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Selected upper tribunal decisions from April 2014 to March 2015

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Attendance allowance

Child benefit

CF/3073/2013 [2014] UKUT 199 (AAC): Overpayment due to misrepresentation - original claim form destroyed

Upper tribunal Judge Wikeley
1 May 2013

The claimant was a person subject to immigration control, who had made a claim for child benefit for her two children. Her Majesty’s Revenue & Customs (HMRC) made her an award of child benefit. Three years later HMRC realised that she was a person subject to immigration control and decided both that she had been made a recoverable overpayment of nearly £4,000 in child benefit.

In her notice of appeal the claimant stated that:

  • her award had been approved without HMRC’s Child Benefit Office being misled;
  • she had telephoned the HMRC office before the birth of her eldest child to check her eligibility and had been advised to send an application in; and
  • she had declared on her original claim form that she was “subject to immigration control”.

HMRC’s submission to the tribunal stated that the overpayment was as a result of her misrepresentation that she was not subject to immigration control” since “for the claim to have been awarded she had to indicate she was not subject to immigration control” so that “she clearly misrepresented a material fact at that point, whether innocently or otherwise”. It also maintained that this misrepresentation must have been made in respect of both claims. In addition, there were no records of the Appellant having contacted the Child Benefit Office helpline.

Following a paper hearing a tribunal agreed with HMRC’s decision on the recoverability of the overpayment and the claimant appealed to the Upper Tribunal.

In supporting the client’s appeal, HMRC concedes that the logic of its submission was that “the award of child benefit was itself evidence that the claimant must have completed the claim forms incorrectly”. In other words, HMRC were simply assuming what they were seeking to prove but without more.

HMRC acknowledged that cannot stand with authority. For example, in CDLA 1173 2009 Judge Ward held that “while I can accept that there may be circumstances in which it is possible to rely on a misrepresentation in a claim form without the claim form itself being available in evidence, there would have to be sufficient secondary evidence and here there was none”.

It also highlighted that in her correspondence to the tribunal, the claimant had stated that when she made her second claim “I filled the child benefit form electronically quoting my first Child Benefit Number thus certain areas in the form were greyed out”.

HMRC confirmed that the electronic version of the claim form then in use did not require an applicant already in receipt of child benefit to answer the questions relating to nationality and immigration status – “the options were indeed greyed out”. So on her second claim she had not been asked to answer those questions in any event. By definition, there could have been no misrepresentation on her part.

Agreeing with HMRC’s submissions, Upper Tribunal Judge Wikeley adds:

“Moreover, the tribunal appears to have proceeded on the assumption that decision makers never make mistakes, a position which is simply unsustainable (see, by analogy, e.g. CP/2637/2012)

Instead, the tribunal needed to weigh the competing cases.

I have to say that I also have serious reservations about the tribunal’s decision to proceed to final determination on the papers, without giving the Appellant the opportunity to respond to the further HMRC submission following the adjourned hearing. However, I did not invite submissions on that point and do not need to rely on it in reaching my decision.”

Judge Wikeley therefore upholds the claimant’s appeal and holds that no recoverable overpayment had been made to her.

Comment: This decision establishes that where a local authority (or the DWP or HMRC) seek to recover an overpayment allegedly caused by misrepresentation it cannot rely solely on assumptions of the contents of a claim form that has been destroyed (or lost).

Disability living allowance

CDLA/643/2014 [2014] UKUT 275 (AAC): When a tribunal should hear evidence from a child

Upper Tribunal Judge: Jacobs

This appeal concerned the issue of whether the claimant, who was 12 years old at the date of the hearing, should have been allowed to give evidence to the tribunal or at least to attend the hearing.

This detailed decision considers the earlier established guidance on this issue in R(DLA) 3/06 in the light of the:

The claimant had hereditary multiple exostosis - the formation of new bone on the surface of a bone, because of excess calcium forming that can cause chronic debilitating pain. Her mother made a claim for DLA on her behalf that identified pain and breathing problems as causing difficulties with mobility and care.

However, with a First Tier Tribunal having dismissed her appeal that she was not entitled to any rate of DLA, she appealed to the Upper Tribunal.

In considering the appeal, Upper Tribunal Judge Jacobs explains that that he is only concerned with the two preliminary points decided by the tribunal:

  • that the claimant should not be allowed to give evidence; and
  • not be allowed to be present in the room while the appeal was heard.

He then outlines that on giving evidence, the tribunal referred to the Senior President’s Practice Direction on child witnesses that provides that a child should only be required to give evidence if:

(a) the evidence was necessary; and

(b) their welfare would not be prejudiced.

As to (a), the tribunal considered that the oral evidence from the claimant’s mother together with the documentary evidence would be sufficient. As to (b), the tribunal noted that the claimant’s mother did not have a view one way or another on whether her daughter should give evidence and the claimant would be under pressure from knowing that her answers could determine the appeal.

On being present in the tribunal room, the tribunal decided that “it would not be appropriate for [the claimant] to listen to four adults discussing her problems, three of whom were strangers, that her presence might inhibit her mother or the tribunal discussing issues, and the claimant “was of an age where it might be difficult for her to have to listen to herself being discussed and not being able to say anything herself.”

Judge Williams then considers in detail the Tribunal of Commissioners decision R(DLA) 3/06 that gives the following guidance in paragraph 58 on a child giving evidence:

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

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

(3) Even if it is those representing the child, rather than the tribunal, who wish the child to give evidence, as Brown indicates, a tribunal has power to disallow the child from giving evidence if it is against the child’s interests to do so. If it is proposed that the child gives evidence, the tribunal must consider whether it is in that child’s interests to do so.

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

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

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

While acknowledging that the guidance in paragraph 58 still contains much of value Judge Williams holds that it needs some qualification in order to take account of the developments in later family cases:

“Paragraph 58 was ahead of the developments in recognising the relevance of the maturity, understanding and wishes of the child. However, the family cases show that the guidance fails to give these factors their proper significance. That, no doubt, reflects the legal views of the time and the facts of the particular case, which involved an attempt by a tribunal to compel a child to attend to be questioned. There is less cause for concern when the issue is whether a willing child should be allowed to give evidence.”

He adds that similarly the application of the Senior President’s Practice Direction on child witnesses has to take account of the developments in the family cases:

“In so far as it deals with requiring a child to give evidence, it does not require adjustment. My concern is with allowing a child to give evidence, which is dealt with in paragraph 5. In so far as that paragraph provides that a tribunal may decline to hear evidence from a child when it is not necessary for a fair hearing, it is merely permissive.

In deciding what a fair hearing requires, the tribunal will take account of the wishes of the child, as in the family cases. In so far as that paragraph provides that a tribunal must decline to hear evidence from a child when it would prejudice the child’s welfare, it could conflict with the family cases. It is, though, possible to reconcile the two by taking account of the child’s age, maturity and wishes in assessing the impact that giving evidence would have, as indicated in Re W at [26].”

Setting aside the tribunal’s decision and remitting it for rehearing, Judge Williams sets out that the tribunal in this appeal was wrong in law as follows:

“Apart from the developments in the family cases, I would still have decided that the tribunal’s approach was wrong. First, it made no attempt to find out the claimant’s views on giving evidence and on the factors that it took into account. That was contrary to the guidance in paragraph 58(1) of R(DLA) 3/06.

Second, it took no account of the evidence … from the consultant’s letter. The consultant, who had seen and spoken with the claimant, considered that she had sufficient maturity to discuss her treatment with her family and to decide whether to have an operation. She had clearly been present at medical examinations when adults were talking about her and, to start with, some of those adults would have been strangers. The experiences recorded in and exemplified by that letter are not consistent with some of the points made by the tribunal in aid of finding that it would be contrary to her interests to give evidence or to be present during the hearing.

Third, the tribunal’s analysis lacks balance. It records why it made the decision it did, but does not show what factors it took into account on the other side of the argument. At the very least, the tribunal should have considered that the claim for a disability living allowance was based on pain and breathless. The person best able to explain how these affected her was the claimant herself. Even if she had not given evidence but had been present while her mother had given evidence, she could have ensured that her mother was able to give an accurate account of her experience of his disability.

Fourth, the tribunal’s reasons show no sign that it considered how its concerns might be alleviated by the manner in which the claimant gave her evidence, as indicated in paragraph 58(5) of R(DLA) 3/06.

Fifth, the tribunal relied on the part of the Practice Direction that dealt with requiring a witness to attend, when there was no question of compulsion. That was not what was in issue in this case. There was no question of issuing a witness summons, because she was already there. And there was no suggestion that she would be required to give evidence if either she or her mother objected. For those reasons, individually and collectively, its analysis was legally flawed.”

In addition, Judge Williams finds that:

“The tribunal failed to take account of the claimant’s right to autonomy and to take part in decision-making about her entitlement to benefit. It considered only her welfare and, in doing so, failed to consider the point made in Mabon: denying a child the right to participate can be harmful in itself.”

CDLA/1034/2014: Higher rate mobility component: whether child had “severe impairment of intelligence and social functioning”

Upper Tribunal Judge: Judge Knowles  

The claimant was four years old and had been diagnosed with autistic spectrum disorder. While he was awarded the highest rate of the care component of DLA his parents later applied for a supersession for the higher rate of the mobility component on the grounds of severe mental impairment.

They reported that he needed constant supervision and sometimes restraint when outside. In addition, that he had no awareness of danger and was scared of loud noise and traffic which made his behaviour even more unpredictable.

A decision was made confirming the claimant’s highest care rate award but awarding him only the lowest rate of the mobility component. His parents submitted an appeal.

In order to be awarded the higher rare mobility component on the grounds of severe mental impairment someone needs to satisfy a number of entitlement conditions.

Section 73(3) of the Social Security and Benefits Act 1992 states that a person can be awarded the higher rate mobility component on the grounds of severe mental impairment if:

“(a) he is severely mentally impaired; and
(b) he displays severe behavioural problems; and
(c) he satisfies both the conditions mentioned in section 72(1)(b) and (c) above”[an award of the highest rate of the care component]
Regulations 12(5) and 12 (6) of the Social Security (Disability Living Allowance) Regulations 1991 clarify the meaning of the above provisions.

Regulation 12(5) provides that:

“A person falls within subsection 3(a) of Section 73 of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.”
Regulation 12(6) provides that:

“A person falls within subsection (3)(b) of section 73 of the Act (severe behavioural problems) if he exhibits disruptive behaviour which -
(a) is extreme,
(b) regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
(c) is so unpredictable that he requires another person to be present and watching over him whenever he is awake”.

The tribunal did not consider Regulation 12(6) as it held that the claimant did not meet the conditions of Regulation 12(5):

“…it might be considered somewhat difficult to apply the concepts of sagacity and insight to any normal five year old let alone one with [the Appellant’s] difficulties. However the tribunal noted that [the Appellant] appears to appreciate TV programmes, likes being read to, works quietly in a structured environment, likes to indulge in his chosen form of play. He also has good non-verbal problem solving skills…”

It was on this basis that the tribunal apparently decided that the claimant did not have severe impairment of his intelligence.

In giving permission to appeal, Upper Tribunal Judge Mitchell pointed out that the phrase “good non-verbal problem solving skills” appeared to have been taken out of context.

The Joint Assessment Report from which that phrase was taken describes those particular skills as “in the below average range” when compared to the Appellant’s peer group. Those skills were much better than both the Appellant’s understanding of language and expressive language skills which scored in the very low range (less than 1% and less than 2% respectively).  The Secretary of State submitted that the tribunal quoted evidence without putting it into context and thereby arguably had its analysis of the claimant’s intelligence skewed.

In upholding the claimant’s appeal, Judge Knowles agrees with Judge Mitchell and also with his observation that the tribunal appeared to have assumed that the Appellant’s poor language skills could not in themselves be evidence of impaired intelligence.
The tribunal said in its reasons statement that:

“It was quite clear that [the Appellant] had severe delay in his language especially. This may quite likely lead to some impairment of intelligence, but was it severe?”
In supporting the claimant’s appeal, the Secretary of State submitted that the tribunal’s reasoning here appeared ‘to put the cart before the horse’ since the claimant’s poor language/communication skills may be caused by the impairment of his intelligence.
In its reasons statement the tribunal also held that:

“…Severe impaired social functioning must also be demonstrated if he is to be entitled to higher rate mobility on SMI grounds. Although Michael does not seem to be as integrated socially as a child of his age without his difficulties, he does have a friend, can get on with adults he knows including his family and teachers, and the teachers do not report significant anti-social activity…”

However, Judge Knowles holds that the claimant’s language difficulties should have been taken into account when assessing the impairment of his social functioning. 

In doing so, he cites the emphasis in R(DLA) 1/00 and CDLA/2414/2012 on “the ability to function in real life situations” or “useful intelligence” invites active consideration of a person’s language difficulties when considering their social functioning for the purposes of regulation 12(5). 

Turning to the question of whether the claimant’s social functioning outside a highly structured environment should be considered, he agrees with the Secretary of State that it should have been:

“Again, applying the concepts of an ability to function in real-life situations and useful intelligence, real life – even for a child of the Appellant’s age - is likely to require the ability to function not just in a protected school or home environment but also on the street or out of doors. In this context I note ample evidence that the Appellant’s functioning is more disruptive, uncontrollable and uncooperative in these less structured settings.”

Finally, Judge Knowles holds that the claimant’s abilities to socialise with people he does not know should have been a factor for the tribunal to consider:

“I am satisfied that exclusion of how a person interacts with strangers is inconsistent with the assessment of an ability to function in real-life situations even in a case concerning a child.

… Many persons who might satisfy the conditions in regulation 12(5) will live in highly circumscribed circumstances which limit their interaction with strangers. This does not mean that their ability to do so should be disregarded though this will be one matter amongst others for a tribunal to consider when assessing the extent to which social functioning is impaired.”

Comment: This decision highlights the need for a tribunal to pay attention to a child’s language/communication skills, ability to function outside of a structured environment and interaction with strangers in determining the issue of severe impairment of intelligence and social functioning”

CDLA/1079/2012: Severe mental impairment and arrested development or incomplete physical development of the brain - age 30 cut-off rule disapproved

Upper Tribunal Judge: Wikeley      

Section 73(3) of the Social Security Contributions and Benefits Act 1992 provides that a person will be entitled to the highest rate mobility component if they:

satisfy the conditions for the highest rate of the care component;

are 'severely mentally impaired'; and

display 'severe behavioural problems'.

Regulation 12(5) of the Disability Living Allowance Regulations 1991 (the DLA regulations) provides that a person is “severely mentally impaired” if s/he “suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning” and “displays severe behavioural problems”.

R(DLA) 2/96 held that arrested development or incomplete development of the brain must take place before the brain is fully developed – before the age of 30. The case referred to someone with Alzheimer’s disease who developed this after the age of 30.

However in a new decision that considers more recent expert medical evidence, Upper Tribunal Judge Wikeley concludes that:

“Social Security Commissioner’s decision R(DLA) 2/96 has long been recognised as authority for the proposition that the human brain is fully developed before an adult reaches the age of 30.

On that basis it has been consistently held that a person who suffers from what would otherwise be regarded as “a state of arrested development or incomplete physical development of the brain” does not qualify under the SMI rules if that condition first occurs after the age of 30 (e.g. as a result of traumatic brain injury). I refer to this as the “age 30 cut-off rule”.

In the light of the expert evidence reviewed in this decision, I decide that the age 30 cut-off rule is no longer good law and R(DLA) 2/96 should no longer be followed in that respect.”

Comment: While welcome, it is very disappointing that this decision has been made so many years after R(DLA) 2/96 was decided. Due to PIP it is no longer possible to make a new claim for DLA. This means that this decision can only benefit some existing DLA claimants who experience a change in circumstances.

CDLA/1861/2014: Relevance of favourable ESA appeal decision to entitlement to DLA

Upper Tribunal Judge: Hemingway

The appellant’s health problems included alcohol dependency, liver disease, anxiety, depression and back pain.  Following a First Tier Tribunal dismissing her appeal against the decision not to award her either component of DLA she appealed to the Upper Tribunal.

In considering his decision, Upper Tribunal Judge Hemingway says that

the most important point concerning this appeal is the matter of the claimant’s successful ESA appeal. 

Judge Hemingway outlines that the ESA tribunal had awarded 9 points under descriptor 15(b) which is satisfied where a claimant:

“Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.”

It had also awarded 9 points under descriptor 16(b). These are awarded where:

“Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the individual.”

Judge Hemingway then comments that:

“The award of points with respect to engagement in social contact is not so obviously related to the types of difficulty which might lead to entitlement to the lower rate of the mobility component but the award does, at least, suggest that the ESA tribunal had concluded that the appellant had mental health difficulties of real substance. 

The award relating to the activity of “getting about” is, whilst a different test, more closely linked to the sorts of difficulties which might lead to the establishment of entitlement to the lower rate of the mobility component.” 

He then acknowledges that the fact that two tribunals came to very different conclusions does not mean that either has erred in any way: 

“Certainly I would accept that the First Tier Tribunal (F?tT) hearing the disability living allowance appeal was not bound in any way by the decision of the ESA tribunal.  I accept that entitlement to different benefits based on different statutory tests was in issue.  I accept that there was no obligation upon the F?tT to follow any of the ESA tribunal’s reasoning and, indeed, there was very little evidence contained within the decision notice about what the ESA tribunal’s reasoning was. 

In this context it is perhaps unlikely that the ESA tribunal produced a statement of reasons for decision unless that was requested by the respondent and there is no indication that it was.  Even if it had been then, of course, it would not have been produced within sufficient time for it to have been available to this F?tT.” 

However, he then adds that significantly:

“… the decision notice issued by the ESA tribunal was, at the least, an indication that that tribunal had found, after consideration of the appeal and whatever evidence was before it, that the appellant was, as at the same date this F?tT was concerned with, unable to get to a specified place with which she is familiar without being accompanied. 

