Selected commissioners decisions from April 2005 to March 2006

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

ATTENDANCE ALLOWANCE CA/4297/2004: Additions to statement of reasons

The district chairman, instead of allowing or rejecting an appeal to commissioner or setting the decision aside, sent the papers to the tribunal chairman so that an additional paragraph of explanation for the decision could be added. There are no provisions in the regulations for additional, alternative or substitute statement of reasons to be issued.

"There are good policy reasons why there should be no such provisions. If there were, there could be confusion as to when the time limit for applying for leave to appeal should run. There would be difficulty in securing that the subsequent statement of reasons was truly that of the whole tribunan and not that of the chairman alone…….There would be a danger that the District chairman or whoever requested the further reasons would actually be introducing into the reasoning an issue never raised before the tribunal or on which the parties had had the opportunity to comment.."

Part cites English v Emery Reimgold & Strick Litd [2002] in support of this view that such an action is inappropriate for tribunals.

"We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry."

CA/2298/2005 (now reported as R(A)2/06) : Recovery of overpayments failure to disclose where claimant gets local authority funding

The claimant moved into a care home and initially received attendance allowance because she was self funded. She subsequently received local authority support but failed to inform the DWP. The commissioner could not find evidence of failure to disclose by her, or her daughter (her appointee) because the Secretary of State could not furnish any documentary evidence showing that they were under a duty to inform the DWP of a change in circumstances.

CHILD BENEFIT CF/699/2005: Failure to disclose

Claimant's daughter ceased to attend college. The Claimant contended that she did not know this. The tribunal considered that the claimant had "actual knowledge" of her daughter's non attendance and also exhibited "wilful blindness" in not checking up on her attendance. Unfortunately the tribunal's statement of reasons was not clear and there was….

"an error of law in failing to explain clearly in which category the tribunal found that the case fell. The claimant was entitled to know on which of these distinct grounds her appeal failed."

Paragraph 28 sets out the correct approach in such a case.

"Applying the approach set out in CF/14643/1996 and above, the new Tribunal should first ask itself whether the claimant had actual knowledge of S's non-attendance at college, and if so, by what date. If it does not find that the claimant had actual knowledge, it should consider whether the claimant had grounds for suspicion and if so, whether it was reasonable for her to investigate her suspicions by contacting the College. Again it will need to identify the date by which any such grounds for suspicion arose."

COMPENSATION RECOVERY CCR/3425/2003: disclosure of evidence and failure to attend

An ex policeman claimed there was an error of natural law because the wording of documents led him to believe that it was unnecessary for him to attend the hearing. He also claimed a breach of confidence because medical evidence was disclosed to the tribunal. The appeal failed on both counts but this still turned out to be to the advantage of the claimant because it appeared he was still owed an outstanding sum of compensation. The claimant also had a disablement benefit appeal which was stayed pending the result of this one. Commissioner Rowland discusses this other appeal at the end of the decision, suggesting possible ways in which it might succeed.

CSCR/795/2004: Duties of tribunal and commissioner and human rights

Found no breach of human rights but considered the commissioner's role, like that of the tribunal, to be inquisitorial and found two errors of law not raised relating to inadequate reasoning and offsets.

DISABILITY LIVING ALLOWANCE CDLA/3161/2003, CDLA/3162/2003, CDLA/ 3164/2003: NHS attempts to use the DWP to defer accommodation charges

This is a decision of a tribunal of commissioners concerning three claimants with severe learning disabilities who were formerly in-patients at a long-stay hospital but who were subsequently moved into private nursing homes. The Local Authority did not incur any costs for this transfer as they were met by the NHS.

There was some argument as to whether the claimants' DLA awards fell to be considered under regulation 8 (hospital in-patient) or regulation 9 (accommodation other than hospitals, such as residential care homes) of the Social Security (Disability Living Allowance) regulations 1991. Under regulation 8 DLA is not payable but under regulation 9 the mobility component of DLA is payable. It was argued that the three claimants (who each had appointees) came under regulation 9 but were self-funding because their benefits were sufficient to meet their costs.

The commissioners did not accept this argument. The level of care required was unchanged despite the move to a nursing home. There had been no reassessment so the duty to maintain remained with the NHS. Section 21(8) of the National Assistance Act 1948 states that the Local Authority is not required to make any provisions for accommodation in such cases.

As a result the claimants' DLA awards fell to be considered under regulation 8 of the Social Security (Disability Living Allowance) regulations 1991. In order to receive DLA the claimants would have had to be classified as private patients and meet all the costs of their accommodation. This was not the case. The NHS was making payments to the Local Authority under Section 28A of the National Health Service Act 1977. The claimants were not allowed to receive DLA although two were allowed to keep their mobility components under transitional protection rules.

The commissioners also questioned and criticised the motives of the NHS.

".the health authority seems to have regarded it as legitimate to make every effort to minimise its proper liabilities under the 1977 Act by seeking to transfer them to the budget of another limb of Government through a wholly artificial scheme."

Including these three claimants an estimated 70 claimants were in the same situation. Had this scheme succeeded it was estimated that the DWP would have had to pay half a million pounds a year in benefits. There were also three or four patients, with high levels of capital, who were wrongly charged because it was assumed that they were no longer considered to be receiving NHS care.

CDLA/4962/2003: Failure to disclose

The claimant received concurrent awards of mobility component. This fact was not disputed and it was held that the claimant was aware of the duplication so the appeal failed. This is one of many appeals stayed pending the result of Hinchy v Secretary of State for Work and Pensions.

CDLA/1721/2004: children giving evidence and meaning of phrase “so severely disabled physically or mentally”

This is a decision of a Tribunal of Commissioners. With regard to children being required to give evidence. Under regulation 43(1) of the social security (Decisions and Appeal) Regulations 1999 a tribunal chair has the power to "require any person in Great Britain to attend as a witness at a hearing of an appeal". This can include children. The Commissioner's noted guidance contained within paragraphs 64.11 to 64.13 of the Benchbook issued by the President of the Appeals Service Tribunals and went on to issue their own guidelines. They considered that there was a twofold problem with requiring evidence from children. Firstly, it may be bad for the welfare of the child and secondly the evidence may be unreliable. Their guidelines are contained in paragraph 58 as follows (our numbering is different as there appears to be a misprint on the decision:

“(1) A tribunal should have proper regard to the wishes of a child of sufficiently mature years and understanding who wishes to give evidence in a DLA claim made on his behalf. However, a tribunal should be very cautious before requiring any child to give evidence, and should only call for a child to give evidence if it is satisfied that a just decision cannot otherwise be made. Before reaching such a conclusion, the tribunal should consider first all the other available evidence, and then ask itself whether any necessary additional evidence can be obtained from another source, for example, a health visitor, social worker, teacher, family member or friend, to avoid the need for the child to be called at all.

(2) In any event, a tribunal should be very slow to exercise its power to require a child to give evidence if that child’s parent or carer takes the view that for the child to give evidence may be detrimental to the child’s welfare, particularly if there is evidence from a competent professional that to do so might be harmful. It would be wholly exceptional for it to be appropriate for a tribunal to call a child in such circumstances.

(3) Even if it is those representing the child, rather than the tribunal, who wish the child to give evidence, as Brown [v The Secretary of State for the Home Department (LTA 97/6885/J] indicates, a tribunal has power to disallow the child from giving evidence if it is against the child’s interests to do so. If it is proposed that the child gives evidence, the tribunal must consider whether it is in that child’s interests to do so.

(4) The tribunal should bear in mind that the mere presence of a child at a hearing is unlikely to give a reliable indication of the effect of a child’s disability in normal circumstances.

(5) Where a decision is taken to call a child to give evidence, after submissions from interested persons (including the parents or carers of the child) a tribunal should give consideration to precisely how that evidence will be taken, so that the interests and welfare of the child are maintained, giving any directions that are appropriate. In doing so the tribunal will bear in mind that a child may perceive what is said at a tribunal hearing very differently from an adult. It will be necessary for the tribunal to identify any matters that the child ought not to hear (e.g. it will not generally be appropriate for a child to hear criticism of those responsible for his or her care) and questions that the child ought not to be asked (e.g. it will not generally be appropriate to question a child about his or her own care needs).

(6) In addition, where a child is to be called to give evidence, the tribunal will need to give consideration to practical matters such as the geography of the hearing room, having an appropriate adult in close attendance, whether any of the tribunal (including the chairman) should be selected because of experience in dealing with child witnesses and even (in appropriate cases) taking such steps as taking the child’s evidence by video link if available, giving directions where appropriate.”

Severe disability

When considering the meaning of the phrase “so severely disabled physically or mentally”, used for both care and low rate mobility components, the tribunal stated that the phrase does not refer to the severity of the condition but to the severity of the consequences of having that condition. The decision weighed up the merits of previous decisions.

On the one hand there was R(A)2/92, which concerned a claimant with alcohol problems. This decision discounted needs resulting from “anti social behaviour not related to mental illness” or as a result of a “defective character”, stating that only conditions which were defined medically could be assessed. Another decision CA/123/1991, held that the phrase must be related to a condition of body and mind that can be defined medically. R(DLA)2/00 (Stewart v Advocate General for Scotland -1999) was also considered. This held that the establishment of a "medically recognised physical or mental condition " that caused a disability was "an essential prerequisite" for an award of DLA. CDLA/944/ 2001 also held that mental disability should arise from some recognised mental disorder.

On the other hand there were more favourable decisions such as CDLA/15467/1996, CDLA/16176/1996, CDLA/1659/1997 and CDLA/22521/1997. These decisions, under a common appendix stress that it is up to the tribunal to ascertain this taking account of all relevant medical and other evidence. “The fact that no diagnosis has or has yet been made, or that no label has been given or has yet been invented for the condition, does not deprive the tribunal of its jurisdiction and responsibility to decide the issue. Examples cited included the suggestion that mental disorder may be defined by reference to behaviour rather than by diagnosis. Behavioural or developmental problems in children may also come within the definition of “disabled physically or mentally”. This was followed in CDLA/948/2000, which stated that a tribunal does not have to identify a precise condition in order to conclude that there is physical or mental disability. Physical pain is part of a person's physical condition even if caused by, or a symptom of, psychological factors.

The Tribunal of Commissioners also considered a middle ground decision, R(DLA)10/02, which held that the tribunal must be satisfied that the claimant has some condition "that is capable of being medically accepted as such", even if there is no exact diagnosis.

They rejected the approach taken by R(A)2/92

“… in our judgment, the only requirement of the provisions is that the disability is such that it results in the particular consequence identified (e.g. under section 72(1)(a), the claimant requires attention for a significant part of the day). This is clear, not only from the purpose of the provisions, but also from the statutory wording employed, “so severely disabled… that” (rather than “so severely disabled and…).”,

“It will be apparent from what we have said that, in our judgment, behaviour cannot itself be a disability - but it may be a manifestation of a disability, namely an inability to control oneself within the accepted norms of behaviour. Therefore, in our view, in R(A)2/92 the correct approach was not to have sought a specific diagnosis of a serious mental illness, but to have asked whether it was in the claimant’s power to avoid behaving as he did. If it was not in his power to avoid that behaviour, he would be “disabled” within the terms of sections 72 and 73(1)(d), although it would be a separate question as to whether that disability was severe enough to entitle him to benefit.”

