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Selected upper tribunal decisions from April 2009 to March 2010

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

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

Armed forces compensation schemes/war pensions

CAF/3558/2008 [2009] UKUT 173 (AAC): Constant Attendance Allowance

The claimant was awarded the full day rate of constant attendance allowance (CAA) but appealed because he thought he should have a higher rate (as laid down in article 8 of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 - the relevant law is set down in the decision).

The appeal was unsuccessful but the decision makes a number of useful points in relation to constant attendance allowance, with regard to definitions within the law and the interrelationship of CAA with DLA.

Judge Levenson provided a neat (and concise) summary of the decision at paragraph 45.

"(a) The tribunal stands in the shoes of the Secretary of State and it would be an error of law for the tribunal not to make its own findings on any disputed or unclear matter. To decide otherwise would be to undermine the right of appeal to the tribunal (paragraph 10 to 16).

(b) I reject any proposition that the highest rate care component of DLA is any kind of passport to an award of exceptional rate CAA. Any evidence in relation to one might be helpful in relation to the other, as might a tribunal statement of reasons and findings, and if they are available they should be taken into account, but I would put it no higher than that (paragraphs 18 to 22).

(c) "Constant" for the purposes of CAA does not mean non-stop or uninterrupted. It is not an independent condition or concept to be satisfied but is a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of CAA (paragraph 23).

(d) for the purposes of CAA "attendance" can in appropriate case include what in the DLA scheme is referred to as "supervision", and can include supervision which is either precautionary or anticipatory, and what I have referred to as emotional support (paragraphs 26 to 30).

(e) "continual" for the purposes of CAA does not mean literally non-stop or uninterrupted (paragraph 28).

(f) The relevant paragraphs of the Secretary of State's guidelines are not necessarily accurate statements of the law and are capable of leading to decisions being made in error of law (paragraphs 32 to 37).

(g) The deficiencies in the tribunal's reasoning were not, on the particular facts of this case, serious enough to amount to an error of law (paragraph 44)."

This decision has now been reported as [2010] AACR 20.

CAF/26/2009 [2009] UKUT 170 (AAC): Evidence - From TV programmes, the internet and supplied by the tribunal

This appeal (against two linked decisions) concerned a claimant who saw service in the Royal Engineers on Christmas Island from 30 December 1957 to 9 December 1958 at or near the sites of the series of nuclear test explosions carried out by the United Kingdom. The more important of those decisions was that his condition of immune system dysfunction was not caused nor made worse by service.

In refusing the claimant's appeal the tribunal made a number of errors in relation to the evidence, which have a wider application than the war pension scheme. These were the tribunal's:

  • failure to properly consider the claimant's own evidence.
  • failure to properly consider the evidence of a television programme, submitted as a DVD.
  • decision to introduce its own evidence.
  • rejection of evidence from two books provided by the claimant.

failure to properly consider the claimant's own evidence - The tribunal found that "there is no evidence to support Mr Butler's view that he was one of the personnel" who was "significantly more exposed to radiation" than was generally the case on the island at the time. The claimant argued that his own evidence was that he was. The tribunal's reasoning can be taken to imply, that his evidence (not his "view") was either ignored or discounted as of no evidential value. If this was the view of the tribunal, the tribunal failed to explain why.

failure to properly consider the evidence of a television programme - This was a DVD of a Channel 4 Dispatches programme. The tribunal did not place any weight on the weight on the information set out in the programme because it considered it had been made to support a particular point of view and did not contain any up to date comment from any official body.

Judge Williams found this to be in error for a number of reasons.

"It is not clear to me on what basis in law the tribunal relied in its decision not to put any weight on any of the factual statements recorded by it from the DVD in its record of proceedings.

If the tribunal was in effect excluding "information" (as against opinion or assertion) only because "it did not contain any up to date comment from any official body" then this was plainly an error of law.

If what it meant was that the Secretary of State, as represented at the tribunal, did not comment on the programme, then that was a matter for the Secretary of State.

If it meant that the Secretary of State had not been given adequate notice of the recorded programme and its contents being put in evidence and of the tribunal's invitation to comment, then that is a matter of procedural fairness to be addressed by the tribunal in its procedural directions and in making the decision, not by selectively ignoring evidence.

If the tribunal took the view that the evidence was not relevant to its decision, then it failed to say so. The fact that evidence is assembled "to support a particular point of view" is not a basis for excluding anything from consideration by a tribunal that has no formal rules of evidence. That potentially applies to much of the evidence supplied in a case such as this.

The tribunal clearly failed adequately to identify a rule or principle of law to explain on what basis it ignored this evidence entirely that was consistent with the tribunal's duty to consider all evidence and its duty to ensure fairness and an "equality of arms".

decision to introduce its own evidence - The tribunal medical member downloaded from the internet and submitted two summaries of papers in relation to radiation levels. The tribunal erred in submitting its own evidence, again for a number of reasons.

"Both are clearly brief summaries of longer papers. I have considerable reservations about the production of these papers. There is no way of judging from what databases these two summaries of papers were downloaded or whether they represented the scientific literature selectively or unselectively. They are not presented in the context of a general literature search of the effects of low level radiation. Nor are there any details of peer reviews or comments in other literature.

That raises questions about whether the tribunal, in presenting its own evidence in this way, appeared properly to be acting equally as between the parties. And there is no way that a party can check the peer group status of such papers, or the journals in which they appear, at such short notice and in a tribunal setting. The papers appear to have been given to the parties part way through the proceedings. How were they supposed to evaluate the relevance and substantive content of a scientific paper from a short summary produced part way through a tribunal hearing from a secondary source to the original?"

The tribunal should also have provided all relevant parties with full copies of the papers ahead of the hearing and invited their comments or given the parties an opportunity to make further comments after the hearing and before it reached its decision.

rejection of evidence from two books provided by the claimant - The claimant refused to provide the names of the authors of two books from which he submitted extracts. As a result the tribunal refused to place any weight on the information in the extract.

Judge Williams considered that as the medical member was investigating the evidence for this appeal on the net "it may be asked why he did not check those two [book] extracts".

Judge Williams also noted that the names of a number of authors of documents in evidence produced by the Secretary of State had also been withheld. It was therefore unclear why the tribunal dismissed some of the evidence because a party "could not tell us the author or the source" while not noting that significant parts of the rest of the evidence also had no identified author.

CAF/589/2009 [2009] UKUT 167 (AAC): Assessment of disability, statement of reasons and the use of supplementary reasons

This case was an appeal against an interim assessment of disablement under the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606).

The appeal failed but the decision has a useful discussion concerning the adequacy of reasons for an assessment, the nature of disablement and the process of assessment. It states that a tribunal should:

Identify the claimant's disablement, not just the condition or the injury - The identification of the disablement is essential to an assessment of the disablement and both must be embodied in the reasons. SI 2006/606 does not contain a definition of the elements of disablement. These will be affected by the facts of a particular case but Article 42 of SI 2006/606 distinguishes between the condition or injury and its consequences. The latter is the disablement.

Assess the claimant's disablement, not the condition or the injury - If there is more than one injury, it must make a composite assessment (article 42(2)(c) of SI 2006/606). In doing so, it may find it useful, even perhaps necessary, to make individual assessments of different disablements as part of the process of determining the claimant's overall disablement. That will depend in part on the nature of the disablement. Disablement can only be identified by comparison with 'the condition of a normal healthy person of the same age and sex' (article 42(2)(a)). The tribunal must make findings of fact on the claimant's disablement that are sufficient to allow it to apply that test.

Give reasons for making an assessment - These reasons must be sufficient to show how and why the tribunal made the decision that it did and that, in doing so, it acted within the law. It is impossible to explain percentage assessments with precision but it will usually be possible to give some explanation, albeit in general terms.

"The giving of reasons is not governed by the Tribunal Procedure (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI No 2686). Rule 32 provides the manner in which the power to give reasons may be exercised and when a tribunal is under a duty to give reasons. It neither imposes a duty to give reasons in every case nor restricts the tribunal's power to give reasons whenever it wishes to do so. And it does not stipulate the standard that they must attain when they are given. That standard is set by the general public law."

Rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) gives the Upper Tribunal power to "require any other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or the proceedings in that tribunal." These are known as supplementary reasons.

It was argued that if the tribunal's reasons for its decision were inadequate, the proper course was to invite the tribunal to supplement its reasons rather than to direct a rehearing.

Judge Jacobs stated:

"41.That is within the literal scope of rule 5(3)(n), but it is further than the caselaw has gone. The power may be appropriate at the application stage in order to avoid the need for an appeal. However, the passage of time that will have occurred before the Upper Tribunal decides that the reasons are inadequate as they stand would make it difficult for the First-tier Tribunal to provide further reasons. If the tribunal's recollection would not be reliable, supplementary reasons should not be sought: Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 383."

CAF/720/2009 [2010] UKUT 9 (AAC): Passive smoking

You cannot make a claim for compensation due to the effects of passive smoking because this is excluded under item 32 of part 2 of Schedule 6 to the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006.

Attendance allowance

CA/313/2009 [2009] UKUT 214 (AAC): Self funding in residential care

This case concerns a situation where the claimant was on low rate attendance allowance and subsequently entered residential care. Her accommodation was initially met out of public funds but she subsequently became self funding. Judge Mesher follows CA/3800/2006 (see the self funding residential care section of our DLA law pack) and awards AA from the point that the claimant began self funding.

The decision also considers the award of high rate AA taking into account the six month backward test.

CA/1546/2009 [2009] UKUT 211 (AAC): Adjournments

This decision concerns the operation of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) in relation to an application for an adjournment.

The claimant requested an adjournment to obtain medical evidence, which was rejected by the tribunal, whose decision was upheld by the Upper Tribunal Judge.

In doing so Judge Jacobs sets down three basic questions which tribunals should ask when considering whether to adjourn an appeal.

  1. What would be the benefit of an adjournment?
  2. Why was the party not ready to proceed?
  3. What impact will an adjournment have on the other party and the operation of the tribunal system?

In this case the answer to question 1 was to enable the claimant to obtain further medical evidence. In such cases tribunals should take into account:

  • the evidence that is already before the tribunal - the EMP report was considered sufficient in this case
  • the evidence that is likely to be obtained if the proceedings are adjourned - this would have been evidence from the claimant's new GP,based on medical records rather than knowledge of the claimant.
  • how long it will take to obtain it - this would have been sent fairly quickly
  • whether the tribunal could use its expertise to compensate for the lack of additional evidence - the expertise available on a three person panel places it in a good position in such cases

Regarding question 2 it was felt that the claimant had adequate time to prepare. No explanation was given as to why the claimant changed representatives or of why nothing was done sooner to obtain evidence. Both representatives were from long-established, competent organisations.

Regarding question 3 it is primarily the interests of the claimant which are likely to be resolved when considering the value of an adjournment. The Secretary of State may be concerned, in some cases, to avoid tactical manoeuvres designed to put off the day when an overpayment has to be repaid, but that is not the case here.

It will also be exceptional for an adjournment that would otherwise be granted to be refused solely on account of the needs of the tribunal.

Child benefit

CF/84/2009 and CTC/414/2009 [2009] UKUT 134 (AAC): Entitlement following the grant of asylum

This decision confirms that this should date back to the date of the earliest claim for asylum.

Compensation recovery

CCR/1779/2009 [2009] UKUT 210 (AAC): Compensation recovery scope of appeal

An appeal against a certificate of recoverable benefits may only be made on the four grounds listed in section 11(1) of the Social Security (Recovery of benefits) Act 1997.

The claimant appealed on the ground that benefit is only recoverable from compensation for earnings lost during the relevant period. This is not one of the four grounds listed in section 11(1) so the appeal failed.

