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Selected commissioners decisions from April 2004 to March 2005

This page is best viewed in our alternative colour  or print mode.

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/2034/2004: Help with getting drinks can count as attention

This decision has been overturned by secretary of state for work and pensions v june batty.

In addition to this, paragraph 18 highlights a pitfall when putting in a new claim pending the outcome of an earlier appeal. This appeal was won but the award ended at the date of the new claim. However benefit was not immediately paid because the decision maker applied the six month test.

COMPENSATION RECOVERY

CCR/2231/2003: Compensation recovery

Tribunal erred in consideration of medical evidence.

CCR/4065/2003: Tribunal procedure and practice - notice of hearing

Case concerns the failure of an appeal tribunal to issues an adequate notice of hearing to the compensator's solicitors. The Secretary of State's submission was also held to be inadequate for several reasons - firstly by referring to decision makers as independent statutory bodies and over reliance on CCR/8023/1995. The amount of deduction from the claimant's benefit was also incorrectly calculated.

CCR/4678/2003: Compensation recovery scope of appeal

Tribunal failed to give a decision in terms required by primary legislation, specifically section 11 of the Social Security (Recovery of Benefits) Act 1997 which is concerned with amounts of recoverable benefits.

DISABILITY LIVING ALLOWANCE CDLA/1821/2003 Revisions, supersessions and reviews late applications

Follows CIB/4751/2002 and CIS/4/2003 (see April 2003 digest of decisions). A tribunal has the power to replace a superseding decision with a decision revising the original decision but there is no power to revise a decision that the Secretary of State has already refused to revise. Regulation 6(3) and 3(5) Social Security and Child Support (Decisions and Appeals) Regulations1999 and CIB/4751/2002 allows a tribunal to revise on grounds of official error if the Secretary of State has failed to consider a this.

Unfortunately in this case, although there was official error it was not at the time of the decision but later when medical evidence was received. There was an error in law because the Secretary of State failed to follow the proper internal procedures once the medical report was received (these procedures are usefully detailed in paragraph 8). However this failure cannot be linked to the original decision because it occurred after the decision was made.

Paragraph 17 suggests the claimant should apply for redress from the Department for Work and Pensions (reference "Guide to Financial Redress of Maladministration").

CDLA/2915/2003 virtual inability to walk

Tribunal failed to fully explain why it preferred the EMP's evidence but was allowed to attach "reduced weight" to other evidence.

CDLA/3612/2003: Meaning of physical disablement

This case concerned someone who had both physical and mental disablement but who could not satisfy the test for high rate mobility component because her physical problems were inadequate and her mental ones irrelelevant.

The decision is interesting for its discussion of relevant case law. Paragraphs 56 - 60 set out the correct test.

"it seems imperative that there is current organic abnormality, objectively verifiable, which is a necessary link in the causal chain which restricts the claimant's walking to the required degree."

" a claimant may for example have physical back problems and also depression. If depression is due to her physical condition, at least in part, or if her physical condition is a material cause limiting her walking, albeit exacerbated by unconnected depression, then a tribunal is entitled to find any resultant walking difficulties are due to her physical condition as a whole".

CDLA/3781/2003: Supervision because of risk of physical confrontation

Held that need for supervision not established. Claimant felt threatened at times when he was walking and had also been involved in physical confrontation but at other times was able to walk on unfamiliar routes.

CDLA/4127/2003: Deliberate altering of medical evidence

A signed EMP report was subsequently amended at a later date. There was no further signature against these alterations.

"To put at is simplest, we are told by a professional doctor that on the date of the examination and signature the report is prepared "to the best of my knowledge and belief". We are then told that the doctor was wrong in so declaring, but not to anyone's best knowledge or belief. What is to be believed?"

This was also unfair in law because the claimant did not have a similar right to amend this evidence until the appeal stage. The tribunal was in error for failing to question this evidence.

CDLA/4565/2003: Would not as opposed to could not walk

Concerns a six-year-old child with Williams Syndrome. Cites R(M)3/1986 which considers that behavioural problems arising from a physical source can constitute a "temporary paralysis" as far as walking is concerned and therefore be seen as a "virtual inability to walk". Discusses "could not" versus "would not" arguments i.e. can a child's refusal to walk be resolved by the threat of punishment or promise of a reward. Defers to R(M)3/1986 because it is a decision of a tribunal of commissioners but believes their approach was too generalised, their approach.

"26. Such an approach to the interpretation of section 73(1)(a) of said Act introduces a choice between two causes for a child’s behavioural problems - “physical disablement” or “conscious volition” (“just naughty behaviour” as it was described in CM/186/1985 applying R(M)3/86). It has been described as the “would not walk rather than could not walk” test (Adjudication Officer’s Guide, Part 77 -77305) after the submissions in these words which were made to the Tribunal of Commissioners in R(M)3/86 (para 8). The Commissioners clearly state in the above quoted passage, that if “conscious volition” can be overcome, the causation of the claimant’s behavioural problems cannot be “physical disablement”. Such a generalised approach must be wrong. Children who suffer from conditions such as autism, Down’s Syndrome, and William’s Syndrome may have a raft of symptoms which are relevant to their ability to walk but which may make them not wish to walk. In the case of sufferers of William’s syndrome, they may suffer from clumsiness and lack of coordination, high levels of anxiety and fearfulness, short sightedness and poor balance , and a tendency to trip, which may make them understandably reluctant to walk in case they fall. They may suffer from muscle weakness, tiredness, lack of endurance, breathlessness (quite apart from pain or discomfort), which makes walking an ordeal and not the pleasant experience which a child who does not suffer from such symptoms would find it. They may suffer from some insight that they walk differently from other people and this may cause embarrassment and a reluctance to walk. They may feel a real frustration at their physical shortcomings which causes them not to want to walk or to sit or lie down and have what has been described in some reported cases as a “tantrum”. These are all matters of evidence in the individual case. To say that a child who can be persuaded or coaxed to walk further (after being promised a reward or threatened with punishment) is not suffering from problems which stem from a physical disablement must be wrong and be based on a generalisation without reference to the evidence of the particular case."

Cites CM/98/1989 as a possible approach to the problems caused by R(M)3/1986. The decision directs a tribunal to pay careful attention to medical evidence.

“It is not for me to express opinions about medical matters but at least I think it can be said that, in the case of a person who was so brain damaged at birth that he could not begin to lead a normal life and has a history since birth of behavioural problems of various sorts, the adjudicating authority should provide very clear reasons for attributing the behavioural problems in question to something other than the brain damage. If, in such a case as the present, the relevant behavioural problems have nothing to do with the physical damage what do they derive from? In the case of this 18 year old are the tribunal suggesting that his behaviour was that of a naughty child who just would not walk when required? And, if they were, is not the fact that a brain damaged 18 year old behaves as a child something to do with the brain damage?”

CDLA/4580/2003: Virtually unable to walk - Meaning of unknown distance

"If a doctor cannot confirm that a patient has no walking problems, this raises an equal possibility that the claimant may have such problems."

"Where a general practitioner states "unknown" in response to the request for information as to the distance the claimant can walk before the onset of severe discomfort, the tribunal must treat the reply as neutral, in the absence of further qualification or amplification, and the doctor's comment is not a basis for a finding of fact."

CDLA/114/2004: Tribunal jurisdiction - superseding decision

Tribunal correct in limiting itself to a decision period that ended when the claimant made a fresh claim.

CDLA/396/2004: Alcoholism and supervision

Decision which follows CDLA/2408/2002, CDLA/2833/2003, CDLA/362/2003 and CDLA/2408/2002 in stating that help needed resulting solely from alcohol intoxication should not be taken into account.

R(DLA)5/05: Re Moyna - Meaning of frequent and prolonged

This interesting decision follows Moyna by considering attention needs over a period of time but also raises some important issues concerning R v NI Commissioner ex parte the Secretary of State for Social Services (1981) in relation to frequent and prolonged attention.

"Whilst one can only have respect for the words of Lord Denning - who always used the tools of his trade carefully and skilfully - it is important that his every comment is not clothed with something akin to statutory force"

The decision's main argument is that Moyna should be used to determine attention needs. Definitions for prolonged and frequent attention should be considered in relation to this but also should not be followed slavishly.