This decision has been reported as R(DLA)3/06.

CDLA/1859/2004: Failure to disclose

An overpayment of DLA arose when the claimant left the country. The claimant claimed that she was not responsible because she had informed overseas group about her absence in connection with her pension. This was another decision stayed pending the outcome of Hinchy v Secretary of State for Work and Pensions. Because the Secretary of State won the case it is now the duty of any claimant to inform the right department about any change of circumstances which may affect his or her benefits. Notification of overseas group was insufficient for her DLA claim. However the claimant won her appeal because she had asked her daughter to return her order book and the daughter had instead continued to cash it. The tribunal failed to investigate whether the claimant knew about this.

"even if an agent wrongly obtains benefit without the authority of her principal, the principal may still be liable to repay the money if it was paid to, or applied on behalf of, the principal"

Cites paragraph R(IS)5/03 concerning the law of agency and CIS/395/1992, which concerned a husband who had cashed orders without the wife's knowledge.

CDLA/2879/2004 and CDLA/2899/2004: the need for virtual inability to walk to have a physical cause

This is a long (41 page) decision made by a Tribunal of Commissioners. It discusses whether pain or dizziness or other symptoms which are found to have no identifiable physical cause can be a 'physical disablement' for the purposes of entitlement to the higher mobility component of DLA.

The commissioners considered the relevant law, which is as follows…

Section 73 (1)(a) of the Social Security Contributions and Benefits Act 1992, provides that:

“(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period … throughout which -

(a) he is suffering from physical disablement such that he is either

unable to walk or virtually unable to do so;"

Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 qualifies this further by stating:

"12(1)(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to the place of, or nature of, employment -

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk;"

The commissioners decided that they were bound by Harrison v Secretary of state for Social services (R(M)1/88).

"83. We acknowledge that, looking simply at the natural meaning of regulation 12(1)(a) as one of impression, it is arguable that physical manifestations of a mental condition are not part of a person’s “physical condition as a whole” (and do not constitute “physical disablement”). That, indeed, seems to have been what led the Court of Appeal in Harrison to reach the conclusion that, although the claimant’s hysteria rendered him physically incapable of walking more than a few steps, he did not qualify for mobility allowance."

The reasons that they felt bound by Harrison are contained within paragraphs 86-101 of the decision. As a result pain, dizziness, or other symptoms, are not a feature of the claimant's 'physical condition as a whole' unless they have a physical cause. The commissioners would have arrived at a different conclusion had Harrison not forced them to decide otherwise.

"101. We do not regard Harrison as without difficulties. However, for the reasons given above, in our judgment Harrison is authority binding on us that, contrary to the construction which we would have adopted if we had been free to do so, where a claimant suffers from physical symptoms or manifestations of a medical condition (whether that condition be physical or mental), it is necessary for him to show an identifiable physical cause for those symptoms or manifestations to satisfy the conditions for entitlement to higher rate mobility component of DLA under section 72(1)(a) of the 1992 Act and regulation 12 of the 1991 Regulations."

The decision then discusses the correct test to be applied in cases where claimants have mobility problems arising from a combination of physical and mental factors. The commissioners settled on a "material cause" approach.

"111. ….the claimant’s physical condition must be a material cause of his inability or virtual inability to walk, and it will be a material cause if it contributes to his inability or virtual inability to walk to any appreciable extent - i.e. to any extent which is more than de minimis."

"116. In our judgment, therefore, even if a decision maker or appeal tribunal considers that mental or psychological problems are the substantial cause of a claimant’s walking difficulties, it should award the higher rate of the mobility component if it finds that a physical disorder contributes to the claimant’s inability or virtual inability to walk to more than a minimal extent."

It was a majority view of the Tribunal of Commissioners that this would "not include the situation where at the date of the decision the walking difficulty is entirely due to psychological problems, even if those arose from a physical problem which has abated."

Paragraph 120 cites an example where someone may pass the test if the claimant's problems with walking were mental in origin, which in turn led to problems of a physical origin.

"120. For the avoidance of doubt, we should say that our conclusion as to the effect of Harrison does not mean that a claimant cannot be entitled to the higher rate of the mobility component if the origin of his walking difficulties was mental. If, for example, a claimant has, as a result of severe depression, been so inactive that his muscles have atrophied, with the result that he is virtually unable to walk, he clearly satisfies the condition of entitlement. The atrophied muscles are clearly a feature of his physical condition. We therefore agree with the general proposition formulated by Mrs Commissioner Parker in paragraph 60 of CSDLA/265/1997 that, provided a physical disorder materially contributes to the claimant’s inability or virtual inability to walk, it does not matter where in the chain of causation it comes."

CDLA/2961/2004: EMP and medical evidence

A case where the tribunal favoured the evidence of the EMP over that of the GP, stating that the EMP's evidence was neutral. Cites CIB/563/2001 which says that it is "irrational" an EMP as "independent". Suggests that it is is "better to evaluate medical evidence by reference to its inherent strengths and weaknesses."

Paragraph 4 discusses "attention reasonably required".

"…it was not unreasonable for the tribunal to rely on the fact that the claimant managed to get out of bed in the morning when her husband was out at work as being an indication that she did not [need] attention from another person in connection with that task. I accept that the test is whether a person reasonably requires attention rather than whether she actually receives it but there is a very great difference between someone having difficulty with a task and somebody reasonably requiring attention with that task. Unless the difficulty is so great that it is unreasonable to expect the person to undertake the task unaided or at all, merely having a difficulty is not sufficient to show a requirement for attention from another person."

CDLA/4099/2004: Tribunals duty to consider Mallinson arguments

Following an appeal the claimant's representative sought to argue that the tribunal had not considered Mallinson in relation to her client. However the submission to the tribunal did not expressly raise the issue so the tribunal was not bound to consider it.

CDLA/4100/2004: personal care for children under 16

Tribunal failed to give sufficient reasons for not awarding the care component for a 15-month-old deaf child.

CDLA/4208/2004: EMP examination not carried because of the absence of a chaperon

The EMP did not carry out a full examination because there was no chaperon present, but the tribunal failed to take note of this and relied too heavily on his "clinical findings".

Cites guidance under section 14.13 of the official "Guidance for Examining Practitioners" which sets out to protect doctors from being accused of unethical conduct, particularly when examining members of the opposite sex.

Following on from this states:

"I agree with the secretary of state's representative that it is for each practitioner to decide whether to conduct an examination with no third person present…..But where, as a result, the examining medical practitioner does not conduct a full examination that must be taken into account both by the Secretary of State and a tribunal in weighing the evidential value of findings and opinions in the report."

CDLA/4222/2004: Powers when deciding a supersession of a supersession to supersede the original decision

This decision discusses the correct approach when considering a situation where a superseding decision was held to be wrong and questions raised about the original decision.

A decision to award low rate care component for life was superseded by a decision to award high rate mobility component and middle rate care component. Following a doctor's report a second supersession reduced the award back to low rate care component but also removed the lifetime element of the original decision.

"In my judgement the effect of superseding Decision 2…is in substance to require the Decision 3 decision maker …to ask what decision could be made instead of the mistaken Decision 2."

"It further follows from what I have said that Decision 3 ought not to have changed the life award of the lowest rate of the care component to one which endured for only about a further 18 months without there being a ground for supersession of Decision 1 which led to that result. Unless, therefore, the new tribunal is satisfied that there is such a ground, it should re-instate the award of the lowest rate of the care component for life."

CDLA/4333/2004: Attention by phone

Following Foley vs Chief Adjudication Officer (CDLA/1148/1997) which allowed attention given over the phone, such as reassurance, to count. The Government amended the regulations (SI 2000 No 2313 – The Social Security (attendance allowance and Disability Living Allowance) (Amendment) (No 2) Regulations 2000 from 25th September 2000) to read that “the attention the severely disabled person requires from another person is required to be given in the physical presence of the severely disabled person”.

This decision considers the use of attention over the phone as evidence of attention needs in the presence of another person.

"However the representative argues that it is evidence of the help that the claimant needs and is only provided by phone because the mother's health prevents her doing anything else. I accept the point that if contact by telephone is the only feasible method for those concerned, it may be evidence of the need for attention in person."

CDLA/4389/2004: Clerk's failure to notify refusal to postpone

A claimant requested a postponement in writing. The clerk did not reply to this but instead passed the letter to the tribunal at the hearing where the postponement was refused. This was in breach of regulation 51 of the Social Security (Decisions and Appeals) Regulations 1999. The clerk should have first decided whether to grant a postponement and informed the claimant accordingly in writing. Cites CDLA/4462/2000.

CDLA/4475/2004: severe mental disablement, behavioural problems and the need for a diagnosis

The original appeal failed in part because there was no diagnosis of his condition. Following CDLA/1721/2004 the commissioner agreed that this was not necessary when deciding a claim for DLA but with this rider.

"A diagnosis is therefore not essential as a matter of law but it remains important as a matter of evidence because a tribunal will more readily accept that difficult behaviour is a manifestation of a disability if there is a formal diagnosis than if there is not."

The tribunal was informed that the claimant was to have his case reviewed within a month of the hearing and he was in fact subsequently diagnosed with Asperger's Syndrome. As the need for a diagnosis was an issue in deciding the case the tribunal should have considered an adjournment. Commissioner Rowland suggests that this case follows E v Secretary of State for the Home Department [2004] which states "that a mistake of fact giving rise to unfairness can be a mistake of law". It was the failure to establish the fact of diagnosis that prejudiced the claimant's case.

CDLA/205/2005: Tribunals consideration of evidence

Appeal to commissioner failed because:

"The tribunal's statement in this case, read as a whole, was a carefully reasoned and explicit decision which left the reader in no doubt as to the view it took of the evidence and how it exercised it's judgement."

CDLA/301/2005: claimant over age 65

The claimant was subject to a periodic review and had her middle rate DLA care component removed. The tribunal dismissed the appeal but was prepared to award low rate care if paragraph 1(1) of Schedule 1 of the Social Security (Disability Living Allowance) regulations 1991 was satisfied. The only impediment to this was para 1(1)(c) which required that the claimant make an application for revision or supersession. The claimant did not do this but the commissioner says that this is unnecessary to satisfy the rule, the arguments being outlined in paragraphs 24 and 25.

CDLA/341/2005: ascertaining physical disablement

Tribunal failed to adequately explain why a claimant who suffered from an autistic spectrum disorder was disentitled from receiving high rate mobility component. The claimant cannot qualify under the severe mental impairment route as she only has middle rate care component. The new tribunal is directed to ascertain physical disability using the test outlined in Harrison v Secretary of state for Social services (as reported in R(M)1/88).