Disability living allowance

CDLA/2078/2005 [2009] UKUT 81 (AAC): Exporting DLA abroad

In the Commission of the European Communities v the European Parliament and the Council [2007] ECR I-8695 the European Court of Justice ruled that the care component of DLA, AA and carer’s allowance (CA) should be paid to people who move from the UK to another country within the European Economic Area. The court held that DLA care component, AA and CA were not special non-contributory benefits and so were exportable under EC regulation 1408/71.

This decision discusses in detail the law in relation to exporting and backdating DLA care component where the claimant is a pensioner living abroad in Germany. A decision on the mobility component is deferred pending the outcome of an upper tribunal test case.

This decision has now been reported as [2012] AACR 7.

CDLA/496/2006, CDLA/2002/2006 and CDLA/2106/2006 [2009] UKUT 286 (AAC): Exporting DLA mobility component abroad

This decision is a referral by the upper tribunal to the court of justice of the european union for a preliminary ruling on whether, following the decision of the Commission of the European Communities v the European Parliament and the Council [2007] ECR I-8695, DLA mobility component is an 'exportable' benefit.

The questions referred for a preliminary ruling are;

"1. (a) In relation to periods to which the form of Council Regulation (EEC) No 1408/71 of 14 June 1971 in force immediately before 5 May 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?

(b) If the answer to (a) is yes, what is the proper category?

(c) If the answer to (a) is no, what is the proper category for disability living allowance?

(d) If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(1)(a) or an invalidity benefit within Article 4(1)(b)?

(e) Are the answers to any of the above questions affected by the temporal limitation in point 2 of the Court's ruling in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695?

2. (a) In relation to periods to which the form of Council Regulation (EEC) No 1408/71 of 14 June 1971 in force from 5 May 2005 by virtue of Council Regulation (EC) No 647/2005 of 13 April 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?

(b) If the answer to (a) is yes, what is the proper category?

(c) If the answer to (a) is no, what is the proper category for disability living allowance?

(d) If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(1)(a) or an invalidity benefit within Article 4(1)(b)?

3. If the answers to the previous questions produce the outcome that mobility component is properly to be categorised as a special non-contributory benefit, is any other rule or principle of EC law relevant to the question of whether the United Kingdom is entitled to rely on any of the residence and presence conditions in regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 in circumstances like those of the present cases?"

This ruling has now been made as Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions - (Case C-537/09) - 5 May 2011.

The European Court of Justice has decided that DLA mobility component stands as a separate benefit to DLA care component and is classed as a special non-contributory benefit. As a result DLA mobility component cannot be exported.

CDLA/2864/2007 [2009] UKUT 124 (AAC): Temporary absence from Great Britain

This decision discusses the issue of absence from the UK for a temporary purpose as laid down in regulation 2(2)(d) of the DLA regulations. The claimant had expressed intention to live abroad for health reasons but had set a review date of six months to reconsider his situation.

This was held to be absence for a temporary purpose since he had returned to the UK following his reconsideration of his situation.

The decision was made more complex by additional evidence which indicated that the claimant might be entering into a business partnership abroad. Judge Mesher held that this was relevant to whether the decision to go abroad was for a temporary purpose but decided that the decisions related to health were the overriding ones.

"I have concluded that the Secretary of State has failed on the balance of probabilities to prove that the driving force was not the claimant's health. While trying to remain conscious of the need to ignore what actually happened, with the severe deterioration in the claimant's health, rather than a mere failure to improve, I am satisfied that as at the date of the decision under appeal the driving force of the plan to go to Greece was the claimant's health, with the business issues secondary."

CDLA/540/2008 [2009] UKUT 76 (AAC): Revisions, supersessions and reviews change of circumstances

This decision concerned a supersession on the ground of a change of circumstances. The tribunal erred by ignoring regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which requires consideration of whether the claimant could reasonably have been expected to know that a change of circumstances should be notified.

"It ought to be second nature for a tribunal hearing an appeal against a supersession decision to consider the date from which the supersession should be effective, particularly where it knows that recovery of an overpayment may be an issue."

CDLA/860/2008 [2009] UKUT 133 (AAC): Worsening of condition - increased needs

The tribunal erred in failing to apply the 3 month test when awarding an increase from middle to higher rate care component.

CDLA/3489/2008 [2009] UKUT 142 (AAC): Medical evidence

In this decision the representative cited two Commissioner's decisions, CIB/14442/96 and CDLA/15042/1996 in support of his submission that the tribunal was wrong to reject the GP's evidence, where the GP stated that the claimed difficulties were consistent with the appellant's diagnosis.

Judge Lane held that there is no rule that, where a GP adopts his patients self assessment, he must be taken to accept and agree with it unless he specifically states otherwise, adding .

"15. It is the tribunal's task to assess what weight is to be given to evidence and as a specialist tribunal is well placed to do so. Its knowledge of the constraints operating on health care professionals who write reports is more acute than that of judges sitting without a medical presence. The covering letter to the GP, the GPs manner of expressing himself, an absence of clinical findings and the context of the evidence in relation to the other evidence are all to be weighed in light of the tribunal's practical experience and specialist knowledge of the exigencies of the doctor/patient relationship. It is to be remembered, of course, that a GP is neither a lawyer nor an inquisitor, is not expected to cross-examine his patients as if her were one, and has an interest in maintaining a good relationship with the patient."

CDLA/3660/2008 [2009] UKUT 82 (AAC): Tibunal's consideration of renewals

The tribunal incorrectly superseded a decision on a renewal claim from the date of the hearing instead of from the renewal date.

CDLA/36/2009 [2009] UKUT 112 (AAC): Help with hearing

The decision concerns a deaf claimant who understood and could lip read Polish but could not understand English. A tribunal had found that the attention she required was due to a lack of language skills rather than impairment.

Judge Ward rejected this stating that "in circumstances where communication is required otherwise than in Polish, attention is likely to be needed, at least for a while, to enable the claimant to communicate notwithstanding her hearing loss."

"It would be open to a tribunal, if it considered that the conditions for an award were met, to make an award for a fixed period. Ideally one would wish to know such matters as what would be the anticipated impact of the claimant's hearing loss on the ability (including how long it would take her) to learn to make the sounds needed to communicate in a spoken language that is not her own and as to how a person with such a disability may be expected to obtain a sufficient grasp of the English sounds produced by movements of the lips in order to make the necessary correlation between what she sees the speaker's lips do and the intended meaning. "

CDLA/216/2009 [2009] UKUT 94 (AAC): Use of a shopping trolley as an artificial aid

A shopping trolley can count as an artificial aid to walking.

CDLA/217/2009: Bowel incontinence and high rate mobility

The claimant had neck and back problems as well as abdominal problems which led to "sudden attacks of diarrhoea and fear of and actual incontinence". When considering high rate mobility component the tribunal failed to consider her physical condition as a whole, including her bowel incontinence, and the degree to which she limits her walking out of doors because of her physical problems.

"It seems to me that the evidence of the claimant together with that of the GP establishes that in practice it is probable that the claimant is, on the whole, virtually unable to walk without severe discomfort caused by physical factors. These factors include not only any referred or residual effect of her neck and back problems, but also the physical and muscular effort of trying to control her bowels and the very real effects of an episode of faecal incontinence, including discomfort, soreness and so on."

CDLA/371/2009 [2009] UKUT 68 (AAC): Failure to supply a statement of reasons

A request was made by fax, within the one month time limit, for a statement of reasons. There was a delay in this request reaching the tribunal chairman so it was treated as out of time. Subsequently proof of the fax being sent was supplied though the fax was never found.

"Under regulation 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a document required to be sent to the clerk to the appeal tribunal (such as a request for a statement of reasons) is to be treated as having been sent on the day it is received by the clerk to the appeal tribunal. As proof of transmission by fax to the number held out for the purpose has been provided, I find that it is more likely than not that the faxed version of the solicitors' letter was lost in the office of the Tribunals Service. In these circumstances, the request for a statement of reasons was in time."

Despite this the District Chairman took a formal decision not to prepare a statement of reasons because the tribunal chairman stated that she would find it very difficult to supply a statement in view of the time that had elapsed.

Following this the claimant's solicitors applied to the Upper Tribunal but outside the time limit. Judge Ward however allowed the appeal.

"Under rule 21(3) of the Upper Tribunal Rules the application to the Upper Tribunal should have been made within one month of when the First-tier Tribunal refused to admit an application for permission to appeal. That was the effect of the telephone conversation of 7 January 2009 [the application was made on the 16 February 2009] in which the solicitors were told to apply to the Upper Tribunal. I have extended time because (a) the delay at this point was short; (b) given the history of the matter, there was no very clear baseline from which time started to run; (c) the solicitors had made considerable efforts earlier to advance matters; and (d) it is a matter of some concern that a claimant has been unable to obtain a statement of reasons to which he was entitled and without which he would be powerless to pursue an application for permission to appeal based on perversity, as the claimant's - at least in part - is: see R(IS)11/99. For similar reasons I consider it to be in the interests of justice for the purposes of rule 21(7) to admit the application."

The tribunal had erred in failing to supply a statement of reasons. The decision also stresses the importance of the chairman keeping adequate notes in his or her judicial notebook to enable statements to be made in such circumstances.

CDLA/544/2009 [2009] UKUT 90 (AAC): Benefitting from enhanced locomotion

In this case the claimant, who has chronic fatigue syndrome and ME, was unable to leave his bedroom other than to try to get to the bathroom.

Both the decision maker and the tribunal refused his renewal claim for high rate mobility because, with reference to section 73(8) of the Social Security Contributions and Benefits Act 1992, he did not gain benefit from time to time from enhanced facilities of locomotion.

The tribunal erred firstly because it failed to make sufficient findings of fact and to explain adequately why the previous award of the higher rate of the mobility component had not been renewed.

Secondly, the tribunal misinterpreted and misapplied section 73(8) of the Social Security Contributions and Benefit Act 1992.

The decision discusses, in some detail, the relevant case law in relation to decisions concerning benefitting from enhanced locomotion, notably R(M)2/83.

R(M)2/83 makes reference to and approves the following passage from the second edition of The Law of Social Security by A. Ogus and E. Barendt (1982) at page 184. This neatly explains who is likely to be excluded from receiving high rate mobility component because they cannot benefit from enhanced facilities of locomotion. .

"The allowance is not available to all severely disabled persons. Legislation provides that it is payable only where the invalid's condition is 'such as permits him from time to time to benefit from enhanced facilities for locomotion'. This obviously excludes human vegetables and those whom it is unsafe to move, but it is arguable that of the remainder there will be few who will not receive some benefit from the occasional sortie, and it is not easy to draw a line between the deserving and the undeserving except on some arbitrary basis."

It was however noted in this current decision that the reference to "benefit" in section 73(8) of the 1992 Act must involve some direct benefit not, as was suggested, car trips by his wife to pick up prescriptions.

CDLA/636/2009 [2009] UKUT 140 (AAC): DLA, AA, MA: Disputed medical evidence and the cause of physical symptoms

This decision raises a number of interesting points.

Firstly the tribunal erred in failing to adequately explain why it preferred the evidence in a disputed medical report.

"Having regard to the extent of those criticisms, to the part which some of the challenged material expressly played in the tribunal's statement of reasons and to the considerable weight placed on the report overall, I take the view that the tribunal's reasons were not adequate to explain its preference for the EMP's report over the claimant's own evidence. It will be appreciated that I am not saying that the tribunal could not reasonably have concluded that the EMP's report was to be preferred, but that since the report itself was so heavily contested on grounds which went some way to putting in issue the basis of the conclusions reached, those criticisms required to be addressed to some degree. In failing to do so, the tribunal made an error on a point of law."

The tribunal also erred when it held that the claimant was not entitled to the higher rate of the mobility component because it was not shown that she was suffering from a "physical disablement". In making these findings the tribunal failed to adopt the approach outlined in R(DLA)4/06.