"prolonged attention cannot be expressed in a given number of minutes (e.g. 20 minutes), beyond which attention is invariably prolonged and within which it is invariably not prolonged."

"..whether occurrences can properly be said to be "frequent" - therefore depends upon a number of factors, particularly the number and pattern of those occurrences over time. The nature of those occurrences is also relevant."

Following this approach, failure to need frequent attention in a given week will not prevent someone satisfying the frequent attention test if they have these needs most weeks over a period of time.

The tests for different rates are "separate and not logically progressive". Someone who fails to satisfy the significant attention test may still satisfy the test for frequent attention.

CDLA/870/2004: DLA and Section 117 care.

Confirms that DLA care component is not payable to people in residential aftercare under section 117 of the Mental Health Act 1983.

CDLA/902/2004: Pain in relation to the DLA disability test

This decision sets out a framework, in paras 20-28, for decision makers and tribunals to use when considering pain. They should consider:

  • Evidence of the activities undertaken by the claimant.
  • The claimant's medication
  • Other treatment or referrals actual and considered
  • Informal observations of the claimant's functional ability and activities
  • Opinions of examining medical practitioners

CDLA/936/2004: DLA and the Disability Discrimination Act (DDA)

The DDA does not impact on DLA law. The tests for DLA are more stringent than those for disability under the DDA. The DDA does apply in relation to service provision by the Appeals Service - such as ensuring the building is accessible - but redress would not normally be via the DDA. The commissioner would probably declare a breach of natural justice or of Article 6 of the Convention of Human Rights.

A tribunal is entitled to consider a wide range of factors providing it explains its reasons for doing so. Example in this case included the claimant's ability to drive and her refusal to go to Tenerife due to her husband's, rather than her own, illness.

CDLA/1290/2004: Late evidence

Tribunal erred in not considering late medical evidence.

CDLA/1350/2004: Premises unsuitable for a domiciliary hearing

Tribunal attended claimant's home but could not hold the hearing because the premises were both too small and unsafe. Alternative hearing arranged at his doctor's surgery but his representative subsequently telephoned to say that the claimant would not be attending. Appeal failed because no submission made to the tribunal stating that it was impossible for the claimant to attend this rescheduled hearing.

CDLA/1418/2004: Linked cases powers to serve notice

Secretary of State has the power to serve notice requiring a tribunal to stay an appeal to await the outcome of another case or to decide a case against a claimant following the result of another appeal (in this case Moyna). Guidance issued by the President of the Appeals Service is not similarly binding.

CDLA/1471/2004: Cooking test and self harm following Moyna

“The Secretary of State argues that the risk of self-harm is outside the scope of Lord Hoffmann’s thought-experiment. I reject that argument. The context of Lord Hoffmann’s remark was that it does not matter that a claimant does not need to cook or will not cook. The test is a measure of disability, as Lord Hoffmann says. But it is still a measure that is set by the legislation in the context of cooking a main meal. It is a measure of disability relevant to that function. Safety is an aspect of disability and it is relevant to the issue whether a claimant ‘cannot’ prepare a main meal. If considerations of safety render the claimant incapable of preparing a meal, then he cannot do so.”

CDLA/1545/2004: DLA walking test - severe behavioural problems

Case concerned whether the claimant was in need of restraint and cites relevant case law when examining the evidence.

CDLA/1564/2004: DLA - tribunals and the six months forward test

Although bound to consider the claimant's needs at the time of the decision a tribunal is entitled to consider whether the claimant is likely to continue to satisfy the qualifying conditions for six months.

Tribunals can also ask claimants what advice they received when completing the claim pack.

CDLA/1685/2004: Chairman cannot set aside a decision without a statement of reasons

The statement could not be provided because notes of the tribunal's reasoning had been lost.

CDLA/1823/2004: Correct date of supersession

Tribunal failed to record adequate reasons for making the supersession effective retrospectively.

CDLA/1930/2004: Imprisonment does not cancel life award

If imprisonment was the only reason for the suspension of benefit the award should be reinstated on release without the need for a fresh claim or a medical assessment.

CDLA/2014/2004: Tribunal's consideration of the evidence of a witness

Tribunal failed to properly consider the evidence of a disability consultant. Discusses case law on the admissibility of evidence.

CDLA/2089/2004 – temporary absence from UK

Re reg 2(2)(d) of SS (Disability Living Allowance) Regulations 1991 –

“The wording of the provision does not use the 26 week period to define ‘temporary’. It qualifies ‘absence’, not ‘temporary purpose’. What the 26 week period does is to limit the maximum extent to which a claimant may remain entitled to payment of a disability living allowance.”

CDLA/2149/2004: The use of a fax and whether a request for statement of reasons has been received by a clerk

A request for a statement of reasons was made, via fax, to a dedicated (as opposed to casual) appeal venue that was periodically unused. Held that receipt of request by fax machine was what counted rather than actual receipt by a clerk. In the absence of instructions to the contrary it was correct to send the fax to the venue because it was dedicated.

CDLA/2367/2004: Cooking test - use of a microwave

Follows CDLA/770/2000.

"It is clear that if the only activity that a claimant carries out with the microwave is to pierce a plastic lid, place the item in the microwave and adjust the controls, this will not equate to the preparation of a cooked main meal for one. If, however, the range of activities conducted by the claimant is, in broad terms, much the same whether or not the meal is then cooked in or on a traditional cooker or in a microwave, there is no reason why the use of a microwave should not be taken into account."

CDLA/2429/2004: Correct procedure for treating adjourned cases.

Follows R(U)3/88, paragraph 7 of which states:

‘As the tribunal is differently constituted from the earlier one, which part heard the case, it would be prudent for none of the members of the earlier tribunal to be included as part of the second tribunal. The members are judges of fact at the hearing and it seems to us undesirable for a member to have a residual knowledge of evidence given at the earlier hearing which is not shared by the other members – knowledge of what was said as distinct from what was written down.’

CDLA/2495/2004: whether attention in the form of prompting required every day

Prompting to dress, wash and shave not necessarily required every day if the claimant does not habitually perform these activities every day.

"Nor would it particularly matter if he did not dress every day. He is not, on the evidence, going out much. I decline, therefore, to accept that all the functions that would be performed by a person going out and about to work or study reasonably require a person who is doing neither of these to be prompted to do every one of them every single day."

CDLA/2889/2004: cooking test and claimant with aspergers syndrome

Tribunal erred in accepting claimant's statement that he did not need help at mealtimes without making their own findings on this point.

CDLA/3217/2004: Child's attention "substantially in excess"

Tribunal found that child had frequent attention needs but that these were not "substantially in excess" of the needs of other children. Erred in failing to consider whether the lower rate attention for a significant portion of the day condition was met.

CDLA/3525/2004: Child's attention "substantially in excess"

Appeal rejected because the tribunal had properly applied the law when considering whether a child's needs were substantially in excess. Follows CA/92/2002 and CDLA/4149/2003.

CDLA/3779/2004: The usefulness of school reports.

“Young children at school have to be more or less continually supervised for the school to function properly, so that a child with a disability may not need supervision over and above that which is normally given to all other children while attending school. However, children with disabilities may need supervision beyond that needed by other children when outside the school environment in order to avoid substantial danger to themselves or others, and it is that supervision which needs to be considered when deciding entitlement to care component. Evidence from a school should therefore be considered along with all the other evidence concerning a child’s care needs in deciding whether the claimant can safely be left unsupervised and whether the child requires substantially more care from another person than children of their age would normally require.”

CDLA/3831/2004: phobia and low rate mobility

Case concerned a woman with animal phobia. Tribunal erred in affirming that as the claimant was “not so severely disabled mentally and that therefore her anxiety does not constitute a severe mental disability which would satisfy the criteria for an award of the lower rate mobility [component].”

Commissioner Jupp stated

“it is the severity of the anxiety which is for consideration, once the existence of a mental condition is established, not the severity of the mental condition.”

This decision extends paragraph 29 of R(DLA)10/02 to include the mobility component.