Whilst it does not necessarily follow that such a conclusion would lead to satisfaction of the statutory test for lower rate mobility I would take the view that it certainly suggests it might be.  There is, it seems to me, a considerable interrelationship between the two statutory tests. 

So, potentially, the award made by the ESA tribunal was a matter of some significance.  It merited the paying of some attention to it by the F?tT.” 

In upholding the claimant’s appeal and setting it the tribunal’s decision aside for rehearing, Judge Hemingway concludes that:

“… in light of the relationship between the sorts of factors that might give entitlement to lower rate mobility and the sorts of factors that might give entitlement to 9 points under descriptor 15(b) I conclude that the F?tT was obliged to consider the decision of the ESA tribunal as recorded in the decision notice and address it in some way. 

It would have been open to it to have gone on to make the decision it did make so long as it properly took that decision into account.  However, it did not appear to take it into account at all.  That does, to my mind, constitute an error of law. This is because the F?tT has failed to consider a relevant matter.” 

Comment: This decision highlights that it is worth considering presenting supportive ESA evidence to a tribunal considering a DLA appeal as it can give insight to difficulties that are relevant to both the care and mobility components. There is no reason why a similar approach would not apply to a PIP appeal. In addition, why a DLA or PIP tribunal may decide not to give weight to ESA evidence, it will err if it does not adequately explain why it did so.

CDLA/2898/2014: Agoraphobia and the lower rate of the mobility component / tribunal’s consideration of a renewal DLA claim

Upper Tribunal Judge: Hemingway

The appellant was 53 years old and had severe agoraphobia.  She made a DLA claim in February 2008 in which she indicated that she had not ventured out?of?doors for 23 years.  She was awarded the lower rate of the mobility component and the middle rate of the care component of from February 2013 inclusive. 

In completing a renewal claim pack the appellant made reference to her agoraphobia but did not claim to have any physical difficulties in walking, any specific need for assistance in connection with her ability to self?care nor did she claim any need for supervision in the home.

A decision made that she was not entitled to either component of disability living allowance from February 2013 and she appealed to the First?tier Tribunal (F-tT).

The F-tT dismissed the appeal. As to possible entitlement to the care component of disability living allowance the F-tT found that the appellant was “a self?caring recluse” and had no night time needs and that she did not require supervision. 

It also concluded that she was not unable to walk or virtually unable to walk and as s to the lower rate, it said:

“Section 7(3)(8) Social Security Contributions and Benefits Act 1992 states that a person shall not be entitled to the mobility component form period unless during most of that period her condition will be such as permits her from time to time to benefit from enhanced facilities for locomotion. 

We found that she is not likely to derive benefit from an award of lower rate mobility component.  She refuses to go out?of?doors anyway, even into her own back garden.  To be entitled to an award, there has to be some benefit out?of?doors.  [The appellant] cannot satisfy the conditions for an award of lower rate mobility component because she never ventures out?of?doors.

… We were not bound in law by the decision made on [the appellant’s] old claim in 2008.  Even if there had been no change in [the appellant’s] mental and physical condition since 2008, we are entitled to reach our own decision on the evidence before us, and there is no requirement for us to show an improvement.”

In dismissing the claimant’s appeal, Upper Tribunal Judge Hemingway cites earlier case law including BP v Secretary of State for Work and Pensions [2009] UKUT 90 (AAC) and CDLA/2364/95.

In addition he highlights Mongan v Department of Social Development [2005] NICA 16 in which the Court of Appeal in Northern Ireland stated:

“The basis on which this particular species of benefit is payable is that the claimant has some limited ability to walk and the benefit is designed to allow him to exploit that ability by having someone present to assist. If the presence of that person failed to increase the claimant’s capability it would be somewhat pointless.  The final aspect of eligibility for the benefit that should be noted is that the supervision and guidance from another person should be required ‘for most of the time’.”

Upper Tribunal Judge Hemingway then finds that the F-tT was concluding that the claimant did not meet the requirements of section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 because, even with guidance or supervision from another person, she would not be able to take advantage of the faculty of walking out?of?doors. 

He then holds that:

“The balance of the authorities is significantly in favour of the proposition that a person who cannot actually take advantage of the faculty, even with guidance or supervision, is not entitled to the lower rate of the mobility component.  The approach set out in Mongan … is to be followed. 

It does seem to me it was certainly open to the F-tT, on the evidence before it, to conclude that the appellant could not walk out?of?doors even with the guidance or supervision of another.  That is what it did conclude.  The evidence was that she did not, as at the decision date, venture out?of?doors at all even though there was an indication that she had, until 2008, been able to go into her garden.  She had herself indicated that she had not gone out of her home for many years and those treating her had described her agoraphobia as being severe and had mentioned that she did not go out?of?doors.” 

As to the issue that the F-tT was dealing with a decision which had been made in response to a renewal claim, the Judge concludes that:

“It was right to say it was not bound by the decision made on the appellant’s original claim which had been lodged in 2008.  It was right in saying that it did not have to be satisfied that there had been an improvement in the appellant’s condition for it to reach an outcome differing from the original award. There is, though, the very well known decision of R(M) 1/96

It was stated, therein, that the requirement for a tribunal to give reasons for its decision means that it is necessary for such a tribunal to explain why, if that be the case, it is not renewing a previous award unless that is obvious from its findings. 

Here, with respect to the lower rate of the mobility component, it is obvious that the F-tT considered a matter which appeared not to have been considered when the original decision was made, to the effect that there was no evidence that the appellant would benefit from guidance or supervision to any extent.  Effectively, the F-tT had thought of a point that had not been thought of previously. 

As to the care component, the F-tT clearly found, in effect, that the evidence relevant to the date of the decision it was considering was such that there was no entitlement.  That seems to be what it was getting at when it made the point that it was not bound by the earlier decision and does not have to identify any improvement in order to divert from it. 

… In light of all of the above I conclude that it was obvious from the F-tT’s findings why it was departing from the earlier decision.” 

Comment: This decision does not hold that someone who is agoraphobic cannot be awarded the lower rate of the DLA mobility component. However, it is essential to demonstrate that the agoraphobic person would be able to venture out-of-doors, albeit with difficulty, if appropriate guidance and/or supervision was provided.

Employment and support allowance

Secretary of State for Work and Pensions vs Kevin Brade: Court of Session 1 May 2014 - https://www.scotcourts.gov.uk/opinions/2014CSIH39.html

The principal issue in this case was the meaning of the term “always precluded” descriptor 13 of Schedule 3 to the ESA Regulations 2008 that provides:

“SCHEDULE 3 - ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITYFOR WORK RELATED ACTIVITY

Activity

Descriptors

13. Coping with social engagement, due to cognitive impairment or mental disorder.

Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual"

In CSE/22/2013, the Upper Tribunal held that:

“... “always precluded”, as used in activity 13 ... is not an all or nothing test; rather, it means 'repeatedly' or 'persistent' or 'often'. A 'majority' may be constituted by events which happen only on 50.1 per cent of the possible occasions, but a greater frequency is required by the use of the word 'always'.”

The Secretary of State however appealed to the Court of Session on the grounds that the Upper Tribunal had in interpreting "always" as meaning "repeatedly", "persistent" or "often" and that “always” meant “always”. While this interpretation created a high hurdle for claimants it was one which had to be surmounted if they were to be entitled to the maximum form of ESA.

In dismissing the appeal, The Court of Session conclude however that

“… descriptor 13 must apply if a claimant suffers from a mental disorder which has the consequence that, for the majority of the time, he cannot engage in social contact.

… Such a person is not likely to have labour market potential and, moreover, if, for the majority of the time, that person cannot engage in social contact, requiring participation in a work focused interview would be not only unreasonable but pointless. Further, that construction avoids the fact finder being necessarily driven to the absurd conclusion that descriptor 13 is not satisfied if, for instance, on a single occasion, a claimant has given instructions to a representative for the purposes of a tribunal hearing.

The question of whether or not a person is wholly precluded from engagement in social contact for the majority of the time is one of fact having regard to the statutory provisions as understood by the guidance we have sought to provide. That question is not answered by the application of any precise mathematical approach but by the fact finding tribunal having regard to the evidence in the particular case of the effects of the claimant's condition in a realistic way whilst bearing in mind the purpose of the legislation.”

CE/2207/2012 [2014] UKUT 149 (AAC): Claimants who are unable to work and regulation 35(2) (substantial risk to health if found to have a capability for work related activity)

Upper Tribunal Judge Jacobs
29 April 2014

The issue in this appeal is how does regulation 35(2) of the ESA Regulations 2008 apply if the claimant could never work again or if there is no work-related activity that could (reasonably) be required of them?

Regulation 35(2) provides:

35   Certain claimants to be treated as having limited capability for work-related activity

(2)   A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)   the claimant suffers from some specific disease or bodily or mental disablement; and

(b)   by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

The claimant was 60 years old and had a very serious heart condition (Brugada Syndrome) and arthritis. On being found not to have a limited capability for work he appealed to a First Tier Tribunal.

The FTT allowed his appeal to the extent of finding that regulation 29(2)(b) of the ESA Regulations 2008 applied but did not place him in the support group for persons having limited capability for work-related activity. On regulation 29, the FTT explained:

… there would be a substantial risk to [the claimant’s] physical health if he were found fit even for a wider range of jobs of which he would be capable because working more closely with equipment gives rise to added risk to his heart due to the risk of interference with his heartbeat and also because [he] gets short of breath with exertion and stress.

However, it held that this reasoning did not apply to regulation 35 as:

“There is not an increased or substantial risk in the minimum level of activity required by the Secretary of State, whether through phone calls, form filling or attending appointments with them. “

Upper Tribunal Judge Jacobs sets aside the FTT’s decision for rehearing on the grounds that it failed to take sufficient account of the claimant’s mental health and by its reasoning seemed to have concentrated on what he could do physically rather than the mental effects.

He then analyses in-depth what he sees as the correct application of Regulation 35(2) by FTTs.

He first says:

“If regulation 35(2) were read literally, it would only apply if the risk arose from the very act of finding the claimant not to have limited capability for work-related activity. That might happen occasionally, but it would render the provision largely ineffective.”

He then cites his ruling in CE 1750 2012 in relation to Regulation 35(2) when he decided that the approach of the Court of Appeal in Charlton had to be modified to read that:

“The decision-maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others.”

However, he acknowledges that this has produced problems at the appeal stage, because work-related activity involves two discretions:

(i) the Secretary of State’s discretion whether or not to impose a requirement to undertake work-related activity; and

(ii)  the Secretary of State’s discretion on the type of activity that is required.

This in turn “appears to create at least two conundrums” he says.

The first conundrum

Judge Jacobs outlines that:

“One conundrum was identified by Judge Mark in JS v Secretary of State [2013] UKUT 0635 ((AAC):) and GS v Secretary of State [2014] UKUT 0016 ((AAC):): if there is no work that the claimant could ever do, regulation 35(2) can never apply, because no work-related activity would make it (to quote section 13(7)) “more likely that the person will obtain or remain in work or be able to do so”.

In answering this, Judge Jacobs says:

“The stage at which regulation 35(2) may have to operate explains why it is framed as a hypothesis. It requires the tribunal to identify the possible consequences of a particular postulate (the if bit). If a possible consequence would be a substantial risk to health, the provision is satisfied and the claimant qualifies for the support group. As I have already said, the postulate cannot be read literally. The tribunal does not simply have to postulate the claimant being found not to have limited capability for work-related activity. It also has to postulate the claimant actually undertaking such activity."

He adds that the tribunal does not have to identify that work-related activity with “precision” as:

“That is a separate stage that will only be reached if the tribunal decides that the claimant does not qualify for the support group. If and when that stage is reached, it is a matter for the Secretary of State, not the tribunal.

… The tribunal has to apply the hypothesis embodied in regulation 35(2). In doing so, it cannot deny the postulate. That, with respect to Judge Mark, is what he did. He denied that the postulate (the if bit) could ever apply in certain circumstances. But that is the very foundation of the provision. It is what the tribunal is required to accept. It cannot reject the basis of the hypothesis that forms the structure of regulation 35(2).”

Judge Mark holds that In doing so, the tribunal has to limit itself to applying regulation 35(2) and avoid trespassing into the Secretary of State’s discretionary decision-making as to do otherwise:

“… would require the tribunal to embark upon the almost impossible task of imagining what hypothetical requirement, if any, the Secretary of State might have imposed should the issue have had to be decided. The way to remain properly within the tribunal’s jurisdiction lies in the level of generality at which the tribunal has to consider work-related activity.”

The second conundrum

A further conundrum, Judge Jacobs says, is this: it would be unreasonable (under section 2(5)(b) and regulation 3(4)(a) of the 2011 Regulations) to impose any work-related activity that would give rise to a risk of substantial harm, so regulation 35(2) can never apply.

However, he finds that there is a way to resolve this conundrum:

“Regulation 35(2) confers a right on a claimant: a right to be treated as having limited capability for work-related activity. The risk of substantial harm is both the condition precedent for that right and the rationale for the existence of the right. It is inappropriate for the existence and enforcement of such a protective right to depend on the exercise of a discretion. This is not a complete solution, as there is a further step that is required.

The solution to the first conundrum identifies the nature of regulation 35(2) and the time when it may have to apply, which indicate the nature of the consideration involved. The consideration has to operate at a relatively general level that does not trespass into the role of the Secretary of State. This also explains why it is not appropriate to undertake a precise analysis of the reasonableness of the activity.”

Cases to which regulation 35(2) does not apply

Judge Jacobs acknowledges that his analysis prevents the exclusion of some cases from the scope of regulation 35(2). However, he highlights also that it does not bring every case in which Schedule 3 is not satisfied within that provision:

“There remains the possibility that a claimant is seriously disabled but does not satisfy the conditions for the support group on account of the way the legislation is structured. There could, for example, be a claimant who will realistically never be able to work, but whose disabilities are not sufficient to satisfy any of the activities in Schedule 3 and for whom work-related activity may not pose a substantial risk. That is the inevitable consequence of the nature of the test. It depends on whether the activity would give rise to a substantial risk, not on whether it would confer a benefit …”

CE/3848/2012 [2014] UKUT 148 (AAC): Whether third party assistance can be taken into account in considering regulation 29 (substantial risk to health if found not to have a limited capability for work)

Upper Tribunal Judge Ward
31 March 2014 

The claimant’s appeal to the First?tier Tribunal had been dealt with on the papers.   His written evidence indicated that he had severe panic attacks. Also that his severe anxiety stopped him from communicating with others, going shopping when meeting new people he felt anxious and felt like he needed to get away from them. 

Activity 15 of Schedule 2 of the Regulations as it then stood provided as follows:

“15. Getting about.

15

(a)

Cannot get to any specified place with which the claimant is familiar.

15

 

 

(b)

Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.

9

 

 

(c)

Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.

6

 

 

(d)

None of the above apply.

0”

The decision?maker concluded that the claimant attracted 6 points under that activity.  On appeal the tribunal awarded 9 points, as it accepted that he was unable to get to a specified place with which he was familiar without being accompanied by another person.

The tribunal then considered regulation 29 of the ESA Regulation 2008 (substantial risk to health if found not to have a limited capability for work).

It looked at the consequences of a finding that he did not have limited capability for work under two headings.  One consequence was that he would need to attend a Jobcentre every two weeks and comply with the other conditions likely to be required under a jobseeker’s agreement.  The tribunal’s conclusion was that “if he was accompanied, he would not have significant difficulty coping.”  The other aspect the tribunal examined with some care was the type of work the claimant could be expected to do.  In relation to this:

“The tribunal decided that [the claimant] would not be able to work in a         position based on contact with members of the public but once he got to know fellow employees he could relate to them well.  He would need to be driven to        work but, once he got used to his place of work and fellow employees, he could remain at a workplace on his own.  Therefore, the tribunal found that he           would be able safely to perform work such as static night?time security work            involving little public contact and so he was not to be treated as having limited       capability for work under regulation 29 of the ESA Regulations.”

Upper Tribunal Judge Ward holds that:

“In the present case, the tribunal had identified the type of work it considered the claimant could do and was satisfied that this would not lead to a substantial risk to his health.  Principally so far as the journey to work was concerned, but also for an initial period at work, the conclusion reached was, however, dependent on the involvement of a third party." 

He then cites the decision of Judge Gray in CE/973/2013[KB1]  in which she says with regards to regulation 35 of the 2008 Regulations that:

“As a matter of law any work-related activity which could only be accomplished because of the presence of another person must be looked upon as not being an activity that the claimant can carry out. “

Disagreeing, Judge Ward says that seems to be asking what I regard as the wrong question. Instead, he says:

“The issue, it seems to me, is not whether or not it counts as the claimant doing the activity, but about the risks which ensue if he or she does. 

Accordingly, my starting point is that where there is appropriate evidence (as to which see below) third party help could be taken into account." 

He continues:

“There are undeniably going to be practical difficulties for the DWP in arguing that a person with 9 points for descriptor 15(b) can nonetheless, by being accompanied, get to work, and for tribunals in adjudicating on the issue.  The Charlton exercise does not require consideration of actual positions of employment or the location of any job a claimant might undertake.  Common experience of giving or receiving a lift from someone suggests that the availability of a person to accompany someone may in practice be highly dependent on practical factors: How far? What time of day? Same time each day or varying?  All of those are questions which might arise if the question had to be asked in the context of an actual job, but, as Charlton makes clear, it does not.  It may be difficult to get clear evidence about whether someone would be available to help when the circumstances are hypothetical.

Then there may be the question of the availability of a car to consider: it is not unusual to come across people whose ability to get out of their domestic setting is much greater in the private realm of a vehicle belonging to them or to a trusted person than it is when public transport has to be relied upon. Some people will live in places where public transport is unlikely to be a practical solution anyway.  Where a car is needed, it will not necessarily be available, particularly if it is sometimes used by others.

