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Our latest benefit appeal summaries

21 March 2019

This page contains our latest summaries of disability benefits related upper tribunal and court decisions

View all summaries from April 2018

View summaries dating before April 2018

Court decisions

Kavanagh & Anor v The Secretary of State for Work And Pensions: Court of Appeal rules on ‘genuine and sufficient link’ test for disabled EU claimants

Two disabled people who moved to the UK from other EU countries have won an important case which entitles them to disability-related benefits in the UK from shortly after they arrived rather than having to wait two years.

The case, brought by Child Poverty Action Group (CPAG) and Harrow Law Centre, will enable disabled EU citizens and their carers who have a “genuine and sufficient” connection to the UK to receive social security support at an earlier point if they relocate to the UK.

The ruling overturns an Upper Tribunal finding that denied both households benefits. And it confirms that the “genuine and sufficient” link which must be demonstrated by claimants in these circumstances is to the UK, rather than to its social security system.

Commenting on the judgment, CPAG’s Head of Litigation Carla Clarke said: 

“This is a strong judgment which recognises that justice requires decision makers to take a wide view of all the relevant facts and motives where a genuine and sufficient link to the UK must be proved for benefit purposes.

Both of our clients already had strong family ties to the UK and a clear intention to settle here when they first claimed disability benefits, yet they were denied help with the extra costs of disability because, as today’s judgment finds, the criteria for proving a sufficient link to the UK has been too narrowly applied.

She added that the ruling “means that disabled EU citizens, including UK citizens, who relocate or return to the UK from another EU country because their carer is fundamentally connected to the UK will receive the financial help they need because of their disability at a much earlier point.”

For more information see Appeal Court Breakthrough for Disabled Eu Benefit Claimants available at www.cpag.org.uk

TD & Ors v The Secretary of State for Work And Pensions: CPAG challenges decision holding lack of universal credit transitional protection for disabled claimants lawful

The Child Poverty Action Group (CPAG) is seeking leave to appeal direct to the Court of Appeal on behalf of two disabled households who were left worse off after they were forced to move to universal credit (UC) because their existing benefits were wrongly stopped by the DWP.

This follows a High Court decision which rejected a claim of unlawful discrimination brought by the two households and refused permission to appeal.

The Government has consistently given assurances that no claimant will be worse off when they move to UC where there has been no change of circumstances.

Both households were forced to claim UC because their existing benefits were removed incorrectly by the DWP and were entitled to significantly less on UC than on their previous benefits.

Yet DWP policy also prevented the claimants from returning to their previous benefits (under the so-called ‘lobster-pot principle’- once in, there’s no way out) even after the DWP decision to end their entitlement to their existing benefits was found to be incorrect.

One of the claimants, the mother of a severely disabled child, was for a period left almost £140 per month worse off on UC than her entitlement on her previous benefits because payments for some disabled children are lower on UC than on tax credits.

The other claimant is more than £180 worse off per month on UC than she would have been on employment support allowance (ESA) because she lost the severe disability premium which is not available in UC.

Commenting on today’s High Court judgement, CPAG’s Head of Litigation Carla Clarke said:

“The High Court has found that the Secretary of State considered the impact of universal credit policy on claimants in the circumstances of our clients. But to be lawful and not to amount to discrimination, the difference in treatment of some groups of people, such as our clients, must not simply be considered but must also be justified. In our view, such justification has not been made out.

As the judge herself said: “The Secretary of State for Work and Pensions case is that she and Ministers have specifically considered the apparently arbitrary disadvantage visited on people like these claimants – caring alone for a child with severe disabilities in the case of TD and living alone with severe disabilities in the case of PR – resulting from an error in their benefits made by her department.” It is difficult to see how a disadvantage which is arbitrary can be justified.

 … This ‘arbitrary disadvantage’ is an injustice affecting potentially tens of thousands of benefit claimants who have only claimed universal credit because of incorrect decisions by the DWP, principally among them adults and children who stand to lose out on financial help with the extra costs of disability.”

For more information see Disabled Households Worse Off On Universal Credit Aim For Court of Appeal at www.cpag.org.uk 

Worley v The Secretary of State for Works And Pensions: Court of Appeal holds that rules delaying PIP award in transfer from DLA cases are not discriminatory

In a new judgment, the Court of Appeal has ruled that the 28-day rule that sets the date of PIP entitlement for DLA transfer claimants is not discriminatory and cannot be interpreted to enable backdating of awards to the date of a change of circumstances for those entitled to higher PIP awards.

In explaining the Court’s decision, Senior President of Tribunals is Sir Ernest Ryder says:

“In my judgment the Secretary of State has objectively justified the difference in treatment that is provided for in the Regulations. The appellant submits that cliff-edge protection offered to 'transfer claimants' who are entitled to less money under PIP than DLA (PIP losers) cannot be used to justify the treatment of the claimant because she was a PIP winner.