CDLA/4184/2004: Cases where an award is reduced at a paper hearing

“The claimant was appealing against a refusal to award her more than the lower rate of the mobility component of disability living allowance. She appealed asking for a higher award. The tribunal dealt with the matter at a paper hearing and took away her existing entitlement. Regardless of the individual issues and merits of claims, it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal. Accordingly, a tribunal cannot do this at a first paper hearing following the usual paper hearing procedures unless – unusually – the matter has been raised in the written submissions. There was nothing in the papers here, so the tribunal’s procedure was clearly unfair and the decision must be set aside.”

CSDLA/430/2004: Asthma and taking advantage of the facility of walking

In this case there were two issues. The first was with reference to regs 12(7) and 12(8) of the Social security (Disability Living Allowance) Regulations 1991. These state that low rate mobility component cannot be awarded if the claimant cannot walk outside because of fear and anxiety unless this is a symptom of mental disability. The other issue is "whether, on account of the possibility of such [asthma] attacks the claimant cannot reasonably be expected to venture outside without a companion most of the time."

"Such supervision does not assist walking per se but, without the guarantee that someone is with the claimant who would provide assistance should an attack occur, such a claimant may be unable to use the facility of walking , which is otherwise unimpeded."

CSDLA/791/2004: Tribunals superseding award at lower rate

The tribunal failed to specify grounds for superseding the decision and removing the claimant’s mobility component. The claimant had originally been trying to increase her care award.

CSDLA/829/2004: three stage process when considering the care needs of a child.

Tribunals should consider the following:

  • Does the child have a physical or mental disablement within the scope of 71(1) of the Social Security contributions and Benefits Act 1992?
  • Does the child satisfy the criteria for attention and supervision requirements?
  • Is the attention or supervision ‘substantially’ in excess of that normally required by the average child?

The child suffers from constipation. The decision discusses relevant case law.

FAMILY CREDIT

CFC/2766/2003: deprivation of capital

Issue of capital unclear because enquiry form did not ask for capital held prior to claim, which had subsequently been disposed of.

GENERAL

CG/1467/2001, CG/1895/2001 and CG/2065/2001: Human rights law article 14 (non-discrimination)

Concerns widowers whose wives died before 9th April 2001 and so cannot be awarded Bereavement Benefits. Once decision claimed a breach of article 14 but could not be considered because the decision predated the Human Rights Act. Cites and discusses R(Hooper and Others) v Secretary of State for work and pensions.

CG/2902/2003: Carers allowance, credits and gainful employment

Concerns the wrongful award of credits where someone on Invalid Care Allowance was gainfully employed.

CFG/4622/2003: Forfeiture - Bereavement Benefits

Husband not allowed to receive bereavement benefits following conviction for manslaughter of his wife and teenage son. Commissioner confirmed that Bereavement payment should not be paid but, under section 4(1A) of the Forfeiture Act 1982, reinstated Widowed Parent's Allowance and category B retirement pension. This was because of mitigating circumstances - husband's depression, his low intellect, his good character, his dedication to his children, the wife's infidelity, the wife's taunts and the fact that the knife he bought that day was not originally intended as a murder weapon - based on Court Judge's summary.

CG/3137/2003 Invalid care allowance (carer's allowance) and absence abroad

This decision clarifies meaning of "entitlement" and "disqualification". The claimant went abroad for more than 4 weeks and under regulation 9 of the Social Security (Invalid Care Allowance) Regulations 1976 was not entitled to ICA. A counter argument using regulation 10B of the Social security (Person's Abroad) Regulations 1975 was rejected because it only stated that the act of being abroad did not disqualify someone from getting ICA.

CG/4941/2003: Invalid care allowance and calculation of earnings CG/2973/2004: Claim form not received

Onus of proof that a claim has been made lies with the claimant where a claim form is posted but not received. In such cases the Secretary of State should provide evidence of attempts to establish non-receipt.

Cites and agrees with CIS/306/2003 in stating that Section 7 of Interpretation Act does not apply in these cases as regulation 6(1)(a) of the Social Security Claims and Payments Act 1987 requires a claim form to be received.

Note: this decision was taken to the court of appeal as Levy v Secretary of State for Work & Pensions and upheld. This decision has been reported as R(G)2/06.

CG/3189/2004: Carers allowance and full time study

This decision discusses situations where the evidence of the claimant concerning expected hours of study is to be preferred to that of the college authorities.

HOUSING BENEFIT

CH/3009/2002: Revisions, supersessions and reviews late applications

This is a complex backdating case where the commissioner discusses powers to revise an original decision. Follows CIB/4751/2002 and CIS/4/2003 (see April 2003 digest of decisions).

CH/2111/2003: Council tax benefits, residence rules and temporary absence

Regulation 4C(3) of the Council Tax Benefit (General) Regulations 1992, concerning temporary absence, conflicts with primary legislation - section 131(3) of the Social Security Contributions and Benefits Act 1992. The effect of this is that council tax benefit depends on residence rather than occupation of the dwelling as a home so the 13 week/52 weeks temporary absence rules do not apply. (Note: housing benefit rules on temporary absence are unaffected because they are not subject to residence rules).

CH/2155/2003, CH/3423/2003, CH/3511/2003, and CH/3600/2003: Right of appeal where no decision issued

Decision of a Tribunal of Commissioners stating that regulation 76(2) Housing Benefit General Regulations 1987, allowing a local authority to refuse to issue a decision on a claim where a claimant has provided insufficient information is ultra vires. Such a refusal is to be treated as a decision refusing housing benefit and will accordingly attract rights of appeal, revision and supersession.

CH/2588/2003: Recovery of overpayments - misrepresentation

Tribunal failed to investigate whether there was underlying entitlement to benefit despite the claimant's misrepresentation. The decision follows the judgement of the Court of Appeal in Adan v London Borough of Hounslow and Secretary of State 2004.

CH/2791/2003: Recovery of overpayments - offset of benefits

With reference to was reg 101(1) of Housing Benefit (General) Regulations 1987 - recovery of benefits from the landlord - the tribunal did not adequately reason its conclusion that all four subparagraphs of 101(1) were satisfied. Reg 101(1) can only apply once an overpayment has been determined. In this case the exact date the claimant left was not clear.

CH/3013/2003: Housing and council tax benefits liability to make payments

Detailed arguments on a number of issues. When considering deemed liability where a person is liable to make payment, "person" can include a limited company.

Irregular voluntary payments are deemed to be capital. Loans, where there is no intention to create legal relations can be voluntary payments. In this case they were loans made by a girlfriend who only expected repayment when the claimant could afford it.

An overdraft is a loan which is payable on demand but it is not income.

CH/3110/2003: Housing benefit and ground rent

Concerned the refusal to award housing benefit for ground rent because the claimant's chalet was not a caravan or mobile home. Commissioner Rowland decided that housing benefit should actually be paid under regulation 10(1)(a) of Housing Benefit (General) Regulations 1987 because it was rent the claimant was "liable to make" (periodical payments).

CH/4306/2003: Housing benefit – accommodation too large or high

This case discusses rent restrictions and the onus of proof required by a council when arguing that “suitable alternative accommodation” is available to a claimant who is age 60+. The decision affects those claimants covered by the pre January 1996 housing benefit rules.

CH/4390/2003 and CH/4391/2003: Home visits as reasonable evidence requirement

Confirms the right of a local authority to make home visits to gather evidence. The claimant "unreasonably" refused to allow this with the result that benefit was suspended then disallowed though restored once the visit was made.

Commissioner Howell was not amused.

"Appeals on law under section 14 Social Security Act 1998 are for real and substantial errors or injustices, not mere slighted feelings."

"I dare say that he and his wife are unhappy, as ordinary pensioners, to find themselves involved with the means-tested benefits system, but that is the fault of successive governments for at least the last 25 years, in allowing the value of the pension to be eroded: it is quite unfair to take it out on the officials who have to try and administer the system as we have got it."

CH/4714/2003: Housing benefit– calculation of rent

Concerns calculation of weekly amounts of housing benefit where the annual rent is paid in 23 instalments.

CH/4733/2003:

Contrived tenancies

CH/4854/2003: Housing benefit - tenancies and contrived agreements

A claimant lived in her son-in-law’s house. Tribunal failed to establish tenancy was contrived.