It will, further, be important that any arrangements to enable a person to get to a workplace appear capable of being maintained.

Nonetheless, and difficult though it may be, I consider that such a line of argument is open to the Department." 

Judge Ward therefore concludes that:

“In my view, therefore, it is open to a tribunal to conclude that the risk to the health of a claimant may be mitigated by the availability of strategies to enable him to get to work, including through the assistance of a third party.  Such a conclusion would, though, have to be based on proper, evidence-based findings of fact.”

CE/3994/2012 and CE/2390/2013 [2014] UKUT 125 (AAC): Whether there is a right of appeal against the ending of a contributory ESA award after 12 months

Upper Tribunal Judge Rowland
17 March 2013 

The principal questions raised by the claimants in these two appeals were:

  • whether there is any right of appeal against an ending of entitlement to contributory ESA after 12 months in the work related activity group; and, if so,
  • whether a claimant is entitled to raise in that appeal the question whether he or she has limited capability for work-related activity.

 Judge Rowland is clear that there is a right of appeal against a decision terminating an award of contributory ESA award after 12 months:

“The parties submit that there was a right of appeal against the termination of the awards and that the First-tier Tribunal erred in law in deciding otherwise in both cases.  I agree.  The awards were made for an indefinite period and were effective until revised, superseded or set aside on appeal under, respectively, sections 9, 10 or 12 of the Social Security Act 1998.  The coming into force of sections 51 and 52 of the 2012 Act was a change of circumstances justifying a supersession under section 10 (see regulation 6(2)(a) of the 1999 Regulations) and so too would be the effluxion of time in a case where the last of the 365 days of entitlement fell after 1 May 2012.” 

He continues that:

“Although an Act of Parliament could in principle have the effect that an award terminated automatically on the happening of an event without there being any revision or supersession, the new section 1A of the 2007 Act does not itself make provision for the termination of awards; it merely makes provision as to the period for which a person is entitled to a contributory employment and support allowance, leaving termination of the award to be effected under section 10 of the 1998 Act when the period of entitlement ends.  Section 12 provides for a right of appeal against any decision made under section 10.  This is plainly deliberate and makes sense because, on any view, there must in reality be a decision of some kind since, as Mr Blundell submitted, even the calculation of the 365 days may not be entirely straightforward and could give rise to a dispute.”

In then considering the scope of the appeals, Judge Rowland holds as follows:

“…consideration of the question whether a period of entitlement to contributory employment and support allowance has come to an end necessarily raises the question whether, at the time that the Secretary of State’s decision is, or could be, effective the claimant “is a member of the support group” for the purposes of section 1A(5)(a) of the 2007 Act, which in turn necessarily raises the question whether “it is determined that he has, or is to be treated as having, limited capability for work-related activity”.

However, in answering those questions, the Secretary of State is generally entitled to rely on his previous determination, particularly if, having been given an opportunity to do so, the claimant has not applied for a supersession on the ground either that his or her circumstances have changed or that the previous decision was based on an error of fact or law.

Nonetheless, although the Secretary of State generally need not look more deeply into the question whether the claimant still does not have limited capability for work-related activity unless the claimant has raised the issue, he could do so if he wished.  He is not bound by his previous decision, particularly as it is not inconceivable that there has been a change of circumstances. 

It follows that the First-tier Tribunal may also consider that issue.  In R(IB) 2/04 … the Tribunal of Commissioners held that the scope of an appeal is determined by the scope of the decision the Secretary of State could have made, not by the decision that he did make (see paragraphs 15 and 19 to 32).  Therefore, whether the Secretary of State does not consider at all whether the claimant has limited capability for work-related activity as at the date from which his decision is or could be, effective, or whether he considers the issue only to the extent of relying on his own previous determination, the First-tier Tribunal is entitled to consider the issue afresh, provided that the Secretary of State has had an opportunity of dealing with any new evidence or argument (by, for instance, arranging a new medical examination if he so wished). 

Moreover, section 12(8)(a) of the 1998 Act provides that, in deciding an appeal, the First-tier Tribunal “need not consider any issue not raised by the appeal”, which clearly implies that the First-tier Tribunal has the power to consider issues that have not been considered by the Secretary of State even if they are not expressly raised in the grounds of appeal.  In a complicated field of law in which claimants are normally unrepresented, such a power is essential if justice is to be done.”

However, Judge Rowland does warn that:

“It does not follow from this that the Secretary of State’s practice of inviting the First-tier Tribunal to strike cases out for lack of prospects of success where there is no dispute about the calculation of the 365 days is necessarily inappropriate.  Provided that the claimant has been given an effective opportunity to apply for supersession - or, now that there is a requirement to apply for a revision before appealing, a revision of a decision terminating an award - if he or she wishes to claim to have limited capability for work-related activity, applying for a striking out of an appeal may well be appropriate if the claimant has not raised that issue either in such an application or in the grounds of appeal, because the inference to be drawn may be that the claimant accepts that the criteria for inclusion in the support group are not met.  However, to show that an opportunity has been given that was such as to justify drawing such an inference may require that that it be shown that the claimant was made aware of the criteria for inclusion in the support group.”

Nevertheless, Judge Rowland concludes that:

“… not only did the claimants in these cases have a right of appeal against the decisions to terminate their awards of employment and support allowance, but they also were entitled to argue in those appeals that the awards should be extended on the ground that, at the date on which the Secretary of State’s decision was, or could have been, effective, they had limited capability for work-related activity so that the awards should have been superseded in their favour rather than to their detriment”. 

The DWP has issued guidance following this decision (DMG Memo 12/14 and ADM Memo 11/14).

CE/327/2013 and CE/509/2013 [2014] UKUT 308 (AAC): Whether a wheelchair can “reasonably” be used to mobilise

Three Judge Panel: Mr. Justice Charles, His Honour Judge Martin and Upper Tribunal Judge Rowland

These appeals are concerned with the factors to be taken into account when deciding in the context of Activity 1 (mobilising) of the work capability assessment for ESA. In particular, whether a manual wheelchair could reasonably be used by a claimant who does not actually have one. 

Activity 1 of Schedule 2 of the ESA Regulations 2008 is headed:

“Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.”

Prior to this decision there has been conflicting case law. Some decisions have held that the reasonable use of a wheelchair is a purely ‘functional’ test, while others held that social factors could be taken into account (such as the home environment and ability to acquire a wheelchair).

These two appeals were heard by a three-judge panel in order to provide a definitive ruling on this conflict.

In a lengthy and detailed decision, the three-judge panel consider the history and content of ESA legislation together with relevant case law.           

As a result of their analysis, they give the following specific guidance to the application of Activity 1 to claimants who do not normally use manual wheelchairs. 

The modern workplace

“First, because the work capability assessment is not to be divorced from the real world of work and the claimant does not actually have an employer, the test must be applied on the basis that the notional employer from whom the claimant might obtain employment has a modern workplace and is prepared to make reasonable adjustments in order to enable the claimant to be employed.  To that extent the test is a thought-experiment like the “cooking test”.

Medical considerations 

Secondly, as the Secretary of State concedes, all medical considerations will need to be taken into account.  This includes “attendant consequences, such as muscle wasting” … which, we observe, are matters beyond the current “physical and mental condition” mentioned in section 1(4)(a) of the 2007 Act and regulation 19(1) of the ESA Regulations and the current “specific bodily disease” and “specific mental disease” mentioned in regulation 19(5).

… [While] all aspects of wheelchair use need to be taken into account, we would point out that a person unable to get in and out of a wheelchair unaided is unlikely to need to score points under Activity 1 because he or she would probably score 15 points under Activity 2 (standing and sitting) on the ground that he or she “cannot move between one seated position and another seated position next to one another without receiving physical assistance from another person”.

The home environment

“Thirdly, the home environment is potentially relevant but, [as a manual wheelchair could be stored in the workplace] an inability to use a manual wheelchair at home or to store it there due to the physical layout of the home is unlikely to be as important as was suggested in DM and NT.

On this issue, the three-judge panel also hold that there is a general duty to act fairly placed on the Secretary of State to ensure that Jobcentre disability employment advisers are adequately equipped to give appropriate advice to those found not to qualify for ESA as a result of the amendment. In this context they say:

“Many of the practical problems raised by … claimants are likely to be soluble, given the modern workplace and an employer who is conscious of his or her obligations under the Equality Act 2010. Where that is so and it is considered that a work capability assessment should be carried out on the basis that the claimant could reasonably use a manual wheelchair (or other aid), disability employment advisers clearly also have a role to play in advising as to the solution. 

Thus, for instance, where a claimant argues that he or she could not reasonably be expected to use a manual wheelchair at work because it could not be taken home, it might be pointed out that, unlike a guide dog, a manual wheelchair used in the workplace does not have to be taken home after work and the solution to the problem might be to make arrangements for a manual wheelchair to remain in the workplace.

If ESA were disallowed on that basis, a disability employment adviser might advise as to how a prospective employer could be asked about making such arrangements. There is then no unfairness, although it might also be worth considering whether, if a disability employment adviser considers that a person who has failed a work capability assessment is in reality unemployable, he or she ought to be able refer the person for reassessment on an accelerated basis, with an explanation that will be before the person carrying out the reassessment.”

The availability of manual wheelchairs

“Fourthly, the availability of manual wheelchairs is a question of fact, to be proved by evidence although the First-tier Tribunal is entitled to use its own knowledge. 

… However, it seems to us that the Access to Work scheme operated by Jobcentres may well make it unnecessary to consider in each case whether a claimant would be able to obtain a manual wheelchair.  If the Secretary of State is able to say that any claimant otherwise unable to obtain a manual wheelchair will be enabled to obtain one through the Access to Work scheme (or some other scheme) if a manual wheelchair is required to enable the claimant to take up an offer of employment, the question of the availability of manual wheelchairs will, for most if not all claimants, cease to be an issue in ESA cases.” 

The claimant’s objections

“Fifthly and more generally, it will be clear from what we have already said that it is necessary for the Secretary of State to anticipate or at least answer objections that claimants who do not use manual wheelchairs or other aids might make to being expected to consider using one.  Thus reasons for decisions or submissions to the First-tier Tribunal need to show why the decision that the use of an aid is reasonable for that claimant accords with and promotes the underlying purposes of the legislation governing entitlement to ESA.

They would also indicate to the claimant, those concerned with JSA and the First-tier Tribunal why it was thought that the particular claimant’s capability for work should be assessed on the basis that he used the relevant aid or appliance.  Naturally, those reasons and the manner in which they are provided will be case and aid or appliance specific.  Some (e.g. medical issues) will appear in and can be given by the provision of or by reference to the Health Care Professional’s report.  Other reasoning could no doubt be based on generic and published evidence based material.” 

In brief therefore, the Judges conclude that, in principle, all circumstances of the individual claimant are to be taken into account but that, in practice, the underlying purpose of the work capability assessment, the circumstances that should exist in the modern workplace and the availability of manual wheelchairs will mean that:

  • in most cases the home environment of a claimant is unlikely to be important; and
  • it would be possible for the Secretary of State to ensure that the availability of manual wheelchairs is also not a live issue.

The three-judge panel conclude by upholding the appeals of the two claimants and remitting their cases for rehearing. They direct that the Secretary of State must make a further submission supported by appropriate evidence setting out, it is deemed reasonable for that claimant to be assessed under Activity 1 on the basis that she uses a manual wheelchair, and, in particular, how that claimant might have acquired such a wheelchair at the time of the appealed decision.

CE/1972/2013 and CE/3183/2013: Meaning of “social engagement is always precluded”

Upper Tribunal Judges: Charles, Warren and Rowland

These appeals were heard by a three judge panel as they raise an issue where there was some conflict between earlier Upper Tribunal decisions.

That conflict relates to the construction and application of paragraph 13 of Schedule 3 to the Employment and Support Allowance Regulations 2008 and its descriptor:

Activity 13 of Schedule 3 and its descriptor in Schedule is:

13. Coping with social engagement, due to cognitive impairment or mental disorder.

Descriptor: Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.

In answer to the question ‘What is the nature and extent of that engagement or contact and how is it to be assessed?, the three judge panel find that:

“In our view, “coping” and “engagement” and the underlying statutory purposes introduce elements of reciprocity, give and take, initiation and response.  Such qualities exist in contact that is marked or characterised by friendliness, geniality or companionship but, in our view, they can arise and can be demonstrated without those elements (and the choices they involve) being present and this is often the case in the workplace and elsewhere albeit that a number of relationships there will include (or at least not exclude) them.

… Whether the evidence and findings relating to the claimant’s communications with others and behaviour in the chosen example or examples have the necessary degree of reciprocity, give and take, initiation and response raises issues of fact and degree and of judgment having regard to all the circumstances relating to them. 

As with other such issues, the authorities show that it is not practical or appropriate to identify the statutory criterion by reference to abstract examples or by reference to a general classification or description other than the statutory test. 

Rather, these are the type of issues that the authorities show are eminently suitable for consideration by a tribunal charged with considering the evidence whose approach to determining the application of the Activities and their Descriptors in each individual case should be to consider and determine how:

The nature and quality of the examples of communications and behaviour they take into account (and thus the reciprocity, give and take, initiation and response shown thereby) would, for the reasons given in the Activities and their Descriptors, be likely to be an effective barrier to the claimant working.”

Turning to the decision making process itself, the judges stress that it is important that a First-tier Tribunal applies the correct criterion or conceptual test in the right way.  This involves:

  • reaching conclusions on the evidence; and then
  • explaining why the undisputed facts and those it has found lead to the decision reached on the application of the Activities and their Descriptors. 

The Judges continue:

“The fact finding exercise can be, and in our view generally should be, carried out separately from, although with an eye to, the value judgements that have to be applied to those findings.  It identifies and particularises, by reference to primary facts, the situations and events that will be taken into account and so the bedrock of the decision on the application of the Activities and their Descriptors. 

In reaching that decision the tribunal will have to address and decide whether those findings show that:

  • the claimant has cognitive impairment or mental disorder;
  • a causative link between that impairment or disorder and his difficulty relating to others or significant distress; and
  • a causative link between that difficulty and distress and a preclusion for all of the time or an impossibility for a majority of the time of contact with all other people, or those who are unfamiliar to the claimant, that has the necessary degree of reciprocity, give and take, initiation and response.

In addressing whether the contact with other people has the necessary nature and quality the tribunal should consider in each individual case how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working.”

Comment: This decision stresses that each case to be considered on an individual basis and places no bar on the type of social communication to be considered. However, any problems with communication highlighted will need to be related back to how these would translate into a problem with the disabled person working. 

CE/2801/2013 [2014] UKUT 248 (AAC): interlocutory decision:  This appeal is stayed until the three judge panel in CE/3453/2013 shall have given its decision, or further order.

Upper Tribunal Judge: Ward

The claimant had severe mental ill health. She appealed against that decision refusing her ESA and the First-tier Tribunal (FTT) decided that she did have limited capability for work.  However, it also decided that she did not have and could not be treated as having limited capability for work related activity (under regulation 35 of the ESA Regulations 2008 – “substantial risk”). 

Prior to her tribunal hearing, the claimant had been to the Jobcentre for three  “work-focussed interviews”, an experience which she found stressful due to the noise and bustle of the Jobcentre. There was no suggestion that she received there any specialist help related to her mental health.

However, the FTT found that:

“As the appellant is not in the support group she will be required to attend work-focussed interviews at the job centre. She may also be expected to undertake certain work-related activity. The Tribunal is of the opinion that the staff at the jobcentre are fully qualified professionals and they will work with the specialist services that are already involved in order to carefully rehabilitate the appellant to the position whereby she can re-enter the employment market.  With this careful support there would not be a substantial risk to her or anybody else’s health if she were found not to have limited capability for work- related activity.”

Upper Tribunal Ward explains he gave permission to appeal, as it seemed to him arguable that there was no evidence on which the tribunal could make the finding quoted above and comments:

“Of course, the teamwork between the Jobcentre staff and the medical professionals involved in her care, which the tribunal clearly regarded as essential, was what the appellant wanted, too.  But the question is whether the tribunal was entitled to assume that it would happen.”

Judge Ward then sets out that during the course of the appeal the DWP had published a paper The disability and health employment strategy: the discussion so far (December 2013) that sets out “more fully than I have ever seen in tribunal papers”, the various forms of help that may be available to people with a disability or a health condition who have to engage with the Jobcentre.

On being asked further questions on the paper by Judge Ward, the Secretary of State’s representative replied:

“For those with problems as in the present case, appointments can be arranged for times when the Jobcentre is known to be less busy, private interview rooms can be arranged, and the claimant can always choose to be accompanied by a family member, friend or support worker.

… claimants can be referred to a Work Psychologist and Disability Employment Consultant (formerly known as a DEA) where appropriate. This Jobcentre does not have a designated Mental Health and Wellbeing Partnership Manager but support is available via the Social Justice Partnership Manager, where appropriate.”

… the Government paper referred to is mainly focussed on future proposals, as opposed to current delivery.  However …some of this support is already available in certain Jobcentres, although at the moment, that position may not be replicated in Jobcentres nationally.”

Despite this, Judge Ward says that from the point of view of a tribunal having to decide whether, for the purposes of regulation 35, “there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity”, there are a number of problems:

“(a) provision is not available across all Jobcentres, thus it may be very difficult, if not impossible, to make assumptions about the provision that would be available for any particular claimant;           

(b) some aspects remain ill-defined, for instance how far a Social Justice Partnership Manager can do what the more specialist-sounding Mental Health and Wellbeing Partnership Manager could achieve in relation to liaising with mental health professionals;

(c) even where there is suitable provision, accessing it appears to be via a generalist Jobcentre adviser performing a “gatekeeper” role, which raises the question of whether a tribunal is entitled to assume that the gatekeeper role will be performed so as to enable a claimant to access the provision he or she reasonably requires; and

(d) it is not clear on the material before me that claimants and those advising them are provided with the sort of information that would enable them to request to avail themselves of the provision that is on offer.  In the present case, for instance, the appellant says she was never offered either a private interview room or (another alternative in some cases) telephone based interviews.”