When considering the claimant's ability to walk Deputy Judge Ovey stated that it is permissible to take account of short stops, but the stops are to be included in the time taken to cover a particular distance and so will affect the speed of walking.

With reference to questions asked by the medical panel member regarding low rate mobility component Deputy Judge Ovey held that in cases where someone does not use unfamiliar routes the test is based on hypothetical rather than actual conduct. Any answers to questions put by the tribunal about this should be considered in the light of the claimant's ability to use familiar routes and the reasons why he or she does not use unfamiliar ones.

There was also a suggestion of bias because the medical member of the tribunal had been on the previous tribunal. This was dealt with in paragraph 43.

"I accept that if the claimant had recognised him and, fearing bias, had sought to challenge him, she might have done so successfully. She would, however, have had to show what an independent and fair-minded observer would conclude was a real possibility of bias: Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] EWCA Civ 3004; [2000] Q.B. 451. It seems to me that she is unlikely to have been able to do so, since there is no reason to suppose that the medical member would have done other than consider whether the previous decision should be followed in the light of the further medical evidence. As there is in fact no evidence that the medical member even recalled that he had been involved in the previous decision, this point does not itself afford any ground for setting aside the decision."

CDLA/1162/2009 [2009] UKUT 198 (AAC): Extended civil restraint orders and tribunals

The appellant was subject to an extended civil restraint order (ECRO) in civil courts -

"If a litigant exhibits the hallmarks of persistently vexatious behaviour, a judge of the Court of Appeal or the High Court or a designated civil judge (or his appointed deputy) in the county court should consider whether to make an extended civil restraint order against him" (Bhamjee and Forsdick and Others (No. 2) [2003] EWCA Civ 1113).

He sent several letters to the tribunals service asking for permission to proceed with his DLA appeal based on the fact that he was subject to an ECRO. In fact ECROs are not applicable to tribunal proceedings but no one told the claimant this, despite his request.

The tribunal held a paper hearing and dismissed his appeal. It erred in law because it did not have the appellant's letters regarding the ECRO. As a result the appellant was denied a fair hearing because the tribunal failed to address his enquiries about whether the scope of the extended civil restraint order precluded him from attending the tribunal hearing.

"The claimant opted for a hearing on the papers, rather than an oral hearing, in July 2008. He repeatedly asked the Tribunals Service whether the extended civil restraint order precluded him from participating in the appeals process. He did not receive any answer, let alone a clear answer, to that question. If he had been told that the extended civil restraint order had no relevance to these tribunal proceedings, the claimant may have decided to change his election and have opted for an oral hearing of his appeal. There might also have been further evidence which he wished to adduce in support of his appeal."

The tribunal was under a duty to ensure that appellant was able to fully participate in the DLA appeal process.

CDLA/1291/2009 [2009[ UKUT 163 (AAC): Review for error of law

The appeal succeeded for two reasons.

Firstly there was an invalid review of the original decision because regulation 40(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008 was not complied with.

Regulation 40 gives tribunals power to review a decision on grounds of error of law. Regulation 40(4) states:

"(4) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again."

The decision appeared to have been made by tribunal chairman alone. There was no indication that other panel members were involved.

There was also an error of law in the statement of reasons regarding the claimant's supervision needs.

"In this case, the existing award in relation to the care component was based upon the appellant's need for supervision during the day. In her renewal claim pack, the appellant put both a need for attention and a need for supervision in issue. The tribunal has failed to address adequately the question of whether the appellant required supervision to avoid danger to herself; there is merely a passing reference to their conclusion on this issue. Given the basis of the earlier award, this issue required much more consideration in the statement of reasons than is given to it. The tribunal's failure to elaborate on the question of the appellant's need for supervision constitutes an error of law. It is for this reason that I set the decision aside as erroneous in law."

CDLA/1961/2009 [2009] UKUT 272 (AAC): Condition changes after the decision date

The tribunal erred in finding the claimant's mobility needs had changed based on evidence of improvement after the date of the decision.

With regard to the low rate mobility component the tribunal also failed to give sufficient reasoning for finding that a person who finds himself in unfamiliar surroundings without knowing how he got there failed to satisfy the test.

In relation to the care component the tribunal made few findings of fact other than to comment on the claimant's repeated use of alcohol. In doing so it failed to properly consider this in relation to R(DLA)6/06.

CDLA/2228/2009 [2010] UKUT 17 (AAC): Conflicting evidence

The tribunal's reasoning for preferring the evidence of a cardiac nurse over the claimant's GP was found to be flawed. This was chiefly because the nurse last saw the claimant 7 months before the date of claim whilst the GP saw the claimant just before this date. This was arguably more representative of the claimant's condition at the time of the decision.

CSDLA/136/2009 [2009] UKUT 83 (AAC): The need for a diagnosis

In R(DLA)3/06 (a decision by a tribunal of commissioners) when deciding decisions concerning children with behavioural problems, paragraph 40 states that

“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, ......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 states that, in the case of young children, this conclusion does not apply.

"It is apparent from what is said there that the Tribunal of Commissioners accepted that behaviour itself cannot be a disability. It is said that it can be the manifestation of a disability. However in my view in dealing with young children, such as the claimant, an inability to control oneself within the accepted norms of behaviour, which the Tribunal of Commissioners have appeared to use as a definition of a disability, does not of necessity demonstrate a disability. Young children whether disabled or not do not have the capacity to understand what constitutes, and confine their behaviour to, the "accepted norms of behaviour". The behaviour of any young child can go beyond what would be the "accepted norms of behaviour" in older people. A young child, due to a lack of capacity caused by age, does not have it within his power to avoid behaving as he does. It seems to me in these circumstances that the test of disability set out by the Tribunal of Commissioners in paragraph 40 cannot be applied in its terms to young children."

In such cases it is legitimate for a tribunal to look to see whether or not there was a diagnosis of any physical or mental condition in relation to the claimant which could give rise to his behaviour as a starting point.

CSDLA/365/2009 [2009] UKUT 185 (AAC): Res judicata - tribunal's attempt to prevent its decision being reviewed for error of law

The claimant had appealed against a decision to award her the lower rate of the mobility component and the middle rate care component of disability living allowance.

The appeal was allowed on the grounds that the statement of reasons was unclear as to the tribunal's consideration of the claimant's night-time attention needs. The tribunal also did not fairly reflect the evidence from the claimant's social worker.

Judge May noted that the statement of reasons, like a number of others, attempts to pre-empt the tribunal decision being reviewed for error of law under Regulation 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008.

"The tribunal on the facts found considered it possible, but unlikely, another tribunal would conclude on the facts found night care was necessary but specifically considered whether or not their decision was wrong in law and should be set aside on that basis. They did not so consider, which matter was now res judicatta [already judged with no possible of further appeal]."

Though not considered as an error of law Judge May provided the following clarification on this practice:

"When a Statement of Reasons is being given under Regulation 34 of the Rules [Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008] the chairman is not at that stage dealing with any application for permission to appeal. A decision as to whether or not to review a decision under Regulation 40 can only be done once an application for permission has been received. Accordingly it was not competent for the chairman in this case on drafting the Statement of Reasons to consider whether or not the decision of the tribunal was wrong in law and whether it should be reviewed. It is further not possible for him at the start of writing a Statement of Reasons to prevent such a review being carried out."

Judge May also agrees with the claimant's representative that the inclusion of a latin legal term in a statement of reasons is unhelpful and confusing.

"..particularly since a duty judge will have the opportunity to decide whether the decision should be set aside, therefore the matter can hardly be termed 'res judicata' at this stage in the judicial process."

Employment and support allowance

CSE/456/2009 [2009] UKUT 230 (AAC): Activities which are so habitual as to be second nature

This Scottish ESA decision rejects the claimant's appeal by finding that, based on its reasoning, the tribunal was entitled to accept the evidence of the examining practitioner.

The descriptors considered were:

  • Descriptor 8(d) - Cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken.
  • Descriptor 14(c) - Frequently forgets or loses concentration to such an extent that overall day to day life can only be successfully managed with pre-planning, such as making a daily written list of all tasks forming part of daily life that are to be completed.
  • Descriptor 15(d) - Takes one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar."

In relation to Descriptor 14(c) it was stated that "the descriptor is related to the management of overall day to day life. To apply it means looking at the evidence of such management as a whole."This includes "tasks, which are so habitual as to be second nature, such as getting up or dressing"

In relation to Descriptor 15(d) the tribunal erred slightly in its focus on the scope of the descriptor and in discussions regarding age comparators but not sufficiently to consider this an error of law.

"In the Secretary of State's submission at paragraph 12 and the response to that submission by the claimant, there are submissions in relation to the scope of this descriptor. However, I do not consider that it is necessary to say more than this. I am satisfied that in the context of the tribunal's acceptance of the examining medical practitioner's report and the limited nature of the other evidence before them they made a reasonable judgement on this descriptor. I have not been directed to any evidence before the tribunal which would justify satisfaction of this descriptor. Whilst the tribunal met the claimant's argument in relation to motivation, that is not what the descriptor is about. Neither was it necessary to go into dealing with the comparator on an age basis as that was not focussed in evidence before the tribunal. However, in my view the comments on these matters cannot be said to be a material error in law."

General

CG/2786/2008 [2009] UKUT 77 (AAC): Recovery of overpayments failure to disclose

In Hinchy v Secretary of State for Work and Pensions [2005], a House of Lords decision, it was decided that a claimant is under a duty to inform the relevant office where a decision about one benefit may affect entitlement to another. R(A)2/06 discusses situations where the duty to disclose may be modified.

Both those decisions and the issues contained within them are discussed in this case. The claimant was on carer's allowance and was subsequently awarded her retirement pension. She informed her local office, who passed this information onto the carer's allowance unit.

When she received a further increase based on her husband's pension she failed to disclose because the social security office had closed. However at some point her husband did phone the pension service and mention his wife's carer's allowance award.

Judge Williams considered that the claimant had a duty to inform under Hinchy. Her old order book did in fact tell her who to contact and in what circumstances. This duty remained with the claimant regardless of the internal administrative structure of the DWP or the efficiency of any computer systems being used. The duty remained even when the claimant was no longer paid by order book, instead receiving payments through her bank account.

However this duty to inform was initially modified because she had successfully notified her first pension award through her local office. At the time of her second award the office was closed, although her husband had phoned the pension service.

The tribunal erred in not considering whether the duty to inform had been modified in this second case because the claimant had successfully used indirect notification in the past.

This might also have an effect on the period of overpayment in question. There is a continuing duty to notify where a claimant has informed a different office than the one dealing with the benefit in circumstances where it is reasonable to expect this information to be passed on.

What this means is that the claimant, after a period of time, should have checked that the carer's allowance unit had received notification of her change in circumstances and taken steps to correct this if they hadn't. However until that period of time has elapsed the claimant has discharged her duty and should not be liable for any overpayment until such point as she was required to make further enquiries.

"The tribunal must decide on all the evidence whether the Secretary of State has satisfied it that that duty remained unmodified or undischarged despite the evidence of Mrs G and her husband that they considered that they had discharged the duty, as modified orally by the Secretary of State, by the telephone call or calls that took place at the time her pension was increased. If the tribunal is satisfied that the duty was not modified, then it must find as fact whether Mrs G was aware of the increased pension from the date it was first payable or from some later date. If the tribunal is satisfied that the duty was modified and discharged at the time the increased pension was payable, then it must consider how long it remained discharged and if and when Mrs G should have taken further action to stop the overpayment."

Also to be considered by the new tribunal was whether the carers allowance unit had, at some point, all the information necessary to make the correct decision, regardless of the claimant's duty to inform.

CG/244/2009 [2009] UKUT 77 (AAC): Payments from earnings to a fellow worker

The tribunal failed to make findings on the duration of the job-share arrangement and the terms of that arrangement in terms of the financial split.

