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Selected upper tribunal decisions from April 2018 to March 2019

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Carer's Allowance

Disability living allowance

CDLA/1427/2017: Test of severe impairment of intelligence and social functioning is a single one and demands consideration of all evidence available

Upper Tribunal Judge Paula Gray  

To be entitled to the DLA higher rate mobility component on the basis of ‘severe mental impairment’, a child must satisfy all the following conditions:

  • they must be entitled to the highest rate care component, even if it cannot be paid, for example because they live in a care home; and
  • they suffer from ‘a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning’; and
  • they ‘exhibit disruptive behaviour’ that ‘is extreme’; and
  • they ‘regularly require another person to intervene and physically restrain [them] to prevent [them] causing physical injury to [themselves] or another, or damage to property’; and
  • their behaviour ‘is so unpredictable that [they require] another person to be present and watching over [them] whenever [they are] awake’.

The claimant was nine years old and had global developmental delay, poor communication skills and behavioural difficulties including PICA syndrome, an eating disorder which concerns eating non-nutritious objects, such as dirt. 

He had been awarded the higher rate of the care component but the lower rate of the mobility component of DLA. Following a tribunal refusing his appeal for an award of the higher rate of the mobility component his mother appealed to the Upper Tribunal.

In setting aside the tribunal’s decision, Judge Gray holds that the tribunal  applied too high a test in their finding that there was no requirement for regular restraint for the majority of the time.

She highlights that the test in regulation 12 (6)(b) of the DLA Regulations 1991 is whether the claimant 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:

“ ‘Regularly’ is a word which bears its natural meaning; it is not otherwise qualified …  In CDLA/2470/2006 it was said that “such a degree of intervention and restraint is likely to be required on a significant proportion of occasions …”. 

Judge Gray also holds that it was a material omission for the tribunal to fail to address the evidence of the claimant’s principal social worker:

“The references by her to [the claimant] being prone to physically attack anyone sitting near to him were graphic and are sufficiently set out in my grant of permission to appeal.  Similarly the point that made by the class teacher about his lack of ability to engage in toilet training at nine years old.

The omission to deal with that evidence was of itself a material error of law that warrants the decision being set aside. It is not possible to understand from the statement without reference to that evidence why the First Tier Tribunal found that he did not suffer from a severe impairment of social functioning.”   

Judge Gray concludes that:

“The process of deciding whether the latter part of the test under regulation 12 (5) is met, that is to say whether E’s arrested development or incomplete physical development of the brain results in severe impairment of intelligence and social functioning demands consideration of all the evidence in relation to it.

The First Tier Tribunal appears to have looked at the various strands of evidence in isolation, because they found that the [medical] evidence … indicated that he did not suffer from severe impairment of intelligence; they then found that the evidence from the class teacher indicated that he did not have severe impairment of social functioning. However the evidence should not be compartmentalised in that way. The evidence from one witness can inform or be informed by evidence from another.”

Following her own consideration of the evidence available to the tribunal, Judge Grey awards the claimant the higher mobility component.

Employment and support allowance

CE/3887/2016: When a tribunal should consider requesting details of claimant’s benefit history and documents not supplied by SSWP

Upper Tribunal Judge: Ward

The appellant had had been in receipt of ESA since 2009. She had several problems with her hands, including Raynaud’s disease and carpal tunnel syndrome because of a severe electric shock she received in 2006.

A First Tier Tribunal (FtT)l upheld the decision that she did not have a limited capability for work. In doing so, it did not seek relevant history or documents relating to her ESA claim that had not been supplied by the SSWP.

In upholding the claimant’s appeal, Upper Tribunal Judge Ward finds that the FtT erred by failing to call for the “missing” history and evidence:

“Its jurisdiction is an inquisitorial one.  The period at issue in this case was a notably lengthy one.  The appellant’s condition did not appear to have changed much from the available evidence. 

The FtT will have been well aware that the DWP frequently calls claimants for ESA in for medical examination and it was virtually inconceivable that it would not have done so several times over the intervening 7 years period. 

To take away someone’s ESA after they have been in receipt of it for seven years, in the absence of (say) obviously ameliorating recent treatment (of which there was no evidence) is a significant step.  Decisions such as R(M)1/96 serve to illustrate the importance of explaining why previous decisions are being departed from.  As R(M)1/96 notes at [15]:

“An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice”.

To be able to give that explanation, the tribunal needed to know the history and relevant evidence behind it.”

CE/1316/2017 :Whether tribunal gave sufficient reasons why claimant no longer met conditions of entitlement / tribunal commenting on claimants well kempt appearance

Upper Tribunal Judge: Rowland

After a First-tier Tribunal upheld a decision superseding her award of ESA the claimant appealed to the Upper Tribunal. 

While the tribunal had accepted that the claimant had “multiple health problems” it found that she did not satisfy any of the descriptors in Schedules 2 and 3 of the Employment and Support Allowance Regulations 2008 and that the conditions of regulation 29 (substantial risk to health) were not satisfied.  

In giving the claimant permission to appeal, Judge Lloyd-Davies had raised the question whether the First-tier Tribunal ought to have explained why it had reached a different conclusion from that reached when the award of ESA was made following an assessment in 2013.

The documents relating to the 2103 decision were missing so had not been available to the First-tier Tribunal given that her conditions were unlikely to have improved. 

But in giving his decision, Judge Rowland says that although mistake or ignorance of a material fact or a change of circumstances are grounds for supersession of an earlier decision, it is not necessary for the Secretary of State to show that a previous award was based on an error of fact or that circumstances have changed to supersede a decision:

“This is because regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 read with regulation 7A(1), provides that such a decision may be superseded if the Secretary of State has received new evidence from a health care professional.  In other words, the Secretary of State may simply take a different view of the case in the light of the new evidence.” 

He adds that:

“A claimant has no right to assume that the same decision will be made following the receipt of new evidence, but any apparent difference ought to be explained, although it may be sufficient merely to point to there being additional evidence or, indeed, merely to say that, on the totality of the evidence now available, the tribunal disagrees with the previous decision.

… In cases concerning employment and support allowance or personal independence payment, the descriptors chosen or any reliance on regulation 29 should be clear from the decision making the award, whether it was an original decision notice, a “mandatory reconsideration notice” or a decision notice issued by the First-tier Tribunal.

However, whether such information should be obtained is a matter of judgment that depends very much on the circumstances of the particular case.  Where it is not obtained so that the reasons for an earlier decision are unclear, it will usually be open to a tribunal to say that either there must have been a change of circumstances or it disagrees with the previous decision, without it being necessary to decide between the two.”  

Judge Rowland then asks what the consequence is of the First-tier Tribunal having failed expressly to give a reason for departing from a previous award:

“As the Secretary of State submits, R(M) 1/96 requires that the reason for departing from the previous award must be “reasonably obvious” from the First-tier Tribunal’s other reasoning.  The examples given in R(M) 1/96 are where there were clear findings of fact showing a change of circumstances or where the evidence relied upon was particularly clear. 

But, if there is “no entitlement to preferential treatment”, I incline to the view that it is sufficient that the reasoning as a whole be particularly clear, even if, on the evidence, the case was on the borderline.  In other words, the reasoning must be such as to be able to carry the clear implication that the First-tier Tribunal either found a change of circumstances or disagreed with the previous decision.” 

While in this case permission to appeal was given on the premise that it was unlikely that there had been a change of circumstances that would justify terminating the award, Judge Rowland rejects this premise:

“Some of the conditions from which the claimant has suffered are unlikely to have got significantly better, but that does not seem true of all of them.  An acute asthma attack had caused the claimant to be hospitalised in 2014 but the First-tier Tribunal found her asthma to be stable and treated with inhalers at the time of the Secretary of State’s decision in 2016.  Similarly, the claimant suffers from chronic depression, but it does not necessarily follow that her mental health problems cannot improve.  For instance, she gave evidence to the First-tier Tribunal that there had been, ten years earlier, a period in her life when she was drinking, had a mental health worker and sometimes behaved aggressively.  Things had improved since then.”

Judge Rowland then holds that in most respects the First-tier Tribunal gave clear reasons for reaching the decision it did and, what is more, it did so largely on the basis of the claimant’s own evidence as to what she did and on the basis of its own observations of her. 

“Insofar as its findings and reasoning are unassailable, the necessary implication of them is that either it disagreed with the previous assessment in the light of the evidence before it or there had been a material improvement in the claimant’s condition, and that was sufficient to explain why it did not continue the previous award in the absence of any evidence as to the basis of that award.”

However, Judge Rowland then upholds the claimant’s appeal on the grounds that the there are two descriptors in which the First-tier Tribunal’s reasoning is not clear. 

These are:

descriptor9(b) - “The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change of clothing, if not able to reach a toilet quickly.”; and

descriptor 13(c) – “Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.”

Had descriptors 9(b) and 13(c) both been satisfied the claimant would have scored the 15 points necessary for an award of ESA.

As a result, Judge Rowland holds that:

“Accordingly, I allow the claimant’s appeal on the ground that the First-tier Tribunal’s reasoning is materially inadequate.  In the circumstances, it is necessary for the facts of the case to be reconsidered by a tribunal with a doctor among its members and I therefore remit this case to the First-tier Tribunal to be re-decided by a differently constituted panel.” 

Judge Rowland concludes by rejecting the claimant’s first ground of appeal that as the health care professional’s computer “crashed” it was unlawful that she had to write up the results of the consultation afterwards from memory.

He holds that there would necessarily be anything unlawful in what was done and that the question was simply whether the record of the interview was accurate.

