribunal. Do the same criteria apply as apply between the advocate in a cause who had previously sat at the legal chairman with the wing members?"

The commissioner held that there was no distinction between the two situations. Wing members rely on the legal chairman for legal advice and might possibly give him more credence when appearing as an advocate. Similarly the legal chairman and the lay wing member rely on the medical member for medical advice in the tribunal and might therefore give an EMP [an expert witness] more credence than they might give to an EMP with whom they had not sat and thus there might be apparent bias.

The commissioner adopts a "principled approach" when deciding this decision..

".otherwise, each sitting will have to be decided on the facts relating to the frequency and timing of sittings of each case, where the range of opinions may differ. Such an approach is unlikely to inspire confidence in the tribunal system.."

"In the context, where Lawal has decreed that a part time chairman should never appear as an advocate in a tribunal case, having regard to the other statutory prohibitions referred to in that case, I am of the opinion that a modern fair-minded and informed observer would find it unacceptable that a chairman may sit with an EMP for an uncertain number of occasions and that does not display apparent bias, but that over some uncertain figure the courts will hold that there is bias. In my opinion, such an observer is likely to take the view that the Lawal principal should also be applied to EMPs appearing as expert witnesses."

This case was taken to the Scottish Court of Session as Secretary of State for Work and Pensions v McNab. The claimant subsequently withdrew from the case and the Court of Session on 20.03.07 discharged the hearing assigned for 21.03.07 and reversed the Deputy Commissioner's decision insofar as it related to the composition of the tribunal.

The commissioner also cites the Cunningham case.

Note: This decision in relation to the composition of tribunals has been overturned by Secretary of State for Work and Pensions v McNab [2007].

CSDLA/500/2007 & CSDLA/524/2007: Failure to supply a record of proceedings

This decision of a tribunal of social security commissioners states that failure to make/ supply a record of proceedings (in this case failure of the clerk to produce a legible copy) in breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), is not of itself an error of law.

“…we are satisfied that Parliament cannot have intended that all breaches of regulation 55, whatever their materiality, should render appeal proceedings defective such that a tribunal’s decision is necessarily erroneous in point of law on that ground alone. We would stress that to make, preserve and upon request produce a record of proceedings is a regulatory requirement: chairmen and administrators charged with making, keeping and producing records should appreciate both the mandatory nature of regulation 55 obligations and their practical importance. However, where there is no record of proceedings, that is not necessarily fatal to the integrity of the appeal proceedings. On an appeal to disturb a decision, an appellant must show that the failure to comply with regulation 55 was material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. Insofar as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed.”

The decision upholds the approaches taken in CSSB/212/1987, CDLA/16902/1996, CIB/867/1997 and CDLA/1389/1997.

In the case of CSDLA/500/2007 the appeal did not succeed. Although the record of proceedings had already been lost when the chairman came to write the statement of reasons, she was able to rely on other notes she had made and included in the statement of reasons an indication of the evidence given at the hearing. An alternative ground that the reasons given by the tribunal were inadequate was also rejected.

In the case of CSDLA/524/2007 the appeal was upheld. The first ground of appeal, namely that the tribunal’s decision was erroneous in point of law simply because the record of proceedings was illegible was rejected. But the second ground for appeal, that the statement of reasons for the tribunal’s decision was inadequate (in part due to the illegible record of proceedings) was accepted.

“In short, in the face of written evidence from the claimant and her husband that she could not walk for more than 30-40 metres without developing severe discomfort, the tribunal found that she could walk 100-200 yards. The reasons do not explain the evidential basis of this finding and an explanation cannot be found in the documents that were before the tribunal or, of course, the illegible record of proceedings. We consider it is now too late to require the tribunal chairman to provide a legible transcript of the record of proceedings. We allow the claimant’s appeal on that ground.”

These decisions have now been reported as R(DLA)3/08

CSDLA/627/2007: Low rate mobility - consideration of guidance or supervision on familiar routes

A tribunal can consider the ability to walk on familiar routes without guidance or supervision, when considering the ability to walk on unfamiliar routes. CSDLA/12/2003 sees this consideration as a two stage process:

“(a) First of all, [a tribunal] must determine whether, through disablement, the appellant is unable to walk on familiar routes without guidance or supervision, in which case he satisfies;

(b) However, if the appellant does not qualify in this way, the tribunal must then ask if it is different if the routes are unfamiliar viz. is the appellant unable to walk on such routes without guidance or supervision? If he is not so able, he satisfies.”

In this appeal the tribunal ran together the two stage process but addressed the relevant issues.

"It first of all explained (when rejecting entitlement to the higher rate of the mobility component) why it refused to accept the claimed physical difficulties in the present case (particularly the asserted collapses of the appellant’s left knee), which were in the circumstances relevant also to an ability both on familiar and unfamiliar routes. It then turned to the assertion about anxiety and panic attacks, which had greater significance with respect to unfamiliar routes. For reasons it fully explained, the tribunal refused to accept that any of these claims were other than exaggerated. No error is demonstrated in the way the tribunal weighed the evidence and it was entitled to rely, if it wished, on the EMP’s report.”

When considering whether a claimant is unable to walk on unfamiliar routes without guidance or supervision, it may be evidentially relevant to consider any difficulties with familiar routes.

"When a claimant does not differentiate between problems on familiar and unfamiliar routes, and there is nothing inherent in his condition to suggest a relevant distinction, then if he is unable to satisfy a tribunal that he has the required difficulty on familiar routes, in a context where the onus of proof on all matters lies on him, a tribunal may legitimately infer that he therefore would not need guidance or supervision on unfamiliar routes either. It is not that an adjudicating authority is requiring as a matter of law that he has difficulties on familiar routes before it will accept entitlement to lower mobility but rather that, from all the evidence, when considering his capacity on unfamiliar routes, it makes deductions from the information about his ability on familiar ones. A tribunal usually has to so reason because a claimant often says that he never walks on unfamiliar routes, which is entirely understandable."

This decision has now been reported as R(DLA)2/08.

CSDLA/637/2006: Supersession on grounds of change of circumstance - onus of proof

The Secretary of State argued that an award should be reduced because the claimant's condition had improved and her needs reduced. The tribunal rejected this and was entitled to do so because the Secretary of State had failed to provide comparative evidence to establish that a tribunal had erred in maintaining an award - it is necessary to compare the circumstances as they were at the time of the award with those at the time of the supersession.

"The tribunal had no evidence compatible with the favourable award made by the 2001 tribunal from which it could deduce any primary facts about circumstances which had subsequently changed in any, or in any relevant, way, and having regard to the burden which lay on the Secretary of State; the tribunal therefore made its finding that there had been no such change. Unless that conclusion is one which no rational tribunal could make, then such a finding cannot be criticised as being one in error of law."

CSDLA/822/2006: Supersession on grounds of material fact - onus of proof

The facts concerning the original award were not known so grounds for supersession on grounds of material fact could not succeed.

CSDLA/202/2007: Behavioural problems - two routes to the mobility component

The claimant was an autistic child, age three, with behavioural problems. The commissioner states that the higher rate mobility component can be satisfied on grounds of being virtually unable to walk, provided the walking problems stem from the claimant's physical disablement and his physical condition as a whole (cites CDLA/1678/1997 and R(M)3/86). The other route to the mobility component is where the child qualifies for the highest rate of DLA care component, is severely mentally impaired and shows disruptive behaviour (cites R(DLA)1/00 and R(DLA)7/02).

CSDLA/251/2007: Insufficient grounds for supersession

The decision maker removed an award on grounds of a mistake as to a material fact. The tribunal upheld this. Both erred because the decision was based on new evidence, which indicated a possible change of circumstance rather than an error of fact at the time of the original decision.

CSDLA/535/2007: Children - sleeplessness, meaning of night and advance mobility awards

The tribunal failed to properly consider how far the child's sleeplessness was due to her functional impairment. Commissioner Parker cites and discusses case law that is useful when determining the care needs of a child (CDLA/4100/2004 and R(DLA)3/06.

The tribunal also failed to properly identify day and night needs for the child. The child's mother usually stayed up until 1.00 am but the tribunal should follow R(DLA)1/04, which states that night time is not necessarily the point at which the household goes to bed, between 11pm and 7am being the average time for most households.

The decision also discusses the rules for advance claims..

CSDLA/563/2007: Day and night needs

The claimant failed to establish, on balance of probabilities, that he had sufficient night needs to satisfy the test. The application also failed to properly distinguish between day and night at times. For example help with getting up in the morning is a day time need, not a night need.

General

CG/4060/2005: Carers allowance (CA) - claims made over the phone

It was not found to be discriminatory or in contravention of the Human Rights Act to take the date of claim as the date of receipt of a form rather than the date of a recorded phone call for CA claimant's over the age of 60. Claimant's who were under age 60 and required to participate in a work focused interview were allowed to have claims dated to the the date of their initial phone request. This was unlawful but did not mean that over 60's should be treated in a similar way.

The rules for determining the date of claim do not discriminate between over and under 60's at all. This decision refers to legislation in force at March 2005.

CG/2488/2006: Widowers' right to widow's benefits under European Union law

The claimant's wife died in July 2000. He claimed widow's benefit in October 2005 after hearing of other widowers who were receiving money in settlement of claims made by reference to European Union law. This was outside the three month time limit. Following the House of Lords' judgment in R (Hooper and Others) v Secretary of State for work and pensions, the claimant could only establish a right to widow's benefits if he could rely on European Union law or the European Convention on Human Rights.

European Council Directive 79/72 does not provide for the implementation of equal treatment with regard to survivor's benefits. EEC Regulation 1408/71 does apply to survivor's benefits, its essential protection against discrimination is on the grounds of nationality and residence and so is of no help to the claimant. EEC Regulation 1612/68, on the freedom of movement of workers within the European Union, is also of no relevance.

As a consequence, Commissioner Williams held that the claimant has no rights under European Union law on which he can base any challenge to the time limits applied to him by the tribunal.

CG/4139/2006: Carer's allowance, gainful employment - GCSE examiner

As an examiner, a claimant is deemed to be self-employed. Regulation 2(1) of the Computation of Earnings Regulations provides that any earnings should be averaged over a year rather than a month. This meant that the earnings were below the weekly earnings limit throughout all the periods of employment.

CSG/741/2006: Tribunal's power to decide an unappealed decision

A claimant appealed against an overpayment decision dated 8 November 2005. The tribunal not only considered this decision but also found that the decision dated 19 March 2005, superseding the original decision to award carer's allowance was invalid. It had no powers to do this as the 19 March decision had not been appealed by the claimant.

CG/1491/2007: CA and self employed earnings

The tribunal chairman erred by misinterpreting regulations 13 and 14 of the Social Security Benefit (Computation of Earnings) Regulations 1996.

Housing benefit

CH/180/2006: Duty of local authority to landlord regarding payments

This was an appeal by a landlord against a decision to pay rent direct to the claimant, which the claimant subsequently failed to pay.

Under regulation 77 of the Housing Benefit (General) Regulations 1987 the landlord should have been notified in writing of a decision on the claim as a "person affected" by it.

The council had a discretion to make payments to the landlord under regulation 94 of the Housing Benefit (General) Regulations 1987 but, following CH/3629/2006, this cannot be paid when payment has been made to a claimant for the same period.

The only remedy that the landlord has is to claim compensation from the council for maladministration (failure to notify landlord and failure to correctly initiate regulation 94 action).

CH/1821/2006: Landlord's arrears and "double payments"

A claimant's landlord was owed arrears but the claimant had already been paid HB. The tribunal stated that it had the right to hear the landlord's case and that the local authority should had suspended payment of HB pending enquiries. It found in the landlord's favour. The commissioner agreed with the tribunal on all but one point - regulation 98 of the Housing Benefit Regulations 2006 prohibits double payments.

"So far I have decided that the tribunal was entitled to substitute its judgment for that of the local authority on where the overriding interests of the claimant lay and that the chairman was right to say that the local authority could have suspended payment while it made enquiries of the landlord. The actual disposal of the case depends on my decision on the double payment issue. I have decided in CH/3629/2006 that it is not possible to make payment of housing benefit in respect of the same entitlement for the same period to both the claimant and the landlord. It follows that the tribunal should have decided that the effect of the offset provision in regulation 98 of the 2006 Regulations was to prevent payment being made to the landlord once it had been made to the tenant. I have substituted a decision to that effect for the decision given by the tribunal. The practical effect is that the landlord derives no benefit from the appeal to the tribunal having succeeded."

CH/2042/2006: Advance claim/determining the date of entitlement to benefit

This decision provides a detailed analysis of the interpretation and operation of regulation 72(11) of the Housing Benefit (General) Regulations 1987and a step-by-step approach as to how the start date of housing benefit entitlement should be determined. It has been reported as R(H)9/07.

CH/2060/2006: Incorrect notification of refugee status followed by the granting of a second application

An asylum seeker was wrongly informed that he had been granted asylum and claimed HB and JSA. The error was later notified by the Home Office but in the meantime a second application was granted, though not backdated to the date of the original application. The tribunal case dealt with a period covered by the second application and erred in considering matters concerned with the period covered by the first application.

CH/2638/2006: Prisoner under license - backdating

The claimant, a prisoner under license, was recalled to prison. The tribunal erred in treating the claimant's estimate of his own release date as determinative, when deciding whether he would be absent for thirteen weeks or more from his home.

"Assuming that it would take a little while for the claimant to organise a request for a hearing, the hearing would still have taken place well within the 13 week period. ... the evidence that was before the hearing would have been the same as the evidence on which the recall was based, and it could be predicted that the claimant's release would be ordered at the hearing. It should have been predicted that this would all probably be accomplished within 13 weeks."