CG/969/2009 [2009] UKUT 132 (AAC): Recovery of overpayments failure to disclose

The claimant was on carer's allowance and found work. Her earnings exceeded the allowable earnings limit for attendance allowance. Although she informed the Jobcentre Lone Parent Adviser she failed to inform the Carer's Allowance Unit in Preston. Judge Wikeley upheld the tribunals decision that she had failed to disclose her earnings.

The decision usefully surveys the relevant case law in relation to failure to disclose and, as Judge Wikeley states, needs to be read as a whole.

CG/1016/2009 [2010] UKUT 13 (AAC): Bereavement benefits - deceased spouse in receipt of 'ABL' retirement pension

The claimant's deceased wife was in receipt of an 'ABL' retirement pension, which is the DWP's 'administrative' name for a composite pension consisting of a category A pension with a top-up of category B pension.

The claimant argued that his wife should be treated as having been in receipt of a Category B pension at the time of her death, which would entitle him to bereavement benefits based on her contributions. The tribunal allowed the appeal but Deputy Judge Paynes, after analysing the relevant legislation, and R(G)1/06 held that the claimant's wife was in receipt of Category A pension at the time of her death, so that the claimant does not satisfy the conditions for entitlement to a bereavement payment.

Home responsibilities protection

Housing benefit

CH/4432/2006 [2009] UKUT 108 (AAC): Exempt accommodation

This decision covers appeals made by 8 claimants who lived in accommodation belonging to Empower a housing association. The claimants argued that their housing benefit should be assessed under the exempt accommodation rules.

In such cases a council cannot restrict the amount of rent eligible for housing benefit unless there is suitable accommodation available to the claimant and it is reasonable to expect them to move. Whether the exempt accommodation rules apply is dependent on the care and support services that Empower supplies or is under a contractual duty supply.

All the claimants have been assessed as requiring 24 hour care, supervision and support to enable them to live as independently as reasonably possible in their accommodation. This care, supervision and support is provided by Chorley Domiciliary Service ("CDS"), which is an agency of Lancashire County Council ("LCC"). LCC is under a statutory duty to provide accommodation, care and support for the claimants.

It was argued on behalf of the claimants that the housing related support which CDS provides is provided "on behalf of" Empower and also that Empower itself (i.e. through its own employees) provides some housing related support to the claimants.

The first argument was rejected as it is Lancashire County Council who commission CDS to provide care and support. Lancashire County Council does this because it has a statutory duty to do so. It is not contracted to do this by Empower.

The appeals all succeeded on the second argument.

"I do, on balance, think that the service provided by Empower of considering proactively what physical improvements or alterations to the properties could usefully be made, and of undertaking responsibility for arranging work (mainly adaptations desirable in the light of the Claimants' disability, and small maintenance items) falling outside its repair and maintenance obligations, amounted to the provision of support to a more than minimal extent.

Although CDS would in practice have had to arrange for this work to be done if Empower did not, Empower is likely to have had expertise and connections with contractors which CDS did not."

Reference is made to Judge Turnbull's earlier decision on exempt accommodation - R(H)2/07.

CH/150/2007 [2009] UKUT 107 (AAC): Exempt accommodation

CHA is a housing association providing accommodation for two claimants. Care, support and supervision is provided to the claimants by care staff employed by Dawaking Care Ltd, who have been commissioned by Lancashire County Council (LCC).

It was argued on behalf of the claimants that the definition of "exempt accommodation" was satisfied in three ways:

  • that the housing related support which Dawaking provides is provided "on behalf of" CHA;
  • that because LCC "commissioned" CHA to provide the accommodation and Dawaking to provide the care etc, LCC provides the accommodation, and the care etc. is provided on LCC'S behalf;
  • that although Dawaking provides the care and supervision, and the bulk of the support, there is some housing related support which is provided by CHA itself (i.e. either by its own employees, or by a property repair company on its behalf).

Points one and two failed but Judge Turnbull found that CHA provided support to the claimants in the form of undertaking repair and maintenance works, undertaking adaptations to meet the claimants' needs and advising and assisting in relation to welfare benefits.

None of this support, was great compared to that provided by Dawaking, but it was more than minimal.

In finding that repair, maintenance works and adaptations can count as support Judge Turnbull suggested that this would apply if:

  • the tenancy agreement imposes unusually onerous repairing and maintenance obligations on the landlord (e.g. requiring the tenant's own room to be decorated by the landlord, or requiring the tenant's own equipment to be repaired).
  • owing to the nature of the tenant's disabilities, performance of the landlord's repairing obligations imposes a materially greater burden on the landlord than would otherwise be the case.
  • the landlord voluntarily goes beyond its obligations (e.g. routinely repairs damage caused by the tenant; or redecorates the tenant's own room, or routinely carries out works in a manner designed specifically to take into account the tenant's disabilities).

The carrying out of repairs or maintenance is not prevented from being support merely because the landlord is compensated for it or if the landlord pays to have such work carried out.

Judge Turnbull ends the decision by discussing the time consuming absurdity of attempting to ascertain whether the exempt accommodation rules apply.

"It seems absurd that the very important question whether the rent eligible for housing benefit is limited to that assessed by a rent officer should depend on whether the landlord can be said to provide some degree of support.

It is difficult to see why a landlord which provides no support should be in a different position from one which provides some, albeit not very much, support.

The factors which may render supported housing more expensive (e.g. the need for a room to accommodate an overnight carer), and so justify the absence of the usual restriction on the rent, are present whether the support is provided by the landlord or by some other person or body.

In addition, if I am adopting the right approach to resolving the issue whether the landlord provides support, it will often be necessary to investigate the landlord's activities in considerable detail, which absorbs an enormous amount of the parties' time and money, and judicial time, and even then there is at the end of the day room for difference of opinion as to the correct outcome.

It cannot be sensible to have that as the test unless no more practicable one can be found."

This decision has been reported as [2010] AACR 2.

CH/761/2007 [2009] UKUT 247 (AAC): Recovery of overpayments from landlord where money paid to an agent

R(H)10/07 states that for the purposes of section 75 of the Social Security Administration Act 1992. A landlord's agent could be the person to whom benefit is paid. CH/761/2007 states that under section 75 both the landlord and agent should be considered to be 'a person to whom benefit is paid' in situations where housing benefit is paid direct to an agent acting for a landlord.

However the decision under appeal was made in 2005, before the housing benefit regulations were amended in 2006. Under the new form of the regulations an overpayment rising from a failure to disclose or misrepresentation by the claimant, would be recoverable from him or her alone.

This decision has now been reported as [2010] AACR 16.

CH/4018/2007 [2009] UKUT 116 (AAC): Disabled student and additional room for carer

In this decision a student needed a full time carer. As a result, the claimant needed a two bedroom property. The university did not have such accommodation available and so provided the claimant with two adjacent rooms, each with en-suite facilities, so that the carer could be on call 24 hours a day.

The decision states that the adjacent additional room for the carer is part of the dwelling occupied as the student's home.

CH/2036/2008 [2009] UKUT 162 (AAC): Unreasonable rent and exempt accommodation

This decision considers restrictions on rent increases as they applied to 'exempt' accommodation under the old regulation 12 of the Housing Benefit (General) Regulations 1987.

This regulation requires that the relevant authority, when considering such rent increases must consider whether 'the increase is unreasonably high'. In so doing it must have regard in particular to: 'the level of increases for suitable alternative accommodation'.

If it considers that an increase is unreasonably high, then it is required either to ignore it (that is, to take away the full amount of the increase) or reduce the amount.

The main approach adopted by the council and the tribunal was to interpret the 'level of increases' by reference to percentage increases from the base rent rather than in terms of a cash increase.

Judge Williams found that when considering reasonableness:

"... the regulation must be interpreted as involving consideration of both aspects ... In other words, it is not enough to consider the increase simply as a percentage increase from the base rent (the rent before the increase is applied, taken in isolation from any other information). It must also be considered as a cash sum and compared for reasonableness to the equivalent weekly or other rents payable, after the increase, in comparator accommodation. I take that view in particular because the power in regulation 12 is a power to control individual rent increases given to local authorities and, on appeal, to local tribunals. It is a power to stop individual abusive claims. It is not a power to set a national guide figure for rent increases .."

The tribunal also erred in failing to consider the issue of security of tenure in relation to regulation 12 because it stated that this was "not a relevant issue".

CH/2337/2008 [2009] UKUT 67 (AAC): Occupation of the home, two homes and temporary absence

In this decision a council was wrong to refer the claimant's rent to the Rent Service because there was only one occupier of her dwelling. This decision was prompted when her son became a full time student. Judge Williams found that at all times relevant to this appeal he normally occupied as his home the dwelling occupied by his mother.

He was during that period occupying as a non-dependant within the scope of regulation 74(7) of the Housing Benefit Regulations 2006.

This decision has now been reported as R(H)8/09.

CH/3524/2008 [2009] UKUT 72 (AAC): Increase in HB/CTB - award of another benefit

This decision concerns the increase in housing benefit and council tax benefit from the dates on which the claimant became entitled to the relevant rates of disability living allowance. The relevant regulations are regulation 7(2)(i) and 8(14) of the Housing Benefit and Council Tax Benefit (Decisions & Appeals) Regulations 2001.

CH/3670/2008 [2009] UKUT 96 (AAC): Notional capital

This decision discusses the treatment of notional capital in circumstances where the claimant has been declared bankrupt.

CH/200/2009 [2009] UKUT 109 (AAC): Exempt accommodation

In this decision Judge Turnbull upheld the decision of the tribunal that Golden Lane Housing Ltd were providing support so as to satisfy the exempt accommodation rules.

CH/225/2009 [2009] UKUT 289 (AAC): Recoverable overpayment and underlying entitlement

The claimant had been in receipt of housing benefit as a lone parent, which was terminated when it was discovered that her husband had been living with her and was also working. The local authority decided that she had been overpaid almost £60,000 and that this amount was recoverable from her.

The claimant's appeal regarding cohabitation was rejected but the tribunal erred in failing to consider the applicability of regulation 104(1) of the Housing Benefit Regulations 2006.

This regulation requires the Authority to deduct any amount of HB which should have been determined to be payable in respect of the whole or part of the overpayment period on the basis of the claim as it would have appeared had any misrepresentation or failure to disclose been remedied before the decision and on the basis of the claim as it would have appeared if any change of circumstances had been notified at the time that change occurred.

In this case, the husband's wages had been fully disclosed before the decision maker had made the decision, and should undoubtedly have been taken into account. Also a child had been born to the couple during the relevant period. As a result, Judge Lane made a substitute decision that the amount of recoverable overpayment was approximately £3,500.

CH/392/2009 [2009] UKUT 155 (AAC): Start of entitlement to council tax benefit following an award of state pension credit

This case discusses and attempts to clarify the law in relation to the award of council tax benefit following an award of state pension credit. It identifies five stages when deciding this issue.

  1. The claimant must make a claim for council tax benefit, which she did.
  2. The date of claim is determined by regulation 53(5)(a) of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (SI 2006/216). This allows that if a council tax benefit claim is submitted within one month of the claim for state pension credit, the date of the CTB claim is the date from which the award of SPC begins. In this case, the claim was made within the required one month time frame. As state pension credit was awarded from 6 July 2006 this is also the date of the council tax benefit claim.
  3. The earliest date of entitlement for council tax benefit is determined by regulations 53(1ZA) and 56 of SI 2006/216. At the time of the claim this was 12 months before the actual date of claim but is now 3 months. The earliest date of entitlement in this case would be 6 July 2005.
  4. The actual date on which entitlement is to begin is determined by regulation 48 of SI 2006/216. This is the first day of the benefit week following the first day in respect of which the claim was made. The claimant may specify a date from which the claim is made or the local authority may take the most favourable date (the 12 month maximum). In this case, the claimant wanted to claim council tax benefit from 2005 so Judge Jacobs ruled that 6 July 2005 was the actual date on which entitlement starts.

