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Selected commissioner's decisions from April 2003 to March
2004Back to digests of commissioner's decisions and case law.
Past attendance allowance, disability living allowance and incapacity benefit summaries of decisions can also be found in our other digests of decisions.
Tribunal failed to take account of GP's evidence. Tribunals should be wary of making decisions based on the evidence of a claimant who is fiercely independent;
'However, such splendidly fierce independence should not be allowed to obscure genuine, even if unacknowledged, needs.'
The test is not the frequency of falls but the likelihood of serious injury. Follows the four rules laid down in R(A)3/1989. In para 7 provides his own version of the first two rules:
Also discusses the exceptions to these rules discussed in R(A)5/1990. Stresses the importance of avoiding discrimination by treating differently those who have done without supervision because they live alone. The test is what is reasonably required.
Help required, such as locking doors, carrying food from room to room and carrying shopping not help reasonably required. Also, in paragraph 22, follows CSDLA/336/2000 - If a claimant's representative fails to pursue a factual issue it is not part of the tribunals inquisitorial duty to remedy this. Follows Packer, Woodling, Cockburn, Mallinson and Fairey decisions.
Night time is not necessarily the point at which the household goes to bed. The case concerns a man who lives alone and only sleeps a few hours before rising at 4.30am to go for a walk. Suggests that "the word "night" in the legislation must have an objective content and not be restricted purely by the claimant's own particular sleep pattern". The decision assumes a theoretical situation where there might be a carer present who stays up. Considers that night for a reasonably average household to be from about 11pm to 7am. Following on from this any supervision or attention required by the claimant when he is out walking before 7am is held to be at night.
Follows R(A)4/1974 which defines "night" as the period "from the time at which a household, as it were, closed down for the night" but revised by CDLA/3242/2003 about the degree that unusual or extreme household arrangements can override the core element contained within the words 'day' and 'night'. Suggests that the "legislation must have envisaged that the 24 hour day would be split into two reasonable parts, so that the carer on duty during the day would be reimburses and so would the carer on duty during the night."
In support of this decision cites two other decisions .The first was CDLA/997/2003 -where a mother got up at 5am when her child woke but whilst the rest of the household was in bed (this time was considered to be night). The second was CDLA/2852/2002 - where going to bed at 11.30pm or even 12am is considered to be still within the scope of day attendance.
Overpayment of child benefit when child was in care. Tribunal failed to consider whether failure to disclose was reasonable.
Complex decision which discusses in detail the rules covering child benefit where a husband and wife separate and the point at which an award can switch to the other parent In this case the children were going to live with the father.
Whereabouts known because parent could be contacted. Follows CG/60/1992 which states that knowledge of whereabouts meant no more than being able to communicate with him and R(G)2/1983 which states that once the whereabouts of a parent have been discovered the claimant's case cannot be aided by a subsequent disappearance.
Discusses whether an accident led to the award of a benefit (Incapacity Benefit under the 'own occupation' regulations) which could subsequently be recovered from compensation. Follows R(CR)1/02 and R(CR)2/02 and states that the duty of the tribunal is to look at all evidence. Paragraph 27 discusses the merit of Med3 evidence in relation to other evidence supplied;
'Under regulation 28 [of the Social Security (Incapacity for Work)(General) Regulations 1995] it does not matter what diagnosis the doctor gives. It could be a diagnosis which no reasonable person could give to a claimant or even a diagnosis which is not accepted by any respectable medical opinion as having any existence. Providing that the doctor puts his or her name to advice to refrain from work for that reason in a statement in the right form, the operation of regulation 28 is triggered.'
Depression following the result of a doctor's negligence constitutes injury or disease for the purposes of recovery. Compensator also failed to establish that IB was paid for a reason other than depression (eg for diabetes).
Arguments as to whether or not compensation is recoverable; whether award of benefits arises out of asbestos related disease.
Claimant had two accidents and disputed the amount of recovery of benefits paid as a result of one accident by the compensator. This is actually outside the scope of section 11(1) of Social security (Recovery of Benefits) Act 1997 but this decision makes suggestions for the correct approach in resolving such disputes as well as the proper operation of sections 8(3), 9(4) and 11(1) of the act. It was also decided that recovery of part of the claimant's incapacity benefit was incorrect. Commissioner Rowland ascertained this by allocating different descriptors to the different accidents. See also CCR/1251/2003 and CCR/1895/2003.
Tribunal failed to consider whether benefits awarded to the claimant were as a result of his accident.
Tribunal failed to consider whether benefits awarded to the claimant were as a result of his accident.
Tribunal did not fail to consider this issue and correctly reached its decision within the rules of the personal capability assessment.
Concerns the recovery of overpayments because the claimant, who has learning difficulties and has an appointee, failed to disclose that she had entered residential care. The decision states that recovery must be made form the claimant rather than the appointee.
Question as to whether or not secretary of state was bound to reconsider a recoverability decision in the light of a subsequent decision of a tribunal on entitlement.
Definition of severe discomfort: 'I regard "severe discomfort" as discomfort that it is not reasonable to expect a claimant to endure on a day-to-day basis.'
Tribunal failed to consider inability on familiar routes; claimant never uses unfamiliar ones.
Further guidance on the lowest rate of mobility was provided in CDLA/2377/2002, which concerned someone who had stated that in strange places they became panicky which could in turn trigger an epileptic fit. Commenting on the infrequency of the fits in question, the Commissioner stated;
'.one can hardly rely on the lack of fits as an argument for denying the requirement for supervision if the reason that there are no fits is that either supervision is provided or else the claimant avoids unfamiliar routes. The question that needs to be asked is what would happen if the claimant went along unfamiliar routes without being supervised. This situation has some similarity with the position when a potential suicide's requirement is being considered.'
Failure to pay benefit due to maladministration.
Mother has to check bottom and private parts of her 25 year old son, who is aged 25 and has obsessive compulsive disorder, after he has been to the toilet. Tribunal decided that 'checking, was not attention. Commissioner thought otherwise.
In CDLA/3188/2002 the Commissioner expressed concern that there seemed to be no authority directly in point on the extent to which account should or should not be taken of medication a person uses to extend or maintain their walking ability. To provide such authority then, the commissioner wrote:
'In my judgement, a reasonable and practical assessment of such questions has to be made by the tribunal in determining the extent of a claimant's ability to walk without severe discomfort for the purposes of section 73 (of the Social Security Contributions and Benefits Act 1992); in a somewhat similar way to attention and supervision needs for the care component under section 72, where the word "requires" has long been understood as meaning "reasonably requires". Approaching the matter in that way, what the tribunal have to assess is the extent of the claimant's walking ability taking account of any medication she normally and reasonably uses to alleviate the effects of her breathing difficulties and thus to reduce, avoid or postpone the onset of discomfort.'
Tribunal found representatives argument 'overtechnical'. Commissioner found that this was not adequate reason for dismissing any point of law.