CDLA/395/2005: dyslexia - reading and writing as a bodily function

Tribunal erred in it's parting comment "we do not accept that the functions of reading and writing are bodily functions" but this did help the appeal to commissioner as this was not part of the tribunal decision nor necessary to it.

Commissioner Williams rejects this statement citing CDLA/1420/2004 and CDLA/2680/2001, both cases concerning dyslexia. If someone with dyslexia needs help reading labels etc. this can count as attention.

"It is necessary to look at the specific disablements, if any, described under the general label of dyslexia, or associated with it, in a particular case. Only then can it be decided whether bodily functions are affected. And it is necessary to look at the actual needs said to arise from the disablements."

CDLA/845/2005: Review of terminal illness decision and mobility component

The claimant was awarded the care component because his condition was considered terminal (he did not know this) as well as the mobility component. He was under a duty to inform the DWP when he returned to work because this also indicated that he no longer had mobility needs.

The care component should be removed at the point where medical opinion considered that he was no longer terminal (in this case January 2004) unless he satisfied the ordinary rules for the award of care component. This decision has now been reported as R(DLA)7/06.

CDLA/1212/2005: tribunals recommendation to use a microwave

The tribunal recommended that the claimant should use a microwave to cook from scratch. The claimant appealed to commissioner on the basis that he had no microwave. The commissioner held that, following Moyna, this was irrelevant.

"The tribunal was entitled to take into account the use of microwave ovens and heatproof pan handles even though the claimant did not have them…..It was not concerned with how the claimant actually cooked, but with the hypothetical question of whether he could in a general sense safely prepare a cooked main meal for himself given the ingredients."

CDLA/1365/2005 (now reported as R(DLA)6/06): Alcohol dependence and DLA

This is a decision of a Tribunal of Commissioners. Its main findings are:

  • Alcohol dependence has a mental cause.
  • Physical symptoms or manifestations flowing from alcohol dependence alone do not result from an identifiable physical cause for the purposes of satisfying the mobility component.
  • Separate medical conditions arising from alcohol dependence may be taken into account for the purposes of satisfying the mobility component if they have a physical cause.
  • The transient and immediate effects consequent on a person choosing to consume too much alcohol should not be taken into account when considering entitlement to DLA.
  • Consumption of alcohol as a result of dependence where the claimant cannot reasonably avoid alcohol can count towards consideration of the care component.
  • Decision makers/tribunals should consider whether the assistance the claimant needs is to help them stop drinking rather than help to deal with the consequence of drinking - can the claimant realistically be expected to reduce his or her consumption of alcohol so as to avoid the need for attention or supervision?
  • Decision makers/tribunals should also take account of the possibility of the claimant taking advantage of professional assistance to control alcohol consumption, including referrals on a rehabilitation programme.
  • Where rehabilitation is not a realistic possibility the transient effects of being drunk will seldom, if ever, entitle a person to DLA by themselves.
  • A claimant may be so intoxicated that any intervention would be impossible or impractical and assistance for the purposes of DLA would not reasonably be required.
  • The claimant's own evidence on alcohol consumption and its effects may require some scrutiny

In reaching this decision the commissioners relied on R(DLA)3/06 as the correct approach when determining care needs and CDLA/2879/2004 (to be reported as R(DLA)4/06) when determining mobility needs.

CDLA/1465/2005: Champerty in relation to appeals

The decision discussed the use of champertous arrangements - assisting with an appeal in return for a share of the arrears award. With regard to appeals this was considered acceptable practice and in line with the claimant's right to representation.

CDLA/1572/2005: driving in relation to the "cooking test"

The claimant's ability to drive may be relevant when considering co-ordination in relation to the cooking test.

CDLA/1531/2005: reasons for problems with walking and the six month forward test

Tribunal failed to give adequate reasons for findings related to the walking test, notably whether problems had a physical cause. The decision also discusses the relevance of R(A)1/94 and R(DLA)3/01 and CDLA/2878/2000 when tribunals consider the application of the six month forward test. Found no conflicting legal principle between any of these decisions.

CDLA/1714/2005: the "cooking test" and the use of aids

Tribunals should take into account those aids that might be reasonably used such as, for example, a slotted spoon but must consider the claimant's ability to use them in the light of his or her disability.

CDLA/1807/2005: Whether a formal diagnosis is required

Tribunal decision is erroneous in law because…

"the tribunal appear to have regarded the absence of a formal diagnosis as conclusive in determining that this young claimant's behavioural problems did not amount to any disabling condition that could qualify him for disability living allowance, and thus failed to record sufficient findings and reasoning of their own on that issue."

CDLA/2142/2005: Agoraphobia and benefiting from enhanced locomotion

An agoraphobic claimant who can only venture into the garden (but not further) with guidance or supervision may benefit from enhanced facilities for locomotion and satisfy the test for lower rate mobility component.

CDLA/2277/2005: tribunal's consideration of evidence and the status of starred decisions

CDLA/8462/1995 and CDLA/692/1994 should no longer be cited as they have been superseded by R(DLA)3/99.

Tribunals should not refer or be referred to decision starred numbers as they have no special status.

CDLA/2363/2005: Sleepwalking

Tribunal failed to properly consider care needs arising out of sleepwalking. The fact that there was no injury or actual harm (though the sleepwalker did inadvertently drink a bottle of body lotion) may be evidence that there is no risk of harm but it is not conclusive.

CDLA/2699/2005: Personal care attention: children under 5

This decision concerns a four-year-old and covers (and cites) some of the same ground outlined in CDLA/1721/2004 in relation to the meaning of "so severely disabled physically or mentally".

In considering the current decision the tribunal made four errors. Firstly it only looked to medical evidence when considering disability when it also had evidence from the mother and the childminder. Secondly the tribunal was looking for a "diagnosable disease or medical condition" when CDLA/1721/2004, a decision of a Tribunal of Commissioners, states that it should be looking for "physical or mental disability". Thirdly the tribunal adopted part of the test from R(A)2/92 (Needs resulting from “anti social behaviour not related to mental illness” or as a result of a “defective character” cannot be taken into account) out of context as they cannot be applied to a four year old child. The final error was to assess the evidence by reference to a "severe physical or mental disability" when the test is whether there is a disability. The term "severe" only applies when determining the level of award.

Commissioner Williams then goes on to discuss three related decisions, R(DLA)1/05, CDLA/3525/2004 and CSDLA/829/2004 before suggesting the following guidance in relation to decisions concerning young children:

  1. The decision for the tribunal is "an exercise in "drawing the line".
  2. Following R(DLA)1/05 the tribunal must consider whether the child has a physical or mental disablement. If a young child exhibits disruptive behaviour it must consider whether this "evidences some underlying physical or mental disablement".
  3. The tribunal should take into account any medical diagnosis or evidence but should not be confined to this.
  4. Where there is disablement present (and also where there is some doubt about this) the tribunal must consider whether any of the DLA tests are met.
  5. The tribunal should consider whether the child has "requirements …substantially in excess of the normal requirements of persons of his or her age".
  6. The tribunal must take a broad view of the application of the test following Moyna v Secretary of State and R(DLA)5/05.

CSDLA/725/2004: Cooking test

Lack of motivation due to disablement is relevent. Follows CSDLA/80/1996.

CSDLA/731/2004: Cröhns disease, depression - care and mobility needs

This concerns regulations12(7) and (8) SS (Disability Living Allowance) Regulations 1991 which were laid preventing someone from satisfying the rules for lower mobility component on grounds of fear and anxiety unless this is a symptom of mental disability which is severe enough to prevent them from taking advantage of the faculty of walking without guidance or supervision on unfamiliar routes. The claimant in this case has Cröhns disease and also suffers from undiagnosed depression. Tribunal erred in failing to adequately consider this depression because of this lack of diagnosis. Cited CDLA/1721/2004 (tribunal of commissioners decision) in support of this approach.

In relation to care component, attempting to overcome the fear of bowel evacuation does not constitute care needs.

CSDLA/765/2004:How to consider supersessions

The consideration is a two stage process. Firstly grounds for supersession must be established and then conditions for entitlement investigated.

CSDLA/313/2005: too embarrassed to use a walking stick

Embarrassment is not a factor to be taken into account when applying the high rate mobility test. In this case the claimant, a teenage girl, did not wish to use a walking stick that would have alleviated her condition. The decision rejects arguments advanced in R(M)1/88 and CDLA/1361/1999.

CSDLA/399/2005: Alzheimer's and virtual inability to walk

Tribunal did not err when considering this case and finding that the claimant could walk outdoors if given guidance, supervision or encouragement. Cited and discussed R(M)3/86 and CDLA/156/1994.

CSDLA/554/2005: personal care prompting and mobility severe discomfort

Basically summarised in two quotes. In relation to the virtually unable to walk test:

"That a claimant suffers severe discomfort at times during his walking does not necessarily mean that he is virtually unable to walk if, overall and having regard to all relevant factors, he is able to walk to an appreciable extent and in a reasonable way without causing such severe discomfort. Walking achieved only at the expense of severe discomfort is discounted."

In relation to prompting and encouragement to carry out a bodily functions:

"If his disablement prevents him from [physically carrying out functions unaided] because it induces lack of motivation, which exhortation from another is able to overcome, then this is capable of constituting attention with the independent bodily functions which a claimant is thereby enabled to carry out."

CSDLA/858/2005: Tribunals findings - supervision and propensity to fall

This decision rejected the argument that a tribunal had failed to give full reasons for deciding to refuse DLA, including finding that the claimant was not at significant risk of falling.

Cites Wordie Property Co Ltd v Secretary of State for Scotland 1984.

"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

When deciding whether continual supervision is reasonably required in the case of falls, what is reasonable has to be looked at from both the standpoint of the claimant and the helper. The claimant may be able to get up unaided.

It is rational to judge that it is not reasonable to expect someone to be on hand on a continual basis if someone can rise unaided from a fall, albeit slowly and with discomfort. When examining the frequency of falls the tribunal found that three or four were insufficient for the test. It was not further obliged to go on and explain why it did not consider such a frequency amounted to a "significant risk of falling".

GENERAL CG/568/2003: Marriage to husband subsisting at the date of claim

The claimant's remarriage prevented her from gaining a pension based on her first husband's contributions.

CG/3102/2004: Overlapping benefits

DWP wrongly withheld carer's allowance based on the false assumption that a pension had been paid to the claimant.

HOUSING BENEFIT CH/524/2004 Commissioners' procedure and practice - lapsing of appeals

Appeal to commissioner lapsed because backdated benefit was paid by the local authority.

CH/602/2004: Declaration of income - duty of decision maker to examine bank statements

The claimant failed to declare his disablement benefit on the council tax benefit claim form but as the amounts were on the bank statements that he submitted with the claim the overpayment was held to be an official error. Commissioner Mesher also concluded that it was reasonable for the claimant to assume that disablement benefit was disregarded as income support because in much the same way as DLA.