However, Judge Ward reasons that he can only make an interlocutory (intermediate) decision on the claimant’s appeal at present explaining:

“These are quite significant issues concerning the structures for helping people back into work that are a key part of the stated intention of employment and support allowance.  They overlap with those understood to be at issue in the case CE/3453/2013 McK v SSWP, in which a three judge panel has held a hearing and in which further submissions are understood to be awaited.  A single judge generally has to defer to the authority of a three judge panel, which, moreover, has been and is in a position to receive more detailed argument than is available to me without an oral hearing (which the appellant does not want)." 

He therefore concludes:

"While I consider that the First-tier Tribunal in the present case was in error of law in proceeding, without evidence, to make the finding in [5] above, I am far from clear that it is necessary or appropriate to set its decision aside at this stage, which might well lead, among other things,  to requiring the appellant to go through a further First-tier Tribunal and to re-opening the question of whether she had limited capability for work (never mind limited capability for work-related activity).  It is preferable therefore to stay the present case until the three judge panel in CE/3453/2013 shall have given its decision which may have the effect of indicating whether any useful purpose will be served by setting the tribunal’s decision aside in the present case.”

CE/2964/2013 [2014] UKUT 131 (AAC): Basis on which claimant granted ill-health retirement may provide material evidence for regulation 29 purposes (substantial risk to health if not found to have a limited capability for work.

Upper Tribunal Judge Ward
20 March 2014 

The claimant had experienced painful back problems for many years and been diagnosed as also having carpal tunnel syndrome over the last four years affecting her grip and causing pain.

She had worked full-time as a secretary within the NHS and in 1995 (at the early age of 40) had been placed on ill-health retirement with a pension.

The tribunal dismissed her appeal against the decision that she was fit for work at a paper hearing.

In doing so it noted that:

“Although the Appellant did not pursue Regulation 29(2)(b) the Tribunal considered whether there was a risk to the Appellant’s (or anybody else’s) health in a finding that she was fit for work.  We bear in mind that the Appellant’s needs will be taken into consideration by an employer.  Appropriate aids and appliances will be provided. 

In consideration of all the information provided the Tribunal was satisfied that the Appellant could undertake any supervised low skilled, non manual or light manual, non- demanding job, taking into account the           appellant’s overall condition.  Such jobs are available in a range of organisations including, but not limited to supermarket chains or call centres.”

Judge Ward sets the tribunals’ decision aside on the grounds that the tribunal’s failed to engage “with all the evidence in relation to regulation 29 and/or to have regard to the terms of the National Health Service Pension Scheme Regulations 1995 SI 1995 No.300 (“the 1995 Regulations”).”

He explains that the 1995 Regulations that provided that someone was to be retired form employment because of  a physical or mental infirmity that makes him permanently incapable of efficiently discharging the duties of that employment”:

“On the evidence the claimant did not have carpal tunnel syndrome then and the problem was her back.  The pension would not have been awarded without an occupational health specialist doctor having been satisfied that this test was met.  Substantial amounts of money that would otherwise not have been paid turned on it - the payment of a pension from age 40 to retirement age - so it may be thought unlikely that scrutiny was other than thorough. 

If she was permanently incapable of efficiently being a secretary in 1995 and her condition had, if anything, got worse, to assert that she could perform even a non-manual job, never mind a light manual one in my view required the tribunal to engage with this evidence and explain what it made of it, if it was sufficiently to discharge its duty to give reasons.”

He continues:

“The reason why an assessment done as long as 17 years previously was capable of having some ongoing relevance was because according to its terms, it had to address the claimant’s permanent incapability for doing a particular type of job.  There was no indication of any change for the better, if anything the opposite.  If then the tribunal was going to say that actually the claimant was capable of doing a job similar in its physical demands to the one she had had to retire from, or even one that was  a little heavier, it needed to explain why, in the light of all the evidence. That it failed to do.”

Judge Ward concludes by remitting the client’s appeal for re-hearing and encourages the claimant to attend as “it is almost always useful for a tribunal to hear from a claimant face to face about the difficulties they experience”.

CE/3939/2013: Meaning of “social interaction is always precluded”

Upper Tribunal Judge: Williams 

In this decision, Upper Tribunal Judge Williams considers the meaning of descriptor 16a of the in Schedule 2 (limited capability for work) descriptors of the ESA Regulations 2008 and descriptor 13 of Schedule 3 (support group) both of which apply to those for whom:

“Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant.”

Descriptor 13 is subject to enabling provision regulation 34(2) that provides:

“A descriptor applies to a claimant if that descriptor applies to the claimant or the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

In discussing the operation of descriptor 16 and descriptor 13 Judge William says that the focus is on the extent to which social contact is possible:

“If contact with unfamiliar people is possible for some of the time, but not a majority of the time, then 16(c) provides that this is a relevant limit (6 points). Contact with familiar people is irrelevant at that level. If contact with unfamiliar people is “always precluded” then the relevant limit is higher (9 points). Again, contact with familiar people is not relevant. It is only if contact is “always precluded” with anyone, familiar or not, that the full 15 point level becomes relevant.”

He continues:

“Once the level of preclusion is identified, the cause must also be considered. Is the preclusion caused by difficulty relating to others, or by significant distress experienced by the individual (or a combination of both)? If it is, then the preclusion is of a kind that entitles the individual to be regarded as limited to the extent set in the descriptor.”

Judge William then turns to the “critical question” of whether “always” means “always” given the context of regulation 34(2) and in doing so highlights that he agrees with the “persuasive analysis” of Judge Mark in CE/4125/2012:

“It is plain from the wording of descriptor 16 read as a whole that “always” cannot mean “for a majority of the time”. I agree with him that descriptor 16(a) cannot be read down to meet the test in regulation 34(2) because that test is the test in 16(c). It must be a noticeably higher preclusion than that. And in my view that is stressed by the difference between “always” having problems engaging in social contact with strangers (16(b)) and “always” having problems engaging in social contact with anyone (16(a)).

Judge William therefore concludes that the test being applied by the two descriptors is therefore a high one and a finding by a tribunal that it applies a majority of the time or to some social situations only (as in this appeal) is not enough.

CE/3441/2013 [2014] UKUT 185 (AAC): Tribunal’s duty to obtain evidence relating to DLA award

Upper Tribunal Judge Bano
16 April 2014

The claimant had been in receipt of incapacity benefit since 2003. He had also been awarded higher rate mobility component of DLA for an indefinite period from 2004 due to severe back pain. 

However, on being assessed by a healthcare professional in 2012 he scored no points under the limited capability for work assessment and then appealed against the resulting decision refusing to award him ESA.

In dismissing his appeal, the tribunal found that only descriptor 1(d)(ii) applied to the claimant (cannot repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion - 6 points). It based its finding on “the appellant’s oral evidence at the hearing and the tribunal’s observations.”

Permission was granted to appeal to the Upper Tribunal on the grounds that it was arguable that the tribunal ought to have taken into consideration the evidence on which the award of higher rate mobility component was based. 

In considering the appeal, Upper Tribunal Judge Bano cites CE/1992/2010 in which Judge Turnbull held that:

“…the claimant had an award, apparently made some 3 years previously, of the higher rate of the mobility component of disability living allowance.  That would imply 15 points under descriptor 1(b).  In my judgment the Tribunal should have had before it the evidence on the basis of which that award was made.  Although the Claimant’s representative had not, it seems, made this point, the First-tier Tribunal should in my judgment have done so on its own initiative.”

While setting aside the tribunals’ decision and remitting it for rehearing, Judge Bano concedes the possibility that there may be cases where a tribunal can conclude that the evidence supporting an earlier DLA award would add nothing of significance to the evidence already before the tribunal. For example, if a claimant’s medical condition has altered fundamentally since the award was made.

However, he says that the claimant’s case did not fall into that category:

“The claimant underwent a L4/L5 discectomy in 2000 and was found to have lumbar spine stenosis in 2010.  The healthcare professional who examined the claimant on 26 July 2012 did not report any restrictions on his walking ability, but the tribunal found that descriptor 1(b)(ii) applied (although the statement of reasons suggests that the tribunal considered that the claimant also satisfied descriptor 1(b)(i)).  The tribunal must therefore have been satisfied the claimant’s ability to mobilise without stopping or to do so repeatedly within a reasonable timescale was limited by significant discomfort."

He therefore holds that the tribunal ought to have sought to obtain the evidence on which the award of higher rate mobility component was based:

“On that basis, I am satisfied that the tribunal could not reasonably have concluded that the evidence before them was sufficient to enable them to establish reliably the distance which the claimant could mobilise in the terms of the descriptors (200 metres, 100 metres, or 50 metres), and that for that reason it was unnecessary to obtain the evidence on which the award of higher relate mobility component was based." 

In addition, he highlights that the evidence concerning the journeys undertaken by the claimant did not explore what restrictions in the claimant’s walking ability resulted from severe discomfort adding that:

“So far as the tribunal’s observations of the claimant are concerned, I do not see how watching the claimant standing up and sitting down and watching him take a few steps entering and leaving the tribunal room could reliably establish the point at which he would suffer severe discomfort after walking a significant distance.”

Comment: This decision may be useful to cite by those seeking leave to appeal against a First Tier Tribunal’s dismissal of an ESA appeal on the grounds that, for example, the tribunal should have requested evidence on which a client’s DLA higher mobility component award was based.

However, it may often be useful to request from the DWP such evidence before an appeal is heard. If the evidence is relevant and supportive of a client’s case it can then be forwarded to be included in the ESA appeal papers and so considered by the tribunal.

It is important to remember that it is not the fact of a DLA award that is of significance but potentially the evidence that was used to make it. In addition, there needs to be some explanation as to why any DLA evidence is relevant to any contested ESA descriptors.

CE/3627/2013 [2014] UKUT 11 (AAC): Regulation 29: whether work should be of social benefit to the claimant

Upper Tribunal Judge Jacobs
13 January 2014

The claimant had appealed a decision not to convert his award of credits and income support to ESA.

His local CAB had obtained evidence from his GP and also submitted that:

“…there is a substantial risk to Mr H…’s physical health as the type of work that he would be expected to do would be manual work, and the tribunal are asked to find that Mr H… should be treated as having limited capability for work.”

In dismissing the appeal, the First Tier Tribunal (FTT) said:

“In assessing whether there was a substantial risk the Tribunal noted that his wife had died in 2001 due to cancer. The Tribunal found that he was living alone, had little contact with people but was able to use public transport to travel from Margate to Nottingham to see his daughter and granddaughter about 2-3 times a year. He appeared to be socially isolated and going out to a regular form of work where he could meet others would be good for his mood and it was not unreasonable to expect that.”

Regulation 29 of the ESA Regulations 2008 applies if:

“the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

In upholding the claimant’s further appeal Upper Tribunal Judge Jacobs holds that the FTT made a number of errors of law in the course of its short reasons on regulation 29:

“First, the tribunal failed to deal with the case put by the CAB. That case was based on the risk to the claimant’s physical health and the supporting medical evidence related to his physical condition. The tribunal should have given reasons to show how it dealt with the case put to it and the evidence on which it relied.

Second, the tribunal had no evidence on the claimant’s mental state. The CAB had not argued that there was a risk to his mental health. Despite this, the tribunal made a finding on the value of work to the claimant. It did so without the benefit of any evidence on the therapeutic value of work and after only a brief acquaintance in a judicial setting.”

More fundamentally, Judge Jacobs holds that the tribunal failed to understand the nature of regulation 29(2)(b) and the timescale within which it had to be applied:

“As to the nature of the provision, it is concerned with risk, not benefit. The tribunal should have investigated and considered what risk, if any, would be involved in finding the claimant to be fit for work. Any benefit, assuming that it could properly be proved, might be relevant as evidence on risk or the lack of it, but that is all. The issue is risk. If a substantial risk is established, the provision applies. And it applies even if it is accompanied by some chance of improvement in the claimant’s condition. It is not permissible to ignore that risk or to decide that it is a price worth paying for that eventual benefit.

As to the timescale, regulation 29(2)(b) refers to the claimant being found not to have limited capability for work. That occurs at the time of the Secretary of State’s decision.

… Although the decision looks to the future, it has to made as at the time of the Secretary of State’s decision. This is the effect of section 8(2) of the Social Security Act 1998, which provides that the claim does not subsist beyond the time when it is decided.* This is reinforced by section 12(8)(a) of that Act, which provides that a tribunal may not take account of circumstances not obtaining at the time of the decision.”

CE/3642/2013 [2014] UKUT 141 (AAC): Whether permissible for representative to give evidence at a tribunal hearing

Upper Tribunal Judge Grey
20 March 2014

A First Tier Tribunal (FTT) had dismissed the claimant’s appeal against the decision that he did not have a limited capability for work.

At the hearing, his representative said that he wished to give evidence on his behalf. The proposed evidence was, in general terms, evidence concerning the matters with which his organisation had felt it necessary to assist the appellant.

However, the representative was told by the FTT Judge that he could only ask his client questions or make a submission.

In upholding the claimant’s appeal and setting aside the FTT decision for rehearing Upper Tribunal Judge Gray says:

“The FTT would have been entitled to hear his evidence. There is nothing to prevent a representative from giving factual evidence of matters within their knowledge. 

The informality of a tribunal hearing in comparison with a hearing in court, together with the preponderance of representation being by those who may be knowledgeable concerning benefit issues but not necessarily legally qualified, leads to some inevitable blurring of the distinction between representative and witness. 

The investigative role of the tribunal may also lead it, in certain cases, to find out whether a representative is in a position to give useful evidence.  It is of course a matter for the FTT to assess the weight of such evidence, and it should do so with the evidence of a representative in the way that it weighs any evidence. “

Judge Gray concludes by approving of Commissioner Jacobs remarks in CDLA/2462/2003 in which he holds that:

“The tribunal must take care to distinguish evidence from representation so that the former’s provenance is known and can be the subject of questioning by the tribunal and other parties.

But, subject to the practicalities of the way in which the taking of evidence is handled, there is no objection in principle to the same person acting in different capacities as a witness and as a representative. Nor is there any reason in principle why the probative value of evidence should depend upon whether or not it came from representative.”

CE/4095/2013: Importance of Med 3 evidence in consideration of Regulation 29 (substantial risk)

Upper Tribunal Judge Ward 

The claimant 50 years old, suffered from depression and had been on income support on the grounds of incapacity for several years. For three weeks out of every four she was able to spend three mornings a week sorting clothes on a voluntary basis for her charitable housing provider.  She had recently taken up a job for one hour a day in a launderette.

Following a work capability assessment she was awarded 0 points and so was found not to have limited capability for work by a decision taken on 8 December 2011. That decision was upheld by a tribunal. 

The tribunal did not consider that there would be a substantial risk to the mental or physical health of any person if the Appellant were found not to have limited capability for work (regulation 29) as it considered that the claimant:

“… would be able to undertake longer hours in the sort of role she undertook at the launderette; whether in the same industry or for example as a cashier in a cinema or amusement arcade or in a low pressure retail environment.”

In this decision, Upper Tribunal Judge Ward considers whether the tribunal erred by failing to explain how it reached its conclusion on reg 29 in the face of a Med 3 from the GP, more or less contemporaneous with the decision, that the claimant was not fit for work.

The claimant’s GP on 16 January 2012 had issued a Med 3 certificate that read:

“I assessed your case on: 16/1/12

And, because of the following condition(s): depression

I advise you that:        

(x) you are not fit for work.

(  ) you may be fit for work taking account of the  following advice:

If available, and with your employer’s agreement, you may benefit   from:

( ) a phased return to work             ( ) amended duties

( ) altered hours                     ( ) workplace adaptations

Comments, including functional effects of your condition(s):

This will be the case from 5/1/12 to 5/3/12”

The GP had also on 12 January 2012 also written a “To Whom It May Concern” letter, which was in evidence that said:

“I am writing to confirm that [the claimant] has suffered from depression and has been on treatment for this for at least the last 11 years.  Although her condition is stable she does describe that her mood remains low with poor sleep, appetite and concentration. She does have a small part-time job which she enjoys but feels unable mentally to cope with full-time work and fears that this would aggravate her mental health. I hope that you can be supportive of her situation.”

In highlighting the importance of a Med 3, Judge Ward says:

“Form Med 3 has a statutory underpinning, via the Social Security (Medical Evidence) Regulations 1976/615 as amended by SI 2010/137. Schedule 1 contains a number of rules governing their issue. 

By rule 4, “a doctor’s statement must be based on an assessment made by that doctor”.  An indication as to the “assessment” required is provided by rule 5(b): the statement is required to contain “the date of the assessment (whether by consultation or consideration of a report as the case may be) on which the doctor’s statement is based.” 

By rule 7: “Where a doctor considers that a patient may be fit for work the doctor shall state the reasons for that advice and where this is considered appropriate, the arrangements which the patient might make, with their employer’s agreement, to return to work.” 

On the face of it therefore, the GP’s view would have been given following a consultation or consideration of a report and specifically did not treat this as a borderline case.”

Judge Ward emphasises that what is written in the Med 3 is note conclusive of a regulation 29 question as:

“Clearly it may be possible to reconcile that a doctor has provided advice to a patient in a Med 3 with the specific legislative test under reg 29 of a “substantial risk” to health not being met”. 

However, he then stresses:

“But to do that will in my view require the implications of the certificate to be addressed and facts to be found to the extent that it is possible to do so.  Otherwise a claimant may be understandably baffled, saying: “you’re telling me I can work without substantial risk to my health yet my own doctor is advising me not to work.  How can that be squared?”.”