The commissioner allowed the claimant full backdating on grounds of good cause, back to the date when his original claim ceased.

CH/2995/2006: Failure to provide information

This concerns a council tax benefit claim where the husband of the claimant failed to provide information to the local authority. It goes into some detail on the correct procedures when requesting information and terminating a claim in such cases.

There was some confusion on the part of the local authority as to whether the husband or wife was the claimant - it was the wife because she had submitted the claim form. However the commissioner accepted that letters to the husband should be treated as addressed to the claimant as he had acted in relation to the claim.

CH/3076/2006: Excess benefit

The claimant found work in May and was overpaid housing benefit and council tax benefit. However the local authority wrongly considered that the excess council tax benefit continued till the end of the financial year - 31 March ( When an award is made the computer credits the claimant with benefit for the whole financial year).

"I can quite understand that computers are so set up that it is easier to manage a council tax account by making a single advance credit in respect of an indefinite award of benefit and then adjusting it if an award of benefit is terminated, but I do not consider it appropriate to regard those exercises as the payment of benefit and the recovery of excess benefit. They are paper, or notional, movements of money. It does not follow from the fact that some credits to council tax accounts represent council tax benefit that all such credits do at the time they are made. The initial credit is not justified by there being an indefinite award of benefit that is liable to be terminated at any time. It is justified by the need for the council tax account to show that the council tax payer is not in arrears while the award of benefit continues and, presumably, some practical difficulty in making weekly credits."

This decision points out the absurdity of this approach and ramifications for all local authorities if they followed such a bizarre course of action. He substituted his own decision limiting the overpayment to the relevant period.

"I doubt that there would even have been an appeal to a tribunal in this case if the claimant had been told that only £15.14 due in respect of one week was recoverable as excess benefit. There would certainly have been no appeal to a Commissioner."

CH/3282/2006: Tenancy not on a commercial basis

The tribunal erred in failing to consider whether the claimant's life interest in a single room was on a commercial basis. In particular they did not establish whether the rental agreement was enforceable or question the high rent.

"In this case the claimant claims to have been granted a life interest of a single room in his landlady's flat. It is difficult to imagine circumstances in which parties to an agreement on a commercial basis would enter into such an arrangement, but the tribunal failed to refer to this issue in their reasons for holding that the agreement was not on a commercial basis."

"I also consider that the tribunal should have dealt specifically with the very high level of rent said to be payable for the room. Although the claimant's landlady stated that the rent for the room on an unfurnished basis was £200.00, and that £50 per week was paid by the claimant for other amenities in the house, the rent was nevertheless extremely high for a single room in a London flat with shared use of other facilities. The tribunal failed to explain how a rent of that amount was consistent with an agreement on a commercial basis, and I consider that the statement of reasons was inadequate for that reason also."

The landlord and the claimant had previously been partners and the commissioner in his substituted decision the commissioner noted that their arrangements were still above and beyond that of a landlord/tenant.

"The claimant and his landlady were formerly partners, and they have both been at pains to emphasise that that he was allowed to live in his landlady's flat as an act of kindness by her when he was released from prison in poor health. Although the claimant has his own room, the rest of the flat is shared. The claimant pays his landlady the whole of his pension and she provides for him and subsidises him when necessary. On her own account, she was prepared to forego payment of rent until such time as the claimant recovered money in his High Court action. In her letter of 14th May 2005 the claimant's landlady states ".I have only done all of this because of my true friendship and our agreement for the life tenancy that I have agreed with him."

Mr Lintott submitted that the agreement between the claimant and his landlady were, in the words of Sedley J., ".a truly personal arrangement which is merely clothed in the garments of a legal liability." Even accepting the claimant's evidence in its entirety and taking the agreement between the parties at face value, it is difficult to imagine more personal and less commercial arrangements than those between the parties in this case. I therefore consider that no useful purpose would be served by referring this case for rehearing and accordingly substitute for the tribunal's decision the decision set out in paragraph 1 above."

CH/3528/2006: Rent restrictions

This decsion considers whether payments called service charges are actually rent and the issue of suitable alternative accommodation.

CH/3622/2006: Joint liability

Re-affirms that there can only be one claimant in housing benefit claims. The tribunal recognised this but erred in being ambiguous on this point in its record of proceedings.

CH/3629/2006: Landlord's arrears and "double payments"

This case was heard together with CH/1821/2006. This too is a case where the landlord was attempting to be paid arrears of rent from the local authority when HB had already been paid to the tenant. Regulation 95 and 96 of the Housing Benefit Regulations 2006 allow payments to be made to the landlord but regulation 98(1) offsets previous payments which have already been made to the claimant/tenant.

Initially HB had been paid direct to the landlord but the claimant requested that this should stop. The local authority complied but did not inform the landlord of it's decision to do so.

The commissioner discusses remedies in such a case. The local authority could have suspended HB pending enquiries (see CH/1821/2006). The landlord also still has the option of civil proceedings (though this may prove a fruitless exercise against a claimant on benefits) or could obtain compensation from the local authority.

"The housing benefit was being paid direct to the landlord. This was changed without notification to the landlord. The local authority accepts that that was wrong. What would have happened if the landlord had been notified? The notification would have been generated by the computer at the same time as the notification to the claimant. The landlord would immediately have applied for the decision to be reversed under regulation 95(1)(b) or 96(1)(b). The local authority would then have investigated and made a decision. The landlord could have produced the evidence on which the local authority has now accepted that regulation 95(1)(b) applies. In other words, the landlord would not have been out of pocket if the local authority had notified its decision."

CH/3631/2006 (bailii): Abatement of appeal where claimant deceased

The claimant died after his appeal had been heard and the local authority had sought to take the appeal to commissioners.

Regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 allows a relevant authority to appoint someone to lodge an appeal in the place of the deceased but regulation 1(2) of the same regulations states that "appeal" means an appeal to an appeal tribunal not to a commissioner.

There is no equivalent rule in the Social Security Commissioners (Procedure) Regulations 1999 so following R(S)7/56, R(I) 2/83, R(I)2/83, R(SB)25/84), R(SB) 8/88 and R(IS) 6/01 the case is abated and does not proceed.

CH/3700/2006: Caravans - meaning of personal possessions

A caravan, based at a non-residential site is capital for the purposes of HB/CTB but is disregarded because it is a personal possession.

Commissioner Jacobs defines "personal possessions" as "any physical assets other than land and assets used for business purposes".

CH/3811/2006: Exempt accommodation - support must not be minimal

Regulation 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." This is 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.

This case affects 50 similar appeals. The claimant was living in accommodation, previously owned by Adapt properties, who provided both accommodation, as well as care and support. Adapt was then acquired by Regard Partnership. Regard continued to provide care and support to the claimant but his tenancy (along with those of 14 other properties) was now transferred to Reside Housing Association.

What was under consideration was whether Reside was providing care and support and as a consequence the claimant was able to get increased HB under the exempt accommodation rules. The appeal failed because the support provided by Reside was minimal. There appears to be five basic rules when deciding this:

  1. care and support must be provided
  2. there is no requirement to be the main care provider
  3. provision is not dependent on contractual obligations, though the presence or absence of such an obligation is potentially of some relevance is assessing the significance of what the landlord claims actually to do.
  4. provision is not dependent on statutory obligations, but the fact that someone else does have such an obligation is again potentially relevant in assessing the significance of what the landlord claims actually to do.
  5. the care provided must be more than de minimis (minimal or token)

This decision has been reported as R(H)7/07.

CH/3933/2006: Council tax benefit payable where there is sole or main residence within two chargeable dwellings

The claimant and his family lived in and owned a flat in a block of flats. His parents owned the empty upstairs flat. In 2003 the claimant finding it difficult to accommodate his large family in the downstairs flat alone, extended his occupation to both flats.

The flats are valued as separate hereditaments for rating and council tax purposes and so are both chargeable for council tax purposes. The tribunal erred in finding that the claimant could not receive council tax benefit for both flats. The claimant resided in both at the same time so his sole or main residence was within two chargeable dwellings, which meant he could claim benefit for both.

CH/4248/2006: Limited leave to remain and temporary cessation of funds

The claimant was a citizen of Mexico and had limited leave to remain on the condition that he had no recourse to public funds. He was in receipt of funds from Mexico but in August 2005 these were disrupted for a period of less than 6 weeks. On 31st March 2006 he applied to the local authority for housing benefit and council tax benefit with effect from 8th March 2006.

This was refused, a decision upheld by Commissioner Levenson.

Regulation 10(4) of the Housing Benefit Regulations 2006 provides that housing benefit (there is similarly worded legislations for council tax benefit) can be paid to a person who is temporarily without funds for a period not exceeding 42 days during any period of limited leave.

The commissioner understood the phrase “is temporarily without funds” to refer to the state of affairs at the date of the claim or the date of the award (otherwise the provision would have stated “has been temporarily without funds”).

“Once it has been established that there is a relevant disruption, then if it has already exceeded 42 days before the claim is made, there can be no entitlement. If it has not exceeded 42 days, then there can be entitlement to benefit while the disruption continues, but only until the disruption has continued for 42 days, or entitlement has lasted for 42 days, whichever comes first.”

“It is possible that, if the claimant had applied for benefit at the time of the disruption of funds, there could have been entitlement. However, he made no such claim, nor did he ask for any award to be backdated to such time and, in fact, he was at the time of the disruption living at a different address from that that in respect of which he did make his claim.”

CH/4250/2006: Meaning of houseboat

This is not defined in the housing benefit regulations but, following Commissioner Williams obiter comments (not relevant to the decision being made) made in CH/844/2002.

"It seems to me that for housing benefit purposes “houseboat” is, as Commissioner Williams suggested it might be, an ordinary English word without a technical meaning and that it is a matter of fact in any particular case whether a boat is a “houseboat” in this sense. However, it is difficult to imagine a case in which a reasonable tribunal would conclude that a boat which is fitted out as a dwelling suitable for permanent residence is not a houseboat."

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

CH/4373/2006: Whether freeholder subject to a long lease is the 'owner' of the dwelling

Where a long leasehold interest has been granted at a low rent, the person with the ability to dispose of the freehold, is the owner.

The case concerns a claimant who held the freehold on a terraced house, which was divided into three dwellings with 99 year leases on each. The claimant granted the lease of the ground floor flat to his former partner then occupied this flat with her under an agreement by which he was liable to pay a substantial weekly rent to her. His claim for housing benefit was refused on the ground that he was the "owner" of the dwelling which he occupied and so was precluded from entitlement to benefit under regulation 10(2)(c) of the Housing Benefit (General) Regulations 1987.

This decision has been reported as R(H)8/07.

CH/39/2007: Contrived tenancy

The local authority argued that this tenancy and 21 others were contrived. The tenants rented from SIL, who rent flats and provide support to their tenants. The claimants pay rent and charges for support services to SIL. SIL leases the premises from a company (SMS). The "main controlling mind" of SMS is a Mr C who set up SIL through which he provided accommodation and services. The premises were then transferred to SMS and SIL became a not for profit organisation with Mr C as a consultant. This reorganisation took place at the time when the Transitional Housing Benefit scheme was being brought into force.

The local authority became suspicious about the increase in rents and charges and at the difficulties it had obtaining explanations from Mr C and others associated with SIL and SMS. Although SIL was run on a not for profit basis, Mr C stood to gain through his directorship of SMS and his consultancy with SIL.

The claimant appealed against the local authority decision to refuse benefit and the tribunal upheld the appeal. The local authority appealed to the commissioner. This appeal failed. The commissioner analysed in detail the approach taken by the tribunal and found that it had acted correctly.

"It is not for me to say whether the tribunal was right in fact to come to the decision that it did on the evidence before it. That issue does not arise before me. ......The issue for me is whether the tribunal went wrong in law in coming to the decision that it did. My decision is that it did not. I am sure that the chairman would have worded his statement differently had he known in advance the sustained assault that Ms Findlay [the local authority representative] would bring to bear on it. But his reasoning is clear and involves no misdirection in law. As far as the reasons are concerned, they satisfy the legal test of adequacy. The tribunal did not go wrong in law."

CH/136/2007: Housing project contrived to take advantage of the HB scheme

A tribunal has the right to consider the whole project when deciding on the HB for a particular tenancy.

CH/402/2007: Terminations following suspension - right of appeal

The claimant failed to supply information and had his claim suspended. The claim was subsequently terminated. This decision states that terminations following suspension are appealable. It sets out in some detail the legislation underpinning this.

CH/411/2007, CIS/34/2006 and CIS/735/2007 : Meaning of in receipt of income support

This decision considers the meaning of the words 'in receipt of' in regulation 7A(5)(d) of the Housing Benefit (General) Regulations 1987 and regulation 4A(5)(d) of the Council Tax Benefit (General) Regulations 1992 that provide that a person is not to be denied benefit as a person from abroad if they are 'in receipt of' income support.

The claimant was refused income support and, her housing benefit and council tax benefit claim. These appeals were heard jointly. The tribunal allowed the claimant's income support appeal and also held that it was 'common ground' that the decision in the income support appeal was determinative of the HB/CTB appeal.

The commissioner determined that the tribunal had erred in allowing the claimant's income support appeal, by virtue of being a “person from abroad” and as a consequence, she also had no entitlement to housing benefit or council tax benefit.

"Since it is uncontroversial that the claimant was a ‘person from abroad’ within the meaning of the HB and CTB Regulations as well as the Income Support (General) Regulations 1987 and in the light of my conclusion that she was not ‘in receipt of income support’ on a true construction of the HB and CTB Regulations, I give the decision that the tribunal ought to have given, which is that the claimant was not entitled to HB or CTB...."