In CDLA/4214/2002 the Commissioner explored how the cooking test would relate to someone with breathing difficulties who was affected by heat and steam. They clarified that;
'Generally speaking, cooking for one will generate less heat and steam than cooking for more than one. The amounts generated will not, however, necessarily be negligible or insignificant. For instance if something has to be cooked in a conventional oven for, say, one hour at a high temperature, the kitchen will become hot. It will not matter greatly whether what is being cooked in the oven is for one person or for two or three. Likewise, if something must be boiled or simmered on the hob for any length of time.'
On the matter of ventilation they went on to offer the opinions;
'Further, how any particular kitchen can be ventilated, how effective ventilation is or will be and whether windows and doors can be opened are all questions of fact.it must not be forgotten that many people with breathing problems also have difficulty with blasts of cold air and opening a window wide during very cold weather might result in a remedy that was worse than the condition it sought to cure . Many kitchens, particularly in converted properties, are far from ideal and may have very limited window space or windows that are difficult to open. Against that, the occasional appellant may turn out to have installed a powerful and, for him or her, effective extractor fan.'
Commissioner provided cautionary advice with respect to paper hearings;
'While of course such matters as the level of help needed, and the likely duration of any particular disability, are for the tribunal of fact which is able to see and judge the evidence to determine, a tribunal (even a full tribunal including a medical member) must be particularly circumspect in reaching conclusions against a claimant and his consultant's clear evidence on the basis only of a look at the case on paper. Here all there really was to justify the tribunal's own very much more upbeat assessment of the claimant's mobility was an assumption from general experience about a person's likely recovery time from a normal amputation, without the detailed knowledge of the claimant and his consultant of the particularly difficult and unpleasant nature of this one.'
Tribunals and decision makers can take account of changes in circumstance when making a decision. This case concerned a girl who was under age 16 when the decision was made but was about to become 16 (when the cooking test would apply). Takes a different approach from CDLA/3848/01 - Tribunals can only decide circumstances applying at the time of the decision but can consider issues after a decision is made in the case of a renewal - but reaches a similar conclusion.
Another case which follows CDLA/3848/01. A tribunal was deciding on a renewal case and was presented with conflicting medical evidence which illogically indicated reduced care needs for a period where increased care needs were already proven.
In CDLA/4806/2002 the Commissioner provided advice on the way that the criteria for the lowest rate mobility component of DLA should be approached. It was drawn to their attention that there was a trend for tribunals to focus only on an appellant's ability to use unfamiliar routes. The Commissioner argued in response that;
'When the question (of whether the claimant could take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time) is first posed, it is not necessary to introduce into it any consideration of the familiarity or unfamiliarity of a hypothetical route. That becomes an issue if a claimant asserting a need for guidance or supervision is met with the answer that he manages to get around perfectly on his own. If the claimant can respond that he can only manage when the route is familiar, then his ability to get around on his own is to be disregarded. As a matter of fact, he will satisfy the statutory test by his need for guidance or supervision on unfamiliar routes, but that does not mean that it is part of the statutory test that the route should be unfamiliar.'
Discussion on slotted spoons.
Concerned with the cooking test and the use of the microwave. Tribunal failed to fully investigate the use of the microwave and other utensils. Follows CDLA/770/00 (39/01) which discusses coping mechanisms considered reasonable such as the use of tinned foods, use of oven chips instead of a chip pan, peeling and chopping sitting down and microwaves used to prepare food rather than heat up cooked food.
Paras 9 -10 contain a bizarre potted history and future development of the microwave. The conclusion appears to be that microwaves will figure more prominently in the cooking of a main meal.
Paper hearing badly handled.
Tribunal failed to consider childs walking need in unfamiliar surroundings. Discussion of the correct interpretation of R(M)1/96 - where a renewal decision is less generous than a previous award the tribunal should indicate that it is aware of this.
Claimant not given the opportunity by the tribunal to comment on a decision to recover benefits. Commissioner does not require statements from tribunal members when deciding breaches of natural justice. The tribunal was also muddled when deciding whether the issue was previously a revision or supersession.
Tribunal failed to consider social functioning with regard to mental impairment when considering high rate mobility under Section 73(3) of the Social Security Contributions and Benefits Act 1992. Follows R(DLA)1/00.
Pre-1992 DLA - transitional provisions if abroad in EEA.
Tribunal wrong to reject the evidence of a representative.
It is. Also referred to CDLA/948/2000 - this states that a tribunal does not have to identify a precise condition in order to conclude that there is physical or mental disability. Physical pain is part of a person's physical condition even if caused by, or a symptom of, psychological factors.
Discusses tribunals failure to identify grounds for supersession (change of circumstances) and failure to consider earlier DLA award.
Cites Wood v Sec of state for work and pensions (2003) which held that there is a right of appeal against a decision to supersede (i.e. change) or refuse to supersede a DLA decision unless an application for supersession is obviously hopeless, i.e. there are no conceivable grounds for supersession. Also refers to CDLA/3875/01 which discusses an error in law where the Secretary of State failed to identify threshold criterion when superseding a decision.
Also possibly unfair, under the Human Rights Convention, for decision-makers to present evidence in coded departmental jargon that is unclear to the claimant.
Follows Hewitt v Chief Adjudication Officer, Diment v Chief Adjudication Officer (1998) - (reported in R(DLA)6/99) which states that severe discomfort must result from walking out of doors rather than some other factor. However this does not preclude someone who has severe discomfort prior to walking.
"Although the Court of Appeal decided in R(DLA)6/99 that severe discomfort must arise from the physical act of walking, in the sense that it must not arise from some condition unconnected with walking, there is nothing in the judgment of the Court of Appeal to suggest that severe discomfort must first arise or increase after walking has commenced."
Summarised as follows:
"There is all the difference in the world between a decision made on an incorrect factual basis (the correct ground) and one which somebody else looking at the same factual basis should have led to different assessment."
This case is of little merit. Discusses whether tribunal erred in considering the evidence before it. The commissioner said they had not and the appeal was dismissed.
Reaffirms needs related to alcohol abuse must be taken into account. Considers previous case law on this subject - CDLA/778/00, CSDLA/171/98 and CSDLA/268/95.
Tribunal failed to establish whether journeys made were on familiar or unfamiliar routes.
A representative can also be a witness at an appeal. This is enshrined in law under reg 49 Social Security and Child Support (Decisions and Appeals) Regulations 1999. Also discusses the role of the representative;
'It is correct that the role of a representative is to represent and not to give evidence. But that distinction properly refers to the capacity in which a person acts and the function that the person performs. It does not refer to the person involved, who may act in different capacities and perform different functions.'
Decision of a tribunal of commissioners. Tribunals can amend or disallow a decision between the date of that decision and the renewal date (such as in cases where the renewal form is returned early). Follows CDLA/3848/2001.
A tribunal is not bound to obtain medical evidence from a GP based on a claimant's "written" request but should consider the issue and explain its reasoning to the claimant. This was a paper hearing and the tribunal should have offered the claimant an oral hearing and additional time to gather medical evidence.
In this case the DLA decision went to appeal and was lost. The claimant requested both a supersession of the tribunal decision and leave to appeal to commissioner, (which was granted). The supersession subsequently went to tribunal and was dismissed. The commissioner (CDLA/4974/2002) referred the decision to another tribunal. Sets out rules for the treatment of such circumstances in para 12.