He outlines that the claimant had the opportunity to challenge the findings before the First-tier Tribunal and indeed she produced an annotated copy of the report showing where she disagreed with it. And that it was not necessary for the First-tier Tribunal to resolve all the disagreements because the question it had to decide was whether she satisfied any of the descriptors and many of the disagreements could be regarded as not relevant.  

The claimant’s second ground of appeal related to the way the First-tier Tribunal hearing was conducted. Her main point was that the judge commented that she did not look depressed and that her appearance was well kempt, and the claimant says that she found the comments insulting, degrading and upsetting. 

In rejecting this, Judge Rowland says that what the judge said was perfectly proper:

“The health care professional had recorded that the claimant was “well kempt”, “looks well”, had a “normal facial expression”, “coped well at interview” and had a “normal manner”. Those observations were obviously not conclusive as to the claimant’s mental health, but they were relevant, because the Secretary of State and then the First-tier Tribunal had to decide not just whether the claimant was suffering from depression and other conditions but whether the effects of those conditions were so severe that point-scoring descriptors were satisfied. 

For instance, because people who are severely depressed may present as unkempt because they do not take care of themselves, being well kempt can be an indication, although no more than an indication, that a claimant’s level of depression is not particularly severe. 

… In any event, it was appropriate for the judge to mention the observations because that gave the claimant an opportunity to comment on them by, for instance, saying (if it was the case) that she only made an effort when she had to go out to an important appointment or that she had had help in getting ready to go out.  I do not regard it as arguable that what the judge said showed the proceedings were unfair.  On the contrary, it promoted fairness.”

CE/2665/2017: Correct approach to assessing ESA descriptor 5c - Cannot use a pen or pencil to make a meaningful mark with either hand

Upper Tribunal Judge: Wright 

The key issue on this appeal is the scope of descriptor 5(c) in Schedule 2 to the Employment and Support Allowance Regulations 2008.  That descriptor comes under the “Manual dexterity” activity and is concerned with whether a claimant “Cannot use a pen or pencil to make a meaningful mark with either hand” and attracts an award of nine points if met. 

A First-tier Tribunal decided that the claimant satisfied manual dexterity descriptor 5c ‘Cannot use a pen or pencil to make a meaningful mark with either hand’, expressing the view in its reasons that the single signature on the ESA50 was not a ‘meaningful mark’.

In upholding the Secretary of State’s appeal, Upper Tribunal Judge Wright cites with approval the decisions in SM v SSWP [2015] UKUT 617 (AAC) and SSWP v LH [2017] UKUT 475 (AAC) that both considered descriptor 5c.

In addition, in terms of this appeal, Judge Wright makes the following points:

“First, the language of the test requires consideration to be given to the person’s ability to use both the right and the left hand.  If the person can make a meaningful mark with one hand but not the other hand. or can do so with each hand, then he or she will not meet descriptor 5(c). (I have deliberately avoided the use of “both hands” here given the possible connotation of such usage that what is required is the use of the right and left hands at the same time.)  That it seems to me is the obvious and logical result of the statutory language of “Cannot….with either hand”; the opposite of which is that the person can carry out the function with at least one hand.    

Second, as LH in particular makes plain, the test is not whether the person can write a word or a sentence with either hand.  The test of not being able to make a meaningful mark with either hand is therefore more difficult for a claimant to satisfy than the old test in descriptor 5(d) in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, where the test of “cannot use a pen or pencil” was interpreted as meaning “that the claimant scores the points if he is physically unable to use a pen or pencil to write in a normal manner”

.. Third, and building on the first two points, the use of the word “Cannot” in the descriptor requires attention to be given to a claimant’s functional ability to make a meaningful mark with either hand across a range of potential situations. This is because if the claimant can make a meaningful mark with one hand then the descriptor is not satisfied. 

He then finds that the tribunal was therefore wrong in this case to focus solely on the claimant’s ability to make the mark he did in the signature box on the ‘Declaration’ section of the ESA50 form.

But he considers the most critical error in the tribunal’s approach to descriptor 5(c) was its failure to consider in the round and across several potential or actual situations whether the claimant was unable with his right hand or his left hand to make a meaningful mark with a pen or pencil:

“For example, could he make the mark of a tick or a cross with either his right or his left hand on a census form or an election card?  If he could, even if it was only with one hand, it is not apparent on what basis it could be concluded that he could not make a meaningful mark with either hand.  In other words, the tribunal wrongly focused solely on the mark made by the claimant in the signature box on the ESA50 form (and even there did not acquit itself properly).”  

CE/3347/2017: Caution needed in assessing at face value account of a person with learning difficulties / dismissal of a GP’s observations on the basis that they simply report what the GP has been told requires proper explanation

Upper Tribunal Judge Paula Gray                          

The claimant had learning difficulties and schizophrenia. At a paper hearing, a First Tier Tribunal (FTT) dismissed his appeal against the decision that he did not have a limited capability for work.

Upper Tribunal Judge Grey notes that in its statement of reasons the tribunal placed very considerable reliance upon the typical day said to have been described by the appellant to the HCP.  She cautions that:

“Depending, of course, on the level of difficulty, the possibility must always be considered in those with learning difficulties that they lack insight into their own condition and abilities to the extent that they may give an apparently persuasive account of their activities which is at odds with their actual ability, or misinforms the casual listener as to the level of sophistication of behaviour.

She then adds that:

“Tribunals should not be casual listeners. They need to be active listeners, and should probe the account put forward, where possible through hearing evidence from someone close to the appellant who knows the level at which they function.  The appellant did not attend this hearing and perhaps more materially, neither did his parents.  To fail to positively offer that opportunity in the circumstances may of itself have been an error of law. “

Judge Grey highlights that the letter from the claimant’s GP seemed to have been dismissed by the FTT on the basis that there was no indication that the information was acquired other than by report, presumably from the claimant or his parents, the implication being “that it was simply self-serving.”  

Judge Grey points out however, that the letter was headed “Appeal for ESA” and concluded by expressing the hope that the comments could be taken into account. She then says:

“It would be perhaps unusual for a professional person to put forward such positive assertions in relation to a formal legal challenge if they were based merely on information provided without there being some element of independent knowledge or exercise of professional judgment to corroborate any such report.”

She then cites the decision in CA/3419/2102 which held that :

“A claimant’s GP is just as professional as any other doctor or health care professional who gives evidence to a tribunal, and, save where a proper explanation is given as to why he or she would do this, should not be assumed to simply be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.

Judge Grey ends by quoting the final substantive paragraph of the GP’s letter which said:

“Due to his ongoing mental illness [schizophrenia] alongside his learning disability, he struggles with any new tasks or any difference in his routine as previously mentioned. If anything like that happens, he becomes extremely anxious and deteriorates rapidly. I find it very difficult to see how [name] could manage any job, no matter how simple. Any need for regular attendances to sign-on/attend appointments for his benefits causes him considerable stress and he deteriorates.”

She holds that this part of the letter is so patently of relevance in relation to the potential application of regulation 29 that it was essential that its evidential value was clearly assessed and explained. 

In setting aside the FTT’s decision, Judge Grey encourages the claimant  to attend the hearing preferably together with somebody who knows him well, his mother or father perhaps, who can speak to the tribunal about the practical problems that his learning difficulties in particular cause him.

CE/416/2018: Appeal upheld despite absence of statement of reasons / DWP failure by to provide tribunal with full adjudication history of ESA award

Upper tribunal Judge: Wikeley

In opening remarks Upper Tribunal Judge Wikeley states that it is difficult, but not impossible, for an appeal to the Upper Tribunal to succeed where an appellant has failed to obtain a statement of reasons from the First-tier Tribunal (FTT).

However, he then says that this is one such exceptional case.

Following a work capability assessment on 15 September 2016, a DWP decision-maker decided on 25 October 2016 to supersede an earlier decision dated 5 July 2016 and disallowed the appellant’s claim to ESA. Following an unsuccessful mandatory reconsideration, a FTT dismissed her appeal.

The appellant, applied in-time for a set aside. she then applied out of time for a statement of reasons for the Tribunal’s decision. Both applications were refused.

While the District Tribunal Judge also refused permission to appeal to the Upper Tribunal Judge Wikeley granted it:

“As the late request for a SoR was rejected by the FTT, I am bound to apply rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), i.e. there must be an explanation for the delay and I must be satisfied it is in the interests of justice to admit the application. I am satisfied that the delay can be explained by the Appellant’s poor health and lack of access to advice.”

In addition, Judge Wikeley highlights that it is arguable at this stage that the FTT which decided the appeal on did not have the full picture of the history of the appellant’s ESA claim. This was because there was evidence to show that she was in the support group when the appealed decision had been made:

“Piecing the various bits of evidence together, it therefore seems to me at least arguable at this stage that the FTT which decided the appeal on 24.02.2017 did not have the full picture of the history of the Appellant’s ESA claim.

If so, that would be a breach of the Secretary of State’s duty under rule 24(4)(b) and so arguably an error of law. For that reason, I consider that it is in the interests of justice to admit this application for permission to appeal despite the fact that there is no SoR and the Appellant’s request to the FTT for such a statement was late.”

He then adds that:

“In fairness to the Tribunal, I should make it clear that the references in the appeal papers to the Appellant having previously been in the support group only appeared in correspondence after the Tribunal had dealt with the appeal. There was no reason why the Tribunal, on the basis of the papers before it, should have been alive to the fact that the Appellant had previously been placed in the support group.”           