CH/1326/2004 Housing benefit paid to people in care homes

Claimant cannot be excluded from housing benefit under regulation 7(1)(k) of the Housing Benefit (General) Regulations 1987 where he or she is living in a registered care home but who does not come within any of the definitions of vulnerable people in section 3(2) of the Care Standards Act 2000.

CH/1450/2004 Housing benefit department's incorrect refusal to reinstate an award

Case where the claimant lost most of her entitlement to income support and therefore to housing benefit. However the HB department removed all entitlement to HB, including for the period when she was entitled. The HB department refused to reinstate this award. Commissioner Howell suggests the correct course is to revise on grounds of official error under regulation 4(2) of Housing Benefit and Council tax Benefit (Decisions and Appeals) Regulations 2001. If the HB department refuse to revise then the claimant's only recourse is by judicial review.

CH/3169/2004: Notional Capital: deprivation

Tribunal failed to adequately consider a schizophrenic's purpose in disposing of an inheritance.

CH/3801/2004: Requirement to provide a national insurance number if no recourse to public funds

Claimant has a Thai wife with no recourse to public funds. He lost his housing benefit because she did not provide a national insurance number. Commissioner Levenson decided that because the claimant's wife is not allowed to claim benefit Section 1(1A) of the Social Security Administration Act 1992 does no apply to her and she is not required to provide a national insurance number.

This is being appealed to the Court of Appeal as Secretary of State for Work and Pensions v Wilson.

CH/3817/2004: Couple's right to decide who will make a claim

Tribunal erred in considering a claim for HB as a joint claim - "There is no such thing in HB and CTB legislation". A couple swapped claims but the HB department continued to make decisions on behalf of the original claimant. The new claimant appealed but the appeal fails because no decision had been made on behalf of her claim. Case referred back to the HB department for a decision.

CH/3893/2004: Temporary absence from home

A harsh decision where a claimant was hospitalised and received HB under the temporary absence rules. He subsequently decided to go into supported living accommodation and gave his landlord four weeks notice to quit his original flat. Held that the date of giving notice to quit was the date he ceased to be covered by the temporary absence rules. He was therefore liable to pay the four week notice himself.

CH/4004/2004: Housing benefit and award of disability living allowance

Tribunal refused to consider claimant's personal circumstances during the appeal. Case concerned the application of non dependent deductions where the claimant had been awarded low rate care component for the period in question.

CH/4081/2004: Whether statutory tenancy can be on a non commercial basis

In certain circumstances it can. Discusses case with reference to CH/3008/2002.

CH/4258/2004: Self employment and business assets

Ownership of three flats not considered to be part of a business asset so could not be disregarded.

"..if capital is not used in a business then (subject to other statutory disregards) there can be no justification for disregarding it."

CH/4424/2004: incapacity for work

The old regulation 11(3)(b) of the Housing Benefit (General) Regulations 1987, now amended, prevented the imposition of eligible rent restrictions if a claimant was incapable of work.

This decision asked two questions. Should incapacity for work be determined under present law as opposed to that in force at the time the regulation was enacted (it should) and does the housing benefit decision maker or the Secretary of State decide incapacity for work (Secretary of State).

CH/4501/2004: Good cause for failure to claim CTB if not claiming HB

A claimant with mental health problems and his partner moved into his previously empty property and was liable for two periods of council tax. He failed to claim benefit but was allowed on grounds of good cause, not because he had mental health problems but because it was reasonable to suppose that the claimant did not know he was liable to pay council tax.

"I believe that the truth is that he and his partner did not consider that it was necessary to fill in the forms because they were not claiming housing benefit and did not see the need to claim council tax benefit because they were not paying council tax and it did not occur to them that they might have any liability for council tax if the form was not completed."

CH/117/2005: Estrangement and liability to pay housing benefit

"I would suggest that a couple are not estranged for so long as the only aspect of their relationship that has changed is their physical separation. To put it another way, they are not estranged if the couple retain all the indicia of partners apart from physical presence in the same household."

CH/318/2005: A narrow boat with no permanent mooring

An owner of a narrow boat with no permanent mooring might be able to get housing benefit within a local authority area, regardless of whether such residence is lawful.

CH/404/2005: Disclosure of capital

The claimant had had capital sums of the order of £30,000 to £50,000 but claimed that the money really belonged to his father in Algeria and he was operating the account on the family's behalf. This was accepted at the appeal.

The local authority appealed on three grounds:

  • points on the evidence were not all addressed in the tribunal chairman's written decision
  • the reasons given in that decision were inadequate to show that all factual points in the case had been considered
  • the long delay between the hearing date and production of the decision must itself have affected the tribunal's perception of the case and the evidence, constituting a breach of natural justice.

The commissioner found that although there were discrepancies and confusions in the chairman's record there was a clear conclusion that the claimant's version of the facts was credible.

"Given that clearly recorded conclusion, the further matters of detail and evidence referred to in the authority's grounds of appeal and submissions are really rendered secondary."

With regard to point two, the decision statement of the appeal indicated that the chairman had the arguments of the local authority in mind when considering the decision. Also as this was primarily an issue of credibility that was decided largely by oral evidence at the hearing itself the delay referred to in point three, was irrelevant.

CH/704/2005: Housing benefit and county court decisions

There was a dispute as to whether a housing benefit claimant retained a beneficial interest in a property that she had previously owned. The County Court ruled that she did not have a beneficial interest but then exceeded its authority by ruling on housing benefit entitlement. This ruling was quashed by the Court of Appeal but the judgement concerning the claimant's beneficial interest stood.

The Commissioner stated that "the same issue had arisen between the same parties" in both the court and the tribunal decisions and that

"there was an effective estoppel on the beneficial interest question at the tribunal hearing and it was an error of law for the tribunal to redetermine the issue already determined by the County Court even although all the other elements in that Court's decision had been quashed by the Court of Appeal."

CH/1561/2005: income and capital

Tax credit arrears were to be treated as income rather than capital.

CH/1675/2005: Reg 99(1) HB regs and reg 84(2) CTB Regs

Concerns an official error where the claimant could not have been expected to realise there was an overpayment. The problem in this case was that the claimant became aware of the overpayment and contacted the relevant department who assured him there was no problem and continued to overpay him.

CH/1780/2005: none recoverable overpayment

The local authority caused the overpayment and the claimant could not have been expected to know this because there was nothing in the documentation that he received which would lead him to believe the awards were too generous.

CH/1815/2005: Effect of withdrawal of claim - duress

A claimant failed to disclose capital from the sale of a house and then made a written request to withdraw his council tax benefit claim once fraud investigations were initiated. He subsequently won his housing benefit appeal but lost an appeal about his council tax benefit because he had withdrawn the claim and there was nothing to reconsider. The commissioner considered whether the claimant had really wished to withdraw the claim or whether this had been a result of duress following an interview with a local authority officer. The appeal was rejected.

"The claimant had in fact received advice shortly before the interview and had no doubt made a conscious decision not to declare the capital resulting from the sale of the house on the housing and council tax benefit claim form. The record of the interview shows that the claimant simply refused to cooperate with the investigating officer when asked questions about his income and capital. The interview record suggests that the idea of withdrawing the claim actually originated with the claimant, which corresponds with what the claimant told me at the oral hearing. "

CH/2899/2005: Tenancies and contrived agreements

A claimant lived at a property for four years and paid £50 a week rent (under a licence agreement). Housing benefit was withdrawn because the tenancy was not on a commercial basis.

The commissioner discussed the arguments outlined in previous case law, namely R(H)1/03, CH/2329/2003 and CH/663/2003. CH/2329/2003 and CH/663/2003 suggest that a tenancy should only considered to be on a commercial basis if it benefits both owner and tenant. The commissioner preferred R(H)1/03, which states:

"2. the proper approach for an appeal tribunal was to investigate and determine the facts material to the issue and then determine as a question of "compound fact" whether as a matter of the proper use of language the arrangement was not on a commercial basis, applying the principles established by the authorities....

3. in applying those principles ... the tribunal must not reason by analogy from the reported cases and must consider the individual facts of each case in the context of all the others"

The conclusion of this 12 page decision is that this tenancy/licence agreement was considered on balance to be on a commercial basis. In doing so all of the facts of the case and terms of the licence are listed and argued in meticulous detail.

CH/3017/2005: Close relative residing

The claimant was living with her sister and the issue concerned regulation 7(1)(b) of the Housing Benefit (General) Regulations 1987 which prevents a close relative residing in a dwelling from being liable to make payments and therefore not entitled to housing benefit.

Also at issue was whether the European convention of human rights was breached.

Commissioner Turnbull stated that the tribunal did not err in deciding that the claimant was residing in a dwelling with her sister.

All Human Rights Convention arguments were rejected.

  • Article 3 (prohibition of torture) and Article 6 (fair hearing) - tribunal could only consider the claim for housing benefit not the manner in which the council had treated the claiamant.
  • Article 5 (right to liberty) - the article is concerned with deprivation of liberty by detention not the removal of social security benefits in certain situations.
  • Article 8 (respect for private and family life) - there is no obligation to provide assistance to support a person's family life.
  • Article 1 of Protocol 1 (protection of property) - cited by the commissioner as a means to consider Article 14.
  • Article 14 (prohibition and discrimination) - There was a rational justification for the enactment of this legislation to prevent abuse of the system.
  • Articles 17 and 18 - Commissioner Turnbull could not see how these would assist the claimant.

See also CIS/1916/2005

CSHB/405/2005: Temporary/permanent absence from home

The claimant was moved into a care home, where he died. Tribunal did not err in preferring the evidence of the nursing home over that of the landlord.

CSHB/606/2005: liability to pay rent

The daughter of a tenant claimed housing benefit when her mother's entitlement was withdrawn. It was held that the daughter did not have to make payments of rent (to her father, who is separated from the mother) in order to continue to live in the house and so was not entitled to housing benefit.

INCAPACITY BENEFIT CIB/4174/2003: Calculation of earnings

The Social Security (Computation of Earnings) Regulations 1996 should not be used to calculate exempt work. There are no "enacted rules" for doing this but the decision maker is required to establish "the level of actual earnings in a particular week" which exceeds the earnings limit for exempt work. This decision has been overturned by Secretary of State for Work and Pensions v Doyle. See also the later remitted decision following this court case. This decision has now been reported as R(IB)3/07.

CIB/1985/2004: Document ambiguity and recovery of overpayments

Claimant failed to notify permitted work within six weeks but the overpayment is not recoverable because the DWP leaflet explaining the permitted work rules was not specific enough. Follows CIB/3925/2003.

CIB/2821/2004: Incapacity benefits mental health descriptor 15(c) is ultra vires

Following Howker the amendment made to mental health descriptor 15(c) from made from 6.1.97 - "cannot concentrate to read a magazine article or follow a radio or television programme" is unlawful. The wording of the descriptor now reverts back to " cannot concentrate to read a magazine article or follow a radio programme".