With reference to CIB/4331/2001 reached the following conclusions in paragraph 9:
In cases such as this full disclosure of an intention to use such a report must be made to the claimant. The incapacity benefit medical report used was subsequently criticised by a commissioner in CIB/4687/2002. An error of law was avoided by the tribunal because they were able to refer to this decision when the appeal was heard.
Claimants cannot arrange their sleep habits to "make their night light and the dark their day". Conclusions in paragraph 13:
Cites Genesis, chapter 1, verses 4 and 5, R(A)1/1978 which defines "night" as the period "from the time at which the adult household, as it were, closed down for the night" and R v NI Commissioners ex parte Secretary of State for Social Services which is concerned with the margins of day and night.
Test satisfied if hysteria causes physical inability to walk. Disablement is physical if it affects the claimant's physical condition. Follows CSDLA/265/1997.
"Thus a distinction can be drawn between a psycho-neurotic disorder that produces symptoms such as pain or paralysis, directly impinging on the claimant's physical ability to move, and, say agoraphobia or depression that affect the claimant's will to make use of such a physical ability."
Tribunal erred in deciding that night attention of 30 minutes was not prolonged. Follows R(A)2/1980. Also failed to fully investigate needs in relation to bedwetting. Follows CSDLA/1095/1999.
Tribunals and decision makers should take "the long view" and consider both circumstances where an award is made for a child age 15 who will be16 during the "six month forward" period.
Discusses guidance for someone with anxiety in relation to reg12(7) and (8) Social Security (Disability Living Allowance) Regulations 1991 were laid preventing someone from satisfying the rules for lower rate mobility component on grounds of fear and anxiety alone. Follows CDLA/42/1994 and R(DLA)4/2001 in relation to reassurance.
Follows Gillies case (CSDLA/1019/1999). 'Apparent' bias because EMP had sat with Chair and lay-member on 39 previous sessions.
'I consider that a well informed layman might conclude that there was a real possibility of bias, where an expert appears before a tribunal including members with who he has sat on a number of previous occasions. This is more likely to be so before a tribunal where the evidence is written and the tribunal does not see all the experts giving evidence and being cross-examined so that they can make a proper comparison. If one expert is professionally known to the members, through having sat with them and advised them on how to approach medical evidence, I can see that there is a danger that they will apply their knowledge of him, consciously or unconsciously, to an assessment of the weight to be given to his evidence as against the other Reports, where the doctor concerned might not be known to the tribunal.'
Also discussion on establishing waiver.
In CSDLA/629/2002 the Commissioner added to their earlier opinion of CSDLA/44/02 on the subject of the act of emptying and cleaning a commode and its relationship to bodily functions. The Commissioner stated;
'There is also the sufficient intimacy and close and personal service necessary in such circumstances. I accept that when camping, for example, one member of a family may empty the unit's waste. But in ordinary living, each person disposes of his or her own bodily excretions. Emptying out another's personal waste and then disinfecting the receptacle has, in my view, the necessary degree of physical intimacy required. However, as I said in CSDLA/44/02, what is put forward as an act in connection with bodily functions must have an essential quality of "immediacy" with that bodily function. Therefore, the only emptying and/or cleaning of a commode which can count is what must reasonably be done immediately for the purposes of hygiene. It then has a sufficient connection with the claimant's action of urinating or defecating following which she would normally get rid of her own waste.'
In CSDLA/655/2002 the Commissioner disputed the conclusion of CDLA/13284/96 that 'playing' was a bodily function. In dealing with this case, involving a child with a visual impairment, the Commissioner stated;
'.. seeing more accurately describes what the function is rather than an activity such as play which is not specifically a function but which involves the use of bodily functions in order to engage in it.'
They further provided the opinion;
'I consider that carrying the child around to introduce her to the world by tactile means and what was involved to enable the claimant to sit up unsupported could properly be regarded as attention in connection with the bodily function of sight..' but 'It is not clear to me how constantly stimulating the claimant by varying the toys she is given could constitute attention for it is not clear to me what substitution is being provided in connection with the bodily function of sight.'
CSDLA/678/1999 deemed incorrect regarding pain and discomfort; tribunal correct in following other decisions. Discussion of case law around this issue.
Similar to CSDLA/444/2002 (see above). Places some responsibility on the claimant or their representative to raise objections during the hearing rather than wait until the case goes to a Commissioner.
Discusses the above issue for low rate mobility component whilst citing opposing case law:
CDLA/42/1994 - Paragraph 15 suggests that a claimant may satisfy this rule when unable to take advantage of the faculty of walking even with guidance or supervision
CDLA/2364/1995 - Must demonstrate on the balance of probabilities that they could, with guidance or supervision, be able to walk out of doors to an extent that would not otherwise be possible.
Follows CDLA/2364/1995 and in paragraphs 28 and 29 sets out the steps a tribunal should take when ascertaining the low rate mobility test:
In each case if the claimant is unable to walk out of doors even with guidance or supervision the test is not satisfied.
Tribunal failed to consider a blind claimant's pattern of needs throughout the whole day. Also failed to consider needs such as help with reading and writing. The decision changed a previous award and the tribunal, following R(M)1/96, failed to take full account of earlier findings.
'In any event, it seems a basic rule of good practice that a tribunal affords an appellant the express reassurance that it has taken his prior award into account in the totality of the evidence and not overlooked it, before determining that continuation at that level is inappropriate.'
The decision has a useful discussion of past case law - R(DLA)10/02, Mallinson, CSDLA/590/00 and CA/140/85.
Tribunal erred in emphasising that most 'eleven year olds' are hardly ever on unfamiliar routes without an adult present. Whilst true, the critical question should be whether, when the claimant is out walking, on account of their disablement they requires extra guidance and supervision which is substantially in excess of those of other children of their age.
Virtual inability to walk is a matter of fact for the tribunal to consider. Error of law only occurs where findings fall outside reasonable judgment. Follows Moyna decision (reported as R(DLA)7/03).
CSDLA/606/2003: Tribunal's complete and utter disregard of common law justice and the convention of human rights
"Never have I seen an instance where a tribunal has shown such a lack of essential judicial instinct."
The Tribunal applied pressure on a claimant by offering her the high rate mobility component, whilst at the same time expressing doubts about whether she was virtually unable to walk. In return for this concession the claimant agreed not to pursue an application for the care component which meant that it was not considered at all.
Feelings of nausea when cooking is outside the scope of the notional cooking test. Follows Moyna decision.
Claiming widow's benefit after you have arranged to have your husband dispatched should be frowned upon.
Disallowing ICA claim when DLA is not in payment is not an official error. Regulation 6 of the Claims and Payments Regulations affords the claimant an opportunity to reclaim ICA within 3 months of a DLA award to get full backdating.
Pension awarded to widow whose had previously divorced his first wife by declaring talaq under Yemeni law. Of limited interest.
Erroneous award of credits.
Not considered discriminatory under article 14 of of the Human rights convention for bereavement benefits to be paid only to spouses.