This decision has been superseded by the Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) Regulations 2010 (SI 2010/2449).

CH/448/2009 [2009] UKUT 176 (AAC): Death of claimant

In this decision housing benefit received by the landlord after the notification of a claimant's death by the DWP to the local authority was not recoverable. The local authority was in (official) error because it could have acted on the information. The overpayment of HB before the notification was recoverable from the landlord.

CH/577/2009 [2009] UKUT 150 (AAC): Exempt accommodation and contrived tenancies

This (long) decision discusses a case where a not for profit company was set up to take advantage of the supporting people scheme and subsequently from the exempt accommodation (see R(H)7/07) rules. Salford Council argued that the seven tenancies involved were contrived and that the tenants did not require support and so did not fall under the exempt accommodation rules.

The tribunal thought otherwise and ruled that all the tenancies were exempt accommodation. Judge Turnbull agreed with this in all save one tenancy. None of the tenancies were held to be contrived.

The decision, as in most of these cases, is complex and will take careful reading because it examines in detail the purpose of and services provided by the companies involved.

CH/978/2009 [2010] UKUT 12 (AAC): Defective claims

On submitting a housing benefit claim form in November 2007 the claimant ticked a box saying that she did not have any payslips required but provided a letter from her employer confirming her expected hours and rate of pay.

The local authority wrote to the claimant asking her to send wage slips as soon as she got them and stating that if she did not reply within a month it would assume that she didn't wish to proceed with her application and the claim would be withdrawn. The claimant did not reply and on 20 December 2007 the local authority wrote to her to say that her claim had been unsuccessful.

The claimant did not appeal against this decision but reclaimed housing benefit in March 2008 when she was awarded income support requesting that it be backdated to the date of the previous claim.

The local authority refused the backdating request. This was upheld by the tribunal following an appeal made in May 2008.

Judge Mesher found the following:

  • It was arguable that the claimant's May 2008 appeal should have been treated as including an appeal against the decision dated 20 December 2007 as well as against the decision dated 23 April 2008 refusing backdating of the April 2008 claim to 3 December 2007 or before.
  • The tribunal erred in law because it should have treated the appeal against the April 2008 decision as an appeal against the December 2007 decision because it was within the thirteen month extended time limit for appeal.
  • The local authority was wrong to say that the claim submitted in November 2007 was defective. The claimant was only required to provide payslips that she had been issued with. Where these were not issued under 29(2)(b) of the Housing Benefit Regulations 2006, it was up to the local authority to obtain an estimate of earnings where needed from the employer. The employer's letter provided a satisfactory estimate of earnings. This not only reinforces the error in law made by the tribunal in not recording a decision on the appeal against the December 2007 decision but also "... indicates a separate error in determining the appeal against the decision of 23 April 2008 on the basis that the Council had been entitled to disallow the claim made on 16 November 2007 as defective."

Judge Mesher set aside the decision of the tribunal and substituted his own decision to the effect that the claimant was entitled to housing benefit from 3 December 2007.

CH/1986/2009 [2010] UKUT 7 (AAC): Temporary absence from home - medical treatment

Regulation 7(16)(c)(iii) of the Housing Benefit regulations 2006 allows benefit to be paid for up to 52 weeks where the claimant (or his partner or dependent child) is undergoing 'medical treatment, or medically approved convalescence, in accommodation other than residential accommodation.

This decision states that there needs to be a link between the reason for the absence from home and the medical treatment being undergone.

This did not apply to the claimant who had been sentenced to a prison term of 15 months but was released fifteen weeks later although throughout the period of imprisonment he suffered from Crohn's Disease and was on medication.

This decision has now been reported as [2010] AACR 26.

CH/1987/2009 [2010] UKUT 11 (AAC): Capital - whether local authority bound by DWP income support decision

This decision considers the extent to which a housing benefit decision is bound by decisions made by the DWP when a claimant is found to have made a misrepresentation.

R v Housing Benefit Review Board of Penwith DC ex p. Menear (1991) is the authority for the proposition that the housing benefit decision-maker is bound by a DWP decision on income and capital issues.

However R v South Ribble Borough Council, ex p. Hamilton (2000) held that -

"... where fraud has underlain the income support assessment the reasoning no longer applies. The income support assessment is no longer a valid and reliable basis for the housing benefit claim ... this is particularly so where fraud only becomes apparent after the award of income support."

In setting aside the tribunal's decision - in part because it failed to consider the arguments as to the impact of the income support award and of the judgments in Menear and Hamilton - Judge Wikeley held that, in light of Hamilton:

".. if the local authority can show on the balance of probabilities that the income support awards at the material times were obtained by fraud or dishonesty, then it can show that the award of income support underpinning the awards of housing benefit and council tax benefit was vitiated by such fraud or dishonesty."

CH/2873/2009 [2010] UKUT 28 (AAC): Tribunal procedure and practice - paper hearing

This decision considers the correct approach that tribunals should take when considering paper hearings - particularly situations where adjournment should be considered in the case of vulnerable claimants - in this case the claimant had ADHD .

Judge Jacobs emphasises that a tribunal exercising its discretion as to whether to deal with a case without an oral hearing or adjourn must make the decision in light of the overriding objective set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as listed in paragraph 13.

Incapacity benefit

CIB/1222/2008 [2010] UKUT 20 (AAC): Cases where additional treatment not sought

Where a tribunal makes an inference about the severity of a condition because of the absence of additional treatment it should indicate in the statement of reasons the treatment it expects the claimant to be receiving.

The tribunal also failed to make a number of other findings. There were:

  • findings on the recorded observations of the EMP which were the subject of complaints made by the claimant.
  • findings about the physiotherapy or other treatment the claimant was currently receiving,which would have informed a recommendation for additional treatment.
  • findings related to treatment with morphine patches which would have given some indication of the claimant's level of pain.

CIB/3788/2008 [2009] UKUT 61 (AAC): Tribunal chair telephones the surgery of the claimant's GP

A question arose concerning the authenticity of two pieces of medical evidence. The claimant's first appeal was adjourned to give her a chance to attend an oral hearing and provide proof of authenticity.

The claimant failed to attend the new hearing and the tribunal dismissed the appeal. The tribunal erred because the chair telephoned the surgery of the claimant's GP to enquire about the evidence letters. Because the appeal was a paper hearing it further erred in not putting its findings to the appellant.

The tribunal should have taken one of three options:

  1. It could have proceeded with the hearing, decided that the authenticity of the letters had not been established, then considered the rest of the evidence and decided whether or not to allow or dismiss the appeal.
  2. It could have asked the tribunal clerk at the hearing to make a telephone enquiries to the surgery. Depending on the outcome of such an enquiry, the tribunal could then have proceeded either to decide the appeal or to adjourn it for the appellant to comment on the evidence obtained through the clerk.
  3. It could have adjourned the appeal again and made further enquiries, for example instructing a tribunal clerk to write to the surgery. The case would then have been re-listed for a third hearing.

CIB/3823/2008 [2009] UKUT 120 (AAC): Recovery of overpayments failure to disclose

In this decision the tribunal erred because it did not fully consider whether the claimant had failed to disclose. In particular Judge Lane highlighted the inadequacy of the information the DWP supplied to the claimant regarding permitted work, which was out of date.

"24. The central problem in the appeal, which the tribunal did not get to grips with, was that there was a change in the permitted work scheme right before the appellant resumed work. The Secretary of State explained the new scheme, but relied on BF1014 - Notes 2003 to show that the appellant could reasonably be expected to disclose her change of circumstance.

These notes do state unambiguously that claimants must inform the department if they start work or even think about starting any work, but they relate to the previous scheme. They do not, however, reflect the new scheme under which it is not necessary for a claimant to inform the Department if he starts work. The Secretary of State did not supply the fact sheet informing claimants about the new scheme and their duties in relation to it."

CIB/736/2009 [2010] UKUT 5 (AAC): Exceptional circumstances and part time work

This decision states that regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 - substantial risk to the mental or physical health of any person if [s]he were found capable of work - may not apply if the claimant can do part time work.

Regulation 27(b) does not apply if a claimant can undertake work for a 'reasonable number of hours' without substantial risk to his or her mental or physical health. It is up to the tribunal to decide what constitutes a 'reasonable number of hours. The primary factor when determining this is the existence of a real possibility of obtaining work for that reduced number of hours or pattern of work.

CIB/927/2009 [2009] UKUT 123 (AAC): Incapacity benefits attending medical examination

This decision discusses good cause for non attendance of a medical.

CIB/946/2009 [2009] UKUT 144 (AAC): Inclusion of misleading old medical report

A tribunal erred in placing too much importance on the evidence of an old medical report (dated 8 February 2006). The claimant had already successfully appealed against the adverse decision which followed this report but details of the appeal and the medical evidence that he had supplied were not placed before the tribunal.

This first error led to a second error. The tribunal ought to have started from the basis that the claimant had an existing award and that it was for the Department to justify its supersession decision by showing that there was a relevant change of circumstances.

Judge Ovey went on to make some comments about a subsequent medical examination held on the 14 August 2008. The claimant did not understand that indirect questioning is used in cases involving mental descriptors. The judge was concerned that the tribunal did not appreciate this.

"It is evident that the claimant was perfectly correct in saying in his appeal letter that certain questions had not been asked and it is understandable that if he was not aware of the indirect technique he should have made that point. The paragraph in which the tribunal refers to the apparent casting of aspersions by the claimant seems to imply that the tribunal regarded itself as having to choose between the claimant's evidence that questions were not asked and the nurse's completion of the form as if they had been. That was a false dichotomy; the claimant correctly said that questions were not asked and the nurse may well have filled in the form appropriately, professionally and honestly as the tribunal found. I am left with a serious concern that the tribunal reached its decision on the basis of a demonstrably unjustified assessment of the claimant's credibility, in whole or in part. If necessary, I should regard that as a further error of law requiring the decision to be set aside, on the ground that the tribunal gave no adequate reasons for what appear to have been adverse findings about the claimant's credibility."

Judge Ovey then stressed the need for care in the completion of electronic 85s.

"In my view, there are justifiable objections to the phrases "occasionally can easily" do housework, use the washing machine, iron, use the oven and other cooking appliances or cut the lawn. Those statements appear primarily to be directed to physical abilities, which the claimant says was the context in which the relevant questions were asked and (to the extent that they are used at all) are used in the mental health assessment only in support of the conclusion that the claimant cares about his appearance and living conditions. Since the obvious meaning is that usually the claimant cannot easily do housework, use the washing machine or iron, it is difficult to see what useful evidence they provide. It is also difficult to see why these statements are included in the description of a typical day, unless it is to make the point that a typical day would not include the occasional activities of housework and the other matters so described."

Finally paragraph 23 draws attention to a number of points which raise questions about the accuracy of the 2008 medical assessment. These include incorrect reporting of drug dosage and conflicting statements as well as misunderstanding what the claimant said and failing to record statements he made.

CIB/1048/2009 [2009] UKUT 196 (AAC): Tribunal procedure and practice (including UT) evidence

A tribunal had disallowed the appellant's appeal against the Secretary of State's decision that she was not entitled to Incapacity Credits from and including 25/02/08 because she was no longer incapable of work, having failed to score sufficient points to pass a Personal Capability Assessment ('PCA') carried out on 14/1/08. The appellant had had a previous PCA assessment but that the documents relating to it were not currently available, but could be obtained.

The appellant's representative specifically asked the tribunal to consider the lack of the previous PCA and put a number of legal arguments on this issue to the tribunal but the tribunal failed to address this in its Statement of Reasons.

Judge Lane found that, in this decision the tribunal should have adjourned to allow time for the old PCA assessment to be obtained.