CH/779/2007: Supported accommodation

Following CH/3811/2006, this decision found that the support provided by the landlord to the claimant was not more than "de minimis" and so did not come under the exempt accommodation rules.

The decision also considers whether support provided is relevant where the claimant is unlikely to need it.

"Even if support which is available to tenants generally, but has not been taken advantage of by a particular tenant, is relevant, it must also be relevant also to look at whether in reality the particular tenant is likely to need the support. If, for example, a provider of supported housing were to admit a tenant who clearly has no support needs, the fact that support is theoretically available to him would not mean that support is “provided” to him."

CH/1099/2007: Self employment earnings

The losses in a claimant's business cannot be offset against a partner's employed earnings.

CH/1246/2007 and CH/1247/2007 : Exempt accommodation

Appeals by the claimants was upheld because it was unclear whether the tribunal had used the correct legal wording when considering whether support had been "provided by the landlord" under the exempt accommodation rules.

CH/1289/2007: Exempt accommodation

Tribunal failed to make adequate findings on the level of care and support that the landlord was providing. Where the dwelling is part of a larger building (e.g. a flat) the exempt accommodation test should only be applied to the claimant's accommodation. It does not necessarily apply to the building as a whole.

CH/1353/2007: Previous ownership

This decision discusses the construction of regulation 9(1)(h) of the Housing Benefit regulations 2006.

CH/1384/2007: Recovery of council tax benefit overpayment - official error

The claimant had disclosed income on his claim form, which had been adjusted to take account of a £15 deduction by the DWP. The local authority assumed that the adjustment had not been made to the amount stated on the form and made a further adjustment which led to an overpayment.

The tribunal found that the overpayment was not recoverable on grounds of official error. The commissioner upheld the appeal in part, stating that the tribunal had the right in this case to decide that there was official error in the original completion of the council tax benefit claim form but that it had erred in not finding that the authority was entitled to recover the excess benefit which remained credited to the claimant’s account.

CH/2298/2007: Right to recover overpayments from landlord and claimant

This decision considers this issue and discusses it in relation to regulation 101 of the Housing Benefit (General) Regulations 1987 and section 75 of the Social Security Administration Act 1992.

CH/2491/2007: Rent on a commercial basis

This appeal, that the tribunal had failed to take proper account of a supporting people contract, was rejected.

"The chairman’s statement must be read as a whole. It is clear that she accepted that an arrangement could be commercial even if it involved support or rehabilitation. She focused on the particular circumstances of the arrangements in these cases and decided that they were not on a commercial basis. She listed the particularly significant factors that she took into account. She classified them as being for a commercial basis, against or neutral. She then considered the circumstances as a whole and reached her conclusion. I find that her analysis was rational. I cannot see that she overlooked any relevant consideration or that she took into account anything that was irrelevant. Her approach to the issue of commercial basis was correct in principle and it is impossible to say that she was plainly wrong in her conclusion."

CH/2567/2007: Council should specify designated office

The claimant had notified the Housing Department of a change of circumstance, rather than the housing benefit section. However the wording of council information concerning change of circumstances was unspecific.

“While you are getting benefit you must, by law, tell us about any changes in your circumstances which might affect your claim. You will lose benefit if you fail to notify the Council within 1 month of the change.”

“I note that there is no reference on this page to any particular department, office, address or telephone number, but only to “us” and “the council”. The form also contains a page headed “Useful information” which states that help in completing the form can be obtained by calling into “the finance reception” on the ground floor of the town hall, or by calling a particular telephone number, or by writing to the “Council Tax and Benefits Service” at a particular address, but this is not referred to as the “designated office” and is not given as either the address to which the form must be returned (the page only saying that the form must be returned to “us”) or the address to which a change of circumstances must be notified. The front page of the form contains a reference to the name of the authority and also the authority’s logo, which includes the name of the authority’s area. Thus, on the face of it, it is reasonable to assume that “us” refers to the authority as a whole.”

Since the designated office was unclear the Housing Department should either have passed the relevant information to the Council Tax and Benefit Service, or advised the claimant to do so.

Failure to do this was an official error.

The claimant was held not to have contributed to this error because of the “proliferation of correspondence” he received and his repeated notification of the relevant facts to the Housing Department.

CH/2675/2007: Whether loans used to pay rent whilst claim being determined count as income

Generally if the loans are not expected to be repaid until some time in the indefinite future, then it is likely to be right to categorise those loans as income.

If the loans are expected to be repaid quickly (as soon as the award was processed) they should not count as income.

This decision has been reported as R(H)8/08.

CH/2943/2007: Official error - what is reasonably expected of a claimant

The claimant stated on her housing benefit and council tax benefit claim form that she was paid £210 weekly for a 40 hour week. The local authority wrongly noted this as £46.95 (The claimant subsequently provided the information a second time when she was sent a postal check form by the local authority).

Regulation 100 of the Housing Benefit Regulations 2006, SI 2006/213) states that overpayments are not recoverable “where they arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.”

This appeal succeeds because the claimant’s full explanation for not recognising the difference in earnings quoted was never put before the tribunal. She was not asked any questions about how she could reconcile what the tribunal in its statement of reasons referred to as a clear statement that her weekly earnings were £46.95 with her knowledge of her actual earnings.

“It seems to me that this amounted to a failure by the tribunal to ask material questions pursuant to its duty to act inquisitorially and as such was an error of law”

There was also an error of law because the tribunal had not dealt separately with the issue whether the claimant could reasonably have been expected to realise that the local authority had made a mistake leading to an overpayment a second time just after she had again provided them with all the correct information.

CH/3586/2007: Designated office and relevant authority

The claimant, who had reached the qualifying age for pension credit, informed the local authority's housing office that she was delayed in returning to the UK from Ghana, but did not directly inform its benefits section.

The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 require the claimant to notify a designated office. In the regulations, designated office means "the office designated by the relevant authority for the receipt of claims to housing benefit". The local authority maintained that she had not done this.

The claimant maintained that the resulting overpayment was caused by the housing office's failure to pass the information on to the housing benefit section and was therefore "an official error caused by a mistake made by a relevant authority". In the regulations relevant authority means "an authority administering housing benefit".

The commissioner found that the tribunal had erred in not considering official error on the part of the housing office. It also erred in not considering whether a part of the error was the result of the "claimant's own failings".

The commissioner also considered that the term relevant authority was not confined to the housing benefit section in this instance but also included the housing office.

"I see no justification for construing the term relevant authority, which in its ordinary meaning is wide enough to embrace any part of the authority, in a way which confines it to one department within the authority. In particular, the statutory definition of “relevant authority” does not justify such a restriction: its purpose, in my opinion, is to limit the term to authorities administering HB, as distinct from authorities, like shire counties, who do have these functions."

This decision has now been reported as R(H)10/08.

CSH/499/2006: Prisoner on remand

The first day of absence from home is the date on which a prisoner is first remanded.

Incapacity benefit

CIB/1602/2006: Credits and credited earnings

This decision considers in some detail the decision makers guidance on credits and credited earnings as well as the correct application of regulation 8A of the Social Security (Credits) Regulations 1975 - SI 1975/556.

CIB/2248/2006: Gender Recognition Act 2004 and human rights

The claimant had gender reassignment at the age of 63 and was recognised as male. He tried to claim IB but was refused. This is wrong under Article 4 of Council Directive 79/7/EEC.

"The 2004 Act fails to comply with Article 4, because it deprives the claimant of the link between entitlement to incapacity benefit and a retirement pension. I can remove that discrimination by disapplying the legislation to the extent necessary in order to allow that link to be maintained in the circumstances of his case. For practical purposes, that result can be achieved by deciding the claim for incapacity benefit as if it was made the day that his entitlement previously ceased. The claimant must, of course, be incapable of work, but for other purposes the gap in entitlement is to be disregarded."

CIB/2445/2006: Time limit for claiming credits on ground of incapacity for work

The case concerned a claimant who made a claim in 2005 but who wished to claim credits, on ground of incapacity for work, back to 1989. He maintained that he was misinformed about whether he could claim at the time. A number of issues were considered by the commissioner but the chief one concerned the claimant's decision to wait 16 years before rechecking what he was told. The commissioner held that it was reasonable for the tribunal to conclude that the time lapse between the alleged misinformation and the claimant's follow up was too long.

"It is not whether a claimant had good cause for the delay in claiming credits or whether there were reasonable grounds for the delay, but the more general test of what is a reasonable time in the circumstances for a claim to be made. ……..As a general proposition it can be accepted that the longer the gap from the tax year in question the more compelling the other circumstances must be for it to be concluded that the time for claiming, outside the following benefit year, is reasonable.

………even if it were accepted that a claimant who had been specifically turned away from claiming sickness/invalidity benefit might reasonably fail to realise that there was anything to enquire about as to credits for incapacity for work, it would still be difficult to conclude that 16 years was a reasonable time in the circumstances for claiming. For the most recent relevant tax years, up to 2000/2001, the lapse of time to May 2005 was considerably less. A claim by the beginning of January 2003 would automatically have been in time for that tax year. However, the claimant was not, for a substantial period before May 2005, in a simple position of ignorance. He had received the deficiency notice in January 1992 and the pension forecast in October 2003, together with the further letter from the National Insurance Contributions Office in 31 August 2004. All of those alerted the claimant to the gaps in his contribution record, including some mention of credits, in such a way that the appeal tribunal was entitled to conclude that, even in relation to 2000/01 and the immediately preceding years, the time for claiming credits was no longer reasonable by May 2005."

CIB/3236/2006: Transitional rules - industrial injury

A claimant was awarded the old invalidity benefit, under section 102 of the Social Security Contributions and Benefits Act 1992, because she had an industrial accident in 1992. Following the introduction of incapacity benefit in 1995, section 102 was repealed but the claimant continued to receive benefit under transitional regulations so long as her incapacity was the result of her industrial accident (regulation 21 of the 1995 transitional regulations).

In 2006 an EMP decided that although the claimant would pass the personal capability assessment test her incapacity was no longer due to her work accident so the IB award was superseded.

The appeal tribunal, consisting of a single chair, found that the claimant had 15 points under the personal capability assessment due to post 1992 disabilities but had insufficient points based on her 1992 accident to satisfy regulation 21.

The claimant appealed to commissioner, on the ground that there was no medical member of the tribunal. Deputy Commissioner Paines considered regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which covers the composition of appeal tribunals. He concluded that regulation 36(2)(a) (i) applies to all issues raised on the appeal concerning the personal capability assessment, including old regulation 21 cases. The tribunal therefore erred in not providing a medically qualified member on the panel.

In relation to the operation of regulation 21, the Deputy Commissioner did not accept that a claimant was required to score 15 points arising solely out of an industrial accident.

"it seems to me that in a case where the combined effect of an industrial injury and other pre-existing disabilities was to make a claimant incapable of work, the incapacity would be as a result of the industrial injury and it would be no answer to say that the effects of the industrial injury would not have been sufficient to make the claimant incapable of work if he or she had not had the pre-existing disabilities as well. Conversely, where a claimant recovered partly from the effects of the industrial injury but remained incapable of work as a result of the combination of the continuing effects of the injury and of those of a subsequently acquired condition (where neither set of effects was sufficient on its own to incapacitate the claimant), it seems to me that the claimant would still be correctly described as incapable of work as a result of the industrial injury."

CIB/3339/2006: Incontinence - loss of control of bowels

The tribunal failed to fully consider whether the claimant satisfied the personal capability assessment descriptors 13(d) (loses control of bowels once a week) or 13(e) (loses control of bowels occasionally). Where a claimant isn't always able to get to the toilet in time he or she "loses control" on those occasions when they fail (the claimant lost control of his bowels once or twice a month).

CIB/16/2007: Inadequate findings of fact /unclear reasons in relation to mental health descriptors

Deputy Commissioner Ovey found that the tribunal erred in its findings on the following descriptors - frequently distressed at some time of the day due to fluctuation of mood, unable to cope with changes in daily routine and gets irritated by things which would not have bothered her before she got ill.

The Deputy Commissioner substituted his own decision, awarding two extra points, though this meant that the claimant still fell short of the required score of 10 points.

CIB/143/2007: Exceptional circumstances - link between work and risk

This decision discusses the caselaw concerning the type of work referred to when considering exceptional circumstances. Commissioner Williams decided that there must be a link between the work undertaken and the risk involved and that the work considered must be, in this case, that which the claimant is realistically capable of doing, according to his or her education and skills, rather than by using some abstract test.

The Commissioner also stated that, whilst decision makers are bound to consider the pca test before the exceptional circumstances test, tribunals are not. He also expressed some doubt about the reliability of the evidence produced on an electronic 85.

"The failure by the doctor to cancel out the computer-generated inconsistency in this list of factors - let alone the inconsistencies with other statements and opinions recorded by the doctor elsewhere in the IB85 - gives rise to the question whether this is actually a report of the doctor or merely unchecked automatically generated wording from the underlying software programme."

This decision was appealed as Charlton v secretary of state for work and pension and has now been reported as as R(IB)2/09.

CIB/360/2007: Exceptional circumstances - type of work

The tribunal failed to give adequate reasons as to why the exceptional circumstances test was not met. The decision discusses how a tribunal might consider the type of work which will cause a risk to the claimant or others.

"The degree of detail in which those consequences will need to be thought through will depend on the circumstances of the case; while I agree with Mr Jacobs that this involves considering the types of work that the claimant might be required to do, I do not consider that it will necessarily involve a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre, or testing the degree of risk to health by reference to specific detailed job descriptions. A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial. For example, in my decision in CIB/1695/2005, which concerned a claimant suffering from epilepsy, I considered that the requirements of regulation 27(b) were not satisfied because - while one could readily imagine types of work that the claimant could not safely perform, such as work involving driving or the operation of heavy machinery - there was an adequate range of work that the claimant could do in which there would not be a substantial risk to health from his suffering a seizure in the workplace."