CH/4918/2003: Recovery of overpayments – official error

The exception from recovery of overpayments for official error - regulation 99(2) Housing Benefit (General) Regulations 1987 - only applies if all relevant person’s (landlord or claimant) could not reasonably be expected to realise an overpayment would occur. This case concerned a landlord.

“I reject the submission that there is a legal burden on a local authority before an appeal tribunal to show that a relevant person could reasonably have been expected to have realised that there was an overpayment. That does not exclude there being circumstances in which a local authority is bound in practice to lose on that issue unless it comes up with further evidence or argument.”

CH/609/2004: overpayment recovery

This decision discussed the powers to recover under regulation 99 of the Housing Benefit (General) Regulations 1987 where the claimant has fully disclosed information. Suggests a three stage approach to this:

  • First, the tribunal must direct itself correctly on the law.
  • Second, the tribunal must identify the information that the claimant had about the housing benefit and council tax benefit schemes.
  • Third, the tribunal must determine what the claimant could reasonably have been expected to realise from that information.

CH/939/2004: overpayment recovery

Tribunal failed to properly consider regulation 99(2) of the Housing Benefit (General) Regulations 1987 as to whether the claimant could have reasonably been expected to realise there was an overpayment. The case concerned a claimant who had rent paid directly to his landlord.

CH/996/2004: Housing and council tax benefits - occupation of the home

The claimant went abroad for longer than 13 weeks. The reasons for what became a lengthy absence were a mixture of illness, death, disease, accident and possibly even bankruptcy. With reference to housing benefit the claimant failed to establish that absence was to receive treatment so a longer absence was not permissible. Also the housing benefit could not be backdated because the claimant had no underlying entitlement to HB (he did not make a claim). With reference to council tax benefit the 13 week absence test does not apply (see CH/2111/2003) so the claimant continued to have underlying entitlement to benefit but failed to show sufficient good cause.

CH/1097/2004: Whether letting to a friend was on a commercial basis

A couple let a room and bathroom in their house to the wife's old friend who had suffered a nervous breakdown. housing benefit was subsequently refused. The Tribunal erred in several ways:

  • In finding it unusual that more restrictions were not put on the friend's access to parts of the house
  • In attaching importance to the non-production of a rent book. Also there was no evidence of further questioning about payments because there was no rent book.
  • Over emphasis on the care and support aspect of the arrangement

Useful discussion of related case law.

CH/1129/2004: Housing benefit – failure to disclose

The claimant left the property but failed to tell the council and was subsequently found liable for an overpayment four years later. His late appeal was allowed to be heard because of procedural irregularities on the part of the council (notification of the right to make written representation – see paras 3 and 4 of the decision).

CH/1502/2004: Housing benefit– living together as husband and wife

Housing benefit was paid to a man who’s landlady was his ex-wife. The ex-wife was subsequently awarded Jobseeker’s Allowance as if they were a couple. Local Authority cited R v Penwith District Council ex p Menear 1992 but commissioner agreed that this case was only binding on consideration of issues relating to income and capital. Not held to be living together as husband and wife.

CH/1586/2004: disposal of previously owned property

Tribunal failed to investigate whether there was other help that could enable claimant to retain the property and if not whether the liability to pay rent was created to take advantage of the housing benefit scheme.

CH/1762/2004: Housing benefit – 4 week “run on”

Claimant lost entitlement to 4 weeks extension of HB because he moved home more than two week before starting his new job so regulation 62A(1) and Schedule 5A Housing Benefit (General) Regulations 1987 cannot apply.

CH/1791/2004: Good cause for late claim

Cites R(S)2/63 as a suitable test. The test for good cause applies to the claimant not the landlord.

“The Landlords’ actions and/or omissions are only indirectly relevant to that question, i.e. as a factor to be taken into account when assessing the reasonableness of the appellant’s behaviour.”

CH /1854/2004: Entry into residential accommodation on a trial basis - position where residence becomes permanent

Housing benefit ceases from the date the claimant enters the home permanently or rather from the “first day of the benefit week following the date on which the change of circumstances occurred”.

CH/2258/2004: Contrived tenancy

Son set up a “long” tenancy for his parents. This was not payable under housing benefit rules. Commissioner also stated that the tenancy was contrived.

CH/2957/2004: Claimant moves in furniture but is admitted to hospital

Although the claimant never occupied the flat before being admitted to hospital the commissioner decided that she normally occupied the dwelling from the date that her furniture was moved into the flat.

“In my judgment, the claimant can be said to have moved into this flat for the purposes of regulation 5(6) [Housing Benefit General Regulations 1987] when she removed all her furniture from her previous home and moved it into the new flat. In the context which I set out below, I conclude that this is the proper construction of the expression “move into the dwelling”.

Once this was established she satisfied the 52 week temporary absence rules. The decision about her council tax was awarded because she was resident at the property. This follows CH/2111/2003 which states that the 13 week/52 weeks temporary absence rules do not apply to this benefit.

This decision has now been reported as R(H)9/05.

CH/2794/2004: Overpayment of housing benefit

Discusses the Verification Framework, Hinchy v Secretary of State for Work and Pensions and Kerr v Department for Social Development in relation to official error.

CH/3438/2004: Retrospective payment of benefit following confirmation of refugee status

Claimant should not be penalised for failing to produce documents (in the case a letter from the Home Office) that at the time of the application do not exist.

CH/3656/2004: Contrived tenancies

INCAPACITY BENEFIT

CIB/2836/2002: Incapacity benefits increase for adult dependant

This case has been reported as R(IB)7/04. Decision of a tribunal of commissioners which follows CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002, CDLA/5141/2002 (powers to correct defective decisions). They attempt to sort out a messy case where a husband loses the transitional protection for the adult dependency increase for his wife when she became sick and claimed incapacity benefit (IB). Regulation 24(7) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 ceases entitlement if the increase is not paid or payable for longer than 57 days. The husband claimed that the overlapping benefit rules maintained entitlement to the increase whilst the IB was in payment but the commissioners decided that 'entitled' did not mean 'payable'.

CIB/3645/2002: Human rights law article 6 (fair hearing)

There is no right of appeal against a decision on incapacity for work where the claimant might be entitled to benefits under the Social Security (Jamaica) Order 1997. This was not held to contravene Article 6 of the Human Rights Convention. This case is being taken to the Court of Appeal as Campbell v. Secretary of State for Work and Pensions.

CIB/3734/2002:

Status of contributions - whether paid or credited

CIB/2805/2003: Time limits for making a claim

Clarifies calculation of days in backdating cases. Under regulation 19(1) and schedule 4, paragraph 2 of the social security (claims and Payments) Regulations 1997 the date of claim is not counted. The three months runs from the day after that date till the repeat date three months thereafter, subject to the exceptions for 31st to 30th or at the end of February.

Where a claimant states a form was posted on a certain date Section 7 of the Interpretation Act places a duty on the Secretary of State to prove that a letter was delivered otherwise than "in the ordinary course of post".

CIB/3074/2003: Incapacity benefits medical evidence

The tribunal over-relied on a report that was not "full and thorough". Discusses case law on the use of EMP evidence.

CIB/3925/2003: Recovery of overpayments - amount recoverable

Concerned someone who failed to disclose his employment, which spanned both the old therapeutic earnings and permitted work rules. The earlier period was held to be recoverable but the permitted work period was not. This was because the DWP flyer/letter explaining the new system, which was issued to claimants, was not specific enough and the claimant could not reasonably be expected to know he had a duty to inform. The case arose out of an anonymous tip that was given in April but final action on the case did not take place until September.

CIB/3956/2003: Incapable of work - effect of previous determination

This decision is now reported as R(IB)8/04. Tribunal failed to fully consider regulation 28 of the Social Security (Incapacity for Work)(General) Regulations 1995 in relation to worsening conditions.

Discusses the correct way of calculating the six-month period following a previous determination of IB.

CIB/4033/2003: Incapacity benefits exemptions from test

Tribunal failed to deal adequately with the issue of the claimant's possible medical exemption. It is the decision-maker's responsibility to determine exemption not the medical authority's.