 In upholding the appeal, Judge Wikeley reasons that:

“This Tribunal inadvertently erred in law. As a result of the Department’s failure, it was not presented with the Appellant’s relevant and full ESA adjudication history. In particular, the Tribunal was not told that the Department had previously placed the Appellant in the ESA support group.

It is no excuse to say that the Appellant should have mentioned this fact in her correspondence with the Department and the Tribunal. Her point, in lay terms, was that she was worse in 2016 than she had been in 2013. She was entitled to expect that the Department would present the Tribunal with the full relevant facts. I therefore allow the appeal and set aside the Tribunal’s decision." 

He then remakes the decision as follows:

“The Secretary of State has been unable to produce a copy of the decision of 5 July 2016 that was superseded on 25 October 2016. Moreover, the independent medical evidence produced by the Appellant is consistent with a finding that she met the criteria of paragraph 1 of Schedule 3 to the 2008 Regulations at all material times. There is certainly nothing in that evidence to suggest that there had been any improvement in her mobility in 2016; if anything, the opposite.

The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows: The Appellant’s appeal is allowed. The Secretary of State’s decision of 25 October 2016 is revised. The Appellant’s award of employment and support allowance (ESA) should not have been superseded from that date. The Appellant has limited capability for work and limited capability for work-related activity from that date and so remained entitled to ESA at the support group rate. “

CE/1272/2018: Full time student receiving DLA or PIP to be treated as having a limited capability for work for ESA

Upper Tribunal Judge: Wikeley

This appeal concerns a full-time student’s entitlement to employment and support allowance when he is entitled at the same time to disability living allowance (DLA).

The appellant, had learning difficulties and dyslexia. In September 2016 (when he was 25) he began attending a two-year full-time course at a local college.

He was awarded employment and support allowance (ESA) from 30 September 2016. He had for some time also been in receipt of the middle rate of the care component of DLA.

In January 2017 he underwent a work capability assessment following which a decision-maker concluded that he scored 0 points and so did not have limited capability for work as from that date.

His request for a mandatory reconsideration was refused and a First-tier Tribunal later dismissed his appeal. 

Judge Wikeley first sets out the legal framework of the appeal as regulations 18 and regulation 33(2) of the Employment Support Allowance Regulations 2008. This sets out the exemption to the general rule that full time students are excluded from ESA eligibility.

He then cites CPAG’s Welfare Benefits and Tax Credits Handbook 2017/18 summary of their effect:

“If you are ‘receiving education’ you can only qualify for income-related ESA if you are getting DLA, PIP or armed forces independence payment … Unless you are a ‘qualifying young person’ for child benefit purposes, if you qualify for income-related ESA as a full-time student because you are getting DLA, PIP or armed forces independence payment, you automatically count as having limited capability for work”.

Judge Wikeley then explains that the First-tier Tribunal went wrong by simply treating the appellant’s ESA appeal as a standard limited capability for work appeal and simply considered the physical and mental descriptors.

 While recognising that this was not a standard case, Judge Wikeley says that the approach of both the Department and the First-tier Tribunal was disappointing:

“The appellant’s support worker … had repeatedly spelt out the case on his behalf. She set it out in the request for a mandatory reconsideration, in the notice of appeal, in a post-hearing application for a set aside and in a subsequent application for permission to appeal.

She had made the point very shortly and very clearly. She had specifically referred to regulation 33(2) in the notice of appeal. She really could not have made the point any more clearly and yet for some reason her argument was repeatedly ignored. Reading the grounds of appeal is always a good place to start.”

In remaking the First Tier Tribunals decision, Judge Wikeley then sets out he issues that arise under regulation 33(2):

“Regulation 33(2)(a): was the claimant not a qualifying young person? A ‘qualifying young person’ has the same meaning as in section 142 of the Social Security Contributions and Benefits Act 1992 (see regulation 2(1) of the Employment Support Allowance Regulations 2008), i.e. in the context of child benefit awards.

Was the appellant aged 16-19 and undergoing a full-time course of non-advanced education or approved training that began before he reached 19? The short answer to the question put that way is No, he was not a qualifying young person, as he was aged 25.

Regulation 33(2)(b): was the claimant receiving (full-time) education? The short answer is Yes. The First-tier Tribunal found he was in full-time education. I adopt that finding of fact, which was plainly sustainable on the documentary and oral evidence. 

Regulation 33(2)(c): was it the case that paragraph 6(1)(g) of Schedule 1 to the Act did not apply in accordance with regulation 18? The appellant was entitled to DLA. Accordingly, paragraph 6(1)(g) of Schedule 1 to the Act did not apply in accordance with regulation 18.

It follows that the Appellant met all the conditions set out in regulation 33(2). He was therefore treated as having limited capability for work and so entitled to ESA. He was also relieved from the information-gathering duties in regulation 21 (see regulation 21(3)).”

Judge Wikeley concludes by upholds the appeal and remits the case the Secretary of State to conduct a further work capability assessment to determine whether the Appellant should be placed in the ESA support group.

CE/1600/2018: ESA40 leaflet imposes a duty to report when their DLA stops although it does not expressly refer to it 

Upper Tribunal Judge: Jacobs

The claimant has been receiving an ESA since 26 July 2013. His on the basis that he qualified for the severe disability premium. However, while he ceased to qualify when his award of DLA came to an end he did not inform the ESA section. A decision was later made that he had been overpaid ESA due to his failure to disclose he was not in receipt of DLA and a civil penalty was also imposed.

On appeal, a First-tier Tribunal decided that the claimant was not liable to repay the overpayment and that no civil penalty should be imposed. The judge found that the claimant was not under a duty to report that his disability living allowance award had come to an end:

“Leaflet ES40JP was provided in the appeal papers. Under the heading “Changes you must tell us about” [81], there are 12 bullet points which relate to changes in circumstances. There is no information within the leaflet which would indicate to an appellant that the cessation of his or her disability living allowance need to be notified to the respondent. There is, however, a generic catch all which relates to whether or not an appellant is uncertain about changes to his circumstances. 

I find that the leaflet does not assist the respondent. The leaflet fails to refer to the sort of change in circumstances that the respondent is now relying on.”

However, in hearing the Secretary of State’s appeal, Upper Tribunal Judge Jacobs holds that there was a duty to disclose:

“A claimant cannot be liable for failing to report something to the Department for Work and Pensions unless there was a duty to report. The Secretary of State identified the source of the duty as the leaflet ESA40 04/13. This is not the number used by the judge in paragraph 10 of the written reasons, but it is the document that is in the papers. 

The judge was right that nowhere in the leaflet is there any express instruction to report if an award of disability living allowance stops. The judge was also right that the leaflet advises claimants: ‘If you are not sure if we need to know something, tell us anyway."

More importantly, the leaflet gives the instruction to report ‘Any changes to do with pension income, benefits and allowances’. It goes on:

‘By “benefits” we mean things like’ and then lists a number of benefits including income support and jobseeker's allowance. Finally, there is this paragraph:

‘Also tell us if you or your partner start or stop getting any pension income, benefits or allowances. Tell us if the amount of money you or your partner are getting changes.’

As the tribunal misdirected itself that the claimant was not under a duty to report, Judge Jacobs sets aside its decision. He directs that the appeal be reheard as the tribunal had not dealt with the client’s contention that he  had reported the change to his DLA by telephone. There was a contemporaneous written record saying the opposite, but he disputed its accuracy. That issue needs to be resolved at a hearing. 

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

Upper tribunal Judge West

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

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

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

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

 Activity:

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

Descriptors:

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

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

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

Activity:

10 Consciousness during waking moments

Descriptors:

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

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

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

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

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

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

Judge West there concludes that:

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

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

CSE/279/2018: Whether tribunal hearing an ESA appeal required to consider adjournment if representative not lodged relevant papers from PIP claim 

Upper Tribunal Judge: May

Following a First-tier Tribunal deciding that the claimant was not entitled to ESA, the claimant appealed to the Upper tribunal.

His grounds of appeal were that the tribunal should have considered an adjournment to obtain the evidence that had awarded him the mobility component of PIP for mobilising no more than 50 metres.

The Secretary of State supported his appeal, saying that “the apparent lack of mobility aids used by the claimant means that in my view, the criteria for assessing mobility in both PIP and ESA would have been very similar and would have focused on the distance she can walk”.

However, in dismissing the claimant’s appeal, Judge May explains that the claimant’s representative had made a supporting submission and included both the decision notice from the PIP appeal and a supportive GP medical report used in that appeal.

In addition, the representative did not submit to the tribunal it should adjourn the hearing to obtain papers relating to the successful PIP appeal.

Judge May then says:

“I am not persuaded in these circumstances that it was necessary for the tribunal of its own volition to consider whether or not to adjourn the hearing before it.

It was, in my view, entitled to proceed to hear the appeal in circumstances where the claimant was represented by a responsible representative, that representative had set out clearly in the written submission the case which was to be made on her behalf and had lodged such documents in respect of the personal independence payment which were considered by the representative to be relevant in the appeal.

The tribunal were entitled to assume that the claimant’s representative knew the case which was to be presented on her behalf and had lodged the documents considered to be necessary to support it. In these circumstances I do not consider that the tribunal erred in law along the lines submitted by both the claimant and the Secretary of State.”

He concludes by holding that AG v SSWP did not assist in the claimant’s case as the Upper Tribunal Judge’s comments in that case are obiter (non-binding).                                                           

Personal independence payment

CPIP/3404/2016: Assistance to self-catheterise by itself is not “therapy” for the purposes of “managing therapy or monitoring a health condition”

Upper tribunal Judge: Bano                                                                                    

This decision is now reported as [2017] AACR 31

The claimant had previously been awarded PIP partly because she needed her partner’s help to insert a catheter as she was unable to do so alone due to brittle bones in her wrist.