CIB/400/2007: Manual dexterity descriptor 7(d) - ability to use a pen or a pencil

"In short the reason why the tribunal erred in law is as follows. The tribunal failed to explain why descriptor 7(d) did not apply. Indeed, although the Statement of Reasons is in many ways admirably thorough, it does tend in places to recite the evidence, rather than make findings of fact on that evidence. Thus the reader is told that the claimant “said that the IB50 questionnaire had been completed by his wife and that he could not write a letter although he could sign his name”. However, the tribunal has failed to record its finding of facts on this issue. Did it accept the claimant’s evidence? If so, why did descriptor 7(d) rather than 7(f) [difficulty turning taps or cooker knobs] not apply? If not, why did the tribunal not accept the claimant’s evidence? This uncertainty means the decision cannot stand."

CIB/912/2007 (bailii): Permitted work overpayment

This was an appeal against a decision that the claimant had been overpaid a total of £9,587.07 in incapacity benefit between 16 June 2003 and 22 June 2005, which was recoverable because he had failed to disclose the material fact that he was earning in excess of the permitted work lower limit as from the earlier of those two dates.

The claimant, had been in receipt of invalidity benefit since 1993. On 17 June 2002, he completed a therapeutic work form declaring that from that date he was working as a handyman in a residential care home for on average of 15 hours a week with earnings of £61.50 a week. In actual fact the therapeutic earnings rules had been superseded by the permitted work rules in April 2002. The DWP allowed him to work 26 weeks, with the possibility of a further 26 week extension.

The claimant then applied to do supported permitted work, which was refused. He was asked whether he wished to still apply for a 26 week extension or to reduce his earnings to the £20 level or to give up the employment.

The claimant returned a PW6 form to the Department stating that he wished to start supported permitted work. His current permitted work was duly extended for a further six months to 15 June 2003. In June 2003 he was sent a PW7 form outlining his various options at the expiry of the extension. The claimant said he would be reducing his earnings to £20 or less on a PW1 form. In reply the DWP sent a standard two-page letter DL/PW1 which outlined what was expected of him.

In June 2005 the DWP sent the claimant a PW8 enquiry form about his work. He stated that he was still working as a handyman for the residential care home and that he worked 15 hours a week for £74.56 a week.

On 8 September 2005 a decision maker made a decision, superseding the invalidity benefit award of 29 January 1993 and the incapacity benefit award of 13 April 2005 on the basis of a change in circumstances with regard to his earnings. As a result an overpayment decision was issued.

The claimant appealed, stating that he was under the impression that he was able to continue working throughout the period in question so long as his weekly earnings were below the higher weekly limit. The appeal was unsuccessful so the claimant appealed to the commissioner on three grounds. They were that the tribunal erred in law by:

  • failing to address the supersession point in the submission
  • failing to make it clear whether the overpayment was found to be recoverable on the basis of misrepresentation or failure to disclose
  • failing to identify the nature of the duty to disclose and in particular whether it arose under regulation 32(1), (1A) or (1B) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968).

The commissioner upheld all three of these points.

“Putting to one side for a moment the rather technical supersession issue, I agree with both representatives that the tribunal erred in law in at least two respects. First, the tribunal failed to make it clear whether the overpayment was recoverable on the grounds of misrepresentation or failure to disclose (or both). The tribunal started off in paragraph 9 of its Statement of Reasons by finding "as a fact that the appellant misrepresented his earnings" but then later in the same paragraph it stated that it "was satisfied that the appellant had failed to disclose a material fact that he was earning in excess of the permitted lower limit from 16 June 2003". In short I agree with the claimant's representative that there is no adequate explanation in the Statement of Reasons enabling the claimant to understand the basis of the alleged recoverable overpayment.

If the overpayment is indeed recoverable on the basis of a failure to disclose, then the second error of law, as identified by both representatives, concerns the tribunal's failure to particularise the nature of the duty to disclose under regulation 32. The tribunal in paragraph 9 of its Statement of Reasons asserts rather than explains this failure to disclose, without addressing the regulation 32 point at all. This is a further error of law.”

On the supersession point the original decision to remove IB was based on regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provision allows a decision maker to supersede from the date of the change of circumstance in relation to "an incapacity benefit decision where there has been an incapacity determination". However regulation 7(2)(c)(ii) does not apply because the decision to be superseded was the 1993 invalidity benefit decision which does not qualify as an incapacity benefit decision.

The Secretary of State's representative suggests regulation 7(2)(c)(iii) can be used instead but the commissioner advises the new tribunal to note that the version of regulation 7(2)(c)(iii) in force at the date of the superseding decision was different to the law as it stands today.

Reference was also made to Hooper v Secretary of State for Work and Pensions (R(IB) 4/07) in terms of both the supersession issue and failure to disclose

The facts of Hooper are similar to this case though in Hooper the failure to disclose revolved around the contents of a factsheet sent to all incapacity benefit claimants in March or April of 2002, which does not apply in this case.

CIB/920/2007: Computation of earnings

Appeal allowed because earnings were wrongly computed. They should have been calculated using the Social Security (Computation of Earnings) Regulations 1996 following the result of Secretary Of State for Work And Pensions v Doyle (2006).

CIB/1323/2007: Vision - ability to recognise a friend across a street or room

The claimant maintained that she should satisfy the test if she could not recognise a friend from among a number of people. Commissioner Turnbull disagreed.

"I would accept that the time taken to “recognise” a friend is material: it may be so long that it has to be said that the claimant “cannot” recognise a friend. However, I would not accept that the test requires the claimant to be able to pick out a friend from among a number of people. The test in my judgment merely requires the claimant to be able to identify a friend who is alone on the other side of the room or road."

The tribunal were also right to take into account the fact that the claimant had a full driving licence (which requires a person to be able to read a number plate at a distance of 20.5 metres in good daylight).

CIB/1690/2007: Manual dexterity - tying a bow in laces or string

The tribunal erred in not considering the use of the wrist when performing this activity.

"The tribunal considered the actions necessary to tie a bow, but the descriptor does not test an ability to tie any bow, but a bow in laces or string. In my judgement, although the tribunal was right to consider whether the claimant could tie shoe laces, it took too narrow a view on the actions necessary to tie a bow in laces or string because it considered finger movements only. The final stage in the process must be that the bow, to be useful, should reasonably hold fast. To complete this, the bow, formed by the action of the fingers, must be drawn tightly, in effect making a knot. This involves a gripping action of one loop by the fingers of the left hand and the other loop by the fingers of the right hand and then a pulling action by both wrists. In my view this is the case whether the bow is in shoe laces or string. The statement of reasons does not indicate that the tribunal considered this issue. The tribunal's findings of fact are therefore deficient and the statement of reasons is inadequate. Accordingly the tribunal's decision must be set aside as erroneous in point of law."

CIB/2762/2007: Recovery of overpayments

This decision concerns a claimant who failed to notify her occupational pension and the rules which came into force on 6 April 2006.

“However, it is arguable that the Secretary of State had no legal power on 6 March 2006 (prior to the amendment to regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 with effect from 6 April 2006) to make a superseding decision on the ground of relevant change of circumstances take effect before the date of the decision itself (ie 6 March 2006). The decision being superseded was an incapacity benefit decision and it appears likely that there had been an incapacity determination (see the definitions in regulation 7A). The relevant change of circumstances was not in relation to the incapacity determination. Accordingly, neither regulation 7(2)(c)(ii) nor regulation 7(2)(c)(iii) would seem to have applied, so that the effective date of the superseding decision would have to be as set out in section 10(5) of the Social Security Act 1998, the date of the superseding decision. If so, entitlement to incapacity benefit in the period from 16 February 2005 to 5 March 2006 could not have been altered to the claimant's detriment. There is little, if any, common sense in that outcome, but the flaw in the regulations was not repaired until 6 April 2006 and the claimant is entitled to have the legislation as made by the Secretary of State applied to her.”

CIB/3785/2007: Assessing mental health

This decision follows and restates the approach taken in CIB/5804/1997. There are four questions that may have to be answered by an examining doctor in the application of the mental disabilities section of the all work test.

  1. Does the claimant have a specific mental illness or disablement? This involves a clinical opinion by the examining doctor. …
  2. Does the claimant’s evidence report manifestations that fall within any of the descriptors? This does not involve a clinical opinion.
  3. Does the doctor accept the claimant’s evidence? Again, this does not involve a clinical opinion.
  4. If the doctor accepts the claimant’s evidence, a question of causation arises (see CIB/14202/1996, paragraph 6). The question is: are the manifestations reported by the claimant and accepted by the doctor a result of the claimant’s mental illness or disablement? For example, does the claimant not care about her appearance and living conditions because she is depressed or because she is an untidy and slovenly person? This may involve a clinical opinion.’

The application of the mental disabilities section of the personal capability assessment essentially involves issues of credibility and consistency. Are the symptoms described by the claimant a reliable account of the effects of the claimant’s mental disablement? As part of that question, the medical adviser and the tribunal have to take account of whether the symptoms described are consistent with the diagnosed mental conditions.

CIB/3950/2007: Electronic 85s

The tribunal made a decision based on the EMP's report. This report, an electronic 85, was criticised by the commissioner because of its use of automated and unsubstantiated phrases (in this case "other available evidence"). The tribunal has a duty to investigate and evaluate such phrases if it is relying on them as evidence.

CSIB/85/2007: Waiver and bias

The decision of a tribunal to dismiss the claimant's appeal was set aside as she had been unable to attend the hearing due to a family crisis. A direction was issued that her appeal be heard by a differently constituted tribunal, but the second appeal had the same chair and the appeal failed. The claimant appealed to the commissioner on the grounds she had not received a fair hearing.

Even if there is a breach of the principles of natural justice or of the right to a fair trial in accordance with Article 6(1) of the European Convention on Human Rights, the complaint will not succeed where there is the opportunity for waiver (to object to the chair hearing the case). However in this case

"... the terse record of proceedings does not provide a sufficient guarantee that the appellant's decision to agree to the same chairman continuing to hear her case was made freely and with sufficient appreciation of the import of her choices. In particular, the appellant was not told how long would be the delay if she sought an adjournment, nor does she appear to have been given a short period of time for reflection about what was the best way forward."

As a consequence, the commissioner finds there was no waiver by the claimant of any right to complain of bias. Following on from this the commissioner reluctantly concludes that in this case there was also real possibility of sub-conscious bias on the part of the tribunal chair.

Income support

CIS/3255/2005: Right to reside - Immigration Act 1971

Claimant’s who do not have a right to reside under European law may, in some cases, have the right to reside under the Immigration Act 1971.

“Decisions under the 1971 Act can confer a right of residence and since a right of residence has, in effect, been made a condition of entitlement to certain benefits such as income support, it seems to me that those who do not have a right of residence by virtue of EEA citizenship may sometimes need to put pressure on the immigration authorities to consider their status under that Act. There are EEA nationals who have no right of residence under Community law or the EEA Agreement but who might be able to obtain unconditional leave to enter or remain under the 1971 Act. EEA nationals should not be worse off than other non-British nationals. The need to obtain a decision from the immigration authorities in these circumstances arises because, except where it provides that certain persons have a right of abode in the United Kingdom, the 1971 Act does not confer any right to enter or remain in the United Kingdom until the immigration authorities make a decision to that effect (which will not be retrospective).”

This decision has been reported as R(IS)6/08.

CIS/408/2006: Right to reside

This decision finds that an EU citizen who is leaving work to care for her husband who is not an EEA national has a right of residence under Article 18(1) of the EC Treaty. This decision has been reported as R(IS)4/09.

CIS/1068/2006: Income - community care direct payments made to spouse

Sums paid to a claimant by his or her spouse, for care provided, are taken into account as earnings when determining income. This decision was upheld in Casewell v Secretary of State for Work and Pensions; [2008] and has been reported as R(IS)7/08.

CIS/1133/2006: Person from abroad

The claimant was a Dutch national who came to the United Kingdom on 14 March 2004 with her four dependant children. She made claims for income support on 19 July 2004 and 20 August 2004. Those claims were disallowed on the ground that the claimant’s applicable amount was nil because she was a “person from abroad” who could not be treated as habitually resident in the United Kingdom because she had no right to reside in the United Kingdom (see regulation 21 of Income Support (General) Regulations 1987 (SI 1987/1967)). At no time between the date of her arrival in the United Kingdom and the dates of the Secretary of State’s decisions did the claimant either work in gainful employment or even look for work.

The claimant appealed. It was argued that although the claimant did not have a right of residence by virtue of being a “qualified person” within the scope of regulation 6 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326):

  1. she had a right of residence unless and until the Home Secretary decided she should be removed under regulation 21 of those Regulations.
  2. the “right to reside” test imposed by regulation 21(3G) of SI 1987/1967 was incompatible with Article 12 of the European Communities Treaty
  3. the “right to reside” test did not apply to a person who was actually habitually resident in the United Kingdom.

The appeal tribunal accepted all three of those arguments and found that the claimant was habitually resident in the United Kingdom. The Secretary of State appealed this decision.

Following Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 ( now reported as R(IS)8/07) the claimant did not have a right of residence. Regulation 21(3G) of SI 1987/1967 is not incompatible with Article 12 of the EC Treaty and the construction the tribunal placed on regulation 21(3G) was wrong. The Secretary of State’s appeal was therefore allowed.

CIS/1138/2006: Habitual residence and transitional rules

Summarised in paragraph 4.