CIB/4300/2003: Activity 6 - bending or kneeling

Tribunal failed to consider the assistance required to carry out the activity, namely the use of one hand. Follows CSIB/12/1996.

CIB/65/2004 (now R(IB)3/05): The correct way of calculating an occupational pension

It is the gross amount of occupational pension that counts when making deductions from incapacity benefit, not the net amount.

CIB/155/2004: Incapacity benefits exceptional circumstances

The decision concerns regulation 27 (2)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 concerning a life-threatening disease in relation to which -

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and

(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;

The threshold for control is whether the level of control fails to remove the threat to the claimant's life.

Note: This is the wording for the regulation prior to 8th November 2002. The new wording in regulation 27(2)(c) is "he suffers from a severe uncontrolled or uncontrollable disease;" If this wording is allowed to stand it may mean this decision is redundant for future cases.

CIB/451/2004 (now R(IB)2/05): Revisions, supersessions and reviews

Confirms the ground for a supersession under reg 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is the receipt of new medical evidence.

CIB/790/2004: Date of superseding decision

Claimant failed to provide medical evidence (certificates) and fell to be considered under the personal capability assessment. A relevant change of circumstances for the purposes of a supersession is the failure of a subsequent pca rather than failure to provide evidence.

CIB/805/2004: refusal of commissioner to set aside

Regulation 31 (1) Social Security Commissioner’s (Procedure) Regulations 1999 allows a commissioner to set aside a refusal of leave to appeal in the case of a document not received, someone not present at a hearing or some other "procedural irregularity or mishap". In this case the claimant had not made some evidence available to the tribunal. Application to set aside refused. Correct remedy should have been for the claimant to ask the secretary of state decision maker to consider a revision or supersession.

CIB/1005/2004: Incapacity benefits activity 13: continence

Follows CSIB/38/1996 (‘no voluntary control’ only if there is some degree of urgency which the exercise of will cannot postpone). In this case the claimant was incontinent as a result of a prostate operation and needed to empty his bladder infrequently in order to prevent accidents.

"And if a person can only postpone the muscular reflex for a very short time, with occasional failures, that can be consistent with "no voluntary control".

CIB/1009/2004: whether appeal should be adjourned if a claimant's representative is ill

There is no absolute right of adjournment. Decisions on adjournment are a balancing exercise between..

"the substantial cost of a further hearing and the delay in the determination of another case whose place the adjourned hearing will take. Thus the interests of taxpayers and claimants in general need to be balanced against the interests of a the particular appellant."

In this decision the appeal succeeded because the representative's input was needed on a complex case but pre-existing case law does not guarantee this right. Cites R v Social Security Commissioner ex parte Bibi (2000), CIS/2292/2000, CDLA/5580/1997 and CIB/24/1997 and CSDLA/90/1998.

CIB/1378/2004: Income support and back to work bonus

Tribunal erred in the date that the claimant's entitlement to income support ended but the claimant could not get her back to work bonus because her increase in work hours did not occur after coming off benefit but was instead on the last day of entitlement. The relevant regulation is reg 7 of Social Security (Back to Work Bonus)(No 2) Regulations 1996.

CIB/1509/2004: Revisions, supersessions and reviews supersession: incapacity

Reg 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (new medical evidence) authorises the supersession process but does not dictate its outcome, that being left to the decision-maker. The burden of proof also lies with the decision-maker.

"burden of proof is not relevant in the majority of cases…..It will only be relevant in the two circumstances identified by the Commissioner in CIS/427/1991….Those circumstances are : (a) if there is no relevant evidence on an issue; and (b) if the evidence on the issue is so evenly balanced that it is impossible to determine where the balance of probabilities lies."

CIB/2058/2004: Tribunal's obstruction of the role of representative

Tribunal refused to adjourn a hearing when the representative was unable to attend. The claimant did not understand the role of the representative and so her consent to proceed was "not properly informed". The tribunal itself failed to take account of the full range of functions of a representative which in turn "affected the basis on which the claimant consented to proceed without her representative". The decision identifies three functions:

  • Acts as a companion to the claimant and may provide confidence in strange environment.
  • Assists the tribunal in gathering evidence from the claimant.
  • May make submissions on the law and may draw issues of evidence, fact or law to the attention of the tribunal.

Follows R v Social security Commissioner, ex parte Bibi (23 May 2000) - "I appreciate that there is no absolute right to representation, but there is an absolute right to be dealt with fairly.."

Cites a 1989 report for the Lord chancellor by Hazel and Yvette Genn on "The Effectiveness of Representation at Tribunals" which states that representation both increases the likelihood of success for a claimant's appeal and increases the accuracy of tribunal decision making.

CIB/2368/2004: authenticity of medical report

Tribunal questioned whether a medical questionnaire was genuine and refused the appeal. Erred in failing to put their suspicions to the claimant or her solicitors before making a decision.

CIB/2767/2004: Exceptional circumstances guidance

Gives guidance on how to assess regulation 27(b) Social Security (Incapacity for Work) (General) Regulations 1995:

"he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work".

Also discusses Waddell signs - inappropriate physical responses to a medical examination (such as pretending to be in pain).

CIB/2952/2004: Seeing - whether fluorescent light is bright electric light?

It is, following CIB/2584/2002, which says that the term electric light encompasses "the sort of lighting which complies with health and safety standards".

The claimant gets migraines under fluorescent light. CIB/2584/2002 also states "if it is shown that the claimant cannot meet the visual descriptors in bright artificial light, then the fact that she can meet them in natural daylight conditions is in my view not enough of itself to allow her limitations to be ignored".

CIB/3019/2004: Tax free service invaliding pension

This is an occupational pension for the purposes of deductions from incapacity benefit.

CIB/3069/2004: Issue not arising in appeal

Claimant argued that tribunal did not consider lifting and carrying in the appeal. However, the claimant did not raise it as an issue at the time and the evidence did not indicate that the tribunal needed to consider this activity.

CIB/3589/2004: Migraine - effects may be considered in any relevant activity

Tribunal erred in only considering "lost or altered consciousness".

CIB/3682/2004: Evidence of specialist

Claimant has ME but the specialist's report is rejected as being too generalised. Treatment of the representative not held to be a breach of natural justice - neither she nor her arguments are mentioned in the submission.

CIB/4192/2004: mental stress was a factor in making someone stop work

This descriptor can still be satisfied if the claimant was dismissed from work.

“7. If the descriptor is read with the emphasis on ‘making him stop’, it appears that the decision must be that of the claimant. However, that is only part of the descriptor. Read as a whole, the descriptor does not so clearly require that the initiative must come from the claimant. The immediate cause of the claimant may have been dismissal. In that sense, the dismissal was what made the claimant stop work. However, the mental stress need only be a factor. If the stress was a cause of the dismissal, it can fairly be said that it was also a factor in making the claimant stop work. The precise mechanism by which a particular effect is produced seems irrelevant.”

CIB/4253/2004: Late submitted evidence following an adjournment

Tribunal adjourned a case to allow both parties to provide further evidence. In doing so it directed a 28 day time limit. The claimant provided evidence outside that time and the tribunal was guilty of an error of law because it refused to look at it.

CSIB/33/2004: Incapacity benefits exceptional circumstances

The decision concerns regulation 27(2)(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 which states:

"he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;"

Note:This is the wording for the regulation after 8th November 2002 following the Howker decision.

The tribunal decided that regulation 27(2)(b) applied in this case. Commissioner Parker agreed that it was entitled to do this but that it was wrong in law because it gave inadequate reasons for preferring particular evidence.

The test for regulation 27(2)(b) was discussed in relation to CIB/26/2004 (see April 2003 digest of decisions).

CSIB/146/2004: tribunals must consider pca before applying the exceptional circumstance test

Tribunals cannot choose to ignore consideration of the personal capability assessment when assessing whether the exceptional circumstances test is satisfied because one is dependent on the other. Disagrees with CIB/601/1997.

CSIB/570/2004:

Failure to attend a medical, therefore capable of work

CSIB/598/2004 (now R(IB)5/05): Tribunals powers to correct decisions following Howker

The Secretary of State's incorrect application of the personal capability assessment, as amended by the regulations considered in Howker, can be corrected by a tribunal.