While the tribunal were in error in not doing this Judge Ward does not set aside its decision due to the evidence of the GP’s letter of 12 January 2012 as:

It indicates the claimant’s condition was stable on medication.  Such reservations in relation to work as are expressed are attributed to reservations about “full-time work” on the part of the claimant.  The GP does not express a professional view that the claimant could not cope, much less that there would be substantial risk to her health, but requests a supportive approach to her situation.  With the help of this letter, one can understand how the Med 3 came to be given in the light of the claimant’s reservations, but in circumstances such as to negative any implication that there might be “substantial risk”.”

CE/4111/2012 and CE/3202/2013: Weight to be given to the observations by an Atos physiotherapist on WCA mental health descriptors

Upper Tribunal Judges: Charles, Lane, Knowles  

These two appeals against the refusal of Employment and Support allowance (ESA) were heard together by a three judge panel as both appeals raise a common issue, namely:

“…the weight to be given to the observations on mental health descriptors by a physiotherapist (or an appropriately qualified person) when carrying out a Work Capability Assessment (WCA)”

In both cases the respective First-tier Tribunals dismissed the claimants’ appeals against the decision that they did not meet the conditions for entitlement to ESA. Each case required the tribunal to consider the claimants’ mental and cognitive.

In reaching its decision, each tribunal attached weight to the opinion of the physiotherapist health care processional (HCP) who carried out the face to face medical examination of each of the claimants.  

Both the claimants and the Secretary of State accepted that the weight to be attached to an assessment carried out by a physiotherapist is one for the tribunal on the facts of the case.

However the claimants sought to argue that an HCP report by a physiotherapist on a person with mental health problems is highly likely to be of little or no probative value or that very limited weight, if any, should be placed on such a report.

In opposing the appeals, the Secretary of State argued that HCPs of whatever professional background are selected and trained sufficiently to carry out medical examinations which raise mental health issues. As a result, the decision maker and the tribunal are entitled to rely on that medical examination to the extent necessary on the facts of each case.

The claimants relied on the decision in JH v Secretary of State for Work and Pensions [2013] UKUT 0269 (AAC) where in obiter comments Judge Mark said:

“Where … the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems, the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever.

This is because the physiotherapist has no professional expertise in mental health matters. Although the strict rules of evidence do not apply, a tribunal can only take into account evidence that has probative value …”

The Secretary of State relied on the approach adopted in JF v Secretary of State for Work and Pensions [2011] UKUT 385 (AAC). In that case the claimant argued that a medical report prepared by a registered nurse who had no qualifications in mental health was not sufficient to discharge the onus of proof on the Secretary of State that a claimant no longer satisfied the conditions of entitlement to benefit where the report was the only evidence relied on. However, in JF Upper Tribunal Judge Ovey instead found that:

“I have found nothing in the statutory framework which would prohibit the Secretary of State as a matter of law from relying on such a report in the case of a mental illness unless the HCP, if a nurse, had “qualifications in mental health”.

It is therefore not necessary to go into the concealed question of what that expression might mean, particularly in the light of the information set out above as to selection and training of nurses as HCPs. The HCP was clearly a health care professional within the definition in reg. 2 of the 1995 Regulations and it has not been suggested that (contrary to the statement in the report itself) she was not approved by the Secretary of State”.

In dismissing the claimant’s appeals, the three judge panel conclude that the assessment of the probative value of an HCP physiotherapist’s report, like other reports and evidence is a matter for the decision maker and, in turn, for a tribunal seized of an appeal so that:

“It thus follows that the obiter comments by Judge Mark in JH … are wrong if and to the extent that they purport to create a rule of law or starting point that observations on mental health descriptors by HCP physiotherapists are of no probative value whatsoever or are highly likely or likely to have little probative value and thus should be accorded no or little weight by the decision maker and the First-tier Tribunal.”

The Judges give three reasons for their conclusion.

“First, the statutory scheme authorises HCPs - including physiotherapists – to carry out medical examinations in order to assist the Secretary of State in determining whether a claimant has limited capacity for work [see regulation 23(1) and regulation 2(1) of the ESA Regulations 2008]. There is nothing in the statutory scheme which draws any distinction between an HCP’s ability to assess mental health descriptors as opposed to physical descriptors …It thus follows that Judge Ovey’s reasoning in JF is correct...

Second, there is a fundamental difference between a medical examination carried out as part of a process of diagnosis and treatment and the medical examination carried out by the HCP during the ESA process. The latter examination concerns itself with whether a claimant has limited capability for work or for work related activity and considers how any condition the claimant may have impacts upon his/her functional capacity. 

… What is however required of the HCP is that s/he has a sufficient understanding of a claimant’s medical conditions and the difficulties flowing from these. That informed understanding will influence the conclusions of the HCP medical examination. Developing that understanding is a matter of adequate training and supervision as directed by the Secretary of State and implemented by those responsible for employing HCPs to carry out their duties.”

Third, the First-tier Tribunal is required to make its own findings having had regard to all the evidence before it. It is a specialist tribunal which, in ESA appeals, consists of a legal and a medical member. That expertise can and should be deployed so as to evaluate all the evidence before it and decide what weight to attach to evidence from different sources in each particular case. Case authority such as JH suggesting that HCP reports from physiotherapists in mental health cases have no probative value whatsoever fetters the First-tier Tribunal from using its own judgment in assessing the evidence before it in a particular case. This is not the correct approach.”

The three judge panel then set out the following guidance:

“In assessing the weight to be given to any report addressing the functional impact of any medical condition on a claimant, a First-tier Tribunal should consider
(a) the level of the author’s expertise (for example, an HCP or a consultant psychiatrist) and
(b) the knowledge of the claimant possessed by the author (for example, knowledge gained from a one-off assessment or that gained as a treating clinician).

Additionally the date of the evidence, its comprehensiveness, and its relevance to the issues the tribunal has to determine are also key matters for the tribunal to consider. Importantly the tribunal should explain its reasoning for attaching weight to one type or piece of evidence rather than to another.“

CE/4181/2013: Separate claims are not needed for contribution based and income-related ESA

Upper Tribunal Judge: Rowland

In brief, the claimant had unsuccessfully appealed a decision not awarding her income-based ESA from the date she had been awarded was in receipt of contributory-based ESA.

In upholding the claimant’s appeal, Judge Rowland holds that Section 1 of the 2007 Act provides ESA is a single benefit:

“Thus, if a claimant is entitled to both a contributory allowance and an income-related allowance, there is still only one amount of ESA payable, which is either attributable to the contributory allowance or to both allowances, depending on the amount.
It follows, as appears also to be common ground that, contrary to what the First-tier Tribunal held, it is not necessary to make separate claims for each of the contributory allowance and the income-related allowance.
It is generally a condition of entitlement to ESA that a claim is made for it (see section 1(1) and (4)(ac) of the Social Security Administration Act 1992), but there is nothing in the legislation requiring separate claims for the contributory allowance and the income-related allowance.”

He then highlights that a claimant may “waive” the need for the Secretary of State to consider one or other of the allowances:

“As a matter of practice, a claimant is given an opportunity on a standard claim form to indicate whether he or she wishes to 'claim' both allowances or only one of them. That has obvious administrative advantages for the Department and it also has advantages for claimants – provided that they do not wrongly believe that they are not entitled to one or other of the allowances – because it avoids delay while contribution records are investigated or, probably more importantly, makes it unnecessary for a claimant to provide details of his or her financial position. 
Nonetheless, despite the language usually used, an indication that one or other of the allowances is not 'claimed' amounts to a waiver of the need for the Secretary of State to consider entitlement to that element of employment and support allowance, rather than amounting to a true failure to claim it.  The legislation does not actually contemplate there being a claim for only one element of the allowance.”

Judge Rowland also holds that a ESA award can be varied other than by supersession. For example:

“… because a claim is not necessary in respect of each element of employment and support allowance, if a person says on a claim form that he or she wishes to “claim” only one element and a decision is made in respect of that element, it seems to me that it must be open to the claimant, if he or she thinks that it was a mistake not to ask for both elements to be considered, to raise the question of entitlement to the other element by way of an application for a revision under section 9 “on any ground” (see regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)) or subsequently if there is an appeal.

There are also other bases upon which an application for a revision may be made. I accept that there was no relevant application for supersession made by the claimant that can assist her on the facts of this case, but the question arises as to whether there was a relevant revision or appeal. This requires a legal analysis of the decision-making in this case.”

Judge Rowland concludes by maintaining that he does not consider that his approach is unfair to the Secretary of State as:

“… no doubt that it is generally to the advantage of the Secretary of State not to have to consider entitlement to the income-related allowance if a claimant does not wish him to do so until it becomes a live issue of practical importance”. 

Comment: This is a significant and welcome decision. It establishes that if someone only requests contribution based ESA on their claim form they can still be paid income based ESA to the date they first met the eligibility criteria.    

CE/4188/2013 [2014] UKUT 129 (AAC): Potential relevance of the evidence behind a DLA award of higher rate mobility component in ESA appeal

Upper Tribunal Judge Gray
20 March 2014

In her letter of appeal against the decision that she did not have a limited capability for work the claimant had stated that:

“Last year I attended a tribunal, in Wakefield, for disability living allowance.  I was awarded, for the third time (since 2006), high rate mobility and middle rate care, until 2016.”

In considering the claimant’s appeal to him, Upper Tribunal Judge Ward explains that:

“Despite this having been put so firmly in issue, the DWP’s submission provided no details of the DLA awards.  This was so, despite the obligation under rule 24(4) of the First-tier Tribunal’s rules of procedure to provide “copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise.”  The claimant attended the hearing with a supporter, but without representation.  The tribunal’s reasons were silent as to DLA and I can find nothing in the record of proceedings to suggest that the issue was discussed.”

While the claimant was awarded 0 points by the tribunal she had reported difficulties in relation to areas which included mobility and various activities of daily living that were affected by her physical and mental conditions.

In discussing the relevance of the DLA award, Judge Ward cites Judge Jacobs’ remarks in ML v SSWP [2013] UKUT 174 ((AAC):); [2013] (AAC):R 33:

“18. Finally, I need to deal with Mrs L’s argument on her award of the mobility component of disability living allowance at the higher rate. This is evidence that, at the time of the award of disability living allowance, Mrs L had limited mobility sufficient to qualify for the mobility component at the higher rate. However, without more information it is impossible to relate it to the specific terms of the activity of mobilising in Schedule 2. That would require more evidence about how her mobility was restricted and at what point it would give rise to significant discomfort or exhaustion. And if that evidence is necessary, the question arises: what value does the fact that the claimant has an award of the mobility component add to her case? It is possible that in many, if not most, cases the answer will be: little or nothing. In other words, it is the evidence that matters, not the award.”

Judge Ward agrees with Judge Jacobs in that the mere fact of an award of the higher rate of the mobility component of DLA may not necessarily tell one much about whether the ESA mobility descriptors are fulfilled. 

However, he adds:

“But I do not read Judge Jacobs’ remarks as providing any encouragement that the award of DLA can simply be disregarded; rather, as he says, it is the evidence that matters, not the award.  In my view the existence of the award is a catalyst for consideration of the potential relevance of the evidence behind it.  The significance of the decision is in my view correctly summarised in the headnote in the reported version:

“The fact that the appellant had an award of DLA of the higher rate mobility component cannot of itself be directly related to the mobilising           activity in Schedule 2; more evidence was needed about how her    mobility was restricted and at what point it gave rise to significant discomfort or exhaustion (paragraph 18).”

In relation to both components, Judge Ward finds that the evidence behind the DLA award was capable of proving material to what the ESA tribunal had to decide:

“In the present case, the claimant’s letter of appeal was enough to show (a) that she had been thought to have mobility difficulties and supervision or attention needs sufficient to meet the conditions for the respective DLA components; (b) that this had been so on three occasions, so was not based on a one-off decision (which might have been unduly generous); (c) that the third such award had been made by a tribunal, which will have been persuaded to do so on evidence; and that (d) the tribunal, which had in 2011 made an award lasting until 2016 had not had significant concerns that the claimant’s condition was not liable to continue for a reasonable period.

The evidence behind those awards, particularly the third of them, was potentially relevant and insofar as it was still available, ought to have been produced.  Under rule 24 the DWP ought to have included it and, when it failed to do so, the tribunal ought to have directed its provision and taken it into account in its decision.”

In setting aside the tribunal’s decision and holding that it be reheard, Judge Ward directs that the Secretary of State must, within one month file with the First-tier Tribunal such evidence as is in his possession or control in relation to the awards of DLA made to the claimant. 

He also directs that if the claimant has any evidence about the awards of DLA other than that provided by the Secretary of State, that she must send copies of it to the First-tier Tribunal so that it is received at least 14 days before the hearing.

CE/4405/2013 [2014] UKUT 208 (AAC): Duty of tribunal to consider Regulation 29 (substantial risk to health if found not to have a limited capability for work)

Upper Tribunal Judge Levenson
8 May 2014 

The claimant had a short leg, damage to his neck and shoulder affecting the grip in his right hand, chronic back pain, trouble sleeping causing loss of concentration and memory, and borderline depression.

In March 2012 he was examined by a health care professional and on the basis of their report was awarded only 6 points (in relation to mobilising) and as from May 2012 found not to be entitled to ESA. On revision, an extra 6 points were allocated in respect of limitations on his ability to stand or sit at a work station. This was still below the 15 point threshold and the claimant appealed.

With a First Tier Tribunal confirming the decision to allocate only 12 points the claimant appealed to the Upper Tribunal.

In its statement of reasons the FTT made no comment on regulation 29 except to say that “No exceptional circumstances applied in terms of Regulation 29(2)(b)”

The claimant argued that the FTTY erred in law by simply stating a conclusion on the applicability of regulation 29 without considering how that conclusion was reached in light of his difficulties and the kind of work that he might be expected to do.

However, the Secretary of State argued that regulation 29 was not raised in the appeal and that it is not compulsory for that tribunal to consider regulation 29 in detail.

In considering the claimant’s Upper Tribunal Judge Levenson holds that virtually every appeal against a decision by the Secretary of State that a claimant does not have limited capability for work raises the issue of whether regulation 29 applies.

As a result he advises as follows:

“It is inherent in the decision and should at the very least be given some thought by the tribunal (except in obvious cases or where a competent representative of the claimant concedes that there is no dispute about it).

In this case, of course, the First-tier Tribunal did give regulation 29 some thought, but not in any detail. A number of Upper Tribunal decisions have been cited to me on the amount of detail that is required. I do not propose to review them. I agree with the comments of Judge White in CE 2298 2013 that whether regulation 29(2)(b) requires to be considered depends on all the circumstances of the case (paragraph 41), that the more narrowly focused the descriptors become the more likely it is that the “safety net provision” of regulation 29(2)(b) will be in issue (paragraph 50), and that if it is in issue then some reason must be given for any conclusion (paragraphs 52 and 53).

The amount of detail that needs to be given must depend on all of the circumstances. If the tribunal finds that a claimant has no difficulties at all in any of the relevant areas of activity, then that might be all that need be said.”

In the present case he highlights that both the Secretary of State and the First-tier Tribunal found that 12 points should be allocated:

“This was serious stuff. Only one more point-scoring descriptor needed to be identified to take the claimant over the threshold. In such a case an unreasoned conclusion on regulation 29 amounts to a failure by the First-tier Tribunal to give proper reasons and is an error of law.”

As a result, Judge Levenson sets asides the tribunal’s decision and remits it for rehearing.

Comment: This decision may be useful in cases where leave to appeal to the Upper Tribunal is being is being sought even though the issue of Regulation 29 was not raised in the appeal itself.

However, where regulation 29 is being put as an issue before a First Tier Tribunal reference to it may still be useful (even where someone has been awarded nil points). This is because it will act as a reminder to the tribunal that if it decides that 12 points are applicable it must give serious consideration as to whether Regulation 29 is applicable.

CE/4904/2013: Regulation 29 (substantial risk): need to be accompanied by another person to get to a specified place

Upper Tribunal Judge: Rowland

While the claimant had not awarded any points on the work capability assessment a First-tier Tribunal awarded her nine points on the ground that the claimant was “unable to get to a specified place with which she was familiar without being accompanied by another person” - descriptor 15(b).

However, it dealt with regulation 29 of those Regulations by simply saying –

“Regulation 29 was not satisfied.  There would not be a substantial risk to the mental or physical health of any person if the Appellant was found capable of work or work-related activity.”

At the material time regulation 29(1) and (2)(b) provided –

29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if -

(a)     …; or

(b)     the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”

The claimant appealed to the Upper Tribunal on the ground that while the First-tier Tribunal’s found that the she was unable to get to a specified place with which she was familiar without being accompanied by another person it had failed to give adequate reasons for its decision that regulation 29 did not apply. 

In upholding the claimants appeal, Upper Tribunal Judge Rowland finds that:

“In a case where regulation 29 was clearly not raised on the evidence, the bald statement that the conditions of the regulation were not satisfied might be sufficient but, given the finding that the claimant satisfied the terms of descriptor 15(b) due, presumably (see regulation 19(5)(b)), to her depression and anxiety, it seems to me that it was necessary to explain why there would not be a risk of her mental health deteriorating if she were required to go to work, which would inevitably be a risk if she were found not to have limited capability for work and might require her to get to work unaccompanied." 

He then adds that:

“Descriptor 15(b) may be one of the few descriptors that almost inevitably raises the question whether regulation 29 applies if no other descriptor applies so as to take the claimant’s score up to 15 points, although it obviously does not necessarily follow from a finding that descriptor 15(b) applies that regulation 29 also does so.

… if there was a risk of the help not being available or not being maintained, it would be necessary to consider whether that might give rise to a substantial risk to the claimant’s health through, for instance, increased anxiety." 