"The claimant, however, relies upon the fact that she had made the first claim before 30 April 2004, presumably in order to gain the advantage of transitional protection conferred by regulation 6 of the Social Security (Habitual Residence) Amendment Regulations 2004 (S.I. 2004/1232). She argues that the tribunal erred in finding that she was not habitually resident on 12 July 2004. The problem from her point of view is that that transitional protection applies only if she was entitled to income support on 30 April 2004. Thus, it would have to be found that she was actually habitually resident in the United Kingdom on 30 April 2004. As her first claim has already been disallowed, a decision in her favour can technically only be made in the context of the appeal against the first decision but there is no point in deferring this case any longer because it is quite inconceivable that the claimant could properly be found to have been habitually resident in the United Kingdom on 30 April 2004, only a month after her arrival, having regard to the general approach I described in paragraph 15 of R(IS) 7/06. Therefore, although I consider that the tribunal was wrong to ignore the existence of the first claim of which there was documentary evidence before it, I am satisfied it reached the right conclusion."

CIS/1917/2006: Backdating asylum seeker's claims

The claimant submitted a defective claim for IS and as a result missed the one month deadline allowed to claim backdated IS. The Secretary of State's failure to advise the claimant that the claim was defective (regulation 4(7A) Claims and Payments Regulations) does not prevent the operation of the one month limit for claiming (regulation 6(1A) of the same regulations).

CIS/2036/2006: Right to reside - unemployed person becomes sick

The claimant was a Swedish national who came to the United Kingdom on 28 October 2004 to look for work. She had worked in Sweden and was in receipt of Swedish unemployment benefit until 26 January 2005 and then British jobseeker’s allowance until 28 March 2005.

She claimed income support from 30 March 2005 on the ground that she had become incapable of work. The claim was refused but the appeal tribunal allowed her appeal, relying on article 3 and 71 of Council Regulation (EEC) 1408/71. The Secretary of State appealed. The commissioner upheld the appeal.

Article 71 does not help the claimant when she claims income support. Article 3 guarantees equality of treatment between all those resident in the territory of one of the Member States and the nationals of that state. The tribunal took the view that the requirement that the claimant have a right of residence was discriminatory.

Citing Abdirahman v Secretary of State for Work and Pensions (R(IS)8/07), which states that it was justified to treat those with rights of residence differently from those without rights of residence the commissioner said that the same approach must be taken to Article 3 of Council Regulation (EEC) 1408/71.

CIS/2358/2006: Right to reside

This decision finds that a former worker does not have the right of residence under Article 18(1) of the EC Treaty. This decision has now been reported as R(IS)5/09.

CIS/2364/2006: Right to reside

This decision concerns right of residence in the light of the Antonissen case. For more information on this see CJSA/1475/2006. This decision has now been reported as R(IS)8/08.

CIS/2431/2006: Right to reside - separated spouse

A separated spouse is still a family member until he or she is divorced. When considering right to reside issues a tribunal should consider the status of the spouse's husband or wife.

CIS/3232/2006, CIS/160/2007, CIS/775/2007 and CJSA/700/2007 : A8 Nationals

This complex decision concerns four cases where A8 nationals have worked for 12 months but have not been registered for the whole period.

CIS/3382/2006: Housing costs - disabled claimant moving to a more suitable accommodation

The claimant was disabled. His legally separated wife also lived with him, acting as his carer. They were, at one point in the claim, considered to be a couple, but it was eventually accepted that the claimant was single.

He took out an increased loan to cover a move to a home supposedly more suitable to the needs of a disabled person. In actual fact he was forced to move into rented accommodation within a week.

The decision maker awarded extra IS to cover the increased loan but only for period when he resided in the new home. Another later claim was made for increased allowable housing costs for improvements but this was also refused.

The chairman dismissed both appeals. He noted that the previous property had already been improved with the aid of a council grant and further mortgage advance for the express purpose of providing for the claimant’s needs as a disabled person, and concluded that the main reason for the claimant wishing to move had been to accommodate the two-household status that existed between the claimant and his wife and children, which necessitated more space because they were legally separated. The new house was not more suitable for the claimant's “claimed disabled needs” than the couple’s previous house. The commissioner upheld the tribunal decision.

"The appeals on behalf of the claimant against that combined decision did not seek to suggest that the chairman’s actual findings on the facts and the evidence were perverse or unreasonable, nor in my judgment could they properly do so. On the contrary, the crucial findings that the new house was not in fact more suitable for the claimant’s needs as a disabled person than the one he was already occupying, and that the real purpose of the move had been to acquire accommodation to suit the broader needs of the household rather than his disability specifically, seem to me altogether proper and reasonable on the facts.

The evidence here showed that so far from being more suited to the claimant’s needs as a disabled person than where he was living before, the new house was in fact impossible for him to live in at all: his token attempt to move in there having hurriedly to be abandoned on medical advice because it was damaging to his health.

Nor does it my judgment affect the validity of the tribunal’s conclusion that the claimant and his wife were (perforce) intending to embark on an extensive programme of repairs and improvements to put the new house into a fit condition. The condition in paragraph 4(9) is that the new loan is “taken out…to acquire alternative accommodation more suited to the special needs of a disabled person…”. Of course there must be a measure of flexibility and factual judgment in whether a particular loan or property meets that description, but there can be no legitimate criticism of the conclusion that here it did not include a new and larger house not fit for the disabled person to move into at all, and only able to be made suitable for his or her occupation with lot of further building work and expense."

CIS/3568/2006: Right to reside

The claimant is a Swedish national and lone parent, who came to the UK in December 2004 and found temporary employment from January 2005 to July 2005. She then claimed income support, which was refused because she could not be treated as habitually resident as she did not have a 'right to reside' in the UK .

Regulation 14 of the Immigration (European Economic Area) Regulations 2000 gives a right to reside to a "qualified person" defined in regulation 5 as including a person who is 'a worker'.

Following CH/3314/2005 the commissioner concluded that a lone parent who had claimed income support rather than jobseeker's allowance but who was genuinely looking for work with reasonable prospects of obtaining effective employment might be a work seeker and therefore fall within the definition of 'worker' for the purposes of regulation 5.

The case was remitted to a new tribunal with a direction that if a subsequent decision is adverse to the claimant on her status as a worker, the tribunal should adjourn and await the then pending judgment of Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 (this court of appeal case has now been heard and the appeal dismissed - it hads now been reported as R(IS)8/07.

CIS/3655/2007: Material fact

A couple were found to be living together in the same household. The claimant's appeal to a tribunal was dismissed.

The claimant applied to the Secretary of State to supersede the decision of the first tribunal for ignorance of fact. That fact was that there was documentary evidence in existence to show that the claimant’s future husband was living at different addresses in the period between the birth of their child and their marriage. The Secretary of State refused to supersede. The claimant’s appeal to an appeal tribunal was dismissed at a second tribunal.

The commissioner found that the first tribunal made a finding that the claimant’s husband was living with the claimant. What the claimant was challenging was the correctness of that finding. She did not identify a new fact of which the first tribunal had been ignorant. She identified additional evidence of which that tribunal had been unaware, which (she argued) showed that the tribunal had been mistaken in the facts it found.

A material fact is one that would have made a difference. The second tribunal had to decide whether the additional evidence showed that the claimant’s husband was living elsewhere. It did not have to decide how the first tribunal would have decided if it had had the additional evidence.

The chairman concluded that, while the documents showed the claimant’s husband had used different addresses for official purposes, they did not show that he had lived at those addresses rather than with the claimant. That was a rational analysis and the commissioner found no error of law in it.

The decision also states that Saker v Secretary of State for Social Services(R(I)2/88) does not apply to supersessions.

CIS/3760/2006: Section 117 - effect of repayment of benefit by local authority

The claimant was wrongly charged by the local authority for aftercare under section 117 of the Mental Health Act 1983. The local authority paid the claimant a cheque for £23,341.24 to cover the deductions made from his benefits during the period in question.

The DWP then stopped his income support because his capital was now too high. Following CIS/2448/2006, the commissioner found that the DWP was right to do this.

A separate argument concerning whether the claimant had authorised direct payments to be made to the local authority was held to be irrelevant but may be actionable through the court system.

This decision has been reported as R(IS)5/08.

CIS/3762/2006: Right to reside - Baumbast

The claimant had no right to reside because she had not worked. she 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 commissioner was not satisfied that the claimant could benefit from this (both parties in Baumbast and R had been living in the United Kingdom for at least 5 years, and the families were self sufficient).

CIS/4010/2006: Right to reside - pregnancy

A worker has a right of residence in the United Kingdom by virtue of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326). Under regulation 5(2)(a) of SI 2000/2326 that person would not cease to be a worker when temporarily incapable of work as a result of illness or accident.

This claimant was pregnant. Commissioner Rowland held that pregnancy does not count as incapable of work for the purpose of these regulations.

CIS/4104/2006: Adjourning a paper hearing

The claimant suffered from agoraphobia/claustrophobia and asked for a paper hearing. However the tribunal should have adjourned this because the Secretary of State was unclear about the issues in question. The claimant was claiming IS on grounds of incapacity and did some work. Consideration should have been given as to whether she was a disabled worker within the scope of paragraph 8 of Schedule B Income Support (General) Regulations 1987.

CIS/4156/2006: Living together as husband and wife - intentions of parties

When considering whether a couple is living together as husband and wife tribunals should consider the intentions of both parties. In this case the claimant and her partner, Mr W, lived together between 1975 and 1983, then for a further period between 1995 and 1997 and finally permanently in 1997. The decision trawls through relevant case law on cohabiting and, following CP/8001/1995, warns tribunals against adopting a "checklist approach" when considering whether couples are cohabiting.

"In my judgment the tribunal in this case failed to deal with the question of the parties' intentions. This was because the appellant's evidence as to the circumstances in which she and Mr W came to share the same house again was not adequately dealt with by the tribunal. The tribunal should have examined those circumstances more closely, and indeed whether matters had changed at all during the period since 1997."

The new tribunal is directed to follow the approaches taken in R(SB)35/85, CP/8001/1995 and CIS/87/1993 and bear in mind that the burden of proof will be upon the Secretary of State to show that, on the balance of probabilities, grounds exist for superseding the claimant's income support award.

CIS/4423/2006: Overpayment and supersession decisions

The tribunal erred in law in not adequately dealing with the argument which was put to it by the claimant's representative and also in assuming jurisdiction on a decision on entitlement which was not appealed. The appeal was brought by the claimant and partly supported by the Secretary of State. The commissioner also addresses the Secretary of State's misgivings and gives a decision affirming the original decision as made.

CIS/51/2007 and CIB/52/2007 : Failure to provide evidence

A tribunal dismissed the claimant's appeals against decisions to refuse his income support and incapacity benefit claims on the grounds that they were "invalid". He had failed to provide satisfactory evidence of his identity, his address, or his national insurance number. Commissioner Howell upheld the tribunal decision as the claimant had failed to comply with regulation 7(1) of the Social Security (Claims and Payments) Regulations 1987 within a reasonable time.

CIS/419/2007: Right to reside

A student whose studies have been suspended has no right of residence.

CIS/571/2007: Not involuntary unemployed

The claimant was a Danish national who was a single parent with six dependant children. She came to the United Kingdom in August 2004 and worked from September 2004 until February 2005.

She then claimed and was awarded jobseeker’s allowance but that award came to an end in November 2005 in circumstances that are unclear in the decision (and to the commissioner).

She claimed income support on 13 November 2005 but her claim was disallowed on the ground that she had no right of residence in the United Kingdom and so could not be treated as habitually resident in the United Kingdom.

The tribunal erred in finding that the claimant was not involuntary unemployed, because she was claiming income support rather than jobseeker's allowance. The decision follows CH/3314/2005.

CIS/599/2007: Right to reside - son's illness

The claimant, a Dutch national, had worker status and was in receipt of jobseeker's allowance. Her son fell ill and she decided to claim income support. Her claim was rejected as she had lost her status as a worker. She would only have retained her worker status if she was the one who had fallen ill, as it is only the illness of the worker or self employed person that is relevant.

CIS/623/2007: Right of residence - child in education

This claimant, a Dutch national, who was not in meaningful work, argued that she had a right of residence because her son was enrolled in education.

Commissioner Rowland rejected this argument and discussed Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] in relation to this case.

CIS/647/2007: Incorrectly paid recoverable benefit payments can still count as income

A claimant was working and receiving working tax credit. She ceased full-time work on 19 July 2005 and claimed income support on 8 August 2005. At that stage she was still receiving her tax credit.

On 23 October 2005, a tax credit decision-maker decided that the claimant had to repay tax credit.

On 9 November 2005, an income support decision-maker decided that the claimant was not entitled to income support from 8 August 2005, because her tax credit exceeded her applicable amount, but was entitled from 24 October 2005. The tribunal reversed this decision on the ground that before the income support decision-maker decided the claim, the tax credit decision-maker had decided that the claimant was required to repay.

The commissioner overturned the tribunal's decision, following Leeves v Chief Adjudication Officer, which is reported as R(IS) 5/99.

The effect of a demand for repayment is only effective as regards income to be attributed to the future. The demand and the obligation that arises as a result do not have retrospective effect to remove the quality of income from the payments that have already been made and attributed.

CIS/731/2007: Right to reside

This decision considers circumstances where a former worker, who is pregnant, can be considered to be ill and therefore have a right to reside.

CIS/1096/2007: Right to reside - transitional protection

The right to reside requirement was introduced into domestic benefit law by the Social Security (Habitual Residence) Amendment Regulations 2004, with effect from 1 May 2004. Regulation 6 contained transitional protection and savings. If it applies, the claimant is not subject to the right to reside test. In this case the claimant did not qualify for transitional protection but argued that this was discriminatory under the European Convention of Human Rights. The commissioner held that was not so.