CSIB/721/2004: Failure to attend medical - delivery of notification

Discusses meaning of sent in relation to notification to attend a medical. Cites CIB/4512/2002 and agrees that the notification was not sent if it was not delivered. Questions of good cause are not reached in the case a non-receipt of a notification.

INCOME SUPPORT

CIS/170/2003 - powers to correct decisions, need to explain internal forms to tribunal

Tribunal erred in attempting to correct a decision from supersession to revision without sufficient evidence. Cites CIS/3228/2003. The decision also criticised the use of an internal DWP “Generalised Matching Service Result Sheet (GMS)” because it both contained jargon and was not fully explained to the tribunal.

“But perhaps it came about for the same reason that the tribunal was misled – because no one involved in the decision making understood the GMS sheet.”

Cites, a similar case, CDLA/2115/2003 in relation to this (see our DLA law digest).

CIS/426/2003: Residence and presence conditions persons subject to immigration control

The case concerned a sponsorship declaration. Held that the wording “able and willing” and “declare” did not amount to a declaration undertaking to maintain and…

“in my view amount to no more than a declaration by the Claimant of the facts (a) that his circumstances in March 1998 were such that he would be able to do so and (b) that his then state of mind was that he was and would be willing to do so. They do not in my judgment go further and contain a promise that A would maintain and accommodate the claimant”

The word declare…”is much less appropriate if what is intended is a promise as to future conduct as opposed to a declaration of present fact”.

The case discusses CIS/47/2002 which has a similar scenario. Note: this declaration was not done on an official form, the normal forms RON112 and SET(F) being considered more precise.

This decision was subsequently taken to the Court of Appeal (Secretary of State for Work and Pensions v Ahmed [2005]) but dismissed.

“there is not language sufficient to create an undertaking in this case. It seems to me that an undertaking has to be something in the nature of a promise or agreement and the language that "I am able and willing to maintain and accommodate" is language which has reference, essentially, to current ability and intention and does not amount to a promise for the future. The essence of an undertaking is a promise as to the future, as typically found in the language "I will."

Lord Justice Rix

CIS/1459/2003: Inquisitorial duty of tribunal when no DWP presenting officer (Decision of a Tribunal of Commissioners)

A woman was accused of cohabiting and was held to owe 14 years benefit. Despite the importance of the case the DWP failed to send a presenting officer (though they did send two fraud officers). The tribunal then -awarded the decision in favour of the claimant end erred in law by doing so without considering the merits of her case. Even if the presenting officer was not present the tribunal still had an inquisitorial duty to investigate the facts in front of it.

CIS/1965/2003: Maternity benefits - social fund maternity payment

Social fund maternity payment cannot be made to a claimant with a “residence order” as it does not constitute adoption of a child. Not considered discriminatory under Article 14 of the European Convention of Human Rights.

This case was taken to the court of appeal as Francis v Secretary of State for Work and Pensions [2005]. It was held that the difference in treatment between those carers who have an Adoption Order in respect of a baby and those who have a Residence Order is discriminatory, under Article 14 of the European Convention on Human Rights.

It was therefore unlawful, under section 6 of the Human Rights Act 1998, to refuse payment of sure start maternity grant to the claimant.

The whole decision has now been reported as R(IS)6/06.

CIS/1972/2003: Habitual residence test (hrt) and UN convention of Rights of the Child

Discussion of the habitual residence test followed Nessa v CAO 1999. The claimant argued over what constituted an "appreciable period" before the hrt was satisfied. Commissioner Williams refused to assign a time.

"It does not help when Commissioners' decisions are used to play a forensic game (for it is no more than that) of finding the longest, or the shortest, period endorsed by a Commissioner and then claiming some general rule from it. Parliament could have set a specific time limit. It did not. Advisors cannot seek certainty where it does not exist."

The decision also discussed the rights of the claimant's children in relation to the UN Convention on the Rights of the Child. It was held that though this was not part of statute law it "remains part of the context of the judicial exercise of a discretion" such as the discretion as to what constitutes an "appreciable period".

"In any event, the settlement of the children must be part of the total story. But I do not think that references to the Convention take the matter any further than that."

CIS/1870/2003, CIS/2302/2003, CIS/2305/2003 and CIS/2624/2003: Human rights law article 14 (non-discrimination) – funerals abroad

Case concerns whether refusal to exclude funerals abroad from the social fund help is indirect discrimination under the European Convention of Human Rights. Held to be indirectly discriminatory but complaint fails because no other convention article in invoked and Article 14 can only be used where one of the other articles applies.

CIS/3197/2003: Capital valuation

Follows the Hourigan decision and concerns joint ownership of a house. The claimant's one third share was, at relevant times, valueless. However the commissioner had misgivings about the case.

"I do not find the outcome of this case satisfactory. I have been persuaded not to fulfil my proper function as I understand it to be. I hope, though, that future cases will provide the opportunity for more useful guidance on the valuation of limited interests in property."

CIS/3228/2003: Recovery of overpayments – tribunals power to correct

With reference to section 71(5A) of the Social Security Administration Act 1992 (and following CIB/4751/2002) concerning recovery of overpayments. The tribunal had no power to substitute their own decision because the original supersession did not cover the whole period under issue and also because it did not did not set out the revised amounts of benefit to which the claimant was entitled in each benefit period.

CIS/3229/2003: Transitional entitlement to residential allowance

Award of residential element was 'applicable' to her under paragraph 2A of Schedule 2 Income Support (General) Regulations 1987 on 7 April 2002 because, although on that date she was not in receipt of, and indeed had not even claimed, income support, she satisfied the conditions for entitlement to a residential allowance set out in Para 2A.

CIS/3280/2003, CIS/1124/2004, CIS/1840/2004: Habitual residence

Considered three differing cases and discussed relevant case law on the test for habitual residence.

“The approach to be taken

15. What emerges from both Nessa and R(IS) 6/96 is that a likelihood of remaining habitually resident is a requirement for the establishment of habitual residence in addition to a requirement for there already to have been a period of residence but that the strength of the likelihood of remaining is itself relevant when considering the length of the required period of residence. The strength of the likelihood of remaining habitually resident in the United Kingdom may be demonstrated by, among other considerations, the reasons for choosing to come to the United Kingdom rather to stay in, or go to, any other country. In my view, it is relevant that, in the extreme cases where regulation 21(3)(d) or regulation 21(3F) of the 1987 Regulations applies, a claimant may become entitled to payments of income support without becoming habitually resident at all. It is logical that, in a case that is not quite so extreme but in which the claimant has clear ties to the United Kingdom and it is very unlikely that he will return to the country from where he has arrived, he should become entitled to benefit after quite a short period of residence.

16. I am content to accept that, where a claimant is likely to remain in the United Kingdom permanently or for a substantial period of time, the conventional period that must have elapsed between his arrival and his establishing habitual residence is between one month and three months. However, those are not rigid limits. In an exceptional case, a person with a right of abode in the United Kingdom who, although not falling within the scope of regulation 21(3)(d), has been forced to flee another country and is nonetheless able to show a settled intention to remain in the United Kingdom might be accepted as habitually resident after less than a month of residence. Perhaps less exceptionally, a person with no ties to the United Kingdom and making no effort to become established here despite a vague intention to remain might be found not to be habitually resident in the United Kingdom until considerably longer than three months had elapsed.”

Tribunals can use regulation 6(2)(a)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 or possibly Regulation 13 Social Security (Claims and Payments) Regulations 1987 to allow the claimant to pass the habitual residence test beyond the date of the decision under dispute.

CIS/3295/2003: Housing costs for a disabled person

With reference to Schedule 3 para 4(9) of Income Support (General) Regulations 1987 there is no time limit when acquiring loans to purchase alternative accommodation more suited to the needs of a disabled person.

CIS/4201/2003: Treatment of student loans

A student abandoned a course. Her repayable student loan was treated as income. The decision has a detailed discussion of the methods of notification of student loan overpayments and their recovery.

CIS/4348/2003: Overpayment, learning disability and the duty to disclose

Detailed decision of a Tribunal of Commissioners aimed at resolving the conflict between R(A)1/95 and other conflicting legal decisions on when mental incapacity may be relevant to a failure to disclose.