The 1996 Computation of Earnings Regulations are relevant when assessing gainful employment in invalid care allowance (carer's allowance) cases. The case refers to a monthly paid employee granted special unpaid leave to care for his mother. The differing methods of calculation of income for weekly and monthly paid workers was not held to be discriminatory under Article 14 of the Convention of Human Rights.
Deceased had three wives but tribunal failed to establish his domicile at the point at which the second and third marriages were contracted.
This was a case where the husband had died leaving behind several potential beneficiaries for bereavement benefit, one of whom was the claimant. It involved a claim by another wife who was dead before she claimed, an allegation of internal fraud by a relative and discussion of the domicile of the husband. The tribunal's findings of fact were not supported by the evidence.
Discusses Scottish law on cohabitation and repute which allows someone who is not married to claim bereavement benefits.
A decision of a Tribunal of Commissioners. A landlord can challenge whether an overpayment is recoverable or whether the amount to be recovered is correct but cannot appeal the recovery decision itself - the decision from whom to recover the overpayment.
Follows R(S)2/63 and CH/2659/02. Tribunal failed to fully assess claimant's mental state when deciding whether there was good cause for a delay in claim.
Claimant not treated as liable to make payments on a home because of reg 7(1)(h) of Housing Benefit (General) regulations 1987 - previously owned property within the last five years. Detailed discussion of definition of owner as laid out in regulation 2(1) of the same regulations.
Tenant not occupying home because he is mainly at his mothers.
The decision apportions the whole of a rent liability to one joint tenant once the other tenant has 'run off'. The local authority landlord has the right to supercede in future should the situation change.
Landlord not treated procedurally as party to the proceedings, when they should have been.
Tribunal did not err in following the 'Lord' decision. Quoted R(IS)15/99; 'I am not bound to follow a decision of a single judge but should do so unless convinced it is wrong'.
The appeal concerned the overpayment of housing benefit where meals were not provided that should have been. Local Authorities should not disclose evidence that will render them in breach of the Data Protection Act.
Regarding reg 42(a) of Housing Benefit (General) regulations 1987 the current market value of a foreign property is its value in that country.
Failure to evaluate evidence of capital adequately. However, failure of tribunal to comply with verification framework is not an error of law as this is an administrative framework.
Concerning the interpretation, application and validity of Regulation 7 of the Housing Benefit (General) Regulations 1987, where someone who is liable to make payments in respect of a dwelling shall be treated as if they were not liable where the tenancy is not on a commercial basis. Is this discriminatory where the tenants are members living in a church property? No, as causative link not found.
The words "exceptional hardship" should be applied as a whole. tribunals should not consider them in isolation and substitute other words. Exceptional always refers to the hardship suffered not the claimant's actions.
Claimant failed to notify increase of WFTC, then tried to get overpayment reduced on grounds of official error. Commissioner not happy!
Regulation 5(5)(d) of the HB General Regulations concerning rent on two homes is not dependant on satisfying regulation 7(1)(a) of the same regulations - and vice versa.
Tribunals have no jurisdiction to decide extended payments issues reliant on evidence of a relevant jobseeker's allowance claim (see paragraphs 19-24). also discusses the difficulty of challenging such decisions or whether someone can legally make a claim for extended payments - no firm conclusion.
Claimant failed to disclose his Disablement Benefit. It was not the duty of the Local Authority to infer payment of benefit from bank statements.
Failed argument as to whether there was a valid recovery decision. Contains definition of revision;
'.'revised' does not carry its technical meaning. In the context of overpayments, it means 'replaced', whether on revision or supersession.'
Concerned with Council tax benefit award and payment as well as periods of entitlement.
Tribunals can revise determinations made by local authorities prior to the introduction of the current appeal structure.
When considering self employed earnings the tribunal failed to take account of changes in circumstances (a downturn of profits) that affected those earnings.
Tribunal did not investigate sufficiently to make soundly based findings of fact on the claimant's mental age, which was essential to a proper analysis of the good cause issue.
Complex case in which someone who owned a dwelling set up a trust, paid rent to the trust whilst still owning the dwelling then transferred the ownership to his mother and aunt. Held that at one point housing benefit was being paid to meet mortgage payments.
Local authority not bound to check income if claimant is in receipt of IS.
Appeal failed because the rent arrangement was not on a commercial basis. The rent was paid by a son, who could not manage his own affairs, to his mother. cites Blackburne v J in R v Sheffield ex parte Smith 1996. Also considered whther this contravened Article 8 of the Human Rights convention. Argument dealt with in paragraphs 13 and 14.
An overpayment of HB occurred when the claimant's working families tax credit was withdrawn and then reinstated by a tribunal. The claimant was not liable for this overpayment because the original decision by the Revenue and Customs was an "error" or "mistake" and the claimant had not caused or contributed to it.
The decision leaves the approach to the matter of time to the tribunal. Notification of an overpayment can be by phone.
Benefit disallowed because payments made to heterosexual partner who had moved out of the property. Held not to be discriminatory under Article 14 of the Convention of Human Rights because the law penalised heterosexual couples but not gay ones;
'The Court's decision is based on the principle that an applicant has to do more than prove a difference in treatment. The applicant has to show that the persons have been treated differently despite being in relatively similar situations. If the applicant does not do that, the State does not have to justify what it has done. Still less does it have to produce evidence to show that the applicant's selected comparators are not in relevantly similar situations.'
Housing benefit can take the form of a rent rebate payable to the Local Authority or a rent allowance payable to a private landlord. The case concerned someone who was eligible for a rent allowance which became a rent rebate (and as a result increased his HB) when he made a housing needs application to a homeless unit. He sought to get the earlier period also treated as a rebate but failed because he was not considered homeless at that time.
Arguments about whether a decision concerned the notional or actual possession of capital and whether a council tax notification was sent.
Tribunal assumed that a "dubious" claim for backdated housing benefit also invalidated a claim for help with current rent.
Concerns joint beneficial interest of capital. Lays down procedures for establishing value of husband's shared interest in a property where a wife may be able to get a property adjustment order.
Concerns a property where father pays rent to live in his daughter's house whilst she is abroad. Held to be a commercial arrangement even if the the daughter would not evict her father for non payment. Father's payments of mortgage interest and endowment premiums on behalf of daughter also held to be rent. Payments for repairs and renewals not held to be rent (paragraph 8).
Tribunal erred in considering a case where parents became tenants to their daughter to be an uncommercial tenancy because they could not afford to pay;
'The flaw in the reasoning can be seen by considering the purpose of housing benefit. Housing benefit is an income-related benefit that provides financial assistance from public funds for those whose resources are insufficient to meet their housing costs in the rented sector of the housing market. If a claimant is able to meet the costs of renting a property, there is no need to claim housing benefit. In other words, on the tribunal's reasoning, housing benefit would effectively be limited to those who have already entered into a tenancy before they encounter financial difficulties.'