CIS/1121/2007: Right of residence - child in education

This claimant, a Dutch national, who was not in meaningful work, argued that he had a right of residence because three of his children were enrolled in education.

Commissioner Rowland rejected this argument and discussed Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] in relation to this case.

CIS/1243/2007: Living together as husband and wife

The claimant was a lone parent. It was alleged that the father of one of her children had moved in with her. The commissioner found that the tribunal had not given adequate reasons for assuming that the Child Support Agency's failure to follow up a letter to the father's old address indicated that he had moved in with the claimant.

CIS/1545/2007: Accession state workers and right to reside

The claimant had worked as an au pair but lost her job when she became pregnant. She subsequently lived off and on with the father, a French student (Mr A), with whom she had another child. After the breakdown of the relationship Mr A continued to visit twice a week to see the child (Victoria) and made irregular payments.

The claimant was refused IS on appeal because she did not have the right to reside. The tribunal erred because its decision was "hopelessly confused".

"8. The tribunal decided that (i) there was no decision under appeal, (ii) that if there was, the tribunal revised it and (iii) in either event the claimant was entitled to income support from 25 October 2005 and continuing from 24 March 2006."

"11. Decisions (i) and (ii) are incompatible with each other and inconsistent with the tribunal’s duty to make a decision. It is permissible for a tribunal to make a decision in form (i) or in form (ii). It is not permissible to make a decision in form (i) and (ii) in the alternative, because that (a) effectively leaves to one of the parties (the Secretary of State) to decide which is right and (b) thereby abdicates the tribunal’s judicial responsibility to make a decision.

12. Moreover, decision (iii) is incompatible with decision (i). How could the tribunal purport to make a decision on entitlement in either event – in other words even if there was no decision on which to found any appeal? That is to assume a jurisdiction that is original, not appellate. The tribunal has no original jurisdiction, except in the limited cases of referrals of applications for a departure direction or a variation in child support."

The commissioner then found that the claimant did not have a right to reside as a worker...

"Regulation 14(1) of the 2000 Regulations [ the Immigration (European Economic Area) Regulations 2000]provides that a ‘qualified person’ has the right to reside in the United Kingdom. ‘Qualified person’ is defined in regulation 5 of those Regulations and includes ‘a worker’. The claimant has worked in the United Kingdom. However, regulation 2 of the 2004 Regulations provides that the claimant is an ‘ Accession State worker requiring registration’ if she has not worked for an uninterrupted period of 12 months. The claimant has not done that. As a result, regulation 5 of those Regulations provides that the work done by the claimant will only be taken into account in determining whether she is ‘a worker’ if it was done for an ‘authorised employer’. An ‘authorised employer’ is one who is authorised and for whom the claimant had a valid registration certification. I do not know if the claimant’s employers were authorised, but she did not have a certificate. Accordingly, the work she did is disregarded in deciding whether she was a worker. She does not, therefore, have a right to reside as a worker."

...or as a student..

"A student is a ‘qualified person’ for regulation 5 of the 2000 Regulations. However, the claimant is only a student for this purpose if she has sufficient resources to avoid becoming a burden on the social assistance system and is covered by comprehensive sickness insurance. It is obvious that the claimant does not have sufficient resources to avoid claiming income support and it seems that the duration of any award is likely to be such that she could properly be described as a burden on the social assistance system. She does not, therefore, have a right to reside as a student."

An argument was also made that the claimant had a right of residence as the child's mother, assuming that Mr A had a right to reside as a student and extended this right to his dependent child. The claimant would then have the right to reside as a primary carer. This failed because Mr A's responsibility to his child was too limited.

"I am not saying that Mr A is not deeply attached to Victoria. Nor am I denying that there are emotional reasons why he would not wish to be separated from her. All I am saying is that European law does not take those matters into account in this case. That law is concerned with issues of support that make it appropriate to allow the link between parent and child to be maintained when moving between Member States. That support is not present in this case."

The commissioner then substituted his own decision refusing benefit.

This decision was taken by the claimant to the Court of Appeal as Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163 (23 October 2008) but was dismissed.

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

CIS/1614/2007: Right to reside

The claimant, a Danish national, came to the UK with her 8 dependent children, to join her husband. However she claimed income support as a lone parent. This claim was rejected because she did not have a right to reside but overturned on appeal by a tribunal.

The tribunal decided that the claimant had joined the household of a qualified person her husband, and having done so, she then remained a qualified person. The tribunal also thought that the claimant could be assisted by Baumbast and R v Secretary of State for the Home Department, and even though her claim was for income support, considered she could be a ‘jobseeker’. The commissioner allowed the subsequent Secretary of State's appeal.

The claimant might have had a right to reside as the family member of a qualified person (it is not necessary for the family member to live in the same household as the qualified person in order to have a right of residence) but the husband's whereabouts were unknown. To establish whether she was a family member more findings of fact need to be made.

Under the Immigration (European Economic Area) Regulations 2006 any claimant seeking to establish a right to reside and entitlement to social assistance, if not otherwise a ‘qualified person’, has to do so as a work seeker and claim jobseekers allowance, not income support.

Directive 2004/38/EC provides that a person may acquire a right of permanent residence which is not conditional on any member of the family continuing to exercise a community right to freedom of movement or being self sufficient, but only after a certain length of time (5 years). The claimant does not satisfy these provisions.

The claimant also stated that she had worked for a three month period, but no evidence has been produced to show that she was self sufficient during this time or that the work was real and effective, as opposed to marginal or ancillary. That work was also over a year before the claim to income support was made. Based on her own status, the claimant can only be a qualified person if she is a jobseeker. She did not satisfy this provision.

Baumbast and R v Secretary of State for the Home Department: Case – 413/99 [2002] E.C.R. I-7091 can confer a right to reside to the parents of children attending school but the commissioner was not satisfied that the claimant could benefit from this.

"As the Commissioner pointed out in CIS/1121/2007, both parties in Baumbast and R had been living in the United Kingdom for at least 5 years, and the families were self sufficient. Further, as the Commissioner points out at paragraph 8 of CIS/1121/2007, Baumbast and R was decided at a time when the Advocate General was able to say that community legislation had not kept pace with social and economic developments. Since the decision was made, the Council has adopted Directive 2004/38/EC. This addresses the issues raised by the facts of Baumbast and R, but does not assist those in the position of the present claimant. As the Court of Appeal noted in Ali v the Secretary of State for the Home Department [2006] EWCA Civ 484."

CIS/1793/2007: Right to reside - temporary employment

The claimant was Dutch and worked in the United Kingdom before going back to Holland for a period. On returning he claimed income support, but this was refused because he was a person from abroad.

The decision hinged on whether the work he had done in the UK classified him as a worker. The commissioner said no because, following Raulin v Minister van Onderwijs en Wetenschappen [1992], this work was considered too temporary to satisfy the rules.

The decision discusses relevant European case law concerning the definition of worker for right to reside purposes.

CIS/1794/2007: Right to reside

This case concerns a Polish national who, at the time of the decision, was appealing against a refusal to grant asylum. Commissioner Rowland upheld the Secretary of State's appeal that income support could not be awarded because the claimant had no right to reside.

CIS/1813/2007: Income - treatment of WTC payments made following notification that employment had ceased

These should not be treated as income because the claimant had correctly notified HMRC that she had ceased work and that she wanted working tax credit payments to stop. In due course HMRC will seek recovery of these payments.

CIS/1833/2007: Right to reside - work done before accession to EC

The claimant was Maltese and worked in 2002. This could not qualify him as a worker because it was done before Malta became part of the EC (in 2004).

CIS/1915/2007: Capital

A wife left her husband and started divorce proceedings, which were then interrupted because she feared for her safety. This decision argues for a flexible approach in such cases.

"On this appeal, the secretary of state has submitted that a more flexible approach should be taken to the question of reasonableness, so that if there is a break in the divorce proceedings, whether to see if a reconciliation could be achieved, or because of family pressures or threats of violence if they are proceeded with, all the factors need to be looked at to determine whether the claimant is taking reasonable steps in relation to the proposed divorce.

In my judgment, the secretary of state is right that in considering the reasonableness of the period taken by the claimant to secure a divorce and the resulting disposal of the premises, including any temporary suspension of such action, it is necessary to look at all the facts, including the pressures that were brought on this claimant. The tribunal failed to approach the matter in this way, and on this account also it was in error of law."

CIS/2570/2007: Capital

It was held that the claimant did not have a fair hearing because the decision did not clearly show the case made against him, namely that he had deprived himself of capital.

"These comments do not address the real issue, which is whether there has been a fair hearing. Whether one treats the question as one issue or as two issues, the claimant is entitled to know the case being made against him, and to have the opportunity to address it. No case of intentional deprivation had been made out before, and no question had been put to him as to his motivation in making any payment out of his capital, other than in relation to subsequent transactions said to be for the benefit of the two children. The claimant plainly did not have a proper opportunity to address that question and as a result the hearing was not a fair one. On that ground as well, the decision must be set aside."

The decision also gives extensive guidance for the new tribunal.

CIS/2911/2007: Right to reside - claimant pregnant

The claimant was claiming jobseeker's allowance but was pregnant and claimed income support within 11 weeks of her expected date of delivery. The commissioner did not accept that the claimant had a period of temporary incapacity from work due to illness (pregnancy is not illness).

She also had a 14 year old daughter. Arguments concerning Baumbast and R v Secretary of State for the Home Department were rejected for reasons similar to those in CIS/1614/2007 (above).

CIS/3032/2007: Right to reside - decision of a previous tribunal

A tribunal is bound by the decision of a previous tribunal, which has decided a claimant has the right to reside. However this case concerned the son of such a claimant and the decision of the previous tribunal did not apply to him.

CIS/3534/2007: Social fund funeral payments

The case concerns a claim for a Social Fund Payment in respect of the funeral expenses of the claimant's deceased sister, who had no partner or child and whose parents were deceased. The claimant completed a claim form indicating that there were other close relatives of the deceased, but only named one of them. Enquiries were made by the DWP and eventually it was established that the claimant had five surviving siblings, two brothers, one of whom, (“ST”), was not in receipt of a qualifying benefit, and three sisters. On 15 May 2006 the decision was made to reject the claim. The reason for this was that there is another close relative not in receipt of a qualifying benefit who was not estranged from the deceased. The claimant appealed to the tribunal which upheld the decision.

“In its deliberations the tribunal considered the issue of whether ST was estranged from the deceased. This was the wrong test. As the deceased had no immediate family members or partner, what the tribunal should have done was to have carried out the exercise of comparing the nature and extent of any close relative’s contact with the deceased, with the nature and extent of the claimant’s contact with her, as required under regulation 8(7) of the Regulations. The comparison should be that of the contact of each of the claimant’s siblings, with that of the claimant.”

CSIS/639/2006: Property held in trust

The claimant stated that a property he owned was not actually his but held in trust for his son. He had no documentary evidence to this effect, apart from his declaration on the IS claim form and a signed affidavit made after the decision maker's decision, none of which suffice Satisfy the requirements for a property held in trust under Scottish law ("Firstly, delivery or equivalent of the property which is the subject of the trust has to be effected. Secondly, the relevant provisions of the Requirements of Writing ( Scotland ) Act 1995 have to be fulfilled.").

CSIS/467/2007: Right to reside - pre-existing medical condition

The tribunal were right to take this into account when deciding right to reside. The claimant was a Polish national who obtained work but was soon forced to give it up because of her medical condition.

CSIS/534/2007: Funeral payments - contributions from family members

The commissioner upheld the decision of the tribunal, refusing a funeral payment because of family contributions to the cost of the funeral.

It was argued that these payments were loans but the commissioner accepted the tribunal's reasoning.

"It is apparent from the reasons given by the tribunal that they had doubts about the reliability of the claimant’s evidence in respect of the sum or sums used to pay the funeral account being a loan or loans rather than a contribution or contributions. The reasons for that were that the claimant changed her position in respect of the identity of the relatives who parted with the money. They further did not accept her evidence that she was being pressed by the funeral director for payment for early payment of the account. It is clear in these circumstances that the tribunal were not prepared to accept that the sums parted with by relatives were loans, particularly when no attempt was made by the claimant to identify what sums were parted with by which relatives and the inconsistencies as to whether it was her son and cousin who parted with the money or her cousin and brother. The issue of fact as to whether there were loans as asserted by the claimant or family contributions was a matter of fact for the tribunal to determine. This they have done and set out a reasoned basis for their view. There are accordingly no grounds for the Commissioner to interfere with that finding."

Industrial injuries disablement benefit

CI/2842/2006: Whether required to show that an unexpected injury arose from an identifiable event

Chief Adjudication Officer v Faulds [2000] the House of Lords concerned a fire office r who was diagnosed as suffering from post-traumatic stress disorder as a result of his exposure to shocking sights as a result of attending at a series of fatal accidents over a period of years. The decision required the claimant to identify one or more ‘accidents’ which had caused his or her injury.

CI/2842/2006 suggested situations where the identification of an accident might not be required. The claimant had suffered cardiac arrest, which although not preceded by any specific event, was nevertheless considered to be an accident by the commissioner.

“If … a claimant suffers an injury which is not of an unexpected type, …. it will be necessary for the claimant to show that there was an ‘accident’ which caused or contributed to the injury. If however a claimant suffers an unexpected injury which can be considered an accident in itself and which is causally connected with his work, there is in my judgment nothing in Faulds which requires the claimant to show in addition that his injury was caused by some identifiable and exceptional event. To hold otherwise would place on the claimant in such cases the burden of proving not one accident, but two.”

This decision was applealed and overturned as Secretary of State for Work and Pensions v Scullion [2010] EWCA Civ 310.

The Court of Appeal held that the judgement in Faulds applied equally in the case of a cardiac arrest as they do to stress related disorder.