The amendment to the text of the activity of 'lifting and carrying' made from 6.1.97 was not ultra vires as it did not bring about any alteration in the law.

CIB/2916/2004: Activity 8 - lifting and carrying

Breathlessness is a factor in lifting and carrying. The issue of carrying discussed with reference to R(IB)5/03 which states that carrying does not connote a degree of movement from one place to another.

"The point made in R(IB)5/03 is that the fact that a person cannot walk must be ignored in considering whether or not he can carry. A person may, after all, carry something while in a wheelchair. It seems to me that the word "carry" must require that the person concerned is able to continue holding the bag of potatoes after it has been picked up for long enough to be able to perform a function recognisable as carrying even if, as implied by R(IB)5/03, no very substantial distance would be involved."

CIB/3397/2004: amendments to "sitting" and "lifting and carrying" not ultra vires

This concerns a number of amendments which are now in doubt following the Howker decision. In this case the changes were held to be neutral because they only seek to clarify the law prior to the amendment. In the case of the sitting activity this goes against CIB/1239/2004.

CIB/3649/2004: Howker - Activities 7 and 8

Commissioner Jupp stated in CIB/3397/2004 that changes made to activity 8 (lifting and carrying) as part of the Howker amendments was not ultra vires. In this decision the commissioner says that changes made to activity 7 (manual dexterity) were clarifications and also not ultra vires.

CIB/3743/2004: Electronic 85s and the requirement for a signature

There is no requirement for electronic 85s to be signed because tribunals are not bound by strict rules of evidence (for reference see R(U)5/77 and CDLA/2014/2004) so section 7 of the Electronic Communications Act 2000 does not apply. Now reported as R(IB)7/05.

CIB/844/2003 was cited in relation to a separate argument that all of the amendments introduced at the same time as that argued in Howker v. Secretary of State for Social Security (2002) were ultra vires. CIB/844/2003 states that a representative relying on Howker should identify the amended provision (descriptor). If the amendment is not found to be neutral then it is ultra vires. In this case the representative failed to identify any amended provision but the tribunal opted to apply the regulations in their unamended form.

CIB/3984/2004: Electronic 85s - requirement for a signature

Assuming the Electronic Communications Act 2000 applies to electronic 85s (CIB/3743/2004 says it doesn't) and the admissibility of the 85 as evidence is challenged, then it must be properly certified under section 7(1) of the Act.

CIB/4012/2004: Notification to attend medical examination

Secretary of State failed to establish that the claimant had been given the statutory notification of 7 days to attend a medical.

CIB/4445/2004: Inadequate foreign medical report

This decision was erroneous in law because the tribunal relied on an incompletely translated foriegn medical report which was insufficient to base a fair assessment of the claimant's capacities in relation to the activity descriptors of the pca test.

"...a medical examination and report exactly following the form used by approved doctors in the UK for the personal capability assessment is not essential, but the questions that have to be answered remain the same, so whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue."

CIB/297/2005: Whether incapable of work

A self employed man was not entitled to IB because he was still working notwithstanding the fact that he spent several days in hospital (regulation 16(1) Social security (Incapacity for Work)(General) Regulations 1995). The work was also not held to be exempt work.

CIB/382/2005: Dispute between Chair and medical member

Statement of reasons failed adequately explain why the appeal failed as it contained a conflict of opinion between the two panel members over what to award.

CIB/469/2005: Variable conditions

Tribunal adjudged to have adequately considered the variability of the claimant's ME in terms of the relevant descriptors.

CIB/476/2005: Use of Electronic IB85s

Tribunals placed too much reliance on the evidence of the electronic IB 85 and failed to adequately consider the claimant's statements. The decision highlights the pitfalls of electronic evidence. The claimant should have been awarded 15 points for the descriptor of sitting but this was wrongly entered, possibly due to programming error/limitations. In addition to this statements could be automatically (and wrongly) repeated throughout the document unless the doctor overrode this instruction.

CIB/511/2005: Inaccuracy of Electronic 85s

Paragraph 3 says it all.

"The use of this system, in which statements or phrases appear to be capable of being produced mechanically without necessarily representing actual wording chosen and typed in by the examining doctor, obviously carries an increased risk of accidental discrepancies or mistakes remaining undetected in the final product. Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant. Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used - “The Tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings.” - are given as the reason for rejecting the claimant's own account of his disabilities."

CIB/664/2005: Use of electronic 85s

In this decision the tribunal rejected the evidence gathered using an electronic 85.

"Some points, the tribunal commented dryly are to be noted 'with some amusement'. I am afraid I have less of a sense of humour than the tribunal. I do not find it in any way amusing that a formal report of this kind contains the following statements:

Usually sits to watch TV for 1 hour(s) for about two hours before having to move

Usually can do light gardening for 1 minutes."

"Having seen a number of these reports , it is clear to me that there is an automated selective carry forward of phrases from Box 7 to the individual boxes for mental health descriptors. For example, the absurd comment about watching television turns up in identical wording in boxes 34, 37, 39, 47 and 49 (although I am not sure of its relevance to some of these descriptors). But it does not turn up in boxes 33 or 36 where it might, if properly observed, be relevant."

Commissioner Williams suggests that in cases where the electronic 85 is used a full picture of the guidance to approved doctors can only be obtained by reading the guidance manual for the electronic programme together with the "Incapacity Benefit Handbook for Approved Doctors". Copies of the manual should be made available to tribunals [the same could be said for representatives].

The decision also stated that physical aggression is not a necessary factor when considering the descriptor "Does he or she get so upset by ordinary events that it results in disruptive behavioural problems?"

CIB/760/2005: Permitted work lower (£20)

Under the law a claimant who does permitted work lower is required to give notice of this work to the DWP at any time before he ceases work. This claimant was called in for an interview and stated that he had ceased work the day before he informed the DWP. However the commissioner argued that it could be inferred that he would have continued working had he not been interviewed.

"In this case, the claimant had a pattern of activity, albeit one that was to an extent irregular and unpredictable…..The pattern was ongoing at the time of the interview and statement of 23 June 2004. It was brought to an end as a result of that interview. As a consequence, the claimant last carried out any work on the day before the interview. But the pattern of activity was ongoing and, for the purpose of the definition in regulation 17(1E) [Social security (Incapacity for Work)(General) Regulations 1995] the claimant only ceased to undertake work within that pattern following the interview."

CIB/1205/2005: Howker and sitting

After much discussion this decision sides with CIB/3397/2004, which states that the amendment to the "sitting" descriptor was not ultra vires.

CIB/1410/2005: Claiming incapacity benefit in youth - definition of full time education

A claim for youth IB does not constitute a separate claim. It simply has a separate set of conditions. For those claiming youth IB who seek to benefit from the under 25 provision there is no definition of full time education. Consideration of this is therefore a matter of fact. The decision also discusses definitions of vocational and work based training - which does not apply in this case.

CIB/1522/2005: Electronic 85s - internal consistency of findings

In this case the doctor overrode the evidence that the computer programme suggested for each descriptor. In addition the tribunal may have concluded that the evidence merited a different descriptor to that suggested by the computer programme.

CIB/1599/2005: Credits, supersessions and the requirement to notify

In incapacity credit cases a supersession for change of circumstances can only take effect from the date of the superseding decision. This is because Reg 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations1999 does not require credits only claimants to furnish information. In addition regulation 32 of the Social Security (Claims and Payments) Regulations 1987 also does not require the claimant to furnish information because it refers to payments of benefit rather than the award of credits.

The case concerned a man who was doing permitted work. It also discussed the problem of notification of earnings of less than £20 per week where "in such circumstances the required notice need only be given "at any time before the person ceases to undertake the work".

CIB/2221/2005: Requirement to give written notice of medical

Although it may be the practice for the DWP to arrange medicals at short notice this does not absolve them of the requirement under regulation 8(3) of Social Security (Incapacity for Work)(General) Regulations 1995.

"8(3) A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days before hand, or unless he agreed to accept a shorter period of notice."

CSIB/695/2004: ways of superseding invalidity benefit decisions

Case concerned a claimant who had moved onto incapacity benefit from invalidity benefit and who then failed the pca test following a medical. The Tribunal was correct to take the view outlined in CSIB/501/2003. This holds that regulation 6(2)(g) of Social Security and Child Support (Decisions and Appeals) Regulations 1999 cannot be used to supersede transitional awards of long term incapacity benefit. The regulation only applies to an actual incapacity benefit decision.

However the tribunal erred in not following the procedure outlined in paragraph 74 of R(IB)2/04 and considering alternative grounds for supersession. Commissioner Parker stated that 6(2)(a) of the Decisions and Appeals Regulations could be used instead.

CSIB/148/2005: Sitting

Following Howker the amendments made to sitting are not ultra vires. The decision rejects CIB/1239/2004 and follows CIB/511/2005. The amendments are seen as "simply additional words placed at the end of an existing activity". The intention was to clear up ambiguity.

" Even if the opinion of the Department on the effect of the amendment as being neutral had been incorrect, which I do not accept, my assessment of the significance of such a failure would be that as the Committee were experienced in social security matters, they could on the information before them, make up their own minds on the effect of the amendment. They would also be sufficiently warned if they saw fit to raise the matter with the Department at the meeting between them and to take the matter further by having a formal referral if that appeared appropriate for them to do. They took neither of these courses. The proposed amendments to the activity of sitting and the information provided to the Committee was significantly different from the clearly misleading and inaccurate information of a material nature which had been provided in respect of regulation 27.Thus having regard to the approach laid down by the Court of Appeal at paragraphs 36, 37 and 40 in Howker, I have reached the conclusion that the regulation is not ultra vires. I consider in these circumstances that there is no substance in the first ground of appeal."

CSIB/169/2005: Application of Howker in the context of various descriptors and activities and also of regulation 10(2)(e)(viii) regarding severe mental illness.

Following the arguments outlined in his own decision (CSIB/148/2005) Commissioner May declares the following not to be ultra vires in the light of the Howker decision - activity 6 (bending and kneeling) and activity 8 (lifting and carrying).

The claimant also argued that Reg 10(2)(e)(viii) as amended of the Social Security (Incapacity for Work)(General) Regulations 1995 [exemption from the pca test on mental health gounds] was also ultra vires. The commissioner also rejected this argument.

"It is not established that the Committee was misled in relation to the amendment of regulation 10(2)(e)(viii) in the manner it was in respect of regulation 27. I am satisfied that the Committee had before it all the information that it required in relation to that specific regulation to make up its own mind on the effect of the proposed amendment and what action to take on it. It was clearly discussed at the meeting between the Committee and the representatives of the Secretary of State. The minute quoted above demonstrates beyond doubt that the Committee were made aware of what the Secretary of State intended by the amendment. The intention stated was of the extension of the existing statutory provision in sub-paragraph (viii) by defining severe mental illness in consequence of the decision in Moule necessitating the amendment at the commencement of sub-paragraph (e). On the face of it that expression of intention was supportable on the facts. The Committee had sufficient expertise and information to determine whether it accepted the stated intention. I therefore hold that on the test I set out in CSIB/148/05, where I followed the Court of Appeal in Howker, the Secretary of State was not in breach of his duty under section 170(4) with the result that the Secretary of State or Parliament did not obtain the Committee's advice. In these circumstances, the amendment to the regulation is not ultra vires. The tribunal are accordingly directed to apply the amended version of the regulation."