The rent was not considered to be on a commercial basis. Tribunal correctly reached a decision based on the facts before it despite the claimant's assertion that the Local Authority had fabricated the facts. These claims were held to be "vague and insubstantial" because the claimant refused either a postponement or a domiciliary hearing when her representative pulled out after the case had been listed. She also failed to attend the hearing. As these actions were her own responsibility there was no breach of natural justice or contravention of her human right to a fair hearing.
Her case also fails because she has a "long tenancy" of over 21 years which is ineligible for housing benefit.
A landlord is under a duty to report any suspicions regarding a tenant's occupancy. Failure to do so makes HB liable to recovery under reg 101(1) of the Housing Benefit (General) Regulations 1987. This also applies where the landlord bars a tenant's occupancy.
With reference to Schedule 4 para 13(2) Housing Benefit (General) Regulations 1987, the charitable payments made to the father by his son could be disregarded because they were not spent on food, fuel, rent, footwear or clothing.
Council wrong to refuse HB on the grounds that rent should be met under section17. There was also an issue of backdating for good cause which was not allowed, partly because the claimant had already established that she knew the benefit system.
Discusses the amended reg 7(1)(h) of Housing Benefit (General) Regulations 1987 which refers to property previously owned by the tenant in the last five years. This amended regulation can apply to cases where the previous owner was not continuously resident in the property. Also the fact that the property was subsequently divided or extended is irrelevant to the question of ownership.
A father bought a house and rented a self contained flat to his son who has a developmental disorder. The decision discusses what might constitute a contractual arrangement in such a circumstance.
Tribunal's failure to adequately consider postal problems in relation to good cause.
Discussion of contrived tenancies under reg 7(1)(l) of Housing Benefit (General) regulations 1987 and actual liability to pay rent under reg 6(1)(a) of the same regulations. A tenancy can be contrived if the claimant expects to get an advantage at a future date.
Landlord has no right of appeal where a determination for recoverable overpayment is made against the tenant. Landlord must seek redress from tenant.
Case drew attention to possible conflict of interest where a Local Authority presents at an appeal but the same Authority also provides a representative for the claimant. Commissioner May discusses whether Commissioners possessed an inherent jurisdiction to "prevent abuse of its procedures". Reaches no conclusion.
At the same time he commends the approach of the claimant's representative when handling such situations, as quoted in her written submission.
". I would accept however that an appellant may perceive the possibility of conflict in interest between an officer of the council representing them in a forum against a decision made by another member of the same council. ... I point out to clients on first meeting with them why such a perception could arise and that they are free to seek representation elsewhere. I offer assurance that my efforts on their behalf will be pursued with the same enthusiasm and rigor that I would employ in any case."
Not unlawful in European law to link child benefit award with right to increase for children for incapacity benefit.
" I therefore accept that the link with child benefit is lawful, notwithstanding that it acts to the disadvantage of significantly more men than women. That is because I am satisfied that the disproportionate impact of the provision on men is explained by the objective, and relevant, fact that, where parents are separated and share responsibility for their children, it is more often the mother, rather than the father, who undertakes the greater proportion of the practical responsibility for the children."
Unsuccessful but cogently argued attempt to avoid reduction for occupational pension.
In CIB/2397/2002 the Commissioner considered whether a claimant undergoing haemodialysis should be treated as incapable of work on the days when they were not undergoing dialysis. Regulation 13 of the Social Security (Incapacity for Work)(General) Regulations 1995 ensures that someone receiving regular weekly haemodialysis or peritoneal dialysis for chronic renal failure is treated as incapable of work on any day on which they are undergoing the dialysis. With respect to the other days, the Commissioner considered that Regulation 13 should be treated in the same way as the 'all work test' (now personal capability assessment) was treated in R(IB)2/99. In R(IB)2/99 the Tribunal of Commissioners did not consider that the all work test 'must be literally satisfied in relation to each day' but that a broad view should be taken and there were some cases where a claimant could properly be regarded as incapable of work both on the days when the all work test was clearly satisfied and on the other days in between those days.
In the present case the Commissioner stated:
'As a matter of principle, there is no reason why the same approach should not be taken to cases where the days of incapacity are such by reference to regulation 13 rather than by reference to the personal capability assessment. Indeed it would be unfair not to apply the same approach, especially since a claimant who is treated as incapable under regulation 13 might well be much more disabled on the relevant days than a claimant who scores 15 points on the personal capability assessment in respect of the relevant days.'
Thus they found that claimant in this case, who had failed a personal capability assessment, was incapable of work on each day throughout the period in question, not just on those days when they underwent dialysis.
In CIB/2584/2002 the Commissioner dwelt on the appropriate environment for testing vision. In dealing with a case involving someone who suffered from adverse symptoms after a time in the proximity of intensely bright lighting they formed the following opinion;
'If it shown that the claimant cannot meet the visual descriptors in bright artificial light, then the fact that she can meet them in some natural daylight conditions is in my view not enough of itself to allow her limitations to be ignored. As the claimant argued, this follows from the emphasis that Commissioners have placed on the personal capacity assessment not being a 'snapshot'.
Old therapeutic earnings rules. Also discusses 'de minimis' approach (The law does not concern itself with trifles).
Tribunal failed to distinguish between voluntary and involuntary control of bladder. Discussed other case law - CSIB/38/96 (23/97) and a Northern Ireland decision, R2/00(IB).
This case has been reported as R(IB)5/04. Case discusses whether unequal age conditions for incapacity benefit linked to different pension ages for men and women are lawful. The issue was not fully resolved as the Commissioner granted a stay of decision but the claimant's solicitors made no further proceedings on her behalf and the appeal was dismissed.
Discusses definitions of epileptic or similar seizures and altered consciousness. Migraine, in this case, did not constitute altered consciousness. However tribunal erred in failing to consider reg 27(b) and (c) of the Social Security (Incapacity for Work)(General) Regulations 1995 as amended by the Howker decision.
Tribunal can proceed if the representative is absent providing the hearing is fairly conducted.
Massive 64 page decision by a tribunal of commissioners which analyses the jurisdiction of appeal tribunals and their powers in relation to revisions and supersessions. In particular it considers:
The decision has an excellent survey of the rules governing revisions, supersessions and appeals. It cites issues raised in Wood v Secretary of State for Work and Pensions (2003) then looks at the scope of a tribunal. Concludes that legislation does not cover what an appeal may allow or disallow and that all powers of a tribunal are implied. The commissioners see the tribunal as a superior independent fact finding body set up to ensure a fair hearing under Human Rights Law. It is subject to section 12(8)(b) of the Social Security Act 1998 - only able to consider circumstances arising at the date of the decision - but essentially has a duty to rehear a case. As such it is not limited to affirming or setting aside a decision.
"In our judgment, that approach to the nature of an appeal as a rehearing, which is how it was understood in the social security context before the 1998 Act changes, is to be applied to the current adjudication and appeal structure, subject only to express legislative limitations on its extent. Taking the simple case of an appeal against a decision on an initial claim, in our view the appeal tribunal has power to consider any issue and make any decision on the claim which the decision maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision maker for the purposes of making a decision on the claim."