"In many cases, the only way for an appellant to get the previous report placed before the tribunal will be for the tribunal itself to require its production. It will usually be appropriate for the tribunal to adjourn to obtain the previous reports, not only in order to fulfil its inquisitorial duty but also to maintain equality of arms between the appellant and the Secretary of State. There can, however, be no absolute rule, given the widely differing factual situations that arise. A significant change of circumstances since the previous report (an operation, for example, or a new medication that satisfactorily controls the condition causing the appellant's disability) may lead the tribunal to the conclusion that the previous report is insufficiently relevant to justify a delay in acquiring it. If the tribunal decides not to adjourn, their reasons must be clearly discernible from their Statement of Reasons, and sufficient to justify their decision in terms of affording the appellant a fair hearing."

However if the claimant has a long standing condition which is unlikely to improve a tribunal is not obligated to allow the appeal if a past medical report is unobtainable.

Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 gives the Secretary of State the discretion to supersede an incapacity benefit decision where a fresh PCA report is produced. A previous report may be potentially relevant because it shows that the fresh report is "neither accurate nor a sufficient basis for superseding the existing award." But it does not follow that an appeal can be allowed if the report is not produced.

"The question must be looked at in the context of regulation 6(2)(g). A previous report may be irretrievably lost or may no longer exist, but it is no longer necessary [for the] Secretary of State to show a change of circumstance other than the fresh PCA in order to supersede an existing award. The relevance of the previous report lies only in its capacity to cast doubt on the accuracy and sufficiency of the fresh one. The tribunal may consider, having regard to all of the evidence available, that the strength of the Secretary of State's case is such that his decision to supersede was sustainable on the balance of probabilities."

CIB/1248/2009 [2009] UKUT 127 (AAC): IB 85 amended by another doctor

The decision concerns a case where an IB85 medical report had subsequently been amended and signed by another doctor. The tribunal failed to investigate this fully.

"In the present case the tribunal had before it an IB85 based on an examination carried out by Dr Mangrolia in March 2008 but signed off by Dr Mehta in June 2008. It had no evidence before it as to the nature of the "reworking" which had been carried out. It was incumbent on the tribunal at the very least to adjourn to obtain a full explanation of that process, given the challenge that had been made to the status of the report. Its failure to do so and its purported reliance on the 2008 IB85 report amounted to an error of law."

CIB/1612/2009 [2009[ UKUT 229 (AAC): Incapacity benefits activity 14: consciousness - stress related seizures

Activity 14 applies to stress related seizures because the seizure itself is physical in origin.

"Although the trigger for the attack may be stress, the mechanism that causes the blackout can only be physical, and the effect is also physical."

CIB/1639/2009 [2009] UKUT 208 (AAC): Incapacity benefits medical evidence

This appeal was allowed because the tribunal erred in failing to provide reasons for their conclusion that the claimant could "manage 200 metres before experiencing severe discomfort".

The decision also discussed the use of evidence from a claim to one benefit in a claim to different benefit. In this case the claimant's representative cited CDLA/2195/2008 and R(M)2/92 as part of their argument.

Judge Pacey followed CSIB/60/1996 is good law, which states that DLA case law has no direct bearing on incapacity adjudication in relation to definitions of "severe discomfort”.

However Judge Pacey goes on to state that the fact that the relevant legislative provisions [for both benefits] are materially different does not prevent either party to an appeal from relying upon evidence produced in connection with another benefit.

"The essential questions are whether that evidence is relevant and material. A successful claim or otherwise to one benefit is not determinative in relation to another but, depending upon the quality of that evidence and the weight to be attached to it, it may be persuasive for or against a claimant. For example a claimant may wish to cite, as evidence in his or her favour, an incapacity benefit medical report in which the medical adviser indicated relevant functional restrictions or walking difficulties. In such a case the medical report would be evidence before the tribunal, to be evaluated in the context of the totality of the evidence. What the tribunal, to my mind, would be interested in in such a case would be the views of the medical adviser and the evidence (for example clinical findings and/or the claimant's account of his or her routine daily activities) which led to the formation of those views. The same might hold equally good for a decision maker in deciding a claim to disability living allowance by having regard to an incapacity benefit medical report. In short there is no prohibition on the statutory adjudicating authorities having regard to evidence obtained in connection with one benefit when considering a claim to or an appeal in respect of another benefit. Such evidence must, however, always be viewed in the context of the evidence as a whole and must be used with particular caution, bearing in mind that the legislative framework will inevitably be different."

CIB/2141/2009 [2009] UKUT 273 (AAC): Examinations by overseas doctors

This concerns a case where the claimant had a medical examination in the Republic of Ireland carried out on behalf of the DWP.

Judge Wikely ascertained that, apart from Spain,no formal training is given to examining doctors in other countries although doctors receive a copy of the questionnaire completed by the claimant, a blank report form and a detailed guidance note on how to complete the report.

CIB/4445/2004 considers the correct approach in cases where examinations are made by non UK doctors.

"...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."

In this case the claimant complained about the quality of the medical examination. Firstly the examining doctor appeared to be unfamiliar with the form supplied (IB-N-54C). The completed form was also returned with the wrong surname and stated incorrectly that the claimant did embroidery. There were also issues about the time spent on the examination, which were not recorded.

It was suggested by Judge Wikely that the Secretary of State might wish to consider reviewing the IB-N-54C form, or its equivalent for employment and support allowance, to ensure it is 'fully fit for purpose'.

This appeal was successful because the tribunal had not adequately addressed the issue of the variability of her condition in its reasoning and provided in adequate reasons for rejecting the appellant's account of her difficulties with sitting, standing and walking and for dismissing her challenges to the examining doctor's report.

As the Secretary of State's representative noted that there were inconsistencies in the evidence regarding variability it was suggested that the Secretary of State should make a supplementary submission for the benefit of the new tribunal which addresses this apparent inconsistency. In particular, that further submission should make it clear whether or not it is conceded that the examining doctor addressed the question of variability adequately.

CSIB/261/2009: Applications for judicial review in Scotland

Applications for judicial review in Scotland must be made to the Court of Session not the Upper Tribunal.

CSIB/307/2009 [2009] UKUT 213 (AAC): Incapacity benefits mental health descriptor 15(g)

This decision concerns descriptor 15(g) of the Personal Capability Assessment which reads:

"agitation confusion or forgetfulness has resulted in potentially dangerous accidents in the three months before the day in respect to which it falls to be determined whether (the claimant) is incapable of work for the purposes of entitlement to any benefit, allowance or advantage."

The claimant contended that impulsively hitting his head with a lampshade was an accident because it was not premeditated. Both the tribunal and Judge Gamble disagreed.

Following CAO v Faulds (a decision of the House of Lords), R(I)1/00 Judge Gamble states:

"I hold that the lampshade episode cannot be considered an accident in the ordinary sense of that word and indeed neither can any act of deliberate or wilful self-harm. Secondly, in CAO v Faulds, Lord Clyde, also on p394 goes on to discuss the situation where an intentional act perpetrated by a third party on a claimant can nonetheless constitute an accident on the basis that it was an unexpected event from a claimant's point of view as the victim of that act. However, he then states on p395...

"at the least, the accident cannot be something which (the victim) intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on such action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or mishap was something which was not in any way wanted or intended. It was not meant to happen."

The claimant's deliberate act of self-harm with the lampshade was therefore not considered to be an "accident" for the purposes of descriptor 15(g).

CSIB/331/2009 [2009] UKUT 224 (AAC): Tribunal review of decisions

This decision outlines the proper procedure to be followed by First-tier Judges when reviewing a decision and subsequently amending a Statement of Reasons.

The claimant appealed a decision to supersede her entitlement to incapacity benefit to the first tier tribunal chaired by a fee-paid chairman. At the appeal hearing the tribunal was asked to consider a case for Incapacity Benefit under Regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995. The original Statement of Reasons, made no mention of a consideration of that case. The lower tribunal appeal was refused and an application was made to the upper tribunal.

The tribunal subsequently issued an additional Statement of Reasons, signed by the original chairman, stating that although the regulation 27 issue was considered it was accidentally not included in the Statement of Reasons and that under .regulation 40 of the First Tier Tribunal (Social Entitlement Chamber) Rules 2008 they have now been amended.

A further Decision Notice was issued on 8 June 2009, signed by the salaried judge, acting in terms of the Practice Statement dated 30 October 2008,, stating that the original decision was reviewed but not revised and then stating

"that pursuant to section 9(4)(b) of the Tribunal Courts and Enforcement Act 2007 "the reasons for the decision are amended by the production of a supplementary statement dealing with the above " [ie the lack of reasons about the Regulation 27 case]."

The review procedure was a "nullity" for two reasons.

Firstly Deputy Judge Agnew held that under section 9 a statement of reasons cannot be amended unless the reviewing tribunal determines that there has been an error of law, which may be that the Statement of Reasons is inadequate. Having made that decision, the tribunal may then consider whether or not to amend the Statement of Reasons. Once the Statement of Reasons has been amended, the tribunal has to decide whether or not to set the original decision aside. No error of law was identified.

Secondly the tribunal chair should also have followed rule 40 of the First Tier Tribunal (Social Entitlement Chamber) Rules 2008 which states that all parties should in general be given a right to make representations before 'any action is taken in relation to a decision following a review'.

Ignoring the amended statement of reasons Deputy Judge Agnew considered the Statement of Reasons in its unamended form to be inadequate because it did not deal with the substantive argument about Regulation 27. As a result the tribunal erred in law.

Income support

CIS/2729/2006 [2010] UKUT 18 (AAC): Funeral Grants to prisoners

This decision discusses whether the refusal to pay a social fund funeral grant because a prisoner was not in receipt a qualifying benefit breached article 14 (non-discrimination) of Human Rights Convention

In order to decide this Judge Williams first examines the position, in 2003, of prisoners in relation to all of the qualifying benefits for a social fund funeral grant and summarises it as follows -

Judge Williams held that there was no direct discrimination against prisoners in the application of the social fund rules and that if there was any indirect discrimination it could be justified on the grounds that, where surviving relatives are unable to pay for a funeral, there is a statutory duty to provide one by either the local authority or national health service.

Judge Williams rejected the Secretary of State's additional ground that the exclusion of prisoners from benefit entitlement was part of their punishment as there is no legislative provision that shows such an intent by Parliament.

CIS/184/2008 [2009] UKUT 287 (AAC): Retention of status of work seeker without claiming JSA

Article 7(3)(c) of EC Directive 2004/38 provides that someone can retain worker status if they have registered as a job-seeker with the relevant employment office.

This decision by a three judge panel held that there is no requirement to claim jobseeker's allowance.

"29. We conclude that the Secretary of State has not shown that the UK has defined specific mechanisms as being the only ways in which an individual can, for the purposes of Article 7(3)(c) "register as a job-seeker with the relevant employment office". That being so, the tribunal was entitled to hold that the Secretary of State's factual concessions meant that the claimant succeeded in her appeal. In summary:

a. What the Directive contemplates is that a claimant has done what is needed in order to have his or her name recorded as looking for work by the relevant employment office

b. Whether or not this has been done is a question of fact

c. There is no rule of law that such registration can be effected only by way of registering for jobseeker's allowance or national insurance credits, less still only by successfully claiming one or other of those benefits

d. Nor was there at the material time an administrative practice to that effect (even assuming - without deciding - that to be a lawful way of implementing the Directive)

e. Successfully claiming jobseeker's allowance or national insurance credits will no doubt provide sufficient evidence to satisfy Article 7(3)(c); but

f. Those who are able to show not merely that they were seeking work, but that they had done what is needed in order to have their name recorded as looking for work by the relevant employment office - will meet the registration requirement of Article 7(3)(c).

g. It being conceded that the claimant had stated on the Habitual Residence Test documents that she was seeking work and that the extent of the work being sought was sufficient, it follows that she met the relevant test."