CSIB/223/2005: Exceptional circumstances

With reference to regulation 27(b) of Social Security (Incapacity for Work) (General) Regulations 1995. This decision rejects the approach taken in CIB/26/2004, which states that any risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. This was because the commissioner questioned the practicality of applying this test and also thought that it broadened the test in a way not intended in the legislation.

"…the tribunal will have a simple , crisp and direct issue to determine. The question as to whether, if the tribunal find that there was a risk to the claimant's health it was substantial, is a jury question for them on which they must make a reasonable judgement."

CSIB/279/2005: Howker - activity 15

This decision opposes CIB/2821/2004 which stated that the wording "cannot concentrate to read a magazine article or follow a radio or television programme" was ultra vires following the Howker decision. The wording reverted to its original " cannot concentrate to read a magazine article or follow a radio programme". This decision states that the revised wording was not ultra vires because it "added an extra hurdle for the decision maker (DM) rather than being adverse to the claimant."

C13/03-04(IB)(T): Howker decision in relation to Northern Ireland regulations

A Northern Ireland (NI) decision by a tribunal of commissioners that decided a tribunal was wrong to apply changes made in Great Britain (England, Scotland and Wales) to the “exceptional circumstances” rule following the Howker decision. In Howker the DWP deliberately underemphasised the effects of the proposed change in legislation with the effect that the Social Security Advisory Committee were persuaded not to advise on them.

NI regulations are also referred to the Social Security Advisory Committee. But Section 149(3) and paragraph 10 of Schedule 5 to the Social Security Administration (Northern Ireland) Act 1992 does not require this for regulations that bring NI law in line with that of Great Britain. The commissioners held that the NI regulation changes must stand until lawfully amended even though almost identical regulations were subsequently found to be unlawful in Great Britain.

“31. However, that, to our minds, brings into account an important constitutional principle. A court of competent jurisdiction can declare regulations invalid. However, until it does so, unchallenged regulations must be obeyed and enforced. It is not open to either the subject or officers of the Department to decide that a particular regulation is invalid and refuse to abide by it. If either the Department or a subject considers that regulations are defective then any challenge, to be effective, must be made in appropriately constituted proceedings before a court with the necessary jurisdiction. Only if the court declares the regulations, or some part of them, invalid can that invalidity be acted upon. The precise wording of the declaration or other order of the court will be of the utmost importance. Until that time, effect must be given to the regulations and they must be treated as valid. Any other rule would divert jurisdiction from the court and confer it upon individuals. That way lies chaos.”

Further there is no requirement to amend NI regulations which were subsequently found to be unlawful in Great Britain.

“It is, however, worth noting that section 149 says nothing about what is to happen after the relevant regulations have been made. There is no provision which requires them to be reviewed from time to time. There is no provision requiring advice to be obtained from the Social Security Advisory Committee if circumstances change. More particularly, there is no requirement to do anything if the Great Britain regulations cease to correspond with those in Northern Ireland.”

“36. In our judgment the only way in which section 149(3) and paragraph 10 can work is by a comparison of actual texts. What subsequently happens to the Great Britain text is irrelevant. If part of it is repealed, the Northern Ireland regulations are unaffected. We do not think that the fact that some part of the Great Britain text is later declared invalid, rather than being repealed, affects the matter. This would clearly be so if the invalidity dated from a time after the making of the Northern Ireland regulations.”

As a result of this decision the changes made to the pca test in Great Britain following R(IB)3/04 (remaining conscious) and CIB/1239/2004 (sitting) do not apply in Northern Ireland.

A separate argument under Article 14 of the European Convention of Human Rights failed because although the law was different in Northern Ireland it did not discriminate within that country.

“41. To begin with it must be remembered that Northern Ireland is a separate jurisdiction with its own law of social security. It is quite true, as we think we have made apparent, that that law is intended to march in step with that in the United Kingdom. Indeed, in the present case we accept that the original intention was that regulation 27 should be identical in the two jurisdictions. It is only because of the peculiar history of the Great Britain regulation that divergence has come about. It was not something which was intended. Nevertheless, divergence is not prohibited by the law of either jurisdiction nor, so far as we are aware, by any European provision. Divergence does sometimes occur. There may be good reasons in the future why the two systems may contain differences. Further, in relation to United Kingdom citizens at any rate, Northern Ireland social security law applies to everyone resident in Northern Ireland irrespective of where in the United Kingdom they came from. In Great Britain the relevant law is similarly applied.”

With effect from 10 February 2005, the Northern Ireland “exceptional circumstances regulations were amended to take account of the Howker case by regulation 2 of the Social Security (Incapacity for Work) (General) (Amendment) Regulations (SR/2005/15).

INCOME SUPPORT CIS/3846/2001: non est factum and innocent misrepresentation by omission

An illiterate claimant got his wife to complete his claim form and she failed to enter her pension details on it. Assuming she had he took it to the DWP who, after briefly checking it, processed the claim, resulting in an overpayment. He denied misrepresentation arguing that the claim form was non est factum - not the document he thought it was. The conditions necessary for a successful plea are set out in Lloyds Bank plc v Waterhouse [1993]

  • The claimant must be under a disability - this test was passed as he was illiterate
  • The document must be fundamentally, radically or totally different from the document he thought he was signing - three arguments were advanced, all of which rejected by the commissioner
  • The claimant must take steps to ascertain the contents of the document - it was accepted that the claimant took some care but the error would have been remedied by the simple expedience of getting his wife to read contents of the form back to him.

Commissioner Jacobs also held that it was possible for a claimant to "have an innocent misrepresentation by omission" and discusses case law in relation to this. The decision also considers the role of the DWP in checking the form, citing but not following CIS/222/1991. Held that…

"Even if the decision-maker was partly responsible for failing to investigate at least the unanswered questions, the claimant shared the responsibility for not providing the correct answers to the questions asked about his partner's benefits. Accordingly, any failure to investigate by the decision-maker does not relieve the claimant of responsibility for the overpayment."

CIS/4003/2001:Human rights law - article 8 (private and family life)

A daughter left a household and the mother failed to disclose this. However the tribunal erred in not considering her right to income support as a single claimant. The claimant also argued that child benefit centre were aware that child benefit had ceased but, post Hinchy, this did not remove her from the responsibility to inform the income support office.

There was a separate argument that linking child benefit to [the then] child premium was against Article 8 of the European convention. Commissioner Bano discussed Hockenjos v Secretary of State for Social Security [2004]) [2004] which held that this link was unlawful in the case of jobseeker's allowance but that this does not apply to income support because it is not within the scope if Directive 79/7. As an aside the commissioner also noted..

"..the basis of the finding of indirect discrimination in Hockenjos was that fathers are less likely than mothers to be entitled to child benefit. Even if the claimant in this case could show that the relevant income support provisions 'engage' Article 8 of the European Convention of Human Rights……she could not as a mother , show that she was a 'victim' of the discrimination, as required by section 7(1) of the Human rights Act 1998."

CIS/1184/2002: Recovery of overpayments - powers and scope of tribunal

A husband failed to disclose his wife's removal from DLA (another appeal stayed pending Hinchy). The tribunal erred in amending the amount recoverable by considering entitlement outside of the period of the decision.

CIS/1887/2002: Failure to disclose at the same office

Following on from Hinchy v Secretary of State for Work and Pensions [2005] a claimant was not required to disclose his receipt of incapacity benefit, which was issued from the same office that paid his income support. This approach follows R(SB)15/87. CSB/677/1986 was also cited.

CIS/4757/2003: Disregarded capital following the sale of a home

Discussed situations whereby the six month period allowed for the disregard of capital pending the sale of a home might be extended. There are two basic issues when deciding to disregard capital in this situation:

  • Can the claimant still demonstrate an intention to use the proceeds from the sale of a former home to purchase another one?
  • Is it reasonable to extend the 26-week period? - for example if the claimant had been ill for a period of time which prevented him or her from purchasing another property.

CIS/333/2004: Duty to investigate fraudulent "qualifying benefit" claims

Case concerned a claimant’s who was refused severe disability premium (SDP) on the grounds that someone was receiving carer's allowance (CA) on the basis that he was caring for her. The claimant appealed on the grounds that the person in receipt of CA was not, and never had been, her carer.

See "R v South Ribble Borough Council Housing Benefit Review Board ex parte Hamilton CA 2000" for more information.

CIS/672/2004: Transitional Protection and Standard Rate housing costs

This decision considers ways in which this protection (add back) can be eroded.

CIS/1064/2004: IS and tax credits

Detailed decision that looks at the effect of regulation 7(1) of Social Security (Working Tax Credit and Council Tax Credit) (Consequential Amendments) Regulations 2003 on deeming income from child tax credit in the year 2003/2004 where the child tax credit was amended in-year.

CIS/1616/2004: Human rights law article 14 (non-discrimination)

Income support child allowances not paid to mother during periods when the child stays with her as the father gets child benefit. No discrimination under Article 14. Discusses Hockenjos v Secretary of State for Social Security [2004].

CIS/1691/2004: Winter fuel payments and ordinary residence

A borderline case where the claimant remained ordinarily resident in both England and France for a short time. Hinged on the tribunals consideration of form WFP(EEA)04/03. Cites CP/3035/1999 and CP/3717/1999.

CIS/1697/2004: Indefinite leave to remain and maintenance undertakings

A mother had Indefinite leave to remain on the basis of a maintenance undertaking by her son so was not entitled to income support. It was held that although form, SET(F) was incorrectly completed the son had made a written statement that inferred that he had made such an undertaking. Cites Ahmed v Secretary of State for Work and Pensions [2005] as guidance.

CIS/2407/2004: Work focussed interviews

Claimant failed to establish good cause foe non attendance.

CIS/2680/2004: Regulation No 1408/71 and habitual residence

Detailed decision which discusses whether a pregnant mother with a child who had recently arrived from Holland could benefit under Article 10a of Council Regulation (EEC) N0 1408/71. She couldn't because she was not defined as an employed or self employed person.

CIS/2901/2004: Housing costs - service charges

Detailed decision concerning whether service charges were deductible from eligible housing costs. In this case it was the 20% cost of staff salaries, the 20% cost of staff advertisements and the reserve fund intended for future maintenance. The method of assessment is contained within paragraphs 27-47.