However, after she reported a change of circumstances submitted a new PIP claim. She was examined by a health care professional who reported that the claimant’s statement was inconsistent with her medical condition and her urologist’s report that she could insert a catheter. She was then awarded two points under descriptor 5(b) (needs to use an aid or appliance to be able to manage toilet needs or incontinence).

Her mandatory reconsideration request was refused despite her submitting letters from a community mental health nurse and her urologist which both referred to her need for help.

A First Tier Tribunal also confirmed the award under descriptor 5(b) but not descriptor 5(d) (needs assistance to be able to manage toilet needs) as it did not accept that the claimant needed her partner’s help and it also held that self-catheterisation did not amount to therapy for the purposes of activity 3.

In considering her further appeal, Upper Tribunal Judge Bano holds that to describe help with catheterisation as “therapy” would be a strained use of language. The specific provision made by paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 for the management of incontinence to include self-catheterisation for the purposes of activity 5 also indicated that catheterisation should not count as “therapy” for the purposes of activity 3.

He further holds that self-catheterisation” referred to the type of catheterisation device used and did not require a catheter to be self-administered; otherwise the definition of “manage incontinence” would be ineffective in both descriptor 5(e) (needs assistance to be able to manage incontinence of both bladder or bowel) and descriptor 5(f) (needs assistance to be able to manage incontinence of both bladder and bowel).

Judge Bano then reasons that Activity 5 represents an attempt to calibrate toilet needs and problems resulting from incontinence in terms of their severity, and that intention might be undermined if some situations which were specifically provided for in activity 5 were also held to fall within the more general provisions of activity 3.

While there may be situations in which assisting a person with catheterisation may form part of a treatment which amounted to therapy for the purposes of activity 3, by itself assisting a person to catheterise did not do so.

Judge Bano concludes by setting aside the tribunal’s decision and remits the appeal for rehearing. This is on the grounds that the tribunal erred in failing to properly consider properly the question of whether the claimant needed assistance to administer a catheter.  The activities it referred to did not provide a sufficient test, the letters from the mental health nurse and urologist were not mentioned and it failed to address the claimant’s assertion that she was unable to insert a catheter because of the condition of her wrists.

CPIP/1251/2017: Whether tribunals should offer a telephone hearing if claimant elects to have a paper hearing

Upper Tribunal Judge: Rowland

The claimant had ticked a box on her notice of appeal to state that she wanted her appeal decided on the papers.  The alternative offered was to “attend a hearing”.  However, in her grounds of appeal on the same document, the claimant said:

“I would prefer to attend the hearing but beg your pardon as my condition may not allow me to keep any appointment due to its unpredictability.”

A tribunal later dismissed her appeal following a paper hearing.

Upper Tribunal Judge Rowley explains that a telephone hearing is a “hearing” for the purposes of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as rule 1(3) provides:

““hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”.

He then goes on to highlight that neither the standard form for giving notice to appeal, which is expressed in terms of attending an appeal, nor the standard letter sent later, which is expressed in terms of a hearing where the claimant “can meet” the Tribunal, admits to the possibility of a telephone hearing in which a claimant might participate from home. 

He says that while telephone hearing may be adequate for case management or when considering a point of law that it is much less useful than a face-to-face hearing in cases where facts are in dispute or an assessment of disability, or of the effects of disability, is required.  That is because non-verbal communication is lost.

As a result, he says that a First-tier Tribunal may need to ask itself whether consent or a lack of objection may have been based on a lack of information about the possible options, particularly where there is reason to suppose that the claimant might have wanted a telephone hearing. 

This is particularly so in the case of the claimant’s appeal, in which she further exploration of the claimant’s evidence was required since:

“the claimant told the health care professional that she did she did not cook at all, apparently because not only standing but also using a perching stool caused back and leg pain, and yet the health care professional said that she cook using an aid or appliance, without referring to that evidence.”

He outlines there also appeared to have been an inconsistency between, on one hand, the social and occupational history recorded by the health care professional in her report and, on the other hand, the functional history recorded in the same document.  

Judge Rowley therefore sets aside the decision of the tribunal

Remits to a differently constituted panel.

CPIP/1567/2017: Good reason for failure to attend PIP assessment

Upper Tribunal Judge: Mesher      

This case concerns whether the claimant had good cause not to attend a face to face PIP assessment (regulation 9 of the Social Security (Personal Independence Payment) Regulations 2013).  

The claimant’s main condition was psychosis. He had an award of the highest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA).

His wife, who was his appointee was unsuccessful in her request that a PIP assessment be carried out at their home.

Following the claimant failing to attend an appointment at an Atos assessment centre a decision was made to end his DLA entitlement.

Following his appeal, the tribunal recorded that:

[The appointee] detailed that it was very difficult to get [the claimant] to leave the house, mainly due to reasons connected with his mental health condition. We noted from the GP records summary that he sees his GP infrequently. He did leave the house in 2015 to attend Moorfields hospital for a medical appointment relating to his eyes which have cataracts. [The appointee] detailed that it had been very difficult to get him to leave the house on that occasion. It had required both of their sons to attend at their home and for [the claimant] to be driven to the appointment.

[The appointee] was asked at the Tribunal hearing why she did not get their sons to attend their home and drive [the claimant] to the medical assessment on 16/06/16. She stated that this was because [the claimant] did not want to attend the assessment and that in those circumstances it was not possible for her or her sons to make him attend.”

However, the tribunal upheld the decision that the claimant was not entitled to PIP “because he failed to attend or participate in a consultation to enable DWP to assess entitlement”.

In considering the appeal, Upper Tribunal Judge Mesher holds that:

“If a claimant fails without good reason to attend or participate in a consultation they have been required to attend in accordance with regulation 9 … then a negative decision must be made by the Secretary of State.

If it is once accepted that the requirement has been properly imposed, then I think that “failing” to attend must mean simply not attending. The requirement has supplied the legal obligation that is then breached by not attending.”

But he then stresses that:

“In general, all excuses for not attending according to what was specified in a valid notice are to be considered as part of determining whether or not there was good reason.

In finding that all personal factors relating to the claimant will obviously be relevant, he says:

“The words “without good reason” should not be artificially limited. In other social security contexts, for instance jobseeker’s allowance and its predecessor, unemployment benefit, it has been recognised that in considering whether a claimant has good reason for not applying for a vacancy, the suitability of the vacancy is a relevant factor.

In the present context, the fact that a judgment about the suitability of carrying out any consultation at all is built in to the process leading to a requirement to attend and participate in a particular consultation points towards a claimant being able to raise the issue of suitability on any appeal against a disallowance following a negative determination under regulation 9.

I do not wish to give many examples in case they are thought to have a limiting effect, but it seems to me that the question of suitability plainly extends in the present context to consideration of what useful additional evidence a consultation would be likely to add in the particular circumstances.”

In the claimant’s case, Judge Mesher explains that the tribunal concentrated on him personally and reached the specific conclusion that his non-attendance at the consultation was due to conscious choice rather than to his physical and mental health conditions preventing his attendance.

However, he considers that this conclusion was undermined by the tribunal’s failure to take into account the fact that the claimant had an appointee and so was accepted by the Secretary of State as being unable to act:

“Even if the tribunal took the view that the claimant was capable of organising his own attendance at the consultation, including organising the assistance of others, there needed to be an explanation of why that view overrode the acceptance that he was unable to act. It may also have been the case that the tribunal applied a somewhat wrong test in the concluding paragraphs of the statement of reasons in asking itself whether the claimant was “incapable” of attending the consultation … or whether his mental and physical health conditions “prevented” him attending.”

Judge Mesher then holds that where the tribunal fundamentally went wrong in law was in excluding consideration of the suitability of the consultation:

“While the tribunal mentioned that it might have been desirable for the claimant to have been offered a home appointment, it drew no consequences from that view and by indicating that it had to consider the appointment actually required by Atos showed that it was excluding the suitability of that particular consultation as a factor. That was a material error of law.

So in setting aside the tribunal’s decision, Judge Mesher concludes that:

“The nature of the claimant’s disability and mental and physical condition (even if his psychosis was relatively stable in day to day life staying at home), the judgment that he was unable to act embodied in the appointment of his wife under regulation 33 of the Social Security (Claims and Payments) Regulations 1987 and the existence of an award of DLA (although of unknown length) including the highest rate of the care component of DLA raised questions at least about whether a consultation at a consultation centre was suitable.

There had not been any express consideration of whether a telephone consultation would be more suitable.

It appears wrong in principle that Atos’s own self-imposed rules about the criteria for accepting a consultation at a claimant’s home should control a tribunal’s judgment of whether a consultation at a centre is suitable or not.

… If only the claimant’s own circumstances are to be looked at, there seems no doubt that he was incapable of getting to the Islington centre if left entirely on his own to do so.”

Judge Mesher also holds that that the appealed decision covered both PIP entitlement and the termination of entitlement to DLA. Accordingly, he orders that the decision to end the claimant’s DLA be set aside and payment of DLA resumed. 

CPIP/1988/2017: Whether help with hearing exercises can be therapy / lip-reading and communicating verbally  

Upper Tribunal Judge: Hemingway

The claimant was profoundly deaf, used British Sign Language and had some ability to lipread.  She wore cochlear implants. 

She was previously in receipt of the lower rate of the mobility component and the middle rate of the care component of DLA.  She had appealed to the Upper Tribunal when a First Tier Tribunal dismissed her appeal against the decision that she was not eligible for PIP.