Note: Judge Howell disagreed with Mr Justice Walker and Judge Ward, concluding that the words 'has registered as a jobseeker with the relevant employment office' require -

".. a procedure to be gone through with the employment authorities in the host member state to verify and establish such people's genuine continuing status as a jobseeker and hence connection with the labour market in that state, as distinct from merely recording the fact that they were unemployed and had said they did not wish to be."

CIS/1366/2008 and CH/1367/2008 [2009] UKUT 145 (AAC): Notional Capital - deprivation

This case concerns a couple who inherited £64,907.12 but disposed of all but £12,098.13 after taking advice from the DWP concerning the capital rules. They were held to have deprived themselves of this for the purposes of obtaining benefit. Their subsequent appeal to both the lower and upper tribunals were unsuccessful. The decision discusses case law in relation to deprivation of capital.

CIS/2054/2008 and CIS/2946/2008 [2009] UKUT 146 (AAC): Status of residence permits and registration certificates

CIS/185/2008 (now Secretary of State for Work and Pensions v Maria Dias (ECJ Case C-325/09)) states that a residence permit issued under regulation 15 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) confers a right of residence to someone until it is revoked.

These two cases are concerned with the effect of such permits since the 2000 Regulations were replaced by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) on 30 April 2006.

Regulation 16 of the 2006 Regulations makes provision for the issuing of a registration certificate and paragraph 2(2) of Schedule 4 to the 2006 regulations has the effect that "a residence permit issued under the 2000 Regulations shall, after 29th April 2006, be treated as if it were a registration certificate issued under these Regulations".

Both claimants had, at the time of their claims, what became in effect registration certificates. Judge Rowland contends that a registration certificate issued under the 2006 Regulations does not have the same effect as a residence permit issued under the 2000 Regulations and so did not have a right of residence.

"I am therefore satisfied that neither claimant had a right of residence at the material time as a result of a residence permit having been issued and not revoked. In each case, the residence permit was, at the material time, a mere registration certificate showing only that the claimant had had a right of residence when it was issued."

In the first claimant's case arguments concerning Baumbast and R v Secretary of State for the Home Department: which might confer a right to reside to the claimant because she is the parent of a child attending school were deferred until the European Court of Justice has answered questions referred by the Court of Appeal in London Borough of Harrow v Ibrahim [2008] EWCA Civ 386 (on appeal from the county court decision followed by the tribunal) and in Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088.

Judge Rowland was also willing to hear further submissions concerning whether the claimant had a right of residence at the material time on the basis of having been on vocational training. This would entail another oral hearing, which, if decided in the claimant's favour, would mean that the Secretary of State's appeal could be withdrawn or dismissed without it being necessary to wait for the European Court of Justice's decisions in the Ibrahim and Teixeira.

CIS/2710/2008: Recovery of overpayments failure to disclose

In this case there were two reasons for an overpayment. One was official error and the other was failure to disclose. In such cases, following Morrell v Secretary of State for Work and Pensions (reported as R(IS)6/03) the overpayment can still be recovered because the claimant failed to disclose. In this case the official error had a partial effect on the amount of overpayment.

CIS/4/2009 [2009] UKUT 117 (AAC): Student social work bursaries

Judge Howell rejected an appeal by the Secretary of State against a tribunal decision that the claimant's social work bursary should be counted over 43 weeks the same as her student loan.

However in doing so he indicated that his own investigations suggested that such bursaries should be assessed over 52 weeks. Had this fact been available to the tribunal the outcome might have been different.

CIS/593/2009 [2009] UKUT 169 (AAC): Article 18 of the EC Treaty

The claimant was an Austrian national, who came to the UK in 2004 and worked between September 2004 and March 2006 before leaving her job because she was pregnant. Following the birth of her daughter, she claimed JSA, but then in May 2008 she claimed income support, which was refused on the grounds that she did not have a right to reside. Her appeal was upheld by a tribunal, so the Secretary of State appealed to the Upper Tribunal.

The tribunal found that the claimant had a right of residence by virtue of the direct effect of Article 18 of the EC Treaty, citing CIS/2358/2006.

"Article 18(1) confers a right of residence where it would be disproportionate to imply from the subordinate legislation that there is no right of residence."

Deputy Judge Poynter held that CIS/2358/2006, read as a whole, does not hold that Article 18 has direct effect and bestows a right of residence whenever it would be 'wrong' not to do so. Instead Article 18 could only be relied upon in exceptional circumstances.

"One can derive from the judgment in Baumbast, therefore, the principle that, where a right of residence is not expressly conferred by subordinate Community legislation, Article 18(1) confers a right of residence where it would be disproportionate to imply from the subordinate legislation that there is no right of residence. However, it seems to me that to rely on Article 18(1) where the Council of the European Communities has apparently deliberately excluded a class of persons from the scope of a directive would be to attack the directive and, if such an attack had any substance, it would be necessary to consider referring the case to the European Court of Justice because only that Court has the power to hold a directive to be incompatible with the Treaty. On the other hand, one can derive from the Advocate General's opinion in Baumbast the idea that there may be a lacuna [gap in the law] in a directive, in which case there is no implication that exclusion from the scope of a right of residence was deliberate because the situation of the claimant in question simply was not considered by the Council. In other words, Article 18(1) may be relied upon to supplement a directive but, in proceedings before a national court or tribunal, it cannot be relied upon to remove limitations necessarily implicit in a directive."

This approach has been supported in Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310.

As a result, the tribunal erred because it failed to consider whether the claimant fell within any lacuna in the Directive, which she did not.

"At the date of her income support claim, the claimant was not self-employed, self-sufficient, a student or retired. She was not a worker and, on the available evidence, had not retained that status. Any right of residence she may have had as a workseeker did not count for the purposes of income support and she did not assert any right of residence as a family member - or former family member - of another EEA national."

CIS/595/2009 [2009] UKUT 193 (AAC): Recovery of overpayments amount recoverable

This decision was heard with CIS/596/2009 and CIS/597/2009 and concerns on three decisions - an entitlement decision; and two overpayment decisions - in a case where the claimant failed to declare that he had in excess of £27,000 in an account with Halifax plc and was also the owner of a number of shares.

The decision discusses the proper application of regulation 14 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 and the law in relation to diminishing capital.

CIS/923/2009 [2009] UKUT 201 (AAC): Funeral payment

This was a case where a sister applied for a funeral payment for her sister (B) and there was another sister (C). The decision maker wrongly treated sister C as an immediate family member (she isn't) under regulation 8(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.

The decision maker also failed to ascertain whether C was on a qualifying benefit (it appears she was on two - housing benefit and council tax benefit).

"The questions the tribunal ought to have determined are (a) whether C had closer contact with B than the claimant and, if not, (b) whether the claimant and C had equally close contact with B and neither C nor her husband was entitled to a qualifying benefit."

CIS/928/2009 [2009] UKUT 143 (AAC): Misrepresentation - giving a factually correct answer

In this case the tribunal erred in holding that the claimant had made a misrepresentation to the Secretary of State in answering a question on her income support claim by saying she was getting child benefit for her daughter.

The claimant had separated from her partner, who retained entitlement to child benefit. However on receipt of this he always transferred the amount to the claimant's account.

When she made her claim for income support she was asked "Are you getting child benefit?" and answered "Yes" since this was true as a matter of objective fact even though the child benefit was not in her name. There was no further question asked to clarify her statement.

CIS/932/2009 [2009] UKUT 202 (AAC): Insurance policies and housing costs

Paragraph 29 of Schedule 9 of the Income Support (General) Regulations 1987 allows payments to be disregarded which are received under an insurance policy taken out to insure against the risk of being unable to maintain repayments on a loan in respect of housing costs.

In this decision the claimant took out two such policies, which produced payments in excess of that needed to meet the housing costs payments.

For the purposes of paragraph 29 both policies can be considered but where there are payments in excess to that required by paragraph 29 this excess amount counts as income.

CIS/976/2009 [2009] UKUT 243 (AAC): Estrangement and acting in place of a parent

The claimant (Miss P) was estranged from her parents and subsequently lived with her boyfriend at his father's house. The decision considers whether the boyfriend's father (Mr H) was acting in place of her parents, meaning that she no longer qualified for income support under the estrangement rules. Following R(IS)9/94 Judge Wikeley concluded that the boyfriend's father, whilst providing some help, was not acting in place of her parents.

"24. In the present case Mr H was simply doing what any person who lacks parental responsibility might do, namely "what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare" (Children Act 1989, section 3(5)). That did not give him parental responsibility over Miss P and on the facts he was not "acting in the place of [her] parents", given that his conduct lacked the greater degree of permanence and commitment required to meet that test.

25. True, Mr H was providing shelter and, according to some accounts, some food. In addition, he may have been providing some general oversight, but only in as much as Miss P was a temporary guest in his household. Crucially, however, he was not providing her with financial support - Miss P had to rely in part on food vouchers provided by Connexions and assistance from friends. Mr H also expressly disclaimed parental responsibility for her and refused to treat her as part of his household for the purpose of child benefit or child tax credit. In short, Mr H was helping out to a limited extent as any responsible adult would do - he had not assumed the responsibility of "acting in the place of [her] parents"."

CIS/1311/2009 [2009] UKUT 232 (AAC): Secretary of State's submission received on day of hearing

The claimant was appealing against a decision that he had failed to disclose capital. His main ground of appeal to the upper tribunal was that there had been a breach of natural justice regarding a further submission by the Secretary of State which he had not received until the day of the appeal hearing.

The new submission only contained one sentence summarising the claimant's evidence about the source of the capital. Judge Lane found this would not have made any difference to the outcome and that any breach of natural justice was, in the circumstances, immaterial.

The Judge did find that the tribunal erred in failing to make a decision as to the date of disentitlement. The decision was set aside and a new decision given that the claimant was not entitled to income support from February 2003.

CIS/1316/2009 [2009] UKUT 207 (AAC): Loans for repairs and improvements

The tribunal failed to fully investigate whether the loan was needed to make the property fit for human habitation or whether the claimant qualified for the disability premium on grounds of incapacity for work.

CSIS/55/2009 [2009] UKUT 156 (AAC): Self employment, remunerative work and a parallel working tax credit decision

The claimant was self-employed as a music producer and claimed income support. In his claim form, he stated that he was engaged in work for sixty five hours per week but that he had made no profit from his business.

The decision maker decided that the claimant was engaged in work in excess of sixteen hours per week and that his work was work for which payment was made or which was done in expectation of payment. This decision was confirmed on reconsideration. The claimant appealed.

At the time of his claim for income support, the claimant had been awarded working tax credit on the grounds that he was over twenty five and undertaking work of not less than thirty hours per week which was done for "payment or in expectation of payment".

The appeal tribunal erred in failing to take into account the working tax credit award when making its decision.

A new tribunal is required to:

  • determine matters as they stood on the date of the decision maker's decision (23 July 2008)
  • reach a conclusion of fact on whether the claimant was engaged in remunerative work for the purposes of Regulation 5(1) of the Income Support (General) Regulations 1987. In deciding that matter, they are not bound by the parallel decision by HMRC, although they must take account of it.
  • apply R(IS)1/93 to the facts of the case as they find them to be if matters turn on whether the claimant's work was being done "in expectation of payment"
  • consider whether as at the date of the claimant's claim for income support he was merely doing work to try and establish or set himself up in business or whether that stage had already passed. In that regard, they should follow the approach indicated in Smith v Chief Adjudication Officer - R(IS)21/95.

All of these matters are issues of fact for them to decide on the basis of all of the evidence, recalling that the claimant bears the onus of proof.

Industrial injuries disablement benefit

CI/2324/2008: Inadequate statement of reasons

This short decision is confusing to read but discusses, with reference to relevant and non-relevant case law, the requirements for an adequate statement of reasons. The summary decision and arguments are contained in paragraph one.