Judge Rowland concludes by holding that:

“What was said in IM v Secretary of State for Work and Pensions (ESA) [2014] UKUT 412 (AAC) … in the context of the risk of being found not to have limited capability for work-related activity applies equally to the risk of being found not to have limited capability for work: “Being unable to carry out an activity does not necessarily imply that there will be a substantial risk to anyone’s health if the claimant is required to engage in the activity.  Nor does the risk of being sanctioned.” 

Comment: This decision will be useful in cases where it is being submitted that someone meets descriptor 15(B). If so, then a tribunal can be asked to consider Regulation 29. In doing so, evidence of the availability of friends or relatives who can escort the person to and from work will be relevant. Also relevant will be any current award of the lower mobility rate of DLA or the planning and following journeys rate of PIP.

CE/54/2014 [2014] UKUT 257 (AAC): Potential relevance of evidence underpinning DLA higher rate mobility component award to mobilising activity

Upper Tribunal Judge: Wright

With a First Tier Tribunal dismissing his appeal against the decision that he did not have a limited capability for work as of 14 February 2013, the claimant appealed to the Upper Tribunal.

In setting aside the tribunal’s decision and remitting the appeal for rehearing, Upper Tribunal Judge Wright holds that the FTT made three errors of law.

First and perhaps most critically he says, is that the tribunal failed to make adequate findings of fact on the mobilising descriptor and failed to explain adequately why the appellant’s walking around Tesco’s using a trolley stood against him meeting any mobilising descriptor:

“As Judge Jacobs put it in AH –v-SSWP [2013] UKUT 0118 ((AAC):); [2013] (AAC):R 32, at paragraph 21:

“The key to applying the words of Activity 1 lies in making findings of fact relevant to [the words set out in activity 1] that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose. Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”. How far could he walk before stopping? What made him stop? How did he feel? How soon could he proceed? How often could he repeat that process? This was particularly important in this case, because of the content of Mr H’s evidence to the tribunal. 

That investigation and analysis was not carried by the tribunal here, and that deficit amounts to a material error of law. For example, there is no evidence the tribunal investigated with the appellant how far he walked in the Tesco’s store before he stopped, and if he stopped why he did so.”

Secondly, Judge Wright holds that the tribunal erred in law in its approach to the claimant being in receipt of the higher rate mobility component of DLA (”hrmc”). 

After outlining that the tribunal that its finding that the appellant could walk for more than 200 metres made his entitlement to the hrmc questionable, Judge Wright holds that this is "to put the proverbial cart before the horse”:

“If there is a similarity between the test for the hrmc under the virtual inability to walk test and the mobilising activity in the Employment and Support Allowance Regulations 2008, as the tribunal plainly considered was the case (and from which I would not dissent), what is relevant is the evidence that led to that award: see ML –v SSWP [2013] UKUT 0174 ((AAC):); [2013] (AAC):R 33 at paragraph 18 and DF –v- SSWP [2014] UKUT 0129 ((AAC):)."

In the circumstances, I consider the tribunal erred in law in failing to give any consideration to whether it ought to have had before it the evidence that led to the hrmc award being made to the appellant, as part of its proper assessment ... of the appellant’s ability to mobilise as at 14 February 2013. 

Judge Wright then significantly adds that:

“Where an appellant is relying on his or her having been awarded the hrmc of DLA as relevant evidence from the outset of his appeal (which was not the case here), then the Secretary of State may have denied him a fair hearing if he does not put the evidence that led to the hrmc award before the First-tier Tribunal (see DF above). The First-tier Tribunal may in any event wish to call for such evidence to be put before it if the evidence that is already before it (either before or after a hearing) is otherwise unclear or incomplete." 

Judge Wright does caution however that the HMRC evidence must be relevant:

“If, for example, a tribunal was to conclude that a claimant could not walk, say, 50 metres without stopping in order to avoid significant discomfort or exhaustion but he could reasonably use a manual wheelchair to cover that distance, then the evidence underpinning the hrmc award is not likely to be relevant.  Likewise if the hrmc award was made three years ago for a period of five years and there has been a change of circumstances since affecting the claimant’s ability to walk, then the hrmc award may no longer be relevant. “                                      

 Finally, Judge Wright holds that the third error of law was in the tribunal’s treating the “typical day” evidence in the Health Care Professional’s report as accepted and unchallenged.

“In my judgment the submission made on behalf of the appellant … was, in substance, putting in issue the typical day evidence and I can find nothing in the record of proceedings showing that the appellant accepted the typical day evidence in the ESA85.  The tribunal then erred materially in law in (a) failing to investigate the areas of challenge and (b) failing to explain why the typical day evidence was to be preferred.  For example, the typical day says “No problem dressing” but on page 69 it is said that the appellant was finding it increasingly necessary to get help from his wife when dressing his lower limbs.”       

Comment: This decision adds to the case law that says that the evidence leading to an award of the hrmc is likely to be relevant to an assessment of the WCA mobility descriptor.

Also, it holds that where someone is relying on their having been awarded the hrmc of DLA as relevant evidence from the outset of his appeal then the Secretary of State may have denied them a fair hearing if he does not put the evidence that led to the hrmc award before the First-tier Tribunal.

If someone has been awarded the hrmc it is important to consider seeking the evidence for the award from the DWP.

CE/1021/2014: Whether verbal aggression is sufficient to meet Descriptor 17 (aggressive or disinhibited behaviour)

Upper Tribunal Judge: Rowley

The issue in this appeal turns on the tribunal’s consideration of activity 17 that is headed: “Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.”

Each of the descriptors in activity 17 refer to: “uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.”
There is a descending scale of frequency.  To satisfy descriptor (a) the episodes of behaviour must be “on a daily basis,” for (b) they must occur “frequently,” and for (c) “occasionally.”  
In deciding the appeal, Upper Tribunal Judge Rowley suggests a tribunal should adopt the following methodical approach to descriptor 17 that would involve it asking these questions:
(a) Does the claimant have cognitive impairment or mental disorder? 
(b) If so, does that cause the claimant to behave in the way described by the descriptor, namely:
(i) Does the claimant have episodes of aggressive or disinhibited behaviour?
(ii) Are any such episodes uncontrollable?
(iii) How often do they occur (noting the words of the descriptor: “on a daily basis,” “frequently,” “occasionally,”).
(iv) Would such behaviour be unreasonable in any workplace?

The Secretary of State does not support the claimant’s appeal as she said while she could be verbally aggressive to others she was not physically aggressive. He submitted that it was likely that any behaviour would extend beyond just verbal aggression for activity 17 to apply. 

Disagreeing with this, Judge Rowley says:

“There is nothing in the wording of the activity to suggest that verbal aggression would not, in appropriate cases, be sufficient to satisfy the test.  I adopt the observations of Upper Tribunal Judge Gray in WT v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0556 (AAC):
“40…The mischief that the descriptor must be intended to remedy is the creation of an unsafe or otherwise unacceptable work environment for co-workers.  The way in which the avoidance of that is accomplished is to exclude from the workplace those who, due to their mental health condition exhibit certain behaviour…”
In my judgment, the use of sufficiently serious verbal aggression may well create an unacceptable work environment for co-workers, or indeed others with whom the person exhibiting the behaviour may come into contact in the workplace.  It would be wrong to say that such conduct can never be enough to satisfy activity 17.” 

Upholding the claimant’s appeal and remitting it for rehearing, Judge Rowley adds:

 “… in my view it is not necessary for the claimant to have been involved in a fight or argument for activity 17 to apply.  There may be examples where his or her behaviour has been aggressive or disinhibited but has not led to another person responding by fighting or arguing.  Indeed, in many cases when faced with such behaviour, some people’s natural reaction is to walk away. That does not necessarily make the aggressive or disinhibited behaviour any less serious, nor does it necessarily render it any more acceptable to co-workers or others in the workplace.   In each case it will be for the tribunal to consider the evidence, find the facts and decide, in the light of those findings, whether a particular claimant’s behaviour, whether physical or verbal, is sufficient to satisfy the relevant criteria.
Applying what I have said above, in limiting its consideration to whether the claimant had been involved in any (recent) fights or arguments the tribunal erred in law in this case.”   

Comment: This decision usefully holds that it is possible for a claimant who exhibits only verbal aggression to be awarded points under Descriptor 17. In addition, it very usefully sets out a template for determining if the descriptor is applicable. 

CE/2174/2014: Regulation 29 (“substantial risk”) / claimant’s ability to journey to and from the workplace

Upper Tribunal Judge: Hemingway

The claimant’s health problems included depression, generalised arthritis, asthma and incontinence.  She had appealed against a decision that she did not have a limited capability for work.

A First Tier Tribunal (F-tT) accepted that she would be unable to get to a specified place with which she is unfamiliar without being accompanied by another person and awarded her descriptor 15(c) (6 points) for Getting About. However, it decided that she had no difficulties regarding any of the other activities to justify the award of any further points and so dismissed her appeal.

In doing so, the F-tT did consider regulation 29 of the Employment & Support Allowance Regulations 2008 - substantial risk to the claimant’s physical or mental health if found not to have a limited capability for work - but said only in its reasons statement that:

“There was no evidence that the appellant was suffering from any specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the appellant were found not to have limited capability for work.”

In upholding the claimant’s appeal, Upper Tribunal Judge Hemingway concludes that the tribunal erred in its consideration of regulation 29:

“What it had to say about that regulation was very brief and somewhat formulaic.  In this case the appellant had claimed to have both mental and physical health difficulties.  The F-tT had accepted that she did score points in relation to descriptor 15(c) which meant it was satisfied she was unable to get to a specified place with which she was unfamiliar without being accompanied by another. Thus, it had acknowledged there were mental health problems such as to justify some point scoring under schedule 2 to the 2008 regulations."

There is a very helpful consideration as to when it is necessary to address regulation 29 in a statement of reasons and to what extent it is necessary in MS v Secretary of State for Work & Pensions [2014] UKUT 115 (AAC).  It is said, therein, amongst other things, that regulation 29(2) (b) is more likely to be relevant in cases where the descriptors relating to mental, cognitive and intellectual functions are in issue. They were, of course, in issue here. 

Further, there is no consideration by the F-tT as to the range or type of work the appellant might reasonably be expected to do and, therefore, no consideration as to whether there would be the necessary degree of substantial risk stemming from undertaking such work.  Thus, the approach set out in Charlton v Secretary of State for Work & Pensions [2009] EWCA Civ 42 has not been followed.

Upper Tribunal Judge Hemingway then highlights the claimant’s representative’s apparent failure to specifically raise the issue meant of Regulation 29 before the F-tT. Does this mean it was not obliged to address it?

In answer to this, the Judge states that:

“I think it is right to say, in general terms, that if a competent representative (as is the appellant’s representative here) chooses not to raise regulation 29 then an F-tT will not, absent unusual circumstances, be obliged to address it. 

However, where an F-tT does choose to address it, even if not raised, it must do so properly and in those circumstances a failure of a representative to raise it will not mean that an otherwise inadequate analysis will suffice.  In these circumstances, therefore, I would accept … that the F-tT erred in its consideration of regulation 29.”

Lastly, Upper Tribunal Judge Hemingway considers the issue of the claimant’s ability to undertake a journey to and from the workplace:

“It is certainly right to say that a consideration of the substantial risk in regulation 29(2)(b) would encompass not only risk in the workplace but wider matters including risk on the journey to and from work. 

… In PD v Secretary of State for Work & Pensions (ESA) [2014] UKUT 148 (AAC)the Upper Tribunal was concerned with an appellant who, it was accepted, was unable to get to a specified place with which he was familiar without being accompanied by another person.  Thus, he had greater difficulties, at least in that particular context, than did the appellant in this appeal.  The Upper Tribunal concluded that, given the difficulties of the claimant before it, it was necessary to consider whether a third party might be able to assist in the journey to and from work in order to obviate any risk in undertaking such a journey.  Evidence as to the availability or otherwise of a third party should, it was said, be considered by a tribunal.  Other possible means of getting to and from work, such as using a motor car should also be investigated.  As was pointed out in PD it is not unusual to come across people whose ability to get out of their domestic setting is much greater in a car than it is when relying on public transport.

There is, though, it seems to me, a significant difference between a claimant who is unable to get to a familiar place and one, as here, who is unable to get to an unfamiliar one but who can get to a familiar one. That said, it is reasonable to suppose that many new employees will be embarking on a journey which is, initially, unfamiliar to them when they start a new job.

However, a practical difference is that an unfamiliar journey can very quickly become a familiar one so that, for example, if a third party were needed to accompany a new employee that might only be for a short, perhaps very short, initial period until the journey, by repetition, became familiar.  So, whilst a person in the position of this appellant might need some initial assistance from a third party that might, depending on the circumstances, be for a matter of just a few days or so and, in those circumstances, it would seem to be much more likely that someone would be on hand to afford that limited amount of assistance for a limited period of time. 

I do not say that the difficulties of a person who only meets descriptor 15(c), rather than a higher scoring one within the same activity, in getting to the workplace are to be discounted, I simply say it is far more likely that there will be a practical way of surmounting such difficulties so that the likelihood of regulation 29(2) (b) coming into play in such a situation is very much reduced though not extinguished.” 

Comment: This decision highlights that representatives should consider raising the issue of Regulation 29 at the First Tier Tribunal stage rather than after. If it not raised and the tribunal choose not to consider it then Judge Hemingway holds that it will not have erred in law. However, he emphasises that if a tribunal does consider Regulation 29 then it must give more than a brief formulaic statement of its reasoning (as otherwise
this would be an error of law).

Lastly, if raising the inability to cope with unfamiliar journeys, it is important to highlight any difficulties that someone may have that will mean these will still be encountered in the long term.

CE/2772/2014: Activity 8: navigation and maintaining safety – crossing road just one example of a potentially hazardous task

Upper Tribunal Judge Wikeley

Although the claimant had severe sight loss a decision maker had not awarded him any points for navigation and maintaining safety.

However, a First Tier Tribunal awarded him 9 points for activity 8(c):“Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment.”

The claimant appealed to the Upper Tribunal on the grounds that now argues that the he should have been awarded 15 points for either “unable to navigate around familiar surroundings” (descriptor 8(a)) or “cannot safely complete a potentially hazardous task such as crossing the road” (descriptor 8(b)), in either case, as with descriptor 8(c), “without being accompanied by another person, due to sensory impairment.”

In considering the appeal, Upper Tribunal Wikeley outlines that the tribunal had found as a fact that the claimant could only read the top line of an eye chart with one eye and the second line with the other eye. Describing his evidence as credible, it found he could go to familiar places alone but could not get to unfamiliar places, and so satisfied descriptor 8(c). It also concluded that “he was able to cross the roads using crossings and had not had any incidents whilst out and about.

The Secretary of State submitted that the tribunal erred in law in two respects in its approach to this activity.

First, it had failed to make findings as to the variability of the claimant’s vision problems in different lighting conditions, an issue which had been flagged up in the evidence before the tribunal. Second, it had concentrated exclusively on the Appellant’s ability to cross the road by a zebra crossing and not considered the wider connotations of descriptor 8(b).

In upholding the claimant’s appeal, Judge Wikeley agrees with both these points:

“As to the former, the FTT needed to address the issue of variability, at least in a broad brush way, and bearing in mind the requirement is for an ability to perform the specified activity with reasonable regularity.

As to the latter, the test under descriptor 8(b) is whether the claimant “cannot safely complete a potentially hazardous task”, of which crossing a road is simply one illustration. This is similar to activity 11(a) (learning tasks), where the task in question (e.g. setting an alarm clock) is an example of a simple task, and not an exclusive and exhaustive definition.”

However, he finds that the tribunal’s focus on crossing the road led it into error in another way:

“Even considering that particular task to the exclusion of any other potentially hazardous tasks involved in navigation and maintaining safety, the descriptor cites the example of “crossing the road”, not “crossing the road by a zebra crossing”.

Thus on those terms the question is “can the claimant safely cross the road without being accompanied?” not “can the claimant safely cross the road by a zebra crossing without being accompanied?” True, the overall activity is defined in terms of navigation and maintaining safety “using a guide dog or other aid if either or both are normally, or could reasonably be, used”.

However, it does not seem to me that a zebra crossing (or indeed any other type of pedestrian crossing”) is an “other aid” for this purpose. The “other aid” must be something which the claimant can take about with him or her and use to cross the road safely whether or not there is a designated crossing.”

Judge Wikeley concludes by holding that the tribunal erred in its finding that Regulation 29 of the ESA Regulation 2008 did not apply (substantial risk to physical or mental health if not found to have a limited capability for work.

“Assuming that at least descriptor 8(c) applied … the FTT needed to provide a convincing answer as to why it then felt there would be no substantial risk to the Appellant’s health on the journey to and from work."

The FTT’s finding in the context of regulation 29 that the Appellant could “get about safely and see right in front of him at a short distance” was not obviously, without further explanation, consistent with its decision to award 9 points for descriptor 8(c).” I agree this amounts to an error of law.

Comment: This decision usefully gives guidance on the issues need to be considered in relation to someone’s ability to “navigate”. It also highlights that where descriptor 8(c) is found to apply a tribunal should also give full consideration of whether regulation 29 is applicable.

CSE/17/2014 [2014] UKUT 176 (AAC): Regulation 35: occupational therapy in psychiatric day hospital is not evidence of ability to carry out work related activity

Upper Tribunal Judge: Bano
21 March 2014

The claimant had a long history of significant mental health problems and was in receipt of ESA. Following completing a further ESA50 and attending a work capability assessment examination a decision was made that she should remain in the work related activity group.

She then appealed against the decision not to place her in the support group. AS she had been engaging in work-related activity, her representative was able to request a copy of her action plan, which revealed that the claimant’s adviser had told her to consider bringing an appeal against her inclusion in the work-related activity group and had recorded as an action item that the claimant should attend the hospital where she was already receiving treatment. 