The main conclusions are:
Concerning tribunal's finding of abnormal illness behaviour. Contains significant definition of this behaviour, in relation to the new 'psychosocial' assessment model:
'Abnormal illness behaviour is one of a number of terms used to describe symptoms which are caused by the influence of psychological makeup and social environment on the perception of the disabling effects of a medical condition. This phenomenon is reflected by more modern approaches to treatment, which address the psychosocial as well as the medical factors. The symptoms are subjective in the sense that they depend on an experience of pain or fatigue. In order to distinguish between claimants who genuinely experience a particular disability from those who merely claim to do so, it is helpful to consider the history of their daily activity and unobtrusive observations. This can identify consistency or inconsistency.'
The Commissioner in CIB/5336/2002 dwelt on the test 'Sleeping problems interfere with daytime activities.' They considered that interference should be viewed more widely than as something that simply prevented the claimant from undertaking daytime activities, but could also include situations where daytime activities were only possible at certain times of the day, or were possible but only very intermittently or very slowly.
Discusses meaning of bodily disablement as defined in reg 25(3) of the Social Security (Incapacity for Work)(General) Regulations 1995 - see paras 14-16.
'My interpretation of 'bodily' in the context of disablement is that it refers to the function that is affected rather than to the source of that condition.'
Chronic Pain Syndrome is considered a bodily disablement. Paras 12-13 consider Chronic Pain Syndrome as a psychosocial condition where the pain is linked to the psychological and social factors affecting the individual rather by a particular illness. It is stressed that
'The symptoms are subjective . This does not, though, mean that they are not genuinely experienced'.
This decision is interesting because it reflects current medical and Department for Work and Pensions approaches to certain conditions.
The claimant had also complained about the conduct of the medical adviser. The commissioner directed the new tribunal to take criticisms of the medical adviser into account 'in so far as they affect the reliability of the medical adviser's report'.
Concerns a case where someone has a condition (asthma) that might fluctuate within a day. Discusses the meaning of reg 15 Social Security (Incapacity for Work) (General) Regulations 1995 which says.
'A person who at the commencement of any day is, or thereafter becomes, incapable of work by reason of some specific disease or bodily or mental disablement shall be treated as incapable of work throughout the day'
.in relation to case law. Favours the decision of CIB/6244/97 which discusses claimant's capacity for work during particular times of the day, fractions of the day being ignored in determining incapacity for work. This decision also considers variable and intermittent conditions.
Commissioner not convinced by the argument of CIB/243/98 in which it was considered that an asthma sufferer could be capable of work the same day after he or she had an attack. Held to be contrary to the approach of CIB/6244/97.
Also follows R(IB)2/99 (Tribunal of Commissioners for three appeals heard together) which considers that examining incapacity over a period of a number of days is a reasonable approach. How frequency is established will vary from case to case.
Claimant remanded in custody then subsequently sentenced. Sentence served was actually less than actual time spent in prison. Held to be irrelevant once sentenced. Incapacity benefit claim not allowed.
This decision is now reported as R(IB)1/04. Husband not considered liable for a reduction of his incapacity benefit where his occupational pension was paid to his spouse under a pension earmarking order.
The Howker decision states that the amended reg 27 of Social Security (Incapacity for Work)(General) Regulations 1995, was ultra vires because the Social Security Advisory Committee was misled by DSS (now Department for Work and Pensions) officials when amendments were submitted. They had said that the proposed amendment was "neutral" in effect when it was actually potentially "adverse" to claimants.
This decision considers the amendments to paragraph 14 of Schedule - Part 1 of Social Security (Incapacity for Work) (General) Regulations 1995. Prior to 6th January 1997 the wording of activity 14 read "Remaining conscious other than for normal periods of sleep." Since that date the activity was given a narrower definition which reads "Remaining conscious without having epileptic or similar seizures during waking moments". Commissioner Jacobs, in a concise 3 page decision, states that the principle of Howker applies to this amendment.
"My decision is that the amendment to the definition in paragraph 14 of the Schedule to the 1995 Regulations was made without proper compliance with the statutory machinery of referral to the Social Security Advisory Committee. It was, as a result, of no force or effect. The claimant's capacity for work has to be determined under the terms of paragraph 14 as originally enacted."
So the test reverts to "remaining conscious other than for normal periods of sleep."
The decision goes further and raises questions against other amendments to Social Security (Incapacity for Work) (General) Regulations 1995 where the change was described as "neutral" in effect.
A somewhat tetchy decision reflecting the commissioner's dissatisfaction with the representative's arguments and the fact that the district chairman granted leave to appeal. Failure to delete an item on a form was considered an oversight, not an error in law. The length of time spent on a medical examination (17 minutes) is only relevant if it is improperly conducted.
Claimant failed to attend a medical but claimed he had not received notification until the day after. Discusses the DWP's requirement to send documents (s7 of the Interpretation Act 1978, reg 23 of the Jobseeker's Allowance Regulations 1996 and reg 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) and the good cause for failure to attend (reg 8 Social Security (Incapacity for Work) (General) Regulations 1995). Discusses the meaning of the word "send" or "sent" which in some interpretations can mean despatched or delivered.
Cites the following case law - R(IB)2/01, CSIB/611/98, CJSA/3523/02, R(CS)1/99
Claimant notified DWP of intention to work before actually starting. This amounts to satisfying the requirements for notification if the DWP subsequently fails to send out the standard report form normally used.
This decision refers to the old rules about therapeutic work. Work done on the advice of a psychologist or physiotherapist is not work done on the advice of a doctor unless they fit the definition in reg 2(1) Social Security (Incapacity for Work) (General) Regulations 1995. Also any advice given by a doctor a long time before the work was undertaken would be insufficient to satisfy the rules.
A claimant has no voluntary control over their bowels where they use a colostomy or ileostomy bag. Follows Perry v AO, an Irish decision reported in R 8/99(IB). Discusses the relevance of Northern Irish case law to English decision making. Cites R(SB)1/90.
Concerns reg 28 Social Security (Incapacity for Work) (General) Regulations 1995 - consideration of personal capability assessment (pca) where claimant deemed capable of work in past six months. Tribunal erred because it was wrongly constituted (a panel of one chairman only) to decide whether a new condition had arisen or worsened since the last decision. Also the six-month period was wrongly counted as starting from the date of the tribunal decision rather than from the earlier secretary of state's decision.
Claimants should be given the opportunity to request an oral hearing where a case is to be reheard following a paper hearing. The reason advanced in this case was that clerks do not issue fresh directions following a set aside decision.
Follows Howker v. Secretary of State for Social Security (2002) - (reported as R(IB)3/03). Sets out some guidelines for ascertaining whether regulation 27(b) of Social Security (Incapacity for Work) (General) Regulations 1995 applies.
"The risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. That retains the emphasis on the effect of the claimant being found capable of work. It confines within a sensible scope the range of work that must be taken into account when assessing the risk to the claimant's health.
This does not mean a return to the previous law on invalidity benefit, under which capacity for work was determined by reference to specific job descriptions suggested by the adjudication officer. It involves a wider consideration than that. It involves a consideration of the risk to health involved in the general type of work that the claimant is otherwise qualified, experienced or skilled to undertake."