"1. I allow the appeal on the grounds that the Statement of Reasons is inadequate. I do not consider that a claimant also has to show that she has been substantially prejudiced by the failure to provide an adequately reasoned decision.

I also allow the appeal, because I have reservations that the claimant can be said to have had a fair hearing, where the Statement of Reasons has had to be corrected after it has been issued and the Secretary of State has agreed that the appeal should be allowed.

It also appears to me that where there is dubiety about some of the fact and inferences that were to be drawn, that those issues were not put to the claimant for clarification before a decision was made, where those facts appear to have been crucial to the decision."

CI/1009/2009 [2009] UKUT 206 (AAC): Persistent use of the appeals process

This decision concerned a claimant with a foot injury who had been awarded 3% disability and had gone to six tribunals to increase this. On this appeal from the sixth tribunal Judge Wikeley found no error of law and dismissed the appeal.

In doing so he found that the tribunal were correct in treating the case as a supersession because it was an attempt to re-open previous decisions as to the connection between an earlier 1972 accident (for which the claimant had 35% disablement) and the foot problem not a new claim.

He also reaffirmed that the medical member of an industrial injuries benefit tribunal does not have to be a specialist.

The decision also discusses ways of using the law to prevent the claimant making further appeals by providing a final (non appealable) decision but reluctantly concedes that the claimant is free to apply for a supersession. Though it is possible to make such appeals harder.

"What should happen if the claimant makes a further application for a supersession and the decision maker refuses to supersede? In the absence of any such legislative changes as mentioned in the previous paragraph [78], the First-tier Tribunal should bear in mind its extended powers under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685). The tribunal has considerable case management powers under rule 5. In the event of a further supersession application about the present matter, these could be used to require the claimant to specify in detail the precise grounds of the application, bearing in mind the criteria set out in regulation 6 of the 1999 Regulations. The tribunal is also empowered to strike out a party's case where a party fails to comply with any such directions (rule 8)."

Jobseeker's allowance

CJSA/589/2008 [2009] UKUT 280 (AAC): Reclaiming JSA following retrospective withdrawal of WTC

This is one of three linked appeals. All three concerned the effect of a retrospective termination of an award of working tax credit on a claimant's entitlement to jobseeker's allowance or income support. The others were CIS/1564/2008 and CIS/1853/2008.

The main issue of this decision is summarised in paragraph 1.

"A claimant was wrongly receiving tax credit. The payment led to a reduction of an income-related benefit. Subsequently, the overpaid tax credit was recovered. Can the claimant then be paid the income-related benefit that would have been paid if the tax credit had not (wrongly) been in payment at the time?"

Judge Jacobs says 'no' for the following reasons -

  • a tribunal considering an appeal against the decision to revise an award of income related benefit on the grounds of a tax credit award would not be able to take into account the fact that the tax credits had, at a future date, been found to be incorrectly awarded because it cannot consider any circumstances not obtaining at the time when the decision appealed against was made.
  • the decision to supersede the revised income-related benefit award (when tax credits were removed retrospectively) could only take effect from the date that HMRC changed the award.

The effect of this decision is that the State both avoids paying the income-related benefit and recovers the tax credit that was overpaid. The claimant, on the other hand, loses both the income-related benefit and the tax credit.

CJSA/1807/2008 [2009] UKUT 166 (AAC): Discrimination against carers

The claimant had appealed against a decision that she was not entitled to contribution-based JSA from November 2007 because she had paid insufficient Class 1 national insurance contributions in 2005/2006.

She did not work during this period because of child care responsibilities. She argued that the decision to refuse her benefit was discriminatory, since most carers were female and were disproportionately disadvantaged. As a result, there was indirect discrimination contrary to Article 14 of the European Convention on Human Rights, and discrimination contrary to Article 4 of Council Directive 79/7/EEC.

Judge Pacey found that such discrimination has a rational basis and is justifiable because of the operation of regulation 48(2) of the Jobseeker's Allowance Regulations 1996, which allows 'jobseeking periods' to be linked where the claimant, for example, is incapable of work or entitled to a maternity allowance.

"JSA is a benefit designed to assist the unemployed. It is important to bear in mind in this appeal that the claimant voluntarily gave up her employment. All the categories in regulation 48(2) effectively recognise, however, that there was no real choice for the people in those categories about giving up work. Thus, for example, provision is made for those incapable or treated as incapable of work and those whose caring responsibilities are so onerous as to justify entitlement to a carer's allowance. The whole tenor of the categories in regulation 48(2) to my mind is inconsistent with any reasonable element of choice which is, however, present in those who give up work for the purposes of child care. This has the effect of drawing a bright line between those who fall within regulation 48(2) and those, like the claimant, who voluntarily give up work. A line has been drawn and the cut off point, in my judgment, is a matter of legislative choice.

Parliament has recognised that an additional period may be necessary to reflect child care responsibilities (regulation 48(2)(c) providing for linking in respect of a maternity allowance) and the drawing of the line to my mind demonstrates a reasonable relationship of proportionality between the legitimate aim sought to be employed in distinguishing between those who have no real choice about giving up work and those who have a very real element of choice. The criteria in regulation 48(2) are strongly defined and clearly delineated. The discrimination in my judgment clearly has a rational basis, relating to social and economic policy, and that is a matter for Parliament. Moreover, there are other benefits which may be available to those with child care responsibilities, for example child tax credit and working tax credit."

The claimant's argument that there had been discrimination contrary to Article 4 of Council Directive 79/7/EEC, which prohibits direct or indirect discrimination on the grounds of sex was also rejected because Article 7(1)(b) allows Member States to exclude from the scope of the Directive "the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children."

CJSA/3003/2008 [2009] UKUT 294 (AAC): A8 nationals - whether certificate of registration of employment is retrospective

This appeal was heard together with CIS/4331/2006, CIS/3004/2008, CIS/900/2009 and CJSA/4471/2006. Each case concerned claims for either income support or jobseeker's allowance by three claimants, who were A8 nationals. They had all been working prior to claiming but had registered their work with the home office less than 12 months before their employment ended.

Regulation 2 of the Accession (Immigration and Worker Registration) Regulations 2004 requires:

".in summary, 12 months of (broadly) continuous work in registered employment. Each had worked for longer than 12 months; the employment of each had been registered with the Home Office ; however, this had not been done at, or, the Secretary of State argued, sufficiently soon after, its commencement. If the date that counted was when the registration process was complete and the relevant certificate issued, none of the claims could succeed. If however the registration was operative from the date of commencement of employment, then, subject to specific points relating to each claim, the door was opened to the claims succeeding."

Judge Ward dismissed the appeals of all three claimants, arguing that the date of registration was what counted, not the date of employment.

CJSA/3705/2008 [2009] UKUT 177 (AAC): Failure to apply for vacancy

In this decision the claimant was sanctioned for failing to apply for a vacancy without good cause. The claimant had been signing on for over 13 weeks and had specified in her jobseeker's agreement, certain jobs she was looking for, of which the vacancy was not one.

The tribunal reduced the number of weeks of the benefit sanction but held that the claimant could not restrict her availability to those jobs stated on her agreement as she was bound by Section 19 of the Jobseeker's Act 1995 - circumstances where the claimant

"has, without good cause, after a situation in any employment has been notified to him as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him."

The tribunal was entitled to consider that the claimant did not have good cause for not applying for the vacancy, even though the job was not one of a type which she had agreed actively to look for, and even though her JSA Agreement had not been varied, under section 10 of the Jobseeker's Act 1995, so as to require her actively to look for other jobs.

This decision has been reported as [2010] AACR 10.

CSJSA/528/2008 [2009] UKUT 75 (AAC): European Union law Council regulation 1408/71/EEC

Application for contributions based jobseeker's allowance requires the claimant to be resident in the UK during the course of his or her last employment. In this case the claimant was resident in Italy.

Pension credit

CPC/1343/2007 [2009] UKUT 200 (AAC): Member of a religious community

The decision concerns a Benedictine nun who received no financial support from the Archdiocese or from the Benedictine Order but did receive income from a nursing home, a small playgroup and payments received from another of the houses that shared the Abbey.

The three panel judge overturned the appeal tribunal decision and found that she was not entitled to pension credit.

This decision has been reported as [2011] AACR 23.

CPC/1013/2009 [2009] UKUT 249 (AAC): Right to reside and dual nationality

An appeal tribunal found that the claimant had an extended right of residence in the United Kingdom under regulation 14 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) because he was a dependant of his son, who was in employment and held both British and Spanish nationality and with whom he had gone to live on a rent-free basis.

The Secretary of State appealed on the grounds that the tribunal failed adequately to investigate whether the claimant's son did in fact hold Spanish nationality and also whether the claimant could acquire a right of residence as a dependant of a worker who has not in fact exercised the right of free movement between Member States because he has always resided in the United Kingdom.

Judge Rowland rejected the appeal. The Secretary of State had subsequently accepted that the son held dual nationality. On the second ground the son could be considered a worker who had exercised the right of free movement because he had Spanish nationality. The British nationality was irrelevant to the operation of SI 2006/1003.

"16. However, it seems to me that the 2006 Regulations do provide an answer. The structure of those Regulations is very different from that of the Directive. There is no general provision disapplying the Regulations in the case of those holding British nationality. Instead, the Regulations apply to those who hold a nationality other than British and there is no indication that holding British nationality as well means that they do not apply. An "EEA national" is defined in regulation 2(1) as "a national of an EEA State " and an " EEA State " is defined as including "a member state, other than the United Kingdom ". On a literal construction of the Regulations, a Spanish national is therefore an EEA national to whom regulation 6 applies, even if he or she also holds British nationality. The Regulations may therefore arguably confer rights not conferred by the Directive but, if they do so, dealing with the anomalies that might otherwise arises in cases of dual nationality appears to be well within the regulation-making powers conferred by regulation 2(2(b) of the European Communities Act 1972 under which the Regulations were made and I therefore see no reason not to give the Regulations a literal construction."

However, there is still a question as to whether the claimant remained a family member when he moved into his own accommodation. Nothing submitted to the judge in other cases has proved helpful so far as this case was concerned.

It also remains open to the Secretary of State to investigate the claimant's son's nationality further to ascertain, if under Spanish law, his British nationality made it impossible for him to acquire Spanish nationality that was valid (see paragraphs 6-8 for a discussion of this issue).

CPC/1530/2009 [2009] UKUT 225 (AAC): Housing costs where the liable person is not meeting them

Schedule II, paragraph 3(b) of the State Pension Credit Regulations 2002, which provides that

A person is liable to meet housing costs where.(b) because the person liable to meet the housing costs is not meeting them, the claimant has to meet those costs in order to continue to live in the dwelling occupied as the home, and it is reasonable in all the circumstances to treat the claimant as liable to meet those costs.

This decision reaffirms CIS/14/1993 which states that there must be a real threat to the occupation of the home and not a theoretical one for this rule to apply.

Pensions

CP/2234/2007 [2009] UKUT 205 (AAC): Retirement pensions deferred retirement

The decision concerns a male-to-female transsexual who obtained a gender recognition certificate after the age of 65. This decision has now been reported as [2010] AACR 13.

Severe disablement allowance

Tax credits

CTC/244/2008 [2009] UKUT 78 (AAC): Remunerative work - expectation of payment

The claimant asserted that although he had not been paid for work done he was expecting to be paid. His appeal was dismissed because he provided no proof of this and so it was held that he was not in remunerative work.

CTC/414/2009 and CF/84/2009 [2009] UKUT 134 (AAC): Entitlement following the grant of asylum

This decision confirms that this should date back to the date of the earliest claim for asylum.

CSTC/475/2008 [2009] UKUT 79 (AAC): Responsible for child

The tribunal failed to properly consider the claimant's responsibility for his son during the day time, when the child was at school.

Martin Inch - 26 November 2012