The claimant contended with respect to activity 3that the tribunal had wrongly concluded that assistance provided to the claimant by her mother when she was undertaking what had been described as “focused listening practice exercises” could not be regarded as assistance with therapy.  She  argued that those exercises helped the claimant to improve her ability to hear effectively with her cochlear implants.

The tribunal had said that the exercises could not be regarded as therapy because what was being done did not constitute medical treatment of a disease or curative treatment.  It likened it to encouragement to exercise or encouragement to give up smoking. 

Upper Tribunal Judge Hemingway says that clearly had in mind what had been said by the Upper Tribunal in AH v SSWP (PIP) [2016] UKUT 0276 (AAC). In AH the Upper Tribunal, as part of its reasoning, relied upon a dictionary definition of the word “therapy” as “the medical treatment of disease; curative medical or psychiatric treatment”. “  

The Secretary of State’s representative agreed with the claimant, pointing out that the exercises had been carried out on the recommendation of an audiologist, that it was said such exercises had to be undertaken regularly and that they were intended to train the brain to effectively make use of the implants. She suggested that all of this constitutes a very different scenario to that of a person simply offering encouragement to give up smoking. She also referred to a perhaps wider dictionary definition of “therapy as “treatment intended to heal or relieve a disorder”.

Judge Hemingway agrees that the evidence about the exercises:

“… was capable of suggesting that it was of a substantively different nature to the mere encouragement to give up a “bad habit” like smoking or to take up a good one such as, for example, tending an allotment or cross country running. So, I agree that the tribunal erred in failing to adequately explain why it did not regard the exercises as constituting therapy.” 

The claimant also contended that the tribunal had erred in wrongly considering an ability to lipread with respect to the descriptors linked to activity 7 (communicating verbally). She highlighted that the Secretary of State’s own position was that lip-reading should not be taken into account because it was an unreliable way of understanding verbal information.

Judge Hemingway explains that in SB v Secretary of State for Work and Pensions [2018] UKUT 122 (AAC) Judge Jacobs expressed the view that “it is pointless to disagree with a Secretary of State who wishes to implement legislation in a way that is perhaps more generous to claimants than the legislation strictly allows”. 

Judge Hemingway says that he agrees with this pragmatic approach:

“This tribunal clearly did take what it found to be the claimant’s limited ability to lipread into account in reaching its findings concerning activity 7. I therefore accept the Secretary of State’s representative’s position in this appeal that the tribunal erred in law in doing so. So, when I put that alongside the error it made with respect to activity 3, that means its decision must be set aside.”

 He concludes that:

It seems to me, speaking more generally but without wishing to actually bind tribunals, that so long as the Secretary of State continues to take the approach she does then tribunals should themselves ought to adopt and follow that same approach. Such will lead to consistency and desirable predictability.”

CPIP/2456/2017: Need to produce appointment letter in appeal relating to failure to attend medical assessment.

Upper Tribunal Judge: Mesher

A tribunal had dismissed the claimant’s appeal against the decision to refuse her PIP on the grounds that she failed to attend an Atos medical assessment and had no good reason to do so.

Regulation 9 of the PIP Regulations 2013 provides that:

“9. (1) Where it falls to be determined whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities, C may be required to do either or both of the following—
(a) attend for and participate in a consultation in person; (b)   participate in a consultation by telephone …

Subject to paragraph (3), where C fails without good reason to attend for or participate in a consultation referred to in paragraph (1), a negative determination must be made.

Paragraph (2) does not apply unless -
written notice of the date, time and, where applicable, place for, the consultation is sent to C at least 7 days in advance; or
C agrees, whether in writing or otherwise, to accept a shorter period of notice of those matters.

In paragraph (3), reference to written notice includes notice sent by electronic communication where C has agreed to accept correspondence in that way and “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000.

In this regulation, a reference to consultation is to a consultation with a person approved by the Secretary of State.”

Regulation 10 provides that the matters to be considered in determining whether C has good reason under regulation 9(2) must include C’s state of health at the relevant time and the nature of any disability that C has. Regulation 2(1) defines “C” as meaning “a person who has made a claim for or, as the case may be, is entitled to personal independence payment”. In considering the appeal, Judge Mesher cites his decision in  CPIP/1567/2017:

“A question arises whether it is sufficient on appeal merely to provide evidence of the date on which a letter had been sent by Atos, to whom and at what address, and of the date of the appointment given in the letter, without providing a copy of the specific letter or at least a copy of the standard letter in use at the time with something to indicate that that was the form used in the particular case.

Only then could a tribunal be satisfied that the claimant had been required to attend and participate (see R(S) 1/87, paragraph 12(1), where it was said that notices of a similar kind were to be strictly construed). The severe consequences of a failure to attend and participate would support such a strict construction.

In my provisional view (provisional because the point has not been covered in any submissions) it is in general necessary to provide at least a copy of a standard letter with something to indicate that that was the form sent to the claimant.”

Upper Tribunal Judge Mesher says that in the claimant’s case it was not in dispute that the she was sent a letter by Atos Healthcare on 10 November 2016 with an appointment for 10.30 a.m. on 22 November 2016. However, no copy of that letter was in the papers before the tribunal, or any copy of a standard letter in use at the time.

He then adds that in the claimant’s case, there is nothing in the evidence beyond the record of appointment letters being sent to indicate a specific notification to her of there being a requirement to attend.

Judge Mesher then holds that:

“The tribunal of 5 May 2017 made no reference to the condition under regulation 9(1) of the claimant having been required to attend for and participate in the consultation on 22 November 2016. It simply mentioned in paragraph 10 that the consultation appointment for that date was given on 10 November 2016 and found in paragraph 18 that the appointment letter had been properly sent to the claimant and received in time. It then went on to concentrate on the question of whether the claimant had had a good reason for not attending for that consultation, on which it concluded against her.

Accordingly, there was nothing to make good the lack of evidence on a necessary condition for the making of a negative determination under regulation 9(2) of the PIP Regulations, i.e. that the claimant had been required to attend for and participate in the consultation on 22 November 2016. The tribunal therefore went wrong in law in confirming the Secretary of State’s decision of 18 January 2017 when that necessary evidence was lacking. That is sufficient to require the setting aside of its decision. “

As a result Judge Mesher concludes that:

“Because of the lack of evidence that the claimant was required to attend for a consultation on 22 November 2016, that consultation is not one “referred to” in regulation 9(1) of the PIP Regulations, so that there was not a failure to attend for such a consultation that would allow a negative determination to be made under regulation 9(2) leading a decision that the claimant was not entitled to PIP on the claim of 5 July 2016.”

CPIP/2050/2017: Activity 8: Reading and understanding written information when BSL is the claimant's primary means of communication

Upper Tribunal Judge: Hemingway

The claimant was profoundly deaf since very early childhood.

The First Tier Tribunal had tribunal dismissed her PIP appeal but did confirm the award of the standard rate of the daily living component. It agreed with the Secretary of State that daily living descriptor 7d (Needs communication support to be able to express or understand basic verbal information), which scores 8 points, applied. But it did not award any other points at all.

It noted in its statement of reasons, that the claimant could communicate via hand written notes and decided not to award her any points under PIP Activity 8:

Reading and understanding signs, symbols and words

a  Can read and understand basic and complex written information either unaided or using spectacles or contact lenses. Score 0

b  Needs to use an aid or appliance, other than spectacles or contact lenses, to be able to read or understand either basic or complex written information.   Score 2

c  Needs prompting to be able to read or understand complex written information. Score 2

d  Needs prompting to be able to read or understand basic written information. Score 4

e  Cannot read or understand signs, symbols or words at all. Score 8

Some relevant definitions which appear within Schedule 1 Part 1 of the Social Security (Personal Independence Payment) Regulations 2013. are as follows:

“Basic written information” means signs, symbols and dates written or printed standard size text in C’s native language;

“Complex written information” means more than one sentence of written or printed standard size text in C’s native language;

“Prompting” means reminding, encouraging or explaining by another person;’” 

In appealing to the Upper Tribunal, the claimant said that she was pre-lingually deaf and could only communicate via British Sign Language (BSL). Because of this she should have been awarded points for reading.

Her grounds were that BSL, as opposed to English (with which she was also familiar), should be regarded as her native language. And since BSL is a language without a written component it followed that she was unable to read complex or simple written information in her native language and should, therefore, score 8 points under daily living descriptor 8e.

In setting aside the tribunal’s decision, Upper Tribunal Judge Hemingway notes:

“The claimant’s obvious difficulty … is that if I am to regard BSL as being her native language for the purpose of entitlement to PIP, it’s not having a written component means that no prompting or indeed no use of an aid or appliance could possibly assist her in being able to read or understand written material in that language.

Points are scored under descriptors 8b,c or d if the use of an aid or appliance or prompting leads to a claimant being able to read or understand the relevant material. That follows logically from the wording of those descriptors. So, since nothing of that sort could help her to read or understand written material in BSL (because there isn’t any) it becomes impossible for her to satisfy the requirements. 

He continues:

“As to the possibility of the claimant scoring 8 points under 8e, the wording of that descriptor does not include any reference to either complex written information or basic written information and so does not involve the above definitions and, in consequence, does not contain any native language requirement. Since the evidence appeared to be overwhelmingly to the effect that she can read and can understand signs and symbols and can read words in the English language, it is difficult to see how that descriptor can have any application at all in the context of this appeal even if English is not to be regarded as her native language or one of her native languages.” 