At the hearing of the appeal the claimant’s representative did not suggest that the claimant fitted any of the Schedule 3 descriptors, but submitted that she should be treated as having limited capability for work-related activity under regulation 35(2) (“substantial risk”) on the basis of the evidence of the action plan records.

However, the tribunal rejected this on the grounds that she engaged with and attended on her own a psychiatric day hospital on a daily basis and attended, on her own, five or six work related activity interviews or meetings when required to do so.

The claimant’s representative applied for permission to appeal to the Upper Tribunal on the grounds that the tribunal had erred in law in treating work-focused interviews as if they were work-related activity and in using the claimant’s hospital treatment as the basis of their finding that engaging in work-related activity would not place the claimant at substantial risk. 

In upholding the claimant’s appeal, Upper Tribunal Bano holds that:

“Although ESA work-related activity and a course of therapeutic occupational therapy in a psychiatric hospital might be said to share the aim of enabling people to undertake or resume paid employment, in my view in most cases any similarities between those two forms of intervention end there.  Treatment in a psychiatric hospital is designed to overcome the often devastating effects of mental illness. Its purpose is therapeutic and it is carried out by qualified mental health professionals in a way which is designed to improve and not to harm the health of the patient. 

Work-related activity, on the other hand, is designed to overcome obstacles to gaining employment for people who may have no relevant health problems, and employment advisers are not required to have mental health qualifications or experience.  I therefore reject the argument that the tribunal was entitled to find that work-related activity posed no substantial risk of harm to the claimant on the basis that she was already receiving occupational therapy in hospital.”

He adds that:

“A crucial consideration in this context is the regime of sanctions underpinning work-related activity, as explained by Judge Gray in MTv Secretary of State for Work and Pensions (ESA) [2013] UKUT 545 ((AAC):) - see paragraph 23.  In assessing the risks to the mental health of a claimant from a finding that a claimant does not have limited capability for work-related activity, a tribunal may therefore have to consider the possible effects on a claimant of stress resulting from the element of compulsion which the ‘conditionality’ of work-related activity entails.  Under regulation 3(4) of the Employment and Support Allowance Regulations 2011, a requirement of work-related activity must be reasonable, but as Judge Gray pointed out, there may be no opportunity for a claimant to challenge such a requirement until after a sanction has been imposed.  For the reasons given by Judge Jacobs in relation to regulation 29 of the ESA regulations in CH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 11 ((AAC):), any possible benefit to a claimant from engaging in work-related activity is irrelevant.”

In this particular case, Judge Bano outlines that:

“By 23 May 2012 the employment adviser had clearly abandoned any meaningful form of work-related activity out of concern for the claimant’s health, and at some later date the employment adviser recorded as an action item that the claimant should continue to attend the hospital where she was receiving treatment. 

As the claimant’s representative has pointed out, that was technically an unlawful requirement since regulation 3(4) of the 2011 ESA Regulations prohibits a requirement for a claimant to undergo medical treatment, but it does indicate that the employment adviser considered that the best course of action for the claimant was to continue with her occupational therapy in hospital.  If regulation 35(2) is to have any real meaning, it is not open to a tribunal to find that work-related activity does not present a risk of harm to a claimant on the basis that the claimant will not actually be required to undertake any meaningful activity if it turns out to be harmful. 

I therefore consider that the action of the employment adviser of effectively bringing the claimant’s action plan to an end out of concern for her health was evidence which the tribunal should have taken into account when evaluating the risk of harm to the claimant if she were not found to have limited capability for work-related activity.”

Persuaded by the evidence that there would be a substantial risk to the claimant’s mental health if she were found not to have limited capability for work-related activity, Judge Bano concludes by placing her in the support group with effect from the date of the decision under appeal.

CSE/141/2014 [2014] UKUT 218 (AAC): Whether tribunal should have adjourned to allow a claimant with poor mental health to obtain representation

Upper Tribunal Judge Agnew
7 May 2014

The claimant had mental health problems and had appealed a decision that he did not have a limited capability for work. While he had requested an adjournment of his hearing the tribunal refused and dismissed his appeal on the basis of his oral and written evidence.

In upholding the claimant’s appeal and remitting it for rehearing, Upper Tribunal Judge Agnew extensively cites from the Court of Appeal’s judgment in Secretary of State for Work & Pension and (R on app MM & DM) & others [2013] EWCA Civ 1565, explaining that:

“The MM case concerned the question of whether or not reasonable adjustments should be made to the ESA application process in respect of claimants with mental health issues on the basis that when the claimant has a mental, intellectual or cognitive condition these individuals may lack insight into the effects of their condition on their day-to-day functioning.

The suggestion was that it should be mandatory that decision makers and tribunals should seek further medical evidence on these conditions where the claimant had not produced such evidence beyond the ESA85 or in any event that there required to be a consideration in each case as to whether or not such further evidence should be obtained.”

In MM, the Court of Appeal summarised the evidence as to the particular problems faced by claimants with mental health issues as follows:

“31.  … the Upper Tribunal identified the following particular problems which MHPs as a group face, whilst recognising that the extent to which any particular MHP will suffer from these problems will vary.

“(i)     In terms of filling out a form, seeking additional evidence and answering questions, claimants with [mental health problems] as a class have the following problems and difficulties because of their [mental health problems], some of which overlap:

a)      insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,

b)      failure to self-report because of lack of insight into their condition,

c)      inability to self-report because of difficulties with social interaction and expression,

d)      inability to self-report because they are confused by their symptoms,

e)      inability because of their condition to describe its effects properly,

f)       difficulty in concentrating and in understanding the questions asked,

g)      unwillingness to self-report because of shame or fear of discrimination,

h)      failure to understand the need for additional evidence because of cognitive difficulties,

i)        problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,

j)        false expectation that conditions will be understood without them needing additional help, and

k)       lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.

ii)       in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs:

a)      particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,

b)      finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,

c)      a desire to understate conditions,

d)      the masking of health problems as physical problems,

e)      dealing with assessors who have little or no experience of mental health problems,

f)       the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,

g)      the lack of time during a short assessment to identify a person's needs,

h)      fluctuation in condition, and

i)        scepticism about the condition.”

The Court of Appeal added that:

“32. It is important to note that these problems fall into two categories, although they overlap. Some of these difficulties go to the adverse experience which might be felt because of what, from the vantage point of some MHPs, will be perceived to be stressful, embarrassing or confusing features of the process, in particular the completion of the questionnaire and the face to face interview. Other difficulties lead to the decision maker having inadequate or even false information about the nature and extent of the illness thereby increasing the risk that a false functional assessment will be made which in turn may jeopardise the right to an ESA.”

As a result, the Court went on to hold that:

“…, the Tribunal properly identified relevant disadvantages in this case as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.”

Drawing on the findings in MM, Upper Tribunal Judge Agnew significantly holds that:

“… where a claimant with mental health problems asked for an adjournment in order to instruct a representative or for some other reason, that the tribunal in considering that request is required to have regard to the fact that such a claimant is at a disadvantage for one or more of the reasons found in MM and to assess the scope of that disadvantage for the particular claimant before making a decision on whether or not to grant the adjournment.”

In this case, Judge Agnew holds that the tribunal erred in not recognising that the claimant was at a disadvantage and then make such an assessment:

“The tribunal relied on the number of previous requests for an adjournment and the fact that the claimant had taken no steps to look for representation until about 10 days before the hearing. I note one of the grounds of disadvantage noted in MM was “i) problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance” and that might explain why the claimant had not set about seeking representation until shortly before the hearing.”

Comment: This decision will be useful for advisers to cite when seeking a postponement or an adjournment of an appeal hearing for a client with poor mental health who has sought their advice very late.

It will also be useful in support of set aside or leave to appeal applications in relation to adverse tribunal decisions made where a client with mental health problems was unrepresented.

General

CG/3176/2013 [2014] UKUT 7 (AAC): Whether overpayment recoverable against student who had temporarily stopped his studies

Upper Tribunal Judge Wright
9 January/2014 

The claimant made a claim for carer’s allowance in December 2011 and sought backdating of that claim to October 2011.  He made the claim on the basis that he was temporarily caring for his mother. The claim was allowed and the award of carer’s allowance backdated.

The claim form had asked a number of questions including “Have you been on a course of full-time education since the date you want to claim from?” to which he answered “No”.

In January 2012 the claimant notified the DWP that he had returned to full-time education.  Subsequent enquiries revealed that he had begun his course in September 2009 and that it was due to end on 1 June 2013. He had only temporarily stopped his studies in order to care for his mother.

The claimant’s appeals against decisions that he had been overpaid carers allowance and that the amount was recoverable from him were dismissed by a First Tier Tribunal (FTT).

Upper Tribunal Wright dismisses the claimant’s further appeal against the decision that he had been overpaid as he was receiving full-time education at the relevant time.

This is because the claimant was caught by section 70(3) of the Contributions and Benefits Act section which needs to be read with regulation 5(3) of the Social Security (Carer’s Allowance) Regulations, that provides:

“5(3) In determining the duration of a period of full-time education … a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it.”

However, Judge Wright upholds the claimant’s appeal against the decision that the overpayment was recoverable form him on the grounds that he had misrepresented a material fact. Crucially, he finds, the tribunal had mischaracterised what the appellant had represented on his claim form:

“He had not in fact represented that “he was not in full-time education”. The tribunal failed to identify the exact nature of the representation he had made. This was that as far as the appellant knew and believed it was correct that he had not (per question 5 on the claim pack) “been on a course of full-time education since the date you want to claim from?”

… In the light of the evidence that the First-tier Tribunal seemed to accept that the appellant was not “on” the course at the relevant time and his honest belief as to these facts (see paragraph 48 of CDLA/5803/1999), it seems to me that the conclusion the tribunal ought to have drawn had it properly investigated the representation actually made, and the conclusion I draw, is that the appellant did not misrepresent any material fact.  At the material time he had not been on a course of full-time education since 1 October 2011 as he had been caring for his mother.”

Housing benefit

CH/2605/2013 [2014] UKUT 201 (AAC): HB overpayment – whether local authority in error in failing to ask question on claim form about whether child had another address

Upper Tribunal Judge Wikeley
2 May 2014

The claimant was separated from her ex-husband. While they had shared care of their son Jack at the time in question he lived with his father for a greater proportion of the week than with his mother. However, Jack was included her housing benefit claim for a period between April and June 2012, leading to a housing benefit overpayment of more than £700 (and a much smaller council tax benefit excess payment).

With a tribunal upholding the decision that she had been made a recoverable overpayment the claimant appealed further to the Upper Tribunal.

Upper Tribunal Judge Wikeley explains that as the claimant’s son spent more time living with his father then the child could not be “normally living with her” (regulation 20(1) of the Housing Benefit Regulations 2006). As a result, she had been overpaid benefit.

However, in upholding the claimant’s appeal, Judge Wikeley holds that the deficiencies of the local authority’s claim form amounted to official error:

“In order to assess a housing benefit claim properly, a local authority needs to know whether any child involved is (1) a member of the claimant’s household; and (2) a child for whom the claimant is responsible (see paragraph 15 above). The issue of whether the Appellant was responsible for Jack was to be determined by whether he was “normally living” with her (see regulation 20(1)).

In the present case, the local authority’s standard claim form was deficient. It failed to establish whether or not Jack normally lived with his mother. Asking whether Jack was “in her household” did not of itself answer that question. The claim form asked a series of other potentially relevant questions about Jack (including whether he was registered blind, which could have a bearing on the rate of premiums to be applied, and who got child benefit for him, which would be used in cases of equal shared care as a ‘tie-breaker’ under regulation 20(2)(a)). However, it omitted to ask the crucial question, which was whether or not Jack also lived at any other address. The local authority advances three reasons as to why it contends this omission did not involve any official error on its part.”

He then outlines that as well as showing the existence of an official error, the claimant must also show (1) that she did not cause or materially contribute to that omission; and (2) she could not reasonably have been expected to realise that there was an overpayment. He answers:

As to (1), this is not a case where the Appellant was at fault in any way. She was asked to complete a claim form and she complied fully with that request. She answered the questions put to her accurately. She was not in any way responsible for the local authority’s failure to ask the crucial question about whether Jack also had another address where he lived, let alone a usual address. There was no change of circumstances which she failed to disclose.

As to (2), I agree with the CAB representative that it is quite unrealistic to conclude that the Appellant should reasonably have been expected to realise that she was being overpaid. She understandably saw Jack as a member of her household and was renting a two-bedroom property which enabled her to comply with the terms of the consent order. There was nothing in the claim form to alert her to the fact that it would be relevant to her claim if Jack also lived elsewhere (and, unlike NFDC, this local authority provided no guidance notes for the assistance of claimants completing claim forms).”

Judge Wikeley therefore upholds the claimant’s appeal finding that while there had been an overpayment of housing benefit  and excess payment of council tax benefit it was not recoverable from the claimant.  

Comment: This appeal to the Upper Tribunal essentially raised two questions, one of law and one of fact.

First, as a matter of law, can a local authority’s failure to ask all claimants a particular question on its standard housing benefit claim form amount to an “official error”, such that any resulting overpayment of benefit may not be recoverable from a claimant?  The answer is yes.

Second, and if so, in the circumstances of this case was the failure to ask a question on the standard claim form about a child’s usual address an “official error”? Again, the answer is yes.

In an overpayment appeal, it is always worth considering if the local authority (or the DWP) has clearly asked the claimant to provide the information and so imposed a duty that it be provided.

CH/4319/2013: Bedroom tax: whether someone “regularly” requires overnight care

Upper Tribunal Judge: Rowland

The claimant lived in a three-bedroom house.  She formerly occupied it with her three daughters, but two of her daughters had moved out. Therefore, she was entitled to only two bedrooms unless she was a “person who requires overnight care”.  The claimant’s case before the First-tier Tribunal was that she was such a person and was therefore entitled to three bedrooms so that no deduction should have been made from her eligible rent under regulation B13.  The local authority’s case was that she was not such a person and so was entitled to only two bedrooms and required a 14% reduction in her eligible rent.

Regulation B13 of the Housing Benefit Regulations 2006provides that:

 “(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—

    (a) a couple (within the meaning of Part 7 of the Act);

    (b) a person who is not a child;

    (c) two children of the same sex;

    (d) two children who are less than 10 years old;

    (e) a child.

  (6)  The claimant is entitled to one additional bedroom in any case where –

    (a) the claimant or the claimant’s partner is (or each of them is) a person who requires overnight care; or

    (b)   ….”

The term “person who requires overnight care” is defined in regulation 2(1) of the 2006 Regulations which provides:

“‘person who requires overnight care’ means a person (“P”)—

(a) who—

(i) is in receipt of attendance allowance;

(ii) is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; or

(iii) although not satisfying either paragraph (i) or (ii) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and

(b) whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should—

(i) be engaged in providing overnight care for P;

(ii) regularly stay overnight at the dwelling for that purpose; and

(iii) be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home,

  1. i.      but ….”

It was common ground that the claimant, who suffered from severe asthma, satisfied the condition imposed by head (a)(ii) of that definition, due to her entitlement to the middle rate of the care component of disability living allowance.  The dispute instead was over head (b)(ii).

The First Tier Tribunal dismissed the client’s appeal on the grounds that while her consultant reported that she often needed someone to stay overnight to look after her this happened unpredictably and so could not be termed “regularly”.

In considering her further appeal, Upper Tribunal Judge Rowland explains that it turned entirely on the meaning of the word “regularly” in head (b)(ii) of the definition of a “person who requires overnight care”:

“The First-tier Tribunal held that the word “denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even” but the judge was unhappy with that construction because whether or not the need for overnight care was regular in that sense might not reflect the relative extent of the need.  In my judgment, that difficulty suggests that the word does not, in this instance, have the meaning ascribed to it by the First-tier Tribunal.  The word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision than that adopted by the First-tier Tribunal.  Whether the intervals between a person’s need for overnight care are uniform or not is, as the First-tier Tribunal pointed out, immaterial to his or her need for a bedroom in which to accommodate a carer.” 

He then significantly holds that:

“What the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose.  A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period.  Moreover, there is nothing in the word “regularly” that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion.  That may be why that word was chosen.  It does not mean the same as “normally” or “ordinarily”.  A bedroom may be required even if the help is required only on a minority of nights.  Whether a carer must “regularly” stay overnight must be considered in that context.”

In the client’s case, Judge Rowland holds that the First-tier Tribunal did err in law as it did not correctly understand the meaning of the word “regularly” in the relevant context in the definition and so it did not apply the correct statutory test. In setting aside its decision he substitutes his own to the effect that no reduction be made from the claimant’s eligible rent.

Judge Rowland concludes by highlighting that whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the “night” attendance conditions cannot be determinative of the question whether they are a “person who requires overnight care” as:

“… there are several reasons why a person might satisfy head (b) without being entitled to the care component of disability living allowance on the basis of the “night” attendance conditions.  One is that the requisite degree of attention or supervision must be required “throughout” the period of an award of disability living allowance (see the opening words of section 72(1) of the 1992 Act) and not merely “regularly” during that period.  Another is the lengthy qualifying period before the basis of an award can be altered (see section 72(2)).  A third is simply the possibility of a claimant not having made an appropriate application for supersession of her award of disability living allowance.  The basis of an award of disability living allowance may therefore be relevant evidence but it cannot be conclusive.”

CH/59/2014: Whether bedroom tax applies where claimant with equally shared care of child is not in receipt of child benefit

Upper Tribunal Judge: Jacobs

This is the lead case before the Upper Tribunal on the application of the bedroom tax to the shared residence of a child.

The claimant lived in a council property with two bedrooms. She was awarded housing benefit and council tax benefit from 2008, at which time her son was living as part of her household and she was receiving child benefit for him.

In January 2012, the local authority superseded the decision awarding benefit to take account of the fact that the claimant’s son was now living with his father. From 1 April 2013, the local authority further reduced the award by 14% on the ground that the claimant needed only one bedroom (under regulation B13 of the Housing Benefit Regulations 2006).