Case concerned a mother with learning disability who failed to inform the DWP that her children had been taken into care. States that R(SB)21/82 (and by inference the paragraphs of those decisions following it) is wrong in applying the test that the recovery of an overpayment is dependant on whether disclosure of a material fact was reasonably to be expected. Approach summarised in paragraph 46, paraphrased as follows:

  • No duty to disclose arises from section 71 of the Social Security Administration Act 1992 itself.
  • Two distinct duties to disclose arose from the old regulation 32(1) of the Claims and Payments Regulations 1987 (now arise from regulation 31(1), (1A) and (1B)).
  • There is no duty to disclose that which one does not know. However if a claimant was aware of a matter which he or she is required to disclose, there was a breach of that duty even if, because of mental incapacity, the claimant (a) was unaware of the materiality or relevance of the matter to his entitlement to benefit, and (b) did not understand an unambiguous request for information.
  • Where there was a failure to respond to a request for information in breach of regulation 32(1) or the amended regulations, benefit could be recovered under section 71 if the failure to disclose led to the payment of a benefit that would otherwise not have been paid.

Para 61 agrees with R(A)1/95 in part.

“We agree with the conclusion of the Commissioner that, although mental capacity is relevant to whether the claimant knew of the matter not disclosed, capacity is not relevant to the issue of whether there was a failure to disclose.”

Apart from the defence of “not knowing” the only other protection for a claimant is suggested in para 63.

“Claimants who lack capacity are not without all protection or recourse. As indicated by Mr Coppel, they have at least two means of protection: the power to appoint an appointee to act on their behalf, and the discretion of the Secretary of State not to recover overpayments even where he is entitled to do so.”

This case was taken and lost at the Court of Appeal as B v Secretary of State for Work and Pensions.

CIS/4862/2003: Late claim

This decision allowed some backdating of a delayed claim but rejected earlier dates because each time the claimant failed to provide information and so these claims were not made in the prescribed manner.

CIS/488/2004: Winter fuel payments

Claimant was resident in France and was refused two winter fuel payments on the grounds that he had not made a claim before 31 March 2001 in respect of the winter of 2000/2001, or before 31 March 20002 in respect of the winter of 2001/02. The case was the subject of appealed as Secretary of State for Work & Pensions v Walker-Fox (2005). It was decided that a claimant with knowledge of the law (which he is presumed to know) would have been able to apply for the benefit in time.

The decision was reported as R(IS)3/06.

CIS/579/2004: Income support urgent cases

A claim under regulation 21ZA(2) for backdated urgent case payments (to the date of application for asylum) “must be made expressly or impliedly on Form A1 within the prescribed time limit”.

CIS/621/2004: Housing costs

With reference to regulation 5(5) of the Income Support (General) Regulations 1987 a claimant's period of pay in lieu of notice broke the linking rules for housing costs despite the fact that the claimant was getting incapacity benefit.

CIS/672/2004: Income support transitional housing costs

Discusses the circumstances whereby transitional housing payments, following the 1995 rule changes, might be eroded/reduced. This case is being taken to the Court of Appeal as Secretary of State v Arathoon.

CIS/866/2004: temporary care of a child

A harsh decision in which a mother with indefinite leave to remain was refused IS as the parent of her disabled child. She argued that her husband, an alcoholic asylum seeker, could not look after the child and that she satisfied regulation 3(a) Income Support (General) Regulations 1987.

3. A person who is —
(a) looking after a child because the parent of that child or the person who usually looks after him is ill or is temporarily absent from his home; or
(b) looking after a member of his family who is temporarily ill.'

The commissioner agreed with the tribunal. Reg 3(a) does not apply because she is not looking after a child in place of someone who usually looks after him because she is in fact that person. Reg 3(b) does not apply because the child has a long term disability and so is not temporarily ill.

CIS/995/2004: child tax credits and Income support

An online claim for child tax credit becomes a claim regardless of whether the claimant subsequently signs a declaration to the effect that he or she is making a claim. The claimant can only withdraw the claim prior to a decision having been made.

CIS/1067/2004: calculation of state pension income

Amount is net of tax.

CIS/1159/2004: Severe disability premium

It was correct that the claimant should lose his severe disability premium once his wife was living with him even though he could not get benefit for her because she was subject to immigration control.

CIS/1228/2004 Social fund funeral payments and estrangement

Registering a death is not enough in itself to rule out estrangement in relation to Regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987.

CIS/1344/2004: Tribunal membership qualification

A strange decision where a claimant alleged that the tribunal chairman was not legally qualified. This was held to be misconceived because the chairman was on the solicitor's roll which satisfies the relevant regulation.

CIS/1345/2004: Social fund funeral payments - clothing

Clothing can be claimed as part of funeral costs.

CIS/1427/2004: winter fuel payments and Article 10 of Regulation (EEC) 1408/71

The claimant, who has been in Spain since 1992, is not entitled to payments by virtue of this article. A full argument for this is set out in a companion decision, CIS/1491/2004 (below).

CIS/1491/2004: winter fuel payments and Article 10 of Regulation (EEC) 1408/71

Claimant moved abroad in 1997.

“Regulation (EEC) No 1408/71 cannot be used to retroactively create an entitlement in respect of people who left the United Kingdom before the scheme was set up in 1998.”

The decision contains a fairly detailed discussion of changes to the rules regarding winter fuel payments following Regina v. Secretary of State for Social Security, ex parte Taylor (Case C-382/98) [1999] E.C.R. I-8955, particularly regarding claimants living abroad.

CIS/1614/2004: entitlement to benefit whilst appealing

No automatic right to income support pending the outcome of an appeal prior to the appeal being submitted.

CIS/1675/2004: incomplete decision

Case referred back to secretary of state rather than rely on powers confirmed by CIB/4751/2002 to correct them.

CIS/1924/2004: Social fund funeral payments

The decision considers the rules that allow a social fund funeral payment to be made to a 'close friend' of the deceased, and what individual items of expenditure can be allowed. “Any other funeral expenses” allowed but only to the tune of £26.45.

The costs of the memorial stone and flower container are not allowed partly because these items have not historically formed part of claimable funeral expenses and partly because these costs are usually not incurred until some time after the funeral.

CIS/2337/2004: Winter fuel payments

Concerned time limits and power of Secretary of State’s powers to award a payment without the need for a claim.

CIS 2042/2004: recovery of overpayments

The decision concerned a claimant who failed to disclose his wife’s capital because he did not know it existed. There is a misrepresentation of a material fact even if it is as a result of a wholly innocent misstatement.

CIS/2455/2004: When are payments of Child Support maintenance due from an absent parent?

Offset of child support maintenance against income support entitlement if parent with care where absent parent in arrears.

CIS/2540/2004: Issue estoppel – power of tribunal to change another tribunal’s decision

Section 17 (2) of the Social Security Act 1998 allows this. Follows R(I)5/04.

“As section 17(2) shows, the normal principle of “issue estoppel” that applies in civil litigation to prevent parties re-litigating factual issues already judicially decided in proceedings between them is of no application to the social security decision and appeal machinery unless there is some specific regulation that makes it so.”

CIS/3734/2004: Student loans

Issue summarised and superseding decision in paragraph 6:

“a student loan can only have an existence for the purposes of the Income Support (General) Regulations 1987 where it is for the maintenance of a student. Until the claimant starts to attend or undertaken the course of study, I submit that she is not a student. Until she is a student, whatever the point in its administrative path her student loan application has reached, it cannot meet the definition of student loan herein and so does not fall to be taken into account as income.”

CSIS/345/2004: Recovery of overpayments - misrepresentation

Claimant stated that a sickness insurance scheme was disclosed to a DWP officer. Tribunal did not err in discussing this assertion based on the facts available.

CSIS/355/2004: offset of overpayment and destroyed documentary evidence

Claimant attempting to argue a previous entitlement to Supplementary Benefit higher rate heating addition in order to offset an amount of overpaid benefit as a result of fraud. Discusses the burden of proof in establishing this in relation to the House of Lords judgement Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland) [2004].