CIS/3197/2004: Winter fuel payments and ordinary residence

The claimant remained ordinarily resident in two countries because although the only home he had was in France he worked in England and lived in rented accommodation. This decision means that he satisfied the condition for Winter Fuel payments in 1997/98 but that also, due to EEC regulation 1408/71, he will continue to receive these payments every winter whether he is ordinarily resident or not.

CIS/3416/2004: Social fund funeral payments and council tax benefit

The case concerned a claimant who had his claim backdated to try and qualify for social fund funeral payments but the backdated period was not considered to be the date of claim but was instead a period when the claim was only treated as made. Regulation 6 of the (Claims and Payments) Regulations 1987 requires a qualifying claim for council tax benefit to be the date of claim not the day it was treated to be made.

CIS/3555/2004: Winter fuel Payments

Claimant claimed arrears of payments following "Regina v Secretary of State for Social Security, ex parte Taylor" and in line with Council Regulation (EEC) 1408/71. Some of these were paid but those for the years 2000/01, 2001/02 and 2002/03 were refused because the claimant was ordinarily resident in the UK at the time and failed to claim within the time limits.

CIS/3685/2004: Winter fuel payments and ordinary residence

Claimant could not get a Winter Fuel Payment because he had moved to Spain but had not retained a place of residence in Britain.

CIS/4434/2004: Powers to correct defective decisions

It was determined that a couple was living together as husband and wife. However the tribunal had no powers to decide on the resultant "assumed" overpayment because no decision had actually been made concerning the entitlement of the original claimant. As there had been no decision to take away her benefit no overpayment could yet be identified. It was considered whether, following R(IB)2/04, the tribunal could correct this "defective" decision. Commissioner Mesher cited R(IB)7/04 (formerly CIB/2836/2002) which considered R(IB)2/04 in the light of decisions that were "so fundamentally flawed as to be inconsistent with any proper exercise of a legal power". This decision appeared to be one of these and so could not be remedied by a tribunal.

CIS/4531/2004: Social fund funeral payments and council tax benefit second adult rebate

The claimant was not on a qualifying benefit but his presence gave the other person in his house underlying entitlement to second adult rebate, which was not paid because the amount was too low and the person received main council tax benefit instead. This satisfies regulation 7(1)(a) of the Social Fund Maternity and Funeral Expenses (General) Regualtions 1987 and so the claimant could receive a Funeral Payment.

CIS/218/2005: Deprivation of capital

Claimant gave capital arising out of the sale of a home to her children. The tribunal considered this to be "imprudent" on her part but failed to properly consider whether her reasons were to secure entitlement to income support.

CIS/255/2005: Capital

The date of issue of a cheque is the date from which a claimant's capital is deemed to have reduced. Paragraph 4 emphasises that the burden of proof when deciding whether a claimant has deliberately deprived him or herself of capital to claim income support lies with the decision maker.

CIS/751/2005: Winter fuel payments

Claimant applied outside the time limit and was correctly refused. The appeal was to establish if the Secretary of State had erred under regulation 4(1) of the social fund Winter fuel Payment Regulations 2000, which allows the DWP to pay people who appear in official record automatically. Held that the failure to pay was not a decision and therefore the tribunal had no power to decide this issue.

CIS/840/2005: Winter fuel Payments

An appeal citing Council Regulation (EEC) 1408/71 failed because application was not made within the time limits. Also, despite the fact that the DWP held information that might indicate the claimant was entitled to a payment it was not required to automatically pay this without a claim being made.

CIS/1480/2005: Income support housing costs

Concerns paragraph 1(1) of Schedule 3 Income support (General) Regulations 1987 which concerns loans for which housing costs can be paid. A claimant can get help for any loans in this paragraph even if he or she changes the initial purpose for another one on the list.

CIS/1916/2005: Severe disability premium and close relative

The claimant was living with her sister and concerned the meaning of right to reside and whether the European convention of human rights was breached.

On the meaning of reside Commissioner Turnbull cites Bate v Chief Adjudication Officer (1996) - reside means no more than two persons living in the same building. Persons occupying separate bedrooms, but sharing a kitchen and living room can be residing with each other.

All Human Rights Convention arguments were rejected.

  • Article 5 (right to liberty) - the article is concerned with deprivation of liberty by detention not the removal of social security benefits in certain situations.
  • Article 6 (fair hearing) - claimant had ample opportunity to obtain quoted legislation.
  • Article 8 (respect for private and family life) - there is no obligation to provide assistance to support a person's family life.
  • Article 1 of Protocol 1 (protection of property) - the claimant cannot have been deprived of a possession of which she had not been in receipt of for a period of two years before the decision under appeal.
  • Article 14 (prohibition and discrimination) - Persons living with and paying rent to a close relative are excepted from the severe disability premium because it is assumed that the relative will provide some assistance to the claimant. Legislature has taken the view that it is impracticable and undesirable to define entitlement based on whether that help is actually given. The claimants position is not analogous to that of someone living with a landlord who is not a close relative so there is no prima facie discrimination (alternatively any such discrimination is objectively justified).

This decision has been reported as R(IS)12/06. See also CH/3017/2005.

CIS/2445/2005: Income support entitlement following outcome of IB appeal

A claimant was declared capable of work following the non-return of his IB50. He appealed and claimed income support, which was refused because he was no longer a prescribed person pending the outcome of the result of the IB appeal. This type of appeal is not one that allows payment of IS up until the appeal is heard because it came under Section 171A and not Section 171B or C of the Social Security Contributions and Benefits Act 1992. The decision was reconsidered but not changed. However the tribunal erred because the reconsidered decision was subsequently set aside following the successful outcome of the IB appeal, as a result of which the claimant was a prescribed person.

CIS/2726/2005: Claims and payments other

Convoluted decision that states that a completed claim can be backdated if it has been corrected within one month of a defective claim and that a defective claim is the date a claim is made, not the date forms are requested.

CSIS/815/2004: Official error

Concerns regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 - information given by an officer of the Department which led a claimant to believe that a claim for benefit would not succeed. Tribunal failed to consider the fact that the claimant had made and subsequently been awarded DLA and wanted his income support backdated.

CSIS/73/2005: Powers to correct decisions

The tribunal needed to correct all awarding decisions which involved an overpayment. This power is granted following R(IB)2/04 unless the "process is so legally incoherent that it does not amount to any kind of decision that can be subject to appeal".

INDUSTRIAL INJURIES DISABLEMENT BENEFIT CI/1160/2004: D12 (bronchitis and emphysema), non-smokers and short men

Claimant's appeal succeeded because the tribunal used the wrong version of D12 and for wrongly crediting a consultant with stating that asthma was not present. This consultant had reported that the D12 test discriminated against non-smokers and short men. Commissioner Angus' decision was that the D12 test was not irrational as it is "based on the equally respectable opinions of the members of the Industrial Injuries Advisory Council and the Secretary of State".

CI/1884/2004: C24(b) acro-osteolytis

"The test is met if an individual can show that he (or she) has worked in a prescribed occupation and has thereafter evidenced any one of three physical conditions listed in C24(b)."

They do not have to show evidence of all three conditions.

CI/2000/2004: Late claim

The Claimant with RSI enquired about claiming IIDB but was informed over the telephone that she would not qualify and that she would not be sent a claim form. She tried to argue that the failure to supply a form under regulation 4(5) of the Social Security (Claims and Payments) Regulations 1987amounted to official error, preventing her from making a claim in writing under regulation 4(1) of the same regulations. However failure to send a claim form did not prevent the claimant from making an application in writing by letter, which would also satisfy regulation 4(1). The assessment over the phone did not amount to a claim made in writing (if this was a case of misdirection the proper course of action is to claim compensation).

The decision also states that an appeal made by email counts as a notification in writing.

CI/2683/2004: D12 - chronic bronchitis and emphysema

The spirometry test result should take account of the claimant's medication. Any test should also be relevant to the circumstances obtaining at the date of decision. Cites CI/126/2002.

CI/3224/2004: Reduced Earnings Allowance

This decision details the calculation required to establish whether a person of pensionable has given up regular employment.

CI/293/2005: Serving members of the territorial army

A member of the TA is a member of HM forces which is not defined as employed earners employment and therefore unable to claim disablement benefit. It also appears (though Commissioner Fellner is not 100% certain) that under the old war pensions scheme a member of the TA cannot get a war pension. This is possible under the new scheme which applies where someone has an injury, illness or death caused on or after 6 April 2005.

CI/564/2005: D7 (asthma)

Discussion of what constitutes a "sensitising agent". Cites R(I)8/02 which states that a sensitising agent…

"…means a chemical agent which actually causes a person to develop an asthmatic condition when inhaled at work."

The tribunal failed to establish that the Chromium in cement was not a sensitising agent. The original decision was also criticised for its use of double negatives.

JOBSEEKER'S ALLOWANCE CJSA/4065/1999: Residence and presence conditions habitual residence

This case was referred to the European Court as Collins v Secretary of State for Work and Pensions [2004].

Mr Collins is a US/Irish national who had done casual work in the UK during a 10 month stay in 1980-81. In 1998 he returned to the UK to look for work and claimed JSA. He was refused on the basis he was not habitually resident. The European court found the following:

  • Mr Collins was not a worker for the purposes of Article 7(2) Regulation 1612/68 because there was no link between his current search for work and the work he had done in 1980-81
  • JSA falls within the scope of Article 48(2) of the Treaty as a benefit of a financial nature intended to facilitate access to employment in the labour market.
  • There is some doubt about the legality of the habitual residence test for JSA because that test places non-UK EU nationals at a disadvantage.

Following that decision the case was referred back to commissioners. Commissioner Mesher interpreted the judgment as saying that the claimant must demonstrate that he has been genuinely seeking work for a period of time. The function of the habitual residence test is to establish this. The appeal failed. Leave to appeal to the Court of Appeal has been granted.

CJSA/2507/2002: Shared care of children - mother the minority carer

The mother claimed JSA but was refused family premium because she was not the primary carer. Her Human Rights Convention arguments were rejected.

  • Article 8 (respect for private and family life) - there is no obligation to provide assistance to support a person's family life.
  • Article 14 (prohibition and discrimination) - there is a rational and factual basis for treating parents who are "minority carers" differently in relation to those who have "majority care" which does not amount to unlawful discrimination.

An attempt to apply the Hockenjos (Hockenjos v Secretary of State for Social Security [2004]) case also failed because that can only applies in cases where the man is the minority carer.

CJSA/1425/2004: Notional Capital - debt repayment

A claimant used capital to pay off his credit card debts, partly to avoid high interest repayments, which would have a long-term effect on his income. He also paid off debts to his mother. It was held that a claimant is entitled to consider the long-term effect of outstanding debts on his or her income as well as his obligation to repay his debts to others. The key is whether the significant operative purpose for disposing of capital was to get benefit.

In this case Commissioner Rowland accepted that paying off credit card debts was reasonable and not for the purpose of obtaining JSA. With regard to the repayment of the debt to his mother he sided with the tribunal's view that this was deprivation of capital because there was "no pressing need" to repay.