By that date, the claimant’s son was the subject of a shared residence order under which he spent alternate weeks with his mother and father. His father was receiving child benefit and tax credit in respect of him, although by agreement these were shared between the parents.  

A First Tier Tribunal allowed the claimant’s appeal and judge found that the claimant’s son occupied her dwelling on a continuing basis with temporary weekly absences. For completeness, it found that the son occupied his father’s home on the same basis.
In doing so the tribunal treated ‘dwelling’ and ‘home’ in regulation B13 as undefined ordinary words that he had to apply to the facts of the case. It reasoned that the reality was that the son was cared for equally by his parents and that the payment of benefits was structured as it was merely for administrative convenience. So the son was able to have more than one home, to live in more than one household and to occupy more than one property on a normal basis.

However, in upholding the Secretary of State’s appeal, Upper Tribunal Judge Jacobs holds that the tribunal’s approach was based on a misunderstanding of the structure of the housing benefit legislation. The flaw was to treat the meaning of the words used in regulation B13(5) as freestanding, when they had to be read in the context of other provisions:

“Regulation B13(5) provides that a claimant is entitled to one bedroom for each of the categories of person listed ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’. A child is one of those categories, which is defined as ‘a person under the age of 16’ by regulation 2(1). That provision has to be read, not in isolation, but in the context of the housing benefit legislation as a whole.

Regulation 7(1)(a) is part of that context. It provides that ‘a person shall be treated as occupying as his home the dwelling normally occupied as his home … by himself and his family’. Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20(2)(a), which provides that when ‘a child … spends equal amounts of time in different households … the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’. “

In applying this analysis Judge Jacobs finds that the claimant occupied her dwelling as her home under regulation 7(1)(a) and so:

“Accordingly, she is entitled to one bedroom for herself under regulation B13(5)(b). Her son would be entitled to a second bedroom for himself under regulation B13(5)(e), if he were occupying the dwelling as part of the claimant’s family: regulation 7(1)(a). That depends on whether his mother is responsible for him: section 137. This depends on how much time the son spends with each parent and who received child benefit in respect of him. As he divides his time equally between his parents and as his father receives child benefit in respect of him, his mother is not responsible for him by virtue of regulation 20(2)(a).

The result is that the son does not qualify for a second bedroom under regulation B13. The local authority was right to reduce the claimant’s entitlement by 14% under regulation B13(3)(a). The tribunal made an error of law by misinterpreting the legislation.”
Judge Jacobs therefore sets the tribunal’s decision aside and re-makes the decision to confirm the local authority’s application of regulation B13.”

Comment: Judge Jacobs makes clear that the determining factor in determining bedroom tax imposition in the case of shared care is which claimant receives child benefit. This case related a single child. However, where two or more children are involved there is a case for considering child benefit claims being made by both ex-partners for different children in order to ensure that both may qualify for more than a single bedroom.

CH/2544/2014: Housing benefit appeal not invalid if signed by representative rather than the claimant

Upper Tribunal Judge: Wikeley

The legal issue that arises in this case is whether the claimant’s original appeal was duly made.

In particular, rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; “the SEC Rules”) requires (amongst other matters) that a notice of appeal “must be signed by the appellant”.

Rule 23(6) of the SEC Rules provides as follows (for cases in which the notice of appeal is to be sent to the decision maker, as in this case):

“(6) The notice of appeal must be in English or Welsh, must be signed by the appellant and must state–

          (a) the name and address of the appellant;

          (b) the name and address of the appellant’s representative (if any);

          (c) an address where documents for the appellant may be sent or delivered;

          (d) details of the decision being appealed; and

          (e) the grounds on which the appellant relies.”

21. The solicitor’s letter of 28 February 2011, received by the local authority on 3 March 2011, complied with all these requirements save that it was not signed by the claimant herself. Indeed, in terms of the level of detail about the factual arguments being advanced as grounds of appeal on behalf of the claimant, it was exemplary.

In this case the claimant’s solicitor had signed her letter of appeal.

The letter complied with all the requirements of Rule 23(6) except that it was not signed by the claimant herself.

However, the local authority decided the appeal had not been properly made. By the time the local authority received the claimant’s personally signed letter of appeal, it was outside the maximum 13-month time limit for appeals. The First-tier Tribunal struck out the appeal as out of jurisdiction.

Upper Tribunal Judge Wikeley upholds the claimant’s appeal and sets the tribunal’s decision aside for rehearing by a new panel.

After reviewing relevant case law, Judge Wikeley reasons that an unduly narrow approach to the interpretation of Rule 23(6) cannot stand with the principles set out by the Privy Council in General Legal Council ex parte Basil Whitter v Frankson.

Therefore, that the requirement in rule 23(6) of the SEC Rules that a notice of appeal “must be signed by the appellant” should be seen as being satisfied by a notice of appeal being signed by the appellant’s representative.

Judge Wikeley gives two further reasons which support this reading of rule 23(6).

The first is that, given the code of professional responsibilities and ethics imposed on solicitors, it can be assumed that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as agent for their client.

The second reason he holds that supports a broad and purposive reading of rule 23(6) is the policy underpinning the Leggatt Report (Tribunals for Users: One System, One Service, 2001) and subsequently the Tribunals, Courts and Enforcement Act 2007 itself:

“A recurring theme of the Leggatt Report was that tribunals should be accessible and user-friendly. Tribunal procedures should ensure that cases are dealt with “economically, proportionately, expeditiously and fairly”. The overriding objective in rule 2 of the SEC Rules requires that cases are dealt with “fairly and justly”, which includes “avoiding unnecessary formality and seeking flexibility in the proceedings” (rule 2(2)(b)).

An insistence on the claimant’s personal signature when a notice of appeal has been lodged by her solicitor represents a triumph of undue formalism over substance. For the reasons set out above, it is contrary to precedent, principle and policy.”

Comment: This is a sensible decision and one that may be particularly helpful when the deadline to submit an appeal is close.

However, it will still remain the case that a representative will need to demonstrate that they have the claimant’s authority to act on their behalf.

CSH/41/2014 and CSH/42/2014: Bedroom tax: the relevance of room size in determining if a room is a bedroom - The Nelson Decision

Upper Tribunal Judges: Justice Charles, Lady Stacey, Judge May

Two brothers who lived separately had successfully appealed to the First-tier Tribunal (the FTT) against decisions of Fife Council under Regulation B13 of the Housing Benefit Regulations 2006 (as amended) (the “Amended Housing Benefit Regulations”) reducing the housing benefit payable to them by 14%. Regulation B13 is commonly known as the bedroom tax regulation. 

The effect of the regulation is that the amount of housing benefit payable to the claimant is reduced by a percentage if the number of bedrooms in his home exceeds the number of bedrooms to which he is entitled under the regulation. 

In both cases it was accepted that there were two bedrooms in the homes to which the claimants were entitled. The issue before the First Tier Tribunal (FTT) focused on a third room, which was smaller than the other two rooms used as, and accepted to be, bedrooms. 

The FTT decided in each case that the third room was not a bedroom because their floor areas were not large enough. 

The Secretary of State appealed on the grounds that the FTT erred in law in its approach to determining what is a bedroom for the purposes of the Amended Housing Benefit Regulations,

The central issue of law in these appeals relates to the approach that should be taken to determine what is a bedroom for the purposes of the amended Housing Benefit Regulations.

The FTT had decided that rooms of 64 square feet and 66.3 square feet were too small to be classed as bedrooms. It found that:

“i) under occupancy can be seen as the flip side of overcrowding, [Referring to Housing (Scotland) Act 1987, which are the mirror provisions to Housing Act 1985 Part X]

ii) having regard to HB/CTB Circular A4/2012, that paragraph B13(5) generally presupposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult - or by two children, and
iii) had Parliament intended that these long-standing statutory minimum standards should be disregarded by the Tribunal, the FtT would have expected that to have been clearly stated in the legislation.”

The Secretary of State submitted that the FTT had by treating the Housing (Scotland) Act 1987 as sharing a common purpose with the Amended Housing Benefit Regulations.

In upholding the Secretary of State’s appeal, the Three Upper Tribunal Judge Panel hold that under-occupancy is not the “flip side” of overcrowding (and therefore the Housing Act 1985 or Housing (Scotland) 1987 overcrowding provisions) because:

“i) the legislative intent behind the relevant part of the 1987 Act (Part VII) to create a criminal offence if property is overcrowded is very different to that relating to the Regulation B13 of the Amended Housing Benefit Regulations,
ii) Part VII of the 1987 Act operates very differently to Regulation B13 in that Part VII treats living rooms as rooms available for sleeping, disregards children under the age of 1, expects adults of the same sex to share a bedroom and in Table II (which is the table that refers to floor areas) an aggregate for all the rooms defines the permitted number of persons who can sleep in a house,
iii) the significant differences in approach between the two statutory regimes and their underlying purposes mean that it would be wrong to transport only some elements of the 1987 Act regime into the application of Regulation B13, and
iv) the 1987 Act (a) does not have the consequence that of itself use of a room below the size referred to by a person (e.g. by an adult of a room less than 70 square feet) is an offence, and (b) it leaves a room having a floor area of 50 square feet or less out of account for its purposes.”

In addition, the three Judges hold that the expectation that Parliament should have expressly ruled out the relevance of the overcrowding provisions was wrong in law because:

“i) the well-established approach known to Parliament that when it enacts a statutory test that uses familiar and ordinary English words, and does not define them, the court construes and applies the test in the way set out in paragraph 19 above, and
ii) in these cases the statement made by Lord Freud to the Grand Committee of the House of Lords on 15 October 2012 (summarised in paragraph 12 of Circular A4/2012) and set out in the written submissions on behalf of the Secretary of State as follows:

- after discussions [ with various interested entities] we have concluded that most welcome the flexibility that comes with not including in the regulations a definition of what constitutes a bedroom. Some landlords made it clear that defining this in legislation would introduce a system that might involve them having to measure every room. So we are leaving it to landlords to specify the size of property, as they are best placed to do that. We expect the information that they provide to be reflected in the level of rent charged and to match what is agreed in the tenancy agreement.

We also agree with the Secretary of State that the choice by Parliament of a test using an undefined familiar or ordinary English word supports the view that Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.”

These findings mean that the Housing Act 1985 overcrowding provisions cannot be read into the bedroom tax regulations - so ruling out any challenge brought purely and simply on the basis of room size and that 'bedroom' is an ordinary English word and not defined in statute.

Importantly, the Upper Tribunal do find room size is a factor and detail other factors that would need to be considered in addressing whether a room was capable of being a bedroom:

“So, for example, in so giving effect to the statutory language, in our view the argument advanced by the Secretary of State before us that any room will be a bedroom for the purposes of the regulation if its floor space is big enough to accommodate a single bed (size not mentioned) even if all the sides of that bed would touch a wall or an outward opening door is absurd.

The absence of any reference to the height of the room, its ventilation, its natural and electric lighting or whether it has a window is fatal to that argument. But assuming that when they are factored in they do not rule out the conclusion that such a room is a bedroom the consequence of the argument, namely that a person would have to get ready for bed and then jump from a passage through an outward opening door to get into bed, would have nowhere to put clothes or say a glass of water (other than under the bed where it abuts the door) shows that that description of a bedroom does not fit with its ordinary or familiar meaning.”

However, for the rooms at issue in this appeal, the three Judges uphold the Secretary of State’s appeals as:

“i) it can accommodate a single bed in a way that enables access to the built in cupboard and free floor space,
ii) it is of a normal height,
iii) it has a window,
iv) it is heated and ventilated in a similar way to the other rooms used as bedrooms and living rooms, and
v) albeit that it is a small room (8 feet by 8 feet) it does not have any physical features or drawbacks that prevent it being used as a bedroom for a child, an overnight carer or indeed an adult (on a full or part time basis).”

While, the Upper Tribunal holds that there is no statutory definition of the word “bedroom”, it does “consider that the underlying purposes of the relevant test using such language and the context in which the language is used are important and often determinative factors to be taken into account in determining whether on the facts of a given case the relevant test is satisfied”.

It adds that:

“It also follows that in most cases the decision maker’s understanding of the test and approach to its application in a given case is best provided by the reasons given for the decision (e.g. albeit in an obvious case it is a bedroom because it has room for two single beds and storage, good ventilation and either it has been or could be used as room in which two people have slept or could sleep).

The approach reflects the old adage that it is difficult to define an “elephant” but we know one when we see one and so we can explain why we think we have seen one by describing what we have seen.”

This means that there is a requirement for a decision maker to give reasons why they have decided that a room is a bedroom. So, in any contested matter - where the tenant has raised objections to a room being considered a bedroom - the decision maker should give their reasons for the decision. Simply relying on the number of bedrooms reported by the landlord will not be enough:

“When an issue arises as to whether a particular room falls to be treated as a bedroom that could be used by any of the persons listed in Regulation B13 (5) and (6) a number of case sensitive factors will need to be considered including (a) size, configuration and overall dimensions, (b) access, (c) natural and electric lighting, (d) ventilation, and (e) privacy.”

The Upper Tribunal finds that issues as to whether a room of that size is a bedroom because it could be used as a bedroom for one child under 10, but not a teenager under the age of 16, are outside the ambit of its decision. But it then goes on to say:

“However we note that paragraph 5 of bulletin U6/2013 and the Secretary of State’s submission to us seem to indicate that his view is that there must be room for a normal single bed and so if there was only room for say one cot or one young child’s bed he would not, or would not generally, regard the room as a bedroom.”

In concluding remarks the Upper Tribunal hold that:

“It is in our view clear:
i) that the underlying purpose of Regulation B13 would be undermined if this was not the case, and
ii) that purpose and that interpretation of the regulation shows that the test is focused on the availability of rooms that could be used as bedrooms by any of the listed people and thus essentially the assessment of a property when vacant; rather than how it is actually being used from time to time. It seems to us that this is so because a part of the underlying purpose must be to free up homes that are being under occupied so that they can be used by others with an entitlement to the number of bedrooms in the property or to encourage the existing occupiers to make under occupied bedrooms available to others.

However, this does not mean that issues concerning the designation of rooms as between living room(s), kitchen, bathroom, lavatory, storeroom and bedroom do not arise. For example, issues could arise (a) as to what should be designated as the living /dining areas of a property, and (b) the impact of a conversion of room to a bathroom or wet room (which could normally only be done lawfully with the consent of the landlord).”

So, while a change of use with physical alteration, perhaps required for the claimant's occupation of the property, particularly with landlord's consent is likely to be a significant factor. This would not include however, the claimant having simply decided to use the room in a different way.

Comment: This is a very disappointing judgment in that it is not possible to successfully argue that a room is not a bedroom for the purposes of Regulation B13 by simply citing the size specifications given in the Housing Act 1985.

In addition the judgment also finds that the assessment as to whether or not a room is a bedroom should ignore what it is actually being used for by the tenant. This means that rooms capable of being a bedroom should be classed as such.

However, it is clear that if there is any dispute as to whether a room is properly a bedroom a decision maker cannot simply rely on the landlord’s report of the number of bedrooms originally let.

A decision maker must instead come to their own decision and must investigate the grounds of dispute in order to give full reasons for their decision. Failure to do so by a decision maker or a tribunal would be an error of law.

In addition, the Upper Tribunal do give examples of relevant factors to be taken into account in determining if a room is a bedroom - size, configuration and overall dimensions, access, natural and electric lighting, ventilation, and privacy.

Incapacity benefit

Income support

CIS/1998/2012 and CH/2186/2013 [2010] UKUT 154 (AAC): Whether claimant in receipt of carer's allowance is a worker or self-employed for right to reside purposes

Upper Tribunal Judge Ward
1 April 2014

The claimant was a Dutch national who arrived in the United Kingdom in February 2005.  In September 2005 he began caring for the mother of his children who received the middle rate of the care component of disability living allowance.

He was later awarded carer’s allowance with effect from that period. While from 2006 to 2010 he undertook various short educational courses he had not any paid employment following his arrival in the UK.

In December 2010 he claimed income support, housing benefit and council tax benefit. While all three benefits were initially awarded these decisions were later revised on the grounds that that the claimant lacked the right to reside and had no entitlement to them.

In a detailed decision, after analysing relevant EC case law Judge Ward dismisses the claimant’s appeal holding that the he was not “a person performing services … in return for which he receives remuneration” and so could not have a right to reside as a “worker” or a “self-employed person”.

In doing so, Judge highlights for example that:

“The Secretary of State does not ask a person to provide care in a particular case to a person who needs it.  The Secretary of State does not define the “caring” to be provided, whether in statute, delegated legislation or through administrative mechanism in the claiming process. 

“Caring” is an elastic term which both takes its colour from its context and is open to subjective interpretation.  Although to be eligible for carer’s allowance the person being cared for must be in receipt of a qualifying benefit, there is no requirement that the carer attend to those needs which triggered the award of the qualifying benefit in the first place. 

… Nor do I consider that what a carer receives can be regarded as remuneration received in return for what is done.  The mismatch between the amount of carer’s allowance (£59.75 per week in 2013/14), equating to £1.71 per hour if 35 hours of caring is done (and the number of hours could be greater than that) is such as to provide an indicator that the payment is not a remuneration for services.  (It is instructive to contrast the £1.71 hourly rate derived from the calculation above with the national minimum wage rate for adults, which from 1 October 2013 stands at £6.31 per hour.). 

… While I accept that, hypothetically, a person requiring services to be performed for them in return for payment could so formulate the services and terms of payment so as to say, for example, “I require 35 hours of care to be provided and will only pay you if you do that amount, with no payment for any lesser amount of care”, it would be an unusual stipulation and that possibility does not in my view detract from the more natural inference to be drawn from the aspects of carer’s allowance under discussion.”

Ken Butler - 26 March 2015