Tribunal failed to establish whether claimant had produced evidence specified by reg 2(1) of the Social Security (Medical Evidence) Regulations 1976. Decision substituted by the commissioner was that she had not.
In CSIB/53/03 the Commissioner focused on the test of a claimant's ability to answer the telephone and reliably take a message. They acknowledged that one obstacle to carrying out the function could be where apathy prevented the claimant from picking up the ringing telephone, as long as the apathy resulted from some specific mental illness or disablement.
Tribunal failed to consider all medical evidence, preferring an inadequate and at points illegible EMP report of an examination that lasted ten minutes. Cites (obiter) passages from CSIB/450/2003 and CIB/908/2003 about length of time of examinations. The conclusion was that the length of time was irrelevant. What matters is whether the examination was properly conducted? This case concerned someone who had mental health problems which would have probably required a longer examination.
Tribunal is not under a duty to put every inference before the appellant for comment - for example references to the credibility of a claimant's evidence.
Regulation 6(2)(g) of Social Security and Child Support (Decisions and Appeals) Regulations 1999 cannot be used to supersede transitional award of long term incapacity benefit. The regulation only applies to an actual incapacity benefit decision. Discusses the invalidity benefit transitional rules in detail.
Use of incontinence pad assists claimant in mitigating effect of loss of control but does not aid control of the bladder.
Concerns evidence required under reg 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 and a situation where evidence was produced after the date of decision. This was rejected under Section 12(8)(b) of the Social Security Act 1998 because it amounted to circumstances not obtaining at the date of the decision under appeal.
Funeral payments not allowed to someone in a Part III home, who was not in receipt of IS. Discussion of Human Right Act (Article 14). Is Part III analogous with those in private residential homes (in accordance with the law at the time of the decision)? Apparently not.
This case has now been reported as R(IS)6/04.
In combined cases the Commissioner decided that the regulation which denied a right of appeal against a 'defective' decision * was contrary to the European Court of Human Rights and should not therefore be applied.
A defective claim is one that was not made in accordance with the instructions on the claim-form or did not include all the information and evidence that the claim-form required.
The Secretary of State has applied for leave to appeal against the Commissioner's decision on the matter to the Court of Appeal.
In the meantime the Commissioner's decision is binding on decision makers and tribunals. Thus you should be given written notice of any decision which holds that a claim is defective and consequently fails and you should be informed that you have the normal rights to be given a statement of reasons for the decision and to appeal to a tribunal against the decision.
* Social Security and Child Support (Decisions and Appeals) Regulations 1999; regulation 27 and paragraph 5 of Schedule 2
Regulation 7 of the Social Fund Maternity and Funeral Expenses (Gen.) Regs. not ultra-vires. No breach of article 1 of First Protocol of Human Rights Act, nor of articles 8 and 14.
Upholds claimant's right to benefit pending the outcome of an appeal.
Raises the issue as to whether delay by the Secretary of State in acting on information that benefit has been (or may have been) overpaid can be taken into account in determining whether Article 6 of the European Convention on Human Rights has been breached. The Commissioner concluded that time does not necessarily start to run only at the time when the claimant appeals.
A detailed decision that states that the £100,000 cap on housing costs is not unreasonable or irrational and therefore not ultra vires. Neither is it a breach of human rights.
For the purposes of calculating entitlement to income support, a person is treated as having a pension that could be obtained immediately even if it has not been drawn. The case involved someone who had access to pension but 'practically' could not draw on it because of mortgage agreement; legally she could however, so she had notional income.
Failure to specify exact grounds for suspension an error in law.
Tribunals are under a duty to make an adequate response where human rights issues are raised. Regulation 42 (2A) of the Income Support General Regulations 1987, which concerns the treatment of a pension as notional income is not discriminatory under Article 14 of the Convention of Human Rights.
The decision concerns someone who took out a mortgage whilst on Income Support having previously been on housing benefit.
'It is not for the appeal tribunal to determine the level of entitlement..It is for the parties to show the tribunal the correct figure on the evidence' (para 20)
Officers participating under the ONE scheme, including 'subsidiary offices' run by a Local Authority, are under a duty to forward information concerning social security benefits.
Concerned late claim for IS as a consequence of incorrect information provided by the relevant department. Regulation 19(4) and (5) of the Claims and Payments Regulations considered to apply.
Section 74 of Social Security Act 1992 wrongly used to recover overpayment of ex-partner's incapacity benefit.
Failure of the Post office to deliver mail on which there is insufficient postage paid comes under the Claims and Payments Regulations Reg 19(6) and 7(c) concerning adverse postal conditions. The Post Office is a bailee for the DWP because it has a surcharge agreement to deliver mail with underpaid postage.
Tribunals are also under a duty to consider hearsay evidence.
One of five appeals heard (the other four were CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002, CDLA/5141/2002) by a Tribunal of commissioners. Decided that, generally, there was no right of appeal against a refusal to revise on grounds of official error. This is because the right of appeal is against the decision as originally made or revised. There is no free-standing right to appeal against a revision. Thus in the case of a refusal to revise the claimant will have to appeal against the original decision which will often be impossible because they will be out of time. The only exceptions to this are where the revision is requested within the normal one-month period of the original decision (or following the 14 day extension) or where a late appeal is granted (which can only be allowed within thirteen months of the original decision).
There was no breach of Article 6 because there is a right of appeal against the original decision. In addition the claimant has the right to apply for judicial review. A claim for discrimination under Article 14 was also dismissed (This issue concerned the position of someone seeking revision on grounds of official error for housing benefit compared with someone seeking a revision on the same grounds within the social security context).
There are no provisions under the Claims and Payments regulations 1987 that allow someone to sign and submit an income support claim on behalf of a dead person.
The case concerned a claimant whose wife had enduring power of attorney but whose nursing home manager was acting as appointee.
Error in law - claimant has right of appeal if refused IS because he or she does not have a national insurance number.
Discusses the benefit problems for people on jobseeker's allowance who have to attend jury service for short periods.
Claimant failed to establish the need to purchase another property to provide separate sleeping arrangements for children of age ten or over - follows Saleem v Secretary of State.
Appeal failed because a sole beneficiary did not take steps to dispose of property from an unadministered estate.
Court of protection capital still counts as a capital asset for the claimant. Follows CIS/7127/1995.
The case concerned a somewhat mean spirited attempt to deny someone sure start maternity grant because the claimant was not included in her partners income support assessment which, if she is a partner, is wrong in law.
Concerns deprivation of capital. Discusses the relationship between reg 51(1) of Income Support General Regulations 1987 (notional capital) and schedule 10 para 10 of the same regulations which deals with disregarded capital. Claimant used the proceeds of the sale of a house to purchase a car whilst running another vehicle under the motability leasehold scheme. He later returned the leasehold car. Tribunal failed to fully investigate claimant's reasons for disposing of capital but the decision also analyses how capital should be assessed were a subsequent tribunal to find that he had disposed of the capital to gain more income support.
Recoverability of overpaid benefits not established because of conflicting claims evidence. These consisted of computer readouts and a certificate of conclusive evidence.