I am not persuaded by this submission. The Transfer Provisions Regulations apply to all DLA entitled persons whether they be PIP winners or PIP losers. It is correct that at the end of the process PIP winners are left worse off financially than they would be if their entitlement was backdated. However, as the Secretary of State submits, the cliff-edge justification is not just about the end of the process. It is about providing certainty to all claimants, whether or not they are ultimately winners or losers, about their income for the assessment period.

Moreover, the appellant submits that those who notify the Secretary of State of a change of circumstances do not need cliff-edge protection, whether they are PIP winners or losers, because their change in factual circumstances should lead them to reasonably anticipate a change in benefit entitlement.

This, as the Secretary of State notes, is only true if, for DLA entitled persons who notify a change of circumstances, the dominant relevant factor in whether their benefit entitlement will go up or down is that their factual circumstances have altered.

PIP made major changes to the criteria governing the award of benefit. It could be the change of law or the change of factual circumstances that affect the benefit awarded. Even for DLA entitled persons who notify a change of circumstances there is a need to provide certainty by providing cliff-edge protection.

Accordingly, I agree that the Secretary of State had a legitimate aim in treating DLA entitled persons who notify a change of circumstances differently to new PIP claimants, who are not already in receipt of a benefit.”

Employment and Support Allowance

CE/2227/2018: Whether loss of control of bowel and/or bladder during a seizure can amount to loss of control while conscious  

Upper tribunal Judge West

The claimant had been receiving ESA since 2010 on the basis that he was suffering from seizures and epilepsy.

The Secretary of State’s appealed against a later First Tier Tribunal decision upholding the claimant’s appeal against a decision that the did not have a limited capability for work.

The issue Judge West considers is appeal whether loss of control of the bowel and/or bladder during a seizure can ever amount to loss of control ‘whilst conscious’ for the purposes of activity 9 of schedule 2 to the Employment and Support Allowance Regulations 2008.

Activity 9 and 10 of Schedule 2 and their descriptors provide: 

 Activity:

“9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used. 

Descriptors:

“9 (a) At least once a month experiences loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or

 substantial leakage of the contents of a collecting device sufficient to require cleaning and a change in clothing. (15 points)

 (b) The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly. (6 points)

Activity:

10 Consciousness during waking moments

Descriptors:

10(a) At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. (15 points)

10(b) At least once a month, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration. (6 points)

In upholding the Secretary of State’s appeal, Judge West says that:

“Descriptor 9 deals with an award of points where the person suffers from loss of continence when fully conscious. Descriptor 10 by contrast deals with an award of points where the person is suffering from an involuntary episode of lost or altered consciousness.

I also agree with Judge Hemingway [in his unpublished decision CE/1928/201 ] that what is intended - and what is actually achieved - by the current wording of activity 9 is the drawing of a distinction between (a) loss of control caused by other medical conditions and (b) loss of control occurring because of a bout of changed consciousness which might amount to lost or otherwise altered consciousness. 

As Judge Hemingway observed, it would not make any sense to say that a person who loses control as a result of lost consciousness is excluded from scoring points under activity 9, but that a person who loses control as a result of otherwise altered consciousness is not so excluded. There would indeed be no reason for that distinction to be made."

Judge West there concludes that:

“I am therefore satisfied that a claimant who loses control of his bowel or bladder whilst in a state of altered, as opposed to lost, consciousness, cannot score points under the descriptors linked to activity 9.

If a person has lost consciousness, it clearly cannot be said that that person is “conscious” for the purposes of activity 9. A person who is in a state of altered consciousness, as a claimant may be when experiencing a seizure and possibly for a time in its aftermath, equally cannot be said to be conscious” within the meaning of activity 9.”

Personal Independence Payment

CPIP/1057/2018: Fixed term PIP award following the supersession of an indefinite award.  

Upper Tribunal Judge: Hemingway

The issue raised in this appeal was whether the tribunal should have explained its reasons for upholding a DWP decision to impose a fixed term PIP award following the supersession of an indefinite award.

In upholding the claimant’s appeal and remitting it for rehearing, Judge Hemingway says:

“As was explained eloquently and in detail by the Upper Tribunal in RS v SSWP [2016] UKUT 0085 (AAC), section 88(2) of the Welfare Reform Act 2012 provides that an award of PIP is to be for a fixed term except where the relevant decision-maker considers a fixed term award to be inappropriate.

The section does not set out the legal consequences of a decision that a fixed term award is inappropriate but the necessary implication is that, if it is inappropriate, then an indefinite award is to be made so long as the conditions of entitlement are satisfied. 

The section also, impliedly, confers a function of determining the duration of a fixed term award.  The question of whether a fixed term award is not appropriate and the related question of whether, if it is appropriate, what the term of should be, are aspects of the overall decision with respect to PIP and may, in principle, be considered and determined by the tribunal on an appeal to it.”  