Judge Hemingway then reasons that It might be thought that the language used in the Activity 8 descriptors and definitions envisage a claimant only having a single native language:

“There are many countries where a number of different languages are spoken and a person might if born in such a country be exposed, to broadly the same extent, to two or more such languages when growing up. If so it would make sense to conclude that such a person has more than one native language.

In this case this claimant, the evidence would seem to suggest, has grown up being exposed to BSL (through necessity) but also to the English language. According to the evidence and the tribunal’s findings she is able to communicate in both. Against that background it seems to me to make little sense to feel compelled to select one or the other as being the native language and I do not think there is anything in the wording of the legislation which actually requires that.

Judge Hemingway concludes by holding as follows:

“So, if the evidence permits it, it will be open to a tribunal to regard a person as having two or perhaps even more, native languages. In a situation such as this one it will, depending on the facts, be open to a tribunal to conclude that a claimant has the native languages of both BSL and English.

If there are two native languages and only one of them has a written component then the tribunal will have to assess the ability to read or understand complex written information and/ or basic written information in that language.

In the context of this appeal then, the tribunal’s task will be to evaluate the claimant’s abilities to read or understand to the requisite standards in English. I do not need to say any more than that in giving guidance to the tribunal which will have to deal with this case by way of a rehearing.”

CPIP/3000/2017: Extending time for time for returning the PIP1 claim form and failure to return PIP2 form
Upper Tribunal Judge: Ramsey

The claimant’s appeal in this case raised two issues:

  • whether the time for returning the PIP 1 claim form should have been extended under regulation 12(1)(c) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013; and

  • whether a “negative determination” should have been made under regulation 8(3) of the Social Security (Personal Independence Payment) Regulations 2013 because she had failed to return the PIP2 form.

The First-tier Tribunal’s statement of reasons set out the background to the appellant’s case including the appellant’s request for confirmation that her claim for ESA would not be affected by a claim for PIP.

The appellant’s oral evidence as recorded by the Tribunal was that she persisted with requiring knowing the answer right up to the end of the hearing. 

Upper Tribunal Judge Ramsey outlines that:

“The thrust of the First-tier Tribunal’s reasoning is that having been referred to sources of help and having been given the information requested that the appellant’s continued insistence on having written confirmation, from the ‘horse’s mouth’ (that if she made a claim for PIP her claim for ESA would not be affected), was not a good reason for the failure to return the PIP2 form.”

She then adds that:

“… the appellant asked repeatedly, consistently and clearly for confirmation from the respondent that a claim for PIP would not affect her claim for ESA. I consider this to be a reasonable request. If it had the potential to affect her claim for ESA the appellant could suffer financially and potentially in other ways. I therefore also consider that wanting to defer filling in the claim form until she received the reassurance she requested was reasonable. The respondent does not appear to have been as helpful as it could have been.

… Neither the respondent nor the Tribunal considered the state of the appellant’s health and the nature of any disability she may have (as required by regulation 10 of the PIP Regulations) when determining if there was a good reason for the failure to complete the PIP2.

There was evidence in the bundle that the appellant had ‘significant problems with anxiety and depression’ (doc 84) and that ‘she was diagnosed with anxiety and depression on 21/4/11…takes a regular prescription of Sertraline’ (doc 86) along with other physical health problems.

This evidence was not available to the respondent at the time that the decision was made but clearly her mental health conditions may have affected her engagement with the respondent and may have contributed to the failure to complete the PIP2 form. The Tribunal was required to take her mental health problems into account. Failure to do so is an error of law.” 

Judge Ramsey says that in respect of the second issue - the negative determination –the same reasons for failing to complete the PIP2 were given:

“All the reasoning set out above in relation to the first issue applies equally to the negative determination issue. The decision to make a negative determination was made on 23 January 2016.

This was prior to the appellant being given the information she had requested verbally on 29 February 2916. As I am considering only circumstances pertaining at the date of the decision I find that there was a good reason for the appellant’s non-compliance with the requirement to complete the PIP2 form within a one-month period. The respondent’s decision to disallow the claim for PIP on the basis that the required information had not been provided (within the one-month period set out in Regulation 8) is set aside.”

Judge Ramshaw therefore allows the appeal, sets aside the decision, and remakes it. She holds that it was reasonable to extend the time limit for return of the PIP1, and that the claimant had good reason for failing to provide the required information and evidence.

CPIP/3024/2017: Whether help to set up and remove a feeding line can amount to assistance with managing a therapeutic source to take nutrition

Upper Tribunal Judge: Mesher 

The claimant required a feeding line (Broviac line) to be fitted overnight. The overnight feeding, lasting up to 12 hours, started on one calendar day and finished on the next, with help needed at the beginning and the end.

The first Tier Tribunal had awarded the claimant 4 points for descriptor 3d

Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.

The Secretary of State cited the decision of Upper Tribunal Judge Gamble in CSPIP/386/2015 in which he held that as a matter of statutory interpretation the existence of the specific descriptor 2e (needs assistance to be able to manage a therapeutic source to take nutrition) means that that assistance cannot be considered when applying the descriptors in Activity 3.

In response to this, Upper Tribunal Judge Mesher notes that the general principle underlying that decision was approved and applied by Judge Bano in the reported decision [2017] AACR 31. He therefore finds that he must follow and apply the specific ruling in CSPIP/386/2015.

However, he does add that:

“…Judge Gamble’s ruling is limited to assistance to be able to manage a therapeutic source and that for these purposes “assistance” has the meaning of “physical intervention by another person and does not include speech” (paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regulations)).

Thus, I do not think that the decision in CSPIP/386/2015 excludes the consideration of supervision or prompting to be able to manage therapy under activity 3. The Secretary of State’s submission is that the tribunal’s award of 4 points for descriptor 3d was based on a finding of needing assistance with managing therapy in the form of the use of a therapeutic source (the Broviac line) and so was not allowed on the proper meaning of that descriptor.”

In relation to activity 2 (taking nutrition) the Secretary of State submitted that since the tribunal found, relying on the PIP2 form, that the claimant used the Broviac line for three nights a week, she did not need assistance for more than 50% of the days in any period in issue, so that its award of the 2 points for descriptor 2c – “Needs a therapeutic source to be able to take nutrition! - was wrong in law.

In rejecting this, Judge Mesher highlights that:

“It is clear from the tribunal’s findings that the overnight feeding, lasting up to 12 hours, started on one calendar day and finished on the next, with … assistance needed at the beginning and the end.

Accordingly, on the assumption that the claimant was not, at the time when the pattern was of three nights a week, using the Broviac tube on consecutive nights, the relevant descriptor would be satisfied on two days for each occasion, not one. So, on that basis there would have been no problem with the 50% rule on the three nights a week pattern.”

However, Judge Mesher then considers the tribunals findings in relation to Activity 2.

He then outlines that:

“It is plain from paragraph 12C of the statement of reasons of the tribunal of 10 January 2017 that it, with the benefit of the expertise and experience of its wing-members, accepted that the assistance required by the claimant to set up and remove the HPN equipment came within the special meaning of “assistance” in paragraph 1 of Schedule 1 to the PIP Regulations.”

He then adds that:

“The claimant in her statement on page 85 of the papers naturally used ordinary language like “support” and “assistance” and “supervision” without thinking about whether those words had any special meanings for PIP purposes.”

But in my view it is clear enough that what she described included “physical intervention”. In my judgment physical intervention with the equipment to be used at the point of attaching the lines to the feeding bag (and it emerges from decision CSPIP/386/2015 that the bags are heavy at the beginning of the process) is to be taken into account. Physical intervention when coming off the feed was also indicated. Thus for each night, assistance was required on two days.”

Judge Mesher then concludes that:

“I am quite satisfied that the requirement for such assistance was the result of the claimant’s physical condition. Even though the claimant might have minimal mental health, musculoskeletal and cardiovascular issues, the particular problems caused by the nature of the equipment needed for the quite dangerous procedure and her shakiness at the end of it quite clearly resulted from the condition that necessitated the HPN feeding.

Equally clearly, that assistance was required for the claimant to manage the therapeutic source. The term “manage” must include the things necessary to undertake the feeding and to cope with the ending of it, not just what goes on while nutrition is actually being taken. I make findings of fact to that effect. Accordingly, I conclude that descriptor 2e (needs assistance to be able to manage a therapeutic source to take nutrition), scoring 6 points, is the appropriate descriptor, not 2c, and was satisfied on more than 50% of the days in the required period. “

CPIP/3058/2017: Tribunal’s statement of reasons must deal with the arguments put by the claimant

Upper Tribunal Judge: Jacobs

In this decision, Upper Tribunal Judge Jacobs sets out some general principles in relation to whether a tribunal’s reasons for its decision can be deemed adequate.

Judge Jacobs holds that:

“Tribunals must give reasons for their decisions. Those reasons must be adequate. In order to be adequate, they must deal with the issues raised by the appeal.

In this case, the judge dealt with the relevant personal independence payment activities individually, explaining the tribunal’s reasons for each.

This approach is regularly taken by the First-tier Tribunal and in many cases it will provide a sensible structure for the tribunal’s reasons. But it only works when the claimant’s arguments coincide with the legal divisions between activities.

In this case, they did not. What the judge should have done was to write reasons that provide the tribunal’s response to the claimant’s arguments through analysis of evidence and application of the law. It is not possible to tell from the way that the reasons were written whether or not the judge did that.

This points to a lesson for tribunals. It is not sufficient just to deal with the individual activities. The tribunal’s reasons must deal with the claimant’s arguments and not merely follow the legal structure of the legislation. Ideally, the structure of the tribunal’s reasons should follow from their content, but it does not matter how the judge sets them out. Adequacy depends on their content.”