"To allow injury and accident to merge indistinguishably would, as Lord Clyde put it ... 'open the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment'. That, stated Lord Clyde, was not what is intended by section 94(1) of the 1992 Act. It would also be available, on the respondent's reasoning, to medical conditions such as cardiac arrest and Lord Clyde's disapproval applies equally."

CI/3384/2006: Interaction

Tribunal failed to adequately consider the "connection factor" where two injuries result from the same relevant accident. The decision discusses the requirements when completing part 8 of form BI 118A.

CI/3745/2006 (bailii): industrial diseases A8 (tenosynovitis) and A12 (carpal tunnel syndrome)

The claimant already had an assessment for A12 which was not the subject of this appeal. She then made a later claim for A8 and was turned down. This was allowed at appeal. The tribunal then proceeded to aggregate the assessments giving her 11% disablement.

The tribunal then decided that under regulation 11(4) of the Social Security (General Benefit) Regulations 1982 they could consider the claimants loss of a little finger and awarded a further 3%. This brought her up to the qualifying level of 14%.

The commissioner found that the tribunal did not have the authority to aggregate assessments for A8 and A12 because it failed to make an assessment in relation to A8.

The decision quotes R(I)3/91 for circumstances where several factors are to be considered and makes the following observation in this case.

"It follows that in the event that the claimant is accepted as suffering from PDA8, the assessment of disablement should then proceed on the basis that:

(a) under regulation 11(3) of the General Benefit Regulations the award for carpal tunnel syndrome (PDA12) should be offset against the percentage found in respect of the claimant's PDA8 as the PDA12 condition amounts to an injury or disease received or contracted before the development of PDA8 ; but

(b) under regulation 11(5) any additional disability arising out of the interaction between the two conditions should be added to the assessment for PDA8; and

(c) if the net assessment under (b) is 11% then under regulation 11(4) any interaction due to the fracture and/or the amputation should be added."

The decision also includes a detailed submission by Dr Susan Reed, medical adviser to the Department for Work and Pensions (DWP) on the causes and development of A8 and A12.

Jobseeker's allowance

CJSA/2472/2005: Varying the jobseeker's agreement

Where a jobseeker's agreement is in effect and the claimant wants a more restrictive agreement (e.g. to be available less hours or days) he or she is not available for work. Where necessary a jobseeker's agreement can be varied retrospectively. A tribunal can direct an agreement to be revised and backdated.

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

CJSA/1223/2006 and CJSA/1224/2006: Habitual residence test

These two cases affect 45 other appeals. Both claimants are Chagos islanders (or descendents of Chagos islanders). They came to the UK and claimed JSA. The decision maker refused their claims because they failed the habitual residence test. The appeal tribunal, on the other hand, held that they were habitually resident after two weeks largely, it appears, because of how the Chagos Islanders have been treated - they were forcibly removed from their island by the US, with the collusion of the UK.

"The tribunal took account of the political background. It is clear from the passage I have quoted from the tribunal's reasons that this was not just used as a context in which to identify an appreciable period of residence. It was used as a justification for having a period of residence that amounted only to a matter of days. I accept Mr Ward's argument that that was wrong in law, although I have slightly different reasons from his. The background might justify a shorter rather than a longer period of residence as appreciable, but it could not compensate for the lack of any significant steps to establish a life here, which are an integral part of habitual residence. A context assumes a content. It cannot be a substitute for the lack of one, but this is how the tribunal used it. The tribunal gave the wrong significance to the background to these cases and thereby went wrong in law."

The commissioner states that the minimum period to establish habitual residence should be at least a month - though there may be cases where the period required is less. In these two cases when he considered the steps the claimants had taken to establish a life in the UK he found that in the short term it was minimal. He considered a period of two months was sufficient to establish habitual residence for both claimants.

The commissioner also stated that the history of the Chagos islanders did not justify a different approach.

"The law is certainly sufficiently flexible to take account of unusual circumstances that do not fit the standard definition. Those circumstances may affect a class of case or an individual case. I have already mentioned that the courts have recognised returning residents as a class in respect of whom a different approach may be justified. Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 decided that, depending on the connections they have maintained with this country during their absence, they may become habitually resident immediately on arrival. An instance of flexibility in an individual case is Re MacKenzie [1940] 4 All ER 310. A temporary visitor to the United Kingdom was detained for more than 50 years in what was in those days called a lunatic asylum. Her continuing presence here was not voluntary, she could not form an intention to settle and she had taken no steps to do so. Nevertheless, she was held to be habitually resident. The cases before me attract sympathy because of the claimants' plight and their determination to come to this country to better their lives. But they were not exceptional cases that justified the tribunal's approach, which amounted to rewriting the law on habitual residence. "

An argument concerning human rights issues was dealt with by the administrative court in Couronne v Crawley Borough Council, the Secretary of State for Work and Pensions and the First Secretary of State [2006] EWC 1514.

CJSA/1475/2006: Person from abroad, EC worker and right to reside

The claimant comes from Portugal and had been working in this country before being forced to finish work to look after her son. Her claim for IS was refused but a claim for jobseeker's allowance in April 2005 was accepted. She later tried to claim IS again and upon a further refusal reclaimed jobseeker's allowance in August 2005.

This time, the claim for jobseeker's allowance was rejected on the ground that the claimant had no right of residence in the United Kingdom and consequently could not be treated as habitually resident in the United Kingdom, with the result that she was a "person from abroad" whose "applicable amount" was nil by virtue of regulation 85 of, and Schedule 5 to, the Jobseeker's Allowance Regulations 1996 (SI 1996/207).

She was therefore not to entitled to income-based jobseeker's allowance having regard to section 4(3) of the Jobseekers Act 1995. When giving his decision on 30 September 2005, the Secretary of State also decided that the claimant had not been entitled to jobseeker's allowance for the period of the previous award.

The commissioner stated that a person who provides evidence that he or she is continuing to seek employment and has genuine chances of being engaged in the United Kingdom has a right of residence in the United Kingdom under section 7(1) of the Immigration Act 1988 in the light of Regina v. Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] E.C.R. I-745, where the European Court of Justice held that the freedom of movement for workers guaranteed by Article 48 (now Article 39) of the Treaty entailed the right for nationals of Member States to move freely within the territory of other Member States and to stay there for the purpose of seeking employment.

Applying the "Antonissen" test the claimant had a right of residence from September 2005 but not before then because she was not continuing to seek employment during the period when she was looking after her child.

For comments and second thoughts, by the commissioner, on this decision see CIS/2364/2006.

CJSA/2811/2006: Responsibility for a child

The claimant was separated from his wife. His daughter came to live with him. He could not be paid JSA for her because he was not entitled to child benefit (although he did have the order book, which is not the same thing). The commissioner found that he could have remedied this by claiming child benefit as soon as the daughter came to live with him. Arguments of discrimination under Hockenjos v Secretary of State for Social Security [2004] (R(JSA)2/05) were discussed and rejected.

CJSA/3009/2006: Personal allowances where one of a couple is under 18 and responsible for a child

Thought provoking decision, given the Government's aim to eradicate child poverty. The claimant, who is age 19 and his partner who is age 16 were originally in receipt of IS during his partner's pregnancy and for 15 weeks after the baby was born. The personal allowance for a couple was £88.15.

From the 16th week after the baby was born they could not claim IS so the claimant claimed JSA, whereupon their personal allowance as a couple dropped to £44.50 (Paragraph1(3)(g) Schedule 1 to the Jobseeker's Allowance Regulations 1996). Bizarrely had they both been under 18 they would have received £67.15.

"There seems no obvious policy reason why a young couple thought to need £88.15 for their own personal needs in week 15 of their baby's life should suddenly be thought able to manage on only £44.50 without anything extra for the mother in weeks 16 and following; or why they should now be thought to need even less than the £67.15 they would have got had they both been still under 18. I would add that they would also have got significantly more if they had given up the attempt to bring up their baby as a couple: he would still get the personal allowance of £44.50 as a single JSA claimant, but she would then have been able to claim income support as a lone parent with a personal allowance of £33.85 or more: a bizarre incentive to deprive the baby of the support of a two-parent household."

CJSA/3066/2006: Habitual residence

The claimant was a Swedish citizen who arrived in the United Kingdom on 23 December 2005. She claimed jobseeker’s allowance on 19 January 2006 but this was disallowed on the ground that she was not habitually resident in the United Kingdom as she did not have a settled intention of remaining in the UK.

The claimant appealed but the tribunal dismissed her appeal, stating that the real issue was whether the claimant had a right of residence in the UK. It decided she did not because she had never worked in the United Kingdom. It also agreed with the Secretary of State that the claimant was also not habitually resident in the UK. The claimant appealed against this decision.

The commissioner held that, following CJSA/1425/2005, a citizen of the European Union has a right of residence in any Member State for the purpose of seeking work. The implication of this is that it is not appropriate to take the question whether a person has a right of residence as a starting point in jobseeker’s allowance cases. The correct approach is to concentrate on the habitual residence issue.

The tribunal erred in considering the claimant’s right of residence and also in failing to make clear whether it found the claimant to have a settled intention of remaining in the United Kingdom at the date of the Secretary of State’s decision. However, the commissioner substituted his own decision to the same effect because he was not satisfied that the claimant did have a settled intention of remaining in the UK.

“The claimant had never been to the United Kingdom before. She had come alone, leaving her husband in Sweden because he was engaged on a course. He was in receipt of unemployment benefit and was able to provide little financial support. She was sleeping in the sitting room of a friend and, contrary to the submission of the Secretary of State, it appears that that was arranged before she came to the United Kingdom and she came at least to join that friend. However, she had no relatives in the United Kingdom or other ties. Originally, she came from Somalia. She and her husband had moved to Sweden in 2000 and had acquired Swedish nationality. She did not like Sweden because she had difficulty with the language and “didn’t like living there”. She has lost two children there. I do not know about her husband’s employment record but she had never had paid employment in Sweden, although having the children may have been one understandable factor. Se was able to bring only £60 with her when she came to the United Kingdom. She came to the United Kingdom because it was the nearest English-speaking country. She had registered with agencies but had not found employment and, indeed, still had not found employment by the time of the tribunal hearing at the end of June 2006. She had not registered with a doctor or opened a bank account.

I appreciate that there is an element of “chicken and egg” about these cases and that it is difficult for a person to make arrangements for permanent accommodation until some source of income has been obtained. Equally, a person may see little point in opening a bank account until he or she has some money to put in it. However, it seems to me that a person who has come to an entirely unfamiliar country in the sort of circumstances the claimant did must to some extent be “testing the water” initially. I incline to the view that there are some cases, like the present, where an intention to reside cannot be regarded as settled until an appreciable period of presence has elapsed. In this case, I am not satisfied that any intention to reside in the United Kingdom had become settled within the six weeks that the claimant had spent in Coventry before the Secretary of State’s decision had been made.”

CJSA/3597/2006: JSA credits - wrongful application of Section 19 of the Jobseeker's Act

A claimant, who had done some part time work and who could not be paid JSA because his earnings were too high, was not prevented from obtaining JSA credits.

CJSA/3832/2006: Term-time workers

The claimant was employed as a porter/cleaner by a university during term-times. At the end of the term his contract was terminated and he had to reapply for employment for the following term.

Following R(JSA) 5/03, a tribunal of commissioners decision, the commissioner found that the claimant was not engaged in remunerative work during university vacations because there was no express arrangement that employment would continue.

The tribunal erred in not distinguishing between a cycle involving periods of employment and periods of unemployment and a cycle of employment involving periods of work and periods of no work.

CJSA/3960/2006: Backdating of JSA

The claimant moved in with his partner, who was formerly a lone parent. They informed the DWP, who sent a letter on the 3rd February 2006 stating that from 4 February 2006 they were not entitled to IS.

This letter took 7 days to travel 15 miles and was finally delivered to the claimant on the afternoon of Friday 10 February 2006. On the next working day, Monday 13 February 2006, the claimant claimed JSA. He asked for his claim to be backdated but this was refused both by the decision maker and at a subsequent appeal.

The commissioner reversed this. Regulation 19(7) of the Claims and Payments Regulations allows backdating of up to a month where there are adverse postal conditions or the claimant (or his partner) was previously in receipt of another benefit, and notification of expiry of entitlement to that benefit was not sent to the claimant or his partner, as the case may be, before the date that his entitlement expired. Both of these were held to apply in this case.

Notification of expiry of entitlement requires the letter to be sent before the last day of entitlement (3rd February 2006) not the first day of non-entitlement (4 February 2006). The DWP notification was therefore late.

CJSA/4196/2006: Failure to sign on

This messy case was refused leave to appeal but was thought to throw up a "short point of general interest". The Secretary of State superseded an award of jobseeker's allowance on the ground that the claimant had failed to "sign on" on 17 January 2005. The claimant appealed and her appeal was allowed by an appeal tribunal sitting on 7 September 2005 because the tribunal accepted that the claimant had attended the Jobcentre on 17 January 2005 ready and able to "sign on" but had been prevented from doing so by a member of staff who had taken issue with her about a request to check her payment record.

The tribunal decided that "the appellant should be treated as if she had signed on on that date". The Jobcentre took the view that that decision was adequately implemented by deciding that there had been no overpayment up to 17 January 2005. The claimant tried to get payments beyond this period but was told that the tribunal decision did not cover any period after 17 January 2005.

The claimant lodged an appeal but there was no decision to appeal. A legally qualified panel member struck it out on 15 February 2006 but the commissioner expressed doubt as to this course of action. The correct course should have been to decline jurisdiction.