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

CI/1881/2003; Human rights law article 14 (non-discrimination)

The issues of this case was whether transfer from Reduced Earnings Allowance to Retirement Allowance is lawful under article 14.

The case was stayed pending the outcome of the Hepple v Chief Adjudication Officer (R(I)2/2000) currently in the European Court of Human Rights.

CI/3178/2003: Date of onset

Date of onset for prescribed diseases is the relevant date for Reduced Earnings Allowance purposes.

CI/3463/2003: Tribunal decisions - previous date of onset

Tribunal decisions are not restricted by a previous date of onset decided by the Secretary of State and can set an earlier date.

CI/3625/2003: Bovine tuberculosis (B5) and teaching

A teacher tried to claim that his occupation had given him contact with a source of tuberculous infection. This was because another teacher kept cows and it was possible the infection was transmitted to him from that teacher. This was not established but even if it had it was irrelevant.

"But even if - hypothetically - I found that Mr W was right and X did carry an infectious tick, and that tick had bitten Mr W and caused bovine tuberculosis, what was it about his employment that put him at risk?"

CI/4272/2003: REA not a disability benefit decision for the purposes of reg 7(2)(c)(ii) of the decisions and appeals regulations

Had it been so then the claimant would have benefited from the provision governing change of circumstances. This fixes the date of change from when “the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified.”

CI/207/2004: Industrial diseases - prescribed disease A11

The use of percussive tools in the bedding industry is within the scope of the prescribed occupations for PD A11. This decision was subsequently overturned in the court of appeal - Westgate v Secretary of State for Work and Pensions [2006] EWCA Civ 725 (05 April 2006) which considered the tools used were not hand-held percussive metal-working tools.

CI/1069/2004: Tribunal procedure and practice statements of reasons

Tribunal erred in reliance on doctors evidence without referring to the clinical findings of the medically qualified panel member. It also erred in failing to examine the claimant and explain their reasons for not doing this.

CI/1098/2004: phone call whilst on sick leave is in the course of employment

Where the claimant is at home and the employer requests or orders him or her to phone it can be considered an action in the course of employment. In this case the claimant said the phone call caused psychological hurt/trauma.

CI/3600/2004: Incident of post-traumatic stress at school

Claimant witnessed ill treatment of pupils over time but held to have suffered personal injury or accident as a result of witnessing an identifiable incident.

JOBSEEKER'S ALLOWANCE

CJSA/1395/2002: Notional Capital - deprivation

Claimant disposed of capital from the proceeds of the sale of a house. Discusses relevant summarised in para 14.

"14. The appeal tribunal (and the Secretary of State in the written submission to the appeal tribunal) seems to have misunderstood the effect of R(SB) 9/91 and of another decision of Mr Commissioner Rice, R(SB) 12/91. In R(SB) 12/91 he held that if a claimant has a legally enforceable debt that is immediately repayable, the payment of the debt cannot be regarded as within the provision on intentional deprivation of capital for the purpose of securing entitlement to benefit. A person has no choice but to pay his or her debts. But it does not follow that, if a claimant does have a choice (eg if a debt is not legally enforceable or is not immediately repayable) and knows of the actual capital rules, it must be concluded that securing benefit was a significant operative purpose. What Mr Commissioner Rice in fact said in paragraph 14 of R(SB) 12/91 was that in such circumstances "the question will arise" of whether the securing of benefit or an increased amount was a significant operative purpose. It is plainly accepted by R(SB) 12/91 and many other Commissioners' decisions (including R(SB) 40/85, CIS/2627/1995 (specifically relied on by the claimant), CIS/40/1989 and R(IS) 15/96) that, if a claimant has a choice, that does not necessarily preclude a conclusion that the securing of benefit or increased benefit is not a significant operative purpose at all. That possibility was one which appeal tribunal in the present case appeared to consider was not open, so that it did not address the question that properly arose. That was an error of law."

CJSA/2931/2003: Sanction for refusing to apply for a job vacancy

Appeal against tribunal decision dismissed, as it was reasonable based on the available facts.

CJSA/4383/2003: backdated asylum seeker claim and good cause – interrelationship

Considers the relationship between Regulation 21ZB of the Income Support (General) Regulations 1987 and Regulation19 of the Social Security (Claims and Payments) Regulations 1987 in regards to a backdated claim for income support following the grant of refugee status.

The effect of Regulation 19(8) of those Regulations is that a claim under regulation 21ZB will not be limited to 3 months and not that a successful applicant for asylum cannot request backdating under Regulation 19(4) and (5) if they have not satisfied Regulation 21ZB.

CJSA/679/2004: Housing costs

Housing costs deemed to be "existing" if claim on mortgage protection insurance has been refused because of pre-existing medical condition. Policy need not still be in force at date of benefit claim.

CJSA/3084/2004: questionnaire mistaken for a claim form

The claimant was issued a preliminary questionnaire and wrongly believed this to be an actual claim form. It was held that this was “information by an officer of [the Department] which led the claimant to believe that a claim for benefit would not succeed” - Regulation 19(5) of the Social Security (Claims and Payments) Regulations 1987.

CSJSA/125/2004: Human rights law - other Convention articles

Whether Initial restriction of housing costs to fifty percent contrary to Articles 8 and 14 of Human Rights Act. No it wasn’t. Argument summarised in para 14.

“There are two essentials that have to be satisfied for the facts as established to fall within the ambit. First the matter relied upon must have a direct relationship to the substantive Convention right, in this case article 8. Second the discrimination must be of the type provided for in article 14 and not be discrimination of a sort not covered. On both these issues the claimant fails in this case. I accept Mr Brodie’s submission that the facts of this case do not fall within the ambit of article 8. Just because the Convention gives a right to respect for one’s home does not mean that something which is indirectly related to the home, such as payments of interest of a heritably secured debt obtained for the purposes of purchasing the home, falls within the ambit of the Convention right provided by article 8. In my view the provision of housing costs in respect of the payment of interest is too remote from the right secured by the Convention for it to fall within the ambit. Such provision falls out with what article 8 seeks to secure. Further and in any event for article 8 to be engaged, where there is no positive obligation to provide state assistance, the discrimination asserted would have to be of the type set out in article 14. That for reasons which will become apparent is where I consider that what is said by Mr Commissioner Levenson as quoted above is stated too broadly and accept what is said by Mr Brodie. For reasons set out in paragraphs 16 and 17 there is no discrimination of the sort provided for in article 14. In my view if the facts do not fall within the ambit of a Convention right then as Mr Brodie said, discrimination would not matter. In these circumstances I find that the tribunal erred in law in respect of this issue.”

PENSIONS

CFP/1619/2004: Forfeiture following conviction for murder

Widow's increase of retirement pension cancelled because she was found guilty of her husband's murder (in Victoria, Australia).

CP/3447/2003: Claims and payments - required information

A claimant made the proper application for his pension but did not get the dependant's addition because he was not sent a follow up for until over a year later. Appeal allowed.

CP/2291/2004: Guaranteeed minimum pension offset against category A CP/ 3017/ 2004: earnings, expenses and increases for dependants

TAX CREDITS

CTC/3433/2003: Revisions, supersessions and reviews revision

Tribunal decision erroneous because it had no right to hear the appeal because a refusal to revise the original decision placed it out of time, unless a new tribunal accepts it as a late appeal.

CTC/4025/2003: Recovery of overpayments - misrepresentation

Claimant not held to have misrepresented facts about whether her husband was residing with her because at the time she signed the form he was not living with her. This was signed as true to the best of her knowledge and belief.

"It is unrealistic to expect claimants to know the effect of every deeming provision in the regulations for themselves, and there was no suggestion this particular one had been explained to her when she gave her answer."

CTC/4749/2003: Consideration of capital

The claimant won this appeal for several reasons:

  • He was not given notice of the hearing
  • The tribunal failed to properly consider whether the capital asset was part of a business.
  • The superseding decision included both an overpayment and a recovery decision which were not included in the submission to the tribunal. The tribunal's decision arguably confirms both these decisions. If so they failed to consider these adequately. If the tribunal did not intend this they failed to deal fully with the issues before them.

CTC/110/2004: Diminishing capital

Diminishing capital rule and WFTC.

Martin Inch and Ian Greaves

7 June 2012