The claimant, in this case, had not expressed any concern, when appealing to the tribunal, about the imposition of a fixed term for the award. Her focus was solely upon the question of entitlement to the mobility component. 

However, Judge Hemingway holds that the question of whether an issue is “raised by the appeal” is to be determined by reference to the substance of the appeal and not merely by the wording of the letter of appeal:

“On a common-sense basis that must be right. The second decision-maker had only departed from the terms of the decision issued by the first decision-maker with respect to the imposition of a fixed term. That made the decision which was subject to appeal before the tribunal, a supersession decision because the second decision interfered with the terms of the first award. 

In light of that I would conclude that the question of the term of the award was one clearly raised by the appeal.  It was, therefore, something which the tribunal was required to have regard to and to deal with.  But even if I am wrong about that I would conclude, for the same reasons, that since a tribunal has discretion to deal with a matter not raised by the appeal (see section 12(8)(a) of the Social Security Act 1998 again), it was required to ask itself, in any event, whether it should exercise discretion to entertain that aspect of the appeal and, if not doing given the prominence of that aspect, it was required to explain why not.”  

Therefore, Judge Hemingway reiterates what was said in RS that a claimant may bring an appeal to a tribunal even if that claimant is only challenging the decision to fix a term or is only challenging the length of an award.

CPIP/1262/2018: Power of Secretary of State to supersede PIP award following receipt of further medical evidence

Upper Tribunal Judge: Bano 

This appeal considers regulation 26(1)(a) of the Universal Credit etc (Decisions and Appeals) Regulations 2013 that provides:

“26.(1) An employment and support allowance decision, a personal independence payment decision or universal credit decision may be superseded where, since the decision was made, the Secretary of State has -

(a)received medical evidence from a healthcare professional or other person approved by the Secretary of State;”

The claimant had appealed against a decision to remove her PIP entitlement following a face-to-face consultation with a healthcare professional.

The tribunal held in its statement of reasons that:

“Although the Respondent seeks to rely on S26(1) [a reference to regulation 26 of the Universal Credit etc. (Decisions and Appeals) Regulations 2013] they must still be able to establish some reason for the early termination of the award beyond a change in opinion.

No reason is given in the Respondent’s submission beyond S26(1), this is inadequate.  [The claimant] is entitled to be told whether she is considered to be improved or whether the original decisions regarded as wrong.

In the absence of a Presenting Officer and any explanation the Tribunal found the Respondent had failed to make out the supersession grounds.

The Tribunal reinstated the original award to 14.01.2017.”

However, Judge Bano holds that this was an error of law:

“So called ‘planned reviews’ of PIP awards are authorised by regulation 26(1)(a) of the Universal Credit (Decisions and Appeals) Regulations 2013 (“the 2013 Regulations”) in all cases where the Secretary of State has “received medical evidence from a healthcare professional or other person approved by the Secretary of State” since the original awarding decision was made. 

Regulation 26(1) stands apart from the other supersession grounds now found in the 2013 Regulations and, once the conditions entitling the Secretary of State to carry out a review under regulation 26 have been satisfied, it is not necessary to establish a change of circumstances under regulation 23 or any of the grounds for supersession permitted by regulation 24 of the 2013 Regulations in order to justify a supersession (although that does not of course relieve tribunals in regulation 26 cases from the need to give an adequate explanation for their decision in those cases where they decide to depart from an earlier award). 

Because the supersession decision in such cases is not on the ground of a change of circumstances, the effective date of the decision is not governed by Part 2 of Schedule 1 to the 2013 Regulations, and under section 10(5) of the Social Security Act 1998 the ‘effective date’ in regulation 26 cases is therefore always the date of the supersession decision itself.”

Judge Bano then considers the powers of tribunals when making new decisions after a regulation 26(1)(a) supersession.

“In accordance with the leading case of R(IB) 2/04, a tribunal dealing with an appeal against a supersession decision made under regulation 26(1)(a) of the 2013 Regulations can exercise all the powers available to the Secretary of State under that provision, including the power to reconsider the period of an award-see paragraph 33 of CPIP/2224/2016.   

The tribunal can only take into account circumstances down to the date of the supersession decision which is the subject of the appeal-see paragraphs 55 and 191 of R(IB) 2/04, and by virtue of section 10(5) of the Social Security Act 1998 the only date on which any altered award can take effect is the date on which the supersession decision under appeal was made. 

Subject to those constraints, the powers of a tribunal on an appeal against a regulation 26(1)(a) supersession decision are not fettered in any way by the terms of the decision which has been superseded and it is open to the tribunal to make whatever award of benefit it considers to be appropriate on the basis of the facts as it finds them to be down to the date of the supersession decision. 

If the original award was for a fixed period which has come to an end prior to the determination of the appeal and the claimant has not made a new claim, in my view there is nothing to prevent a tribunal from making a supersession decision awarding whatever benefit it considers the claimant to be entitled to for a period extending beyond the expiry date of the original award.”

Ken Butler

21 March 2019

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