The effect of the tribunal's decision was to reinstate the award of jobseeker's allowance for an indefinite period, rather than only up to 17 January 2005. If the Secretary of State wished to refuse to pay jobseeker's allowance due to the claimant's failure to "sign on" on a date after 25 January 2005, he had to issue another decision superseding the award of jobseeker's allowance (as reinstated by the tribunal). This is the course of action the Secretary of State has decided to take, though matters are further complicated by the fact that a further decision notice was issued.

CJSA/1814/2007: Failure to comply with jobseeker's agreement

The claimant signed a jobseeker's agreement (JSAg) which required him to:

• Write to at least 1 employer a week
• Phone at least 2 employers a week
• Contact Jobcentre Plus Direct at least 2 times a week
• Ask friends and people I have worked with before
• Look at [a named local weekly paper] each week and [a trade journal] occasionally

During the week in question the claimant read the papers, applied for two jobs, went to the Jobcentre once, and used the local internet facilities in the library to check the Jobcentre Plus website. The jobcentre adviser advised that this was a breach of his JSA agreement (JSAg) both because the jobs for which he applied were unsuitable and because C had not visited the Jobcentre twice as directed on his JSAg. The tribunal upheld this decision.

Both erred in law by applying a negative test and considering what the claimant hadn't done rather than what he had done. The claimant had not complied fully with the agreement but had complied fully with the law.

Regulation 18(1) of the Jobseeker’s Allowance Regulations 1996 provides “… a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week.”

The claimant took four steps in the week. The agreement required six but this was more than was required by the law.

"....there is nothing in the Act or the Regulations requiring that a claimant must comply with everything in the Agreement. The reverse is the case. The agreement must comply with the law. To be valid, a jobseeker’s agreement must comply “with the prescribed regulations in force”: section 9(1) of the Act [Jobseeker's Act 1995]. The pattern of the legislation is that a jobseeker’s agreement must comply with the test of actively seeking work in sections 1(2)(c) and 7 of the Act and regulation 18 of the Regulations and not the other way round."

The agreement also did not specify the type of work the claimant should seek. 

The decision maker and tribunal also erred in finding that the claimant had failed to visit the Jobcentre. The agreement did not state this. It required him to "contact Jobcentre Plus Direct". The claimant fulfilled this obligation by visiting www.jobcentreplus.gov.uk. The commissioner commends this but adds a note of caution concerning the requirement of the claimant to provide proof that a step has been undertaken.

"This appeal illustrates the speed at which technology can go ahead of law and official instructions. In my view it must in 2007 be as reasonable – perhaps more reasonable in some cases - for claimants to conduct regular job searches and make job enquiries by internet and email rather than by actual visits to Jobcentres and libraries or by writing letters. I see no reason why someone should have to go to a Jobcentre to use a jobpoint when they can get exactly the same information from any computer connected to the internet. And most newspapers can now also be read as thoroughly over the internet as in print form. Indeed, some information is published only in electronic form, a practice the Department for Work and Pensions itself uses. It must be reasonable for applications for, and enquiries about, jobs to be made in the most appropriate way - and not by some having to be by letter and some by telephone as C was told in his Agreement. For example, in this appeal one of the job advertisements detailed in the papers asked for applications by email and expressly stated “No Phone Calls”. By contrast, another asked for telephone calls only.

At the same time, the ease with which jobsearches, and direct contact with many employers can be made electronically is directly relevant in deciding what is reasonably to be expected of a jobseeker actively seeking work. While there may, as the secretary of state's representative noted, be issues about proof, it would now seem entirely possible for someone with the necessary facilities and skills to meet the weekly requirements of section 7 and regulation 18 for jobsearching by using a computer, internet, webphone and email alone and without leaving home. However, claimants would be wise to remember the advice of Commissioner Brown in the Northern Ireland decision C1/00-01 (JSA) and C2/00-01 (JSA) to keep a record and corroborative proof. Much computer software automatically does that."

CSJSA/495/2007 and CSJSA/505/2007: Are tribunals neutral and is New Deal a form of slavery?

There were six arguments in this decision, all of them rejected by the commissioner

Once, it was suggested on the grounds of appeal that there is a possibility that his non-appearance before the tribunal may have given the tribunal the wrong impression and cast him in an unfavourable light. The commissioner found that the tribunal’s statement of reasons did not suggest that this was the case and also the claimants fails to give specific examples to back up his assertion.

Two, the claimant asserted that the “appeal service” which was to hear his appeal cannot claim to be independent because it is state-funded, to which the tribunal chairman said “In any civilised country, the judicial system is paid for by the State”. This statement was not held to be an error in law.

Three, the tribunal had asserted that state funding does not compromise the independence of the judicial system. The commissioner accepted that the funding of the Courts, including tribunals, does not of itself compromise the independence or impartiality of the judges that sit in them.

Four, “The appellant objects to the New Deal programme on the basis that it is “a form of slavery” -

“In my view, no identifiable error in law has been demonstrated in this ground of appeal. There is an objection by the claimant to the statutory scheme in respect of the “New Deal” set out in the Job Seeker’s Act 1995 and the Regulations made thereunder. The claimant’s perception that the New Deal programme is a form of modern slavery does not render the statutory scheme illegal. The assertions that he makes would not independently demonstrate any error in law on the part of the tribunal with the result that the tribunal’s decision upholding the sanctions were erroneous in law. Unless there was some legal basis for challenging the statutory scheme successfully, the tribunal were bound to apply the law as set out in the legislation and this they did.”

Five, unemployed individuals are forced to work under the New Deal programme or their benefit is affected and that this amounts to forced labour contrary to article 4 of the European Convention. However the claimant is not forced to do anything. It was simply that, if the claimant did not take the placements, then he may be subject to a sanction.

“it is quite clear that the kind of programme that the claimant was required to engage in, does not have the quality of either slavery or servitude.”

Six, following consideration of the case of Van Droogenbroeck v. Belgium (1982) 6EHRR163 for the purpose of demonstrating how Article 4 is to be interpreted, the tribunal was correct in reaching the conclusion that slavery, servitude and forced labour are something of a more extreme level than being required to take part in a programme as part of an entitlement to benefit.

The claimant has now joined a religious order.

Pension credit

CPC/3588/2006: Right to reside - Article 10(2) of Council Regulation (EEC) 1612/68

The rights under this article are procedural only.

CPC/3743/2006: Recovery of overpayments

Case concerns a claimant who failed to declare that she owned a property. The case discusses how section 71(5A) of the Social Security Administration Act 1992 operates in conjunction with section 12(8)(b) of the Social Security Act 1998. Section 71(5A) provides that:

(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998."

Section 12(8)(b) of the Social Security Act 1998 provides that:

"(8) In deciding an appeal under this section, an appeal tribunal--

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

The question is whether, if only part of the period of an alleged overpayment of benefit is covered by a decision or decisions satisfying the conditions of section 71(5A) at the date of the decision purporting to make the overpayment for the whole period recoverable, a subsequent decision revising the original awarding decision for the excluded period, made before the appeal tribunal hears the appeal, can satisfy section 71(5A).

The tribunal erred in saying section 71(5A) was satisfied for the whole period and also based on what was contained within the statement of reasons.

The decision then suggests the tidiest ways to correct the flawed decision making.

CPC/4317/2006: Right of abode and sponsorship agreements

The claimant's pension credit was removed because she was held to be a sponsored immigrant. But she had become a British citizen in December 2004. It is impossible for a British citizen to be a sponsored immigrant but no one listened until the appeal went all the way to commissioner level. He overturned the decision.

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

CPC/683/2007: Estrangement and capital

Paragraph 4 of Schedule V of the State Pension Credit Regulations 2002 states that the value of a marital home cannot be disregarded where a couple are estranged. In this case the couple were held to be estranged.

"It seems to me that the proper analysis of the relationship between the claimant and his wife is this. They remained married and have no plans to divorce. He would like to resume living with her, but she is opposed to this idea. The reality is that they will never resume living as husband and wife; the claimant accepts that. However, they are not hostile to each other on a personal level and he feels a continuing responsibility towards her. This leads him to help her when she cannot manage on account of her ill health. In other words, there is no emotional disharmony between the claimant and his wife as adults, but there is emotional disharmony between them as partners. That is a key distinction, because the language used in the legislation is attempting to identify those cases in which the relationship between the parties is such that it is appropriate for their finances to be treated separately for the purposes of benefit entitlement. Once the facts of the case are set out, they seem to me to allow of only one interpretation, which is that the couple are estranged."

CPC/3322/2007: Deferred capitalised mortgage interest

This is not a housing cost for the purposes of pension credit.

Pensions

CP/3577/2006: Bereavement and death benefits

This decision discusses in detail the interplay of four pensions (two of them benefits) and the effect on a widow of the death of her husband. As a result of his death her state pension was reduced. The decision explains why this happened and why any alternative to this would produce no advantage to the claimant.

CP/4205/2006: Contributions and credits

Hideously complex case where the claimant is challenging what she maintains is an incorrect contribution record, which needs to take into account periods of election to pay reduced contributions, home responsibilities protection, other credits and entitlement to foreign benefits.

The commissioner adjourns the appeal and remits it back to the Secretary of State and HM Revenue and customs to resolve the outstanding questions but is not happy with this outcome.

"65 The result is plainly absurd. Regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 requires me to adjourn this appeal while it is referred to the Secretary of State and by the Secretary of State to HMRC, and then back again, and then back again (and again) as necessary until it can eventually be referred back to me for decision, if not agreed by the appellant.

66 As a result, and notwithstanding the appellant’s pleas for urgency, this appeal may stand officially adjourned for several years if the full procedures required by law to determine this appellant’s entitlements are pursued. But that is currently the required procedure, and I have no power to alter that procedure. If B wishes to maintain her appeals on all the factual points she has raised (and ignoring any appeal on points of law only) she must obtain decisions about HRP (including decisions about her child benefit record and foreign equivalents) and then appeal them to the social security tribunals, then obtain a decision from HMRC about her actual contribution record and appeal it to the tax tribunals, then obtain decisions from HMRC and the Secretary of State about any credited earnings and appeal them to the social security tribunal again, then, if she wishes to consider any voluntary contributions, agree the position with HMRC or appeal it to the tax tribunals again, and then finally ask the Secretary of State to calculate her basic pension entitlement and make a submission to me or another Commissioner about that final decision. Alongside that are the decisions and appeals necessary to deal with the other elements of her state retirement pension."

CP/1183/2007: Human Rights - unequal state retirement ages for men and women

The decision considers this issue in the light of article 14 of the European Convention on Human Rights (anti-discrimination) either in conjunction with article 8 (right to respect for private and family life) or Article 1 Protocol 1 (peaceful enjoyment of possessions).

The claimant submitted that the refusal to pay him a pension at 60 infringed Article 8 because it did not respect his quality of private life by denying him the opportunity to move in order to live in a warmer and drier climate within the EU. The scheme also did not respect his family life as payment of his wife's state pension had been delayed, even though she had attained the age of 60, since it was dependent on his pension being payable.

This argument was rejected following Carson & Reynolds v Secretary of State for Work and Pensions EWCA Civ 797 (17 June 2003). Article 8 does not require the state to provide a home nor does it impose any positive obligation to provide financial assistance to support a person's family life to the full or in any particular manner.

In addition, the commissioner held that Article 1 Protocol 1 (peaceful enjoyment of possessions) cannot apply as it is concerned with the peaceful enjoyment of a person's existing possessions and does not guarantee a right to acquire possessions.

Severe disablement allowance

CSS/239/2007 (bailii): Life prisoner detained in mental hospital in receipt of SDA

The case concerns a claimant who was a prisoner sentenced to life imprisonment on June 29 1979 with a recommendation he serve 12 years before being eligible for parole. In 1992 he was transferred to Carstairs Hospital under Section 71/72 of the Criminal Procedure (1995) Act to have treatment for his mental illness. On 3 September 1993 he was given a life award of Severe Disablement Allowance

Since 10 April 2006 customers detained in a mental hospital who would otherwise be serving a criminal sentence are normally no longer eligible for Severe Disablement Allowance. However regulation 2(3) of the General Benefit Regulations makes provision that a person is not disqualified from receiving benefit if he is detained in a hospital unless he is detained by virtue of the statutory provisions listed in regulation 2(3)(a) and (b) including section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Regulation 2(4) of the same regulations makes provision for regulation 2(3)(a)(b) not to be satisfied where a certificate of the type set out in that regulation is provided.

In this case the commissioner held that the tribunal correctly found that no such certificate had been issued.

Tax credits

CTC/2270/2007: Joint income

The earnings of a partner earned before he or she became a member of a couple are relevant when calculating tax credit awards. This decision has been reported as R(TC)1/08.

CSTC/724/2006: A single claim cannot automatically become a couple claim

The claimant claimed tax credits under Section 3(3)(b) of the Tax Credits Act 2002. she was then found to be living with a partner and her claim was cancelled. She tried to argue that they now satisfied Section 3(3)(a) of the Act (tax credits claims made by couples) but the commissioner stated that these two regulations are mutually exclusive. To satisfy Section 3(3)(a) a new claim would have to be made.

"I find myself in agreement with the position adopted by Deputy Commissioner Green that claims made under Section 3(3)(a) and 3(3)(b) are mutually exclusive. I follow her decision. I am persuaded by Mr Mowat's argument as to why this is the case. In my view a cohabitee who has not been an applicant in a claim cannot acquire the right to a potential tax credit when he was not a party to the claim in the first place and acquire potential liabilities arising therefrom. I also do not consider that the provisions contained in Section 3 in either the form it was in at the time of the claim and in its amended form from 5 December 2005, allow for the course to be adopted by the tribunal. In these circumstances, I am satisfied that the tribunal erred in law in deciding the appeal before them on the basis which they did."

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

Martin Inch - 7 June 2012