CPIP/3104/2017 :Whether descriptor 5b satisfied if a claimant has a reasonable need to use incontinence pads even if they are not used

Upper Tribunal Judge: Rowley

The issue in this appeal was whether the tribunal erred in law in its consideration of daily living descriptor 5b.

Under descriptor 5b a claimant scores two points if he or she:

“Needs to use an aid or appliance to be able to manage toilet needs or incontinence.”    

Under the definitions in part 1 of Schedule 1 “manage incontinence” means “manage involuntary evacuation of the bowel or bladder, including use a collecting device or self-catheterisation, and clean oneself afterwards”.

Upper tribunal Judge Rowley first outlines that the following principles have been established in Upper Tribunal cases.

Incontinence pads fall within the definition of “an aid or appliance” (CPIP/2908/2015).

“Descriptor 5b can be satisfied in its terms by a reasonable need to use an aid or appliance on a precautionary basis on many more days than those on which incontinence actually occurs.” (CPIP/387/2017).

The “need” must be a reasonable need.  Thus, the descriptor may be satisfied even if an aid or appliance is not actually used, so long as it is reasonably needed (CPIP/1534/2015).

It is sufficient if a person satisfies a descriptor at some point during a 24-hour period, for a period which is more than trifling and which has some degree of impact on him or her (TR v SSWP (PIP) [2015] UKUT 626 (AAC); [2016] AACR 23).

In this case, Judge Rowley finds that the tribunal erred in law in its consideration of the claimant’s night-time needs:

“If the tribunal found that the claimant did wear incontinence pads at night (which, on any view, constitutes some point of a 24-hour period), it erred in failing to explain why that meant that she did not satisfy daily living descriptor 5b.  

If, on the other hand, the tribunal found that the claimant did not wear incontinence pads at night, it failed to consider a further relevant matter in the light of its clear finding that she wet the bed at night (with an unspecified frequency). 

Drawing together the principles set out above, daily living descriptor 5b will be satisfied if a claimant has a reasonable need to use incontinence pads (even on a precautionary basis) at night for the majority of the time, even if they are not in fact used by the claimant.  It was incumbent on the tribunal to explore and make findings on this issue.  Its failure to do so amounted to an error of law.”     

CPIP/13/2018: Health Care Professional failure to conduct mental function assessment in reliance on what claimant said

Upper Tribunal Judge: Perez

In considering the claimant’s appeal, Judge Perez outlines what he had said on his ESA50:

“The claimant said he has brain damage (pages 11 and 44), has difficulty learning jobs (page 12), is now slower in mental processing (page 44), has a poor memory and uses a memory board to help him remember things (page 44), has trouble remembering where he is going (page 44), showed a card in his wallet where he had counted his money and written down exactly how much he had in there to remind him how much he had taken out with him (page 48), and referred in several places to taking “time” to do things: pages 22 (toilet needs), 24 (dressing) and 32  (budgeting).  He said he “used to work for Remploy but was unable to cope and left 4-5 years ago” (page 44). “

She then goes on to hold that the tribunal erred in failing to take issue with the Healthcare Professional’s (HCP’s) failure to adequately assess cognitive and intellectual functioning, and finding insufficiently supported by the evidence.

The HCP had said that –

“[The claimant] reported that he did not have any mental health difficulties that required further assessment. Therefore, a mental function assessment was not conducted at this time.

However  he said he is depressed because he lost his career and can’t do what he would like to do, but prefers to keep his depression and feelings to himself and has not consulted anyone about it”

Judge Perez holds that the HCP decision not to do “a mental function assessment” was wrong for three reasons.: 

“First, it depended on the claimant’s view of his mental health to decide not to do a “mental function assessment”.  Some descriptors are affected not just by mental ill-health, but by other problems with mental, cognitive or intellectual functioning. 

Second, even in a claimant who has not reported problems with memory or functioning, it is arguably unreasonable for an assessor to depend on a claimant’s own view of whether an assessment is needed. 

Third, in this case it was arguably the more unreasonable because the claimant had already asserted problems remembering things and with processing.  So why should the HCP depend on him to report adequately his mental, cognitive or intellectual function? “ 

She finds that the tribunal erred in failing to take issue with the HCP’s failure adequately to examine the claimant given the evidence suggesting the claimant’s mental, cognitive and intellectual functioning were not normal.

This included a failure to enquire into discrepancies between his tick-box answers and their prose explanations.

Also its failure to enquire into discrepancies between the questionnaire and what the claimant reportedly told the HCP

Judge Perez also finds the tribunal erred in proceeding with a paper hearing.

It did not specify why it considered it had “adequate information” to do so.

In addition, it did not  mention the claimant’s letter that said he would be unable to attend because he was unable to find his way to Hanley, not because he did not wish to attend.  She says that this was not an indication of a refusal to attend if a way could be found for him to do so.

CPIP/1055/2018:Tribunals must deal with evidence relating to ESA entitlement when used in support of a PIP appeal

Upper Tribunal Judge: Jacobs

This decision explains the proper approach for a tribunal when presented with evidence relating to a different benefit. In this case, ESA evidence was produced in support of a PIP appeal.

In considering this issue, Judge Jacobs says that It is important to distinguish (a) precedent, (b) evidence, (c) argument, (d) the proper role of the First-tier Tribunal, and (e) the tribunal’s written reasons:

“I begin with precedent. Personal independence payment and employment and support allowance are separate benefits with different conditions of entitlement. There is no question of decisions on one benefit binding a First-tier Tribunal in respect of the other benefit. Nor is there is any question of findings of fact on one benefit binding a First-tier Tribunal in respect of the other benefit, even if the evidence is identical.

But that does not mean that evidence given in respect of one benefit may not be relevant to another. The fact that the benefits are separate and the conditions of entitlement different does not permit a tribunal to refuse to consider evidence that has been gathered in the context of the other benefit.

Nor is there anything to prevent a claimant or representative presenting an argument on one benefit based on an analysis of an award of the other, as Judge Hemingway explained. If they do, the tribunal cannot simply ignore the argument; it has to assess it for what it is worth.

The proper role for tribunals is to assess the evidence presented to them and analyse the arguments that are based on that evidence. There is no short cut to performing those tasks properly. 

Judge Jacobs then considers the tribunal’s written reasons:

“The employment and support allowance evidence was but part of the evidence before the tribunal. The bundle before the First-tier Tribunal ran to 417 pages. Not all of the documents were evidence, but they contained a considerable amount of evidence from a variety of sources. The tribunal had to assess the evidence as a whole.

Having done so, the tribunal does not have to refer to every piece of evidence. There was, as I have said, a lot of evidence in the papers and the tribunal did not have to show how it dealt with each and everything that was said in that evidence that might be potentially relevant. It is a matter of judgment how much of that evidence needs to be covered in the First-tier Tribunal’s reasons and no doubt the judges who write those reasons resent the Upper Tribunal second guessing them on what should be included.

But it is safe to say this: the tribunal should deal with evidence if the claimant or a representative has specifically relied on it, especially when (as here) the representative had relied on and adopted the carefully expressed approach of Judge Hemingway [in CPIP/1418/2015].

He then continues:

“There is another aspect to the employment and support allowance evidence. The tribunal’s reasons refer repeatedly to the claimant’s oral evidence of what she was and was not able to do; they also rely on the results of the physical and mental examinations undertaken by the health professional. Relying on the claimant’s evidence of her current abilities was potentially dangerous given that the hearing was taking place more than four years after the date of claim.

If nothing else, the employment and support allowance evidence suggested that the claimant’s condition, in so far as it was relevant to that benefit, had varied over time, suggesting that the tribunal should have been alert to the possibility that the claimant’s current abilities and disabilities might not be the same as at the time of her claim.
No doubt, the tribunal warned the claimant in its introduction that it was concerned with that time and, even if it did not, she had the benefit of an experienced representative to advise her. But it is still easy to slip into the present and the tribunal needed to show that the evidence it relied on did relate to the time of the claim.”

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

Upper Tribunal Judge: Hemingway

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

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

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

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

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

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

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

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

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

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

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

Upper Tribunal Judge: Bano 

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

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

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

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

The tribunal held in its statement of reasons that:

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

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

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

The Tribunal reinstated the original award to 14.01.2017.”

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

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

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

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

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

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

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

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

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

CPIP/1292/2018: High Court judgment to quash amendments to mobility activity 1 descriptors does have retrospective effect

Upper Tribunal Judge: Jacobs

In MH v Secretary of State for Work and Pensions, a three-judge panel of the Upper Tribunal gave its interpretation of mobility component activity 1 in Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013.

The Secretary of State decided to reverse the effect of MH by amending the legislation. This was done by the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 (SI No 194) with effect from 16 March 2017.  The validity of those amendments was challenged in FR v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin), in which Mostyn J quashed the regulations. He gave judgment on 21 December 2017.  

In this decision, Judge Jacobs considers the issue for me of were the amendments valid in respect of the period when they were purportedly in force although they were subsequently quashed? The answer is: no.

The issue arose because the claimant had claimed PIP on 5 December 2016 and the Secretary of State decided the claim on 20 March 2017 after the amendments had come into force. The First-tier Tribunal heard the claimant’s appeal on 15 January 2018. It was aware of Mostyn J’s decision but decided that it had to apply the legislation as amended.

In giving his decision, Judge Jacobs cites Lord Diplock’s ruling in explained the legal position in Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295:

“Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed.

It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf Ridge v Baldwin [1964] AC 40).

Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument Purported to declare.”

Judge Jacobs therefore holds that although the tribunal applied the legislation in force at the time of the hearing, that legislation was subsequently deprived of any effect and, as Lord Diplock explained, that had retrospective effect. As a result, with the benefit of hindsight, the tribunal acted in error.

In upholding the appeal, He decides rules that the tribunal’s decision must be set aside so that the case will be reheard, and that the tribunal will apply the law as set out in MH.

CPIP/1347/2018: Whether good cause for failing to attend PIP medical assessment

Upper Tribunal Judge: Wikeley

The Appellant lived in Derby and had appealed against a decision that he had failed to attend a PIP medical assessment without good cause.

His appeal to the Upper Tribunal had already been the subject of two First Tier Tribunal (FTT) hearings.

In considering this new appeal, Judge Wikeley highlights that it was still unclear what the date of the appointment the appellant had been held to miss:

“So, what was the DWP decision under appeal? I note that the original DWP submission to the first FTT was hopeless and the supplementary submission to the second FTT, as it very properly recognised, was worse than hopeless.

The original DWP written response stated that the decision under appeal was that dated 13 April 2016. The second FTT (like the first FTT) dismissed the Appellant’s appeal against that decision, stating that the Appellant “has not established good cause for failing to attend the appointment scheduled for him on 23rd February 2016”

… However, the decision letter dated 13 April 2016 refers to a failure to attend a medical assessment on 8 March 2016 …, not 23 February 2016.”

In his decision, Judge Wikeley adopts and endorse the second FTT’s findings as to the appellant’s health conditions, which were such that it was reasonable to expect him to attend an appointment in Derby but not in Nottingham or Stoke (or indeed anywhere else beyond Derby).

In rejecting the Secretary of State’s decision was that the appellant, Judge Wikeley reasons that:

“The appellant has shown good cause as (i) the appointment was not in Derby; and (ii) that consultation had in any event been cancelled by Capita. As I said when giving permission to appeal, “it seems somewhat perverse to be found to have failed without good cause to attend an assessment appointment which has been cancelled by the Government’s contractor.”

He then continues:

“If the Secretary of State’s decision was that the appellant had not shown good cause for failing to attend the consultation in Nottingham on 8 March 2016, I disagree. The appellant has shown good cause on the basis of his circumstances as the appointment was not in Derby. Given that, I need not decide whether an appointment at 08.10am involving a departure from home at a much earlier hour was reasonable.”

He then adds:

“So, whichever way one looks at it, the appellant has shown he had good cause for not attending the two PIP assessment appointments as specified in the Secretary of State’s decision and subsequent response to the appeal.”

The appellant had submitted that he could see no reason why he should be asked to attend any PIP medical assessment appointment.

But Judge Wikeley also cautions that this does not mean that the appellant has good cause for not attending any PIP assessment appointment:

“Subject to any issue of ‘good cause’ which may arise, it is wholly reasonable to expect him to attend a PIP consultation in Derby. It is entirely in his interests that he does so in order that the real merits of his PIP claim can be addressed and an appropriate decision on entitlement (if any) made.

The appellant cannot continually opt out of an appointment in Derby. The case is therefore remitted to the Secretary of State for such a new appointment in Derby to be arranged.”

Note: In granting permission to appeal, Judge Wikeley held that:

“It is for the Secretary of State to decide whether an individual must do either, and, if so, which. Once the Secretary of State has chosen to exercise that discretion, the individual must comply whether he thinks it necessary or not. The penalty for non-compliance is that the claim will be refused, irrespective of what merits it might otherwise have had.

Paragraph 9(2) [of The Social Security (Personal Independence Payment) Regulations 2013] provides that, where a claimant fails without good reason to attend for, or participate in, a consultation a negative determination must be made. (My emphasis). The language is mandatory and permits of no discretion.”

Finally, Judge Wikeley highlights what he says is the broader lesson of this Upper Tribunal decision: 

“A decision that a claimant has failed to show good cause for not attending a medical assessment – e.g. for the purposes of establishing entitlement to personal independence payment (PIP) – is not a decision to be taken lightly. It may have important and for the claimant costly ramifications in practice.

Even if the claimant subsequently makes a successful claim for PIP, the effective date of that later award may be many months (or possibly even years) later. The result of a ‘no good cause’ decision can therefore be to ‘keep the claimant out of their money’ for a period during which they would otherwise be entitled to PIP on the basis of their difficulties with the activities associated with daily living and/or mobility.

Tribunals should therefore examine the Department’s evidence and arguments with some care and, where that material is deficient, with a healthy degree of scepticism“  

CSPIP/386/2015: Where points awarded for assistance with a therapeutic source they cannot also be awarded for assistance with therapy

Upper Tribunal Judge: Gamble 

The claimant was a thirty three year old woman. She suffered from malabsorption requiring therapeutic parenteral nutrition” i.e. nutrition provided other than by the alimentary tract.

A tribunal awarded her 6 points for descriptor 2(e) “needs assistance to be able to manage a therapeutic source to take nutrition.

It also awarded her 8 points for descriptor 3(f) “needs supervision, prompting or assistance to be able to manage therapy that takes more than fourteen hours a week.” 

Judge Gamble explains that it was apparent from the tribunal’s findings of fact and reasons that they treated the assistance the claimant received from her husband almost every night in connection with her therapeutic parenteral nutrition as qualifying her both for an award for descriptor 2(e) and one for descriptor 3(f). 

The Secretary of State in his grounds of appeal conceded the correctness of the tribunal’s award of descriptor 2(e).  In doing so the Secretary of State’s referred to the definition of  “therapeutic source” in part 1 of schedule 1 to the Personal Independence Payment Regulations 2013 as including “parenteral  ….  tube feeding, using a rate limiting device such as  ….  feed pump”. 

Judge gamble agrees with that concession.

However the Secretary of State’s submission also submitted that the tribunal’s decision in respect of descriptor 3(f) is erroneous in law. This was on the ground that the claimant’s nutrition from a “therapeutic source” could not also count as “therapy” for the purposes of Activity 3.  Judge Gamblethen considers Applying the statutory text of descriptor 2(c) and of descriptor 3(f) of daily living activities:

“The former refers to a claimant needing “assistance to be able to manage a therapeutic source to take nutrition”.  It is not in dispute that the tribunal did not err in law in holding that the claimant satisfied that statutory provision. The latter descriptor refers to a claimant needing “supervision, prompting or assistance to be able to manage therapy that takes more than fourteen hours a week”. 

In my opinion, the claimant on the facts found by the tribunal could have been said to “need such assistance”, particularly when the definition of what it means to “manage medication or therapy” in paragraph 1 of schedule 1 is taken into account. 

But that would only have merited an award for descriptor 3(f) had the highly specific provisions of descriptor 2(c) not appeared in part 2 of schedule 1.   

I consider that those precise provisions have the effect of taking the relevant assistance entirely out of the scope of Activity 3  “managing therapy” where it otherwise would have been and placing it within the scope of Activity 2 “taking nutrition”.  That is the effect of a maxim of statutory construction expressed in Latin as lex specialis derogat legi generali.  The principle which that maxim expresses has been well expressed in English and clearly explained by Lord Kerr in paragraph 62 of Moohan v Lord Advocate [2015] S.C. (UKSC) 1 at p.18 as follows:

         “Where two provisions are capable of governing the same situation, a law dealing with a specific subject matter overrides a law which only governs general matters.”

In applying this principle to the facts of this case Judge Gamble holds that while he specific provisions of descriptor 2(e) apply but not additionally the general provisions of descriptor 3(f).

Universal credit

CUC/1067/2018: A claimant who fails to attend an interview because they are unaware of a notification letter must have good reason for not attending

Upper tribunal Judge: Jacobs

Judge Jacobs sets out that this case “turns on a simple question of fact: did the claimant as a person in receipt of an award of universal credit receive notice to attend a work-focused interview in time to attend the appointment?” He says he did not, a Decision Maker decided that he had received the letter and, having no good reason for failing to attend, was subject to a sanction under section 27(2)(a) of the Welfare Reform Act 2012.
The First-tier Tribunal confirmed that decision on appeal on the grounds that:

  • there was no dispute that the letter had been sent;
  • the claimant had never reported non-receipt of mail because he had never known of anything that had not been delivered; 
  • the letter sent to the claimant asking why he had not attended did arrive promptly;
  • the claimant had had DWP correspondence over a long period and that this was the only item delivered to the wrong address. 

It then concluded that ‘it was more probable than not’ that the claimant had received the appointment letter before the appointment date. 

Judge Jacobs says that he considers that that reasoning is inadequate to justify the tribunal’s conclusion:

“All that it comes to is this: if the letter had gone astray on this occasion, it would have been an isolated event. That approach may be understandable given the claimant’s evidence that postmen had told him of confusion over the names of the two streets. But it is not sufficient to show what was more likely on the balance of probabilities. It may be that a history of misdelivered mail would have supported the claimant’s case, but the absence of such a history did not necessarily undermine it.” 

In upholding the claimant’s appeal, Judge Jacobs says a claimant who does not know of an interview must have good reason for not attending it:

“The points that the Secretary of State’s representative have made go to the issue whether the tribunal accepts that the notification did arrive in time. That includes the claimant’s past lack of compliance with commitments, which may show a pattern of behaviour. It may also include subsequent behaviour if that is indicative of the evidence of nonarrival being unreliable. But I reject any suggestion that the notion of good reason allows a person who was not aware of a letter of notification to be made subject to a sanction.”

Ken Butler - 21 March 2019