The decision cited and discussed a great deal of case law and paragraph 35 rather helpfully gave advice on how to use commissioner's decisions.

"Like all judicial pronouncements on the law, Commissioners' decisions are not to be read like statutes. Statements as to the law must be read in their context and not unthinkingly applied to different contexts."

CJSA/2633/2004: Joint claims or not joint claims

The decision highlights a catalogue of errors arising when it is wrongly thought that a couple have made a joint claim. Claimant B was accused of misrepresentation because her partner P had undisclosed capital. Unfortunately under Section 1(4) of the Jobseeker's Act 1995 a joint claim couple does not include one where someone gets child benefit, as B does. Since they were not a joint claim couple P's financial details should not have been disclosed to B. Similarly, at the appeal, although P attended he should not have been a party to the proceedings, but was.

CJSA/2336/2005: voluntary payments as capital

A mother loaned her daughter money to pay her rent pending the outcome of her housing benefit decision. In the meantime the JSA decision maker treated it as income and made deductions from the daughter's JSA.

The claimant argued that there was an immediate obligation to repay the loans. This failed because (as cited in para 723 of Volume 9(1) of Halsbury's Laws of England (4th ed reissue) "the parties do not intend to create legal relations in the arrangements made between them".

Commissioner Mesher then looked at whether the voluntary payments amounted to income or capital and decided that they were capital. There were two payments made during the period of the decision in question. This was too short a time period to judge whether the payments were regular in nature and the mother had indicated that she had no intention of making any further payments.

CJSA/2501/2005: late for an intensive activity employment programme

Two week sanction upheld as claimant did not fit any of the good cause reasons outlined in regulation 73(2) of the Jobseeker's Allowance Regulations 1996.

CJSA/2507/2005: Voluntary unemployment to get married

A claimant left his job to go and be with his partner, who he intended to marry. As a result he had an 8-week sanction imposed on him, which was reduced by the appeal tribunal to 3 weeks, the point at which he got married. The claimant claimed he was subject to sex or gender discrimination citing R(U)19/52 and R(U)4/87.

The commissioner did not accept that this was a case of sex discrimination because the sanction ended at the point of marriage. R(U)4/87 stated that a person can only have just cause for leaving a job when there is no alternative to leaving voluntary. R(U)19/52 concerned a wife who had to move to her army husbands new posting, circumstances the commissioner felt were too limited:

"Society and the job market have changed considerably from the conditions reflected in decisions of commissioners on the facts made 50 or more years ago".

PENSION CREDIT CPC/3891/2004: Living together as husband and wife

A determination that a couple is living together as husband and wife is not a decision and is not appealable. The Secretary of State had not actually made a decision about the claimant's pension credit.

CPC/1035/2005: Residence and presence conditions

The claimant was subject to immigration control and had to establish five years residence in total before pension credit could be paid. She failed because although she arrived in 1996 she had made repeated trips abroad which were held not to be periods of residence. In this case it was the lengths of absence that were significant (17 months, 14 months and 21 and half months).

CPC/3226/2005: Housing costs and backdated credit

A claimant took out a mortgage then subsequently received pension credit backdated to a period prior to this mortgage. As a result, in line with paragraph 5(2) Schedule 2 State Pension Credit Regulations 2002, housing costs were not awarded. The tribunal misdirected itself in believing that they could be awarded.

PENSIONS CFP/2688/2004: Forfeiture following manslaughter

Case concerns a man who killed his wife and was committed to hospital having been found guilty of manslaughter on grounds of diminished responsibility. The decision has a very detailed discussion of case law in relation to forfeiture relation to murder, manslaughter, insanity and diminished responsibility. Follows Dunbar v Plant 1998 in stating that the forfeiture rule applies in all cases where a commissioner is satisfied that a claimant is guilty of manslaughter. Note the use of the word commissioner rather than the court - Gray v Barr suggests that the forfeiture rule can be applied even if someone has been acquitted.

CFP/4349/2004: Modification of the forfeiture rule

The Forfeiture Act 1982 applies in cases of manslaughter. In this case a woman who had suffered from depression for 25 years repeatedly stabbed her alcoholic husband. She received three years probation, having been found guilty of manslaughter on grounds of diminished responsibility. Commissioner Bano used Section 4(2A) of the Act to modify the forfeiture rule and allow the claimant access to category B retirement pension and graduated retirement benefit based on her husband's contributions.

CP/4253/2002: Human rights law - Protocol 1 (protection of property)

Claimant failed to claim category B retirement pension within the three-month time limit and sought to use Article 1 for redress. Appeal failed because Article 1 does not apply where the reason for non-entitlement was because he or she does not satisfy the conditions of entitlement under domestic law.

CP/518/2003: Human rights law article 14 (non-discrimination)

Discusses whether down-rating of retirement pensions contrary to Article 1 of Protocol 1 or Article 14 in conjunction with Article 1 of Protocol 1. Both arguments failed. This case concerns the old hospital downrating rules where pensions were reduced after six weeks in hospital.

CP/3114/2003, CG/3114/2003 and CG/3122/2003 : Bereavement and death benefits (effect on entitlement when more than one surviving polygamously married widow)

Discusses whether Human rights law (whether difference in treatment of polygamously married widows amount to Discrimination within Article 14). Argument failed.

“79. There is no doubt that the cultural and social history of the United Kingdom and its constituent countries has favoured monogamy over polygamy and that much social and cultural life has been based on the assumption that people will live in a monogamous or para-monogamous relationship. In recent years this has been breaking down and I acknowledge that the answers given today might not be appropriate in the future. Meanwhile, I am of the view that it is legitimate for the State in a democratic society to pursue this aim. The methods chosen to do so are proportionate and, in fact, domestic law has gone quite a long way to accommodate polygamous marriages in a manner that is reasonable and consistent with this legitimate aim. Ultimately, the justification for the differences in treatment is that the State is entitled to favour one over the other in the manner that it does. It is also legitimate to define the nature of the marriage as at the date of death, which relates to the risk in respect of which contributions are paid. For that reason, there is no difference between the cases of the three claimants before us.”

CP/1516/2004: Revision of decision awarding widow's benefit and retirement pension

The case concerns a claimant who may have assumed another's identity but was not given the opportunity to comment on this.

CP/3037/2004: Destroyed documents

Claimant stated that he had ticked a box requesting additional pension for his wife but was only paid pension for himself. Three years later he challenged the decision. The tribunal failed to establish whether the claimant had ticked the relevant box, in part because all the relevant documents had been destroyed. Commissioner accepted the testimony of the claimant and allowed the appeal.

CP/3108/2004: Recognised marriage under British law

Concerned the entitlement of a claimant to retirement pension based on the fact that, under British law, she was the only wife of the deceased husband.

CP/4062/2004: Evidence from interviews obtained overseas

A woman from the Yemen was claiming a pension based on her husband's contributions. The decision gives guidance for tribunals and decision-makers dealing with claims by widows living in Pakistan, Bangladesh, the Yemen, India and Jamaica where there might be a paucity of documentary evidence.

CP/4104/2004: Destroyed documents

Wife claimed a pension and was refused. The claim documents had been destroyed but the wife subsequently paid voluntary contributions. Tribunal failed to consider evidence of computer printout.

CP/271/2005: Requirement to claim

A claim is necessary for an increase in category A retirement pension by reference to a spouse's contributions.

CP/317/2005: The Australia agreement

Claimant was trying to benefit from article 3 of the Social Security (Australia) Order 1992 (a provision now terminated) but could not do so because he was not resident in this country. Because this failed an argument under Article 1 of the convention of Human Rights also failed because the claimant had no entitlement to the property (paid contributions).

In closing, the commissioner also noted that the human rights issue was not raised before the hearing which did not give the Secretary of State any opportunity to defend this claim. The tribunal was also not clear on what the claimant's claimed rights were or how those rights were violated by relevant law. Finally the European Convention of Human Rights is concerned with civil and political rights whereas the claimant's case was primarily concerned with economic and social rights. In order to utilise the Human Rights Act for such issues the claimant must have a clear argument.

CP/375/2005: additional pensions and SERPS

This decision looks at the effect on additional state pension of a guaranteed minimum pension that is transformed from an occupational pension to personal pension.

TAX CREDITS CTC/2090/2004: Information that is available to HM Revenue and Customs and the duty of tribunals

The claimant sought to claim child tax credit on the grounds that he was responsible for his child. The tribunal allowed his award. His divorced wife was already in receipt of CTC for the same child. HM Revenue and Customs appealed to the commissioner, arguing that the tribunal should have called the wife as a witness. Commissioner Bano sided with the tribunal.

Citing Kerr v Department for Social Development [2004] it was held that it was up to HM Revenue and Customs (the Board) to obtain information from the claimant's wife. The tribunal was fully entitled to assume that the Board were content for the appeal to be decided without this information when she wasn't contacted.

CTC/3543/2004: Recovery of Working Families Tax Credit overpayment

Concerned issues around joint recovery of overpayment. This was because the wife signed the first two of five claims and the husband the other three.

CTC/3864/2004: Living together as husband and wife

In this case a mother claimed CTC which was stopped when it was discovered that the father of her children was living in her house. Tribunal did not establish fully whether the couple was living together.

CSTC/326/2005: Backdating of child tax credit when Claimant is on Income Support Regulation 7 of the Tax Credits (Claims and Notifications) Regulations 2002 allows backdating of child tax credit but does not allow backdating where the claimant is receiving an applicable amount for children. This was challenged on the grounds that the transitional rules governing this were ultra vires and also that they were contrary to European Convention on Human Rights.

Both arguments failed. Citing “O’Connor v Chief Adjudication Officer” (reported as a part of R(IS)7/99), it was argued that the rules were ultra vires on grounds of irrationality. This failed because the claimant failed to show “that, in making the regulation, the Secretary of State has done something which no reasonable person would do”.

The argument on Article 8 of European Court of Human rights (respect for private an family life) failed because there was no question that the state was not providing welfare support (paragraph 24).

Article 1 of the First Protocol failed because there was no deprivation of a possession. Arguments on discrimination (Article 14) compared this case with someone who claimed CTC on the same date as the claimant but who was able to backdate because they were not in receipt of either IS or income-based job seeker’s allowance and also with a claimant who was entitled to one of those benefits but was fortunate enough to claim a CTC in the period between 6 April 2004 and 16 March 2005 and for days within that period. The commissioner did not accept that the circumstances of either matched the claimant’s.

“Article 14 relates to a difference of treatment between two analogous groups at the same time and in relevantly similar circumstances. But had the appellant claimed CTC in the period 6 April 2004 to 16 March 2005, he too would have been given backdating along with his peers. The result of the claimant’s argument would be that benefit rules could never be altered for the future without inevitable discrimination.”

CSTC/76/2006: Conditions required for the disability element

All of the conditions must apply in order for someone to receive the disability element. In the case of couples all of these conditions must apply to at least one person.

Martin Inch - 7 June 2012