Cost of a coffin not authorised by regulation 7A(2)(a) or (b) Social fund Maternity Funeral Expenses (General) Regulations 1987.
Discussed a case where the husband had not actually abandoned the home but had been arrested for offences against children and been forced to live apart as a condition of bail.
Commissioner argued that this amounted to constructive desertion and could be considered abandonment. Regardless of any court order, separation was considered essential. Had the husband been able to return to the home the wife would have been forced to leave with the children.
This case was reported as R(IS)9/05 and subsequently taken by the Court of Appeal as "Secretary of State for Work and Pensions v W[2005] EWCA Civ 570". The court decision upheld that the claimant had been abandoned but also lays down guidance when deealing with similar cases.
A technical legal issue denied a fair hearing because of a potential conflict of interest between a claimant and her appointee. The appeal should have been adjourned to allow time for separate representation etc. Tribunal should have looked to R(IS)17/1998 for guidance. If subsequently there is evidence of tax evasion this should be reported to the Revenue and Customs.
Linked decisions concerning the late award of an occupational pension which led to a subsequent deduction from both the claimant's pension and his income support.
Notification to an agent is the same as notification to the claimant. The case concerned an asylum seeker granted indefinite leave to remain who subsequently tried to claim income support within 28 days of notification. Unfortunately the notification was passed to the claimant's solicitor who delayed informing the claimant.
A claim was deemed to be still open so there was in fact no decision to appeal. It had been closed following the non-receipt of medical certificates but there had been no formal superseding decision issued.
Retrospective application of Human Rights Act. Definition of legal proceedings: Legal proceedings begin with appeal not with AO/DM decision.
There is no free-standing error in law if a tribunal delays in issuing a statement of reasons. However substantial delay (see para 31) may form part of an infringement of Human Rights under article 6(1). The decision also refers to Nash v Chelsea College of Art and Design 2001.
'even if decisions given late are an accurate account of the reasons, they appear less credible and can therefore more easily be attacked as inadequate'
Tribunal had no jurisdiction to determine a date of onset for a claimant's prescribed disease earlier than that of an unappealed previous decision (given on an earlier claim) that he did not have the disease at all.
REA not payable because of a break in entitlement.
For Reduced Earnings Allowance the date of onset is based on that decided on claims for disablement benefit. If the date of onset is disputed then the proper challenge is against the disablement benefit decision. Reduced Earnings Allowance tribunals awaiting the result of such a decision should consider adjournment.
Insufficient material before the tribunal to justify the inferences that they drew.
Whether tribunal can consider the outcome of medical treatment when arriving at a decision? Commissioner thought so, as long as there is no 'rooted objection' to the treatment.
In CI/3511/2002 the Commissioner explored the relationship between accident and 'process' with respect to Industrial Injuries Benefit, quoting various caselaw on the matter, including Faulds. At the heart of their argument the Commissioner explained;
'It is perfectly possible . for incidents of mental or emotional stress to be industrial accidents. And although it is possible for a "process", taken in the sense of a series of incidents, to be an "accident", the terms are more usually used in contrast to each other.'
The decision, however, is most memorable for the following observation:
'I wholeheartedly agree with Lord Clyde's sensible advice to stick to the ordinary meaning of the word "accident". If this appellant told a man in the street that he had had an accident, the man in the street would no doubt ask "Oh, what was that then?" The appellant would reply, along the lines of his claim form, "Well, I blame it on poor management causing extensive workload leading to overrunning shifts and missed meal breaks and rest periods over a period of time at work until on or around 7 2 01 the build-up of gastritis and oesophageal reflux had worsened into stress-related anxiety and eventually a depressional state and I had two months or so off work on anti-depressants". The listener would no doubt be very sympathetic, but would say "Yes, but what was the accident?"'
Re A11 (vibration white finger). Discusses the proper way to assess blanching (see paras 16-25). Gradual onset and circumferential blanching are not requirements for the diagnosis of the disease. This decision needs to be read carefully.
Assessment of disablement in case of deafness caused by industrial accident.
Discussion on the issue of 'gainful employment'.
Claimant's appeals concerned both A11 (vibration white finger) and A12 (carpal tunnel). The tribunal failed to establish the correct date of onset for A12 because a previous decision disallowing benefit overlapped with it. A11 not established. The term "vibration white finger" describes the condition. It does not place a requirement for someone to have worked with vibrating tools.
Re A10 (deafness). Local Authority employee using jets of water could be described as being employed in the water jetting industry - follows CI/2668/02 and Davis (reported in R(I)2/01).
Where clinical findings might be interpreted differently by two experts a tribunal may need to adjourn to put their 'provisional view' to the claimant's own medical advisers - follows R(I)5/94.
Discusses the correct way to measure a left leg stump to assess the degree of disablement;
'Disablement depends on the effectiveness of the prosthesis. That depends on the length of bone rather than soft tissue. So, it is obvious that it is only the supporting bone that should be measured. The key bone is the tibia, not the fibula.The Secretary of State recommends that the knee be flexed.'
Tribunal did not clearly establish that fibrosing alveolitis did not fall within the statutory definition of pneumoconiosis.
Tribunal should not be guided by the Medical Assessment Framework. It is departmental guidance. If the secretary of state uses it then it must be put in the submission. Recommends "Guidelines for the Assessment of General Damages in Personal Injury Cases" (6th edition)- produced by the Judicial Studies Board, published by the Oxford University Press. Cited as the "only objective set of criteria".
The appeal was rejected. The claimant was trying to get Reduced Earnings Allowance for vibration white finger having already been awarded it earlier for an accident.
"Hence where a claimant made separate reduced earnings claims in respect of an accident and vibration white finger, and his regular occupation had been the same at both the date of the accident and the date of onset of his vibration white finger, he was not entitled to more than one award at the maximum rate in total."
Consideration of what constitutes work in ships and what constitutes engine room. There is a detailed discussion of case law on these points. Claimant was a crane driver on semi-submersible oil rigs.
Non-compliance with agreement.
Tribunal's failure to consider contribution-based JSA when income-based JSA is turned down.
Case concerns term time workers and the 16 hour limit together with the effect of paid holiday during term time. Has a detailed discussion of relevant case law.
A supply teacher's earnings should be disregarded because she is no longer employed.
Failing to supply a photograph on an application form was not a failure to apply for a vacancy in this case.
They aren't. Neither are the claimant's examination fees for a part-time course in cabinet making. Human rights issues discussed and dismissed.
Suitable alternative accommodation. Arguments over the treatment of outstanding loans with respect to housing costs.
Failure to attend interview after letter lost in the post. If letter not received or arrives too late then the claimant should not be penalised.
Tribunal right to dismiss claimant's appeal over sanction applied due to failure to apply for vacancy without good cause.
Concerns the calculation of hours of term-time workers in the road transport industry. Follows R(JSA)4/03 - reg 51(2)(c) of Jobseeker's Allowance Regulations 1996 was inconsistent with Council Directive 79/7/EEC and should be disapplied with reg 51(2)(b)(i) applied in its place. R(JSA)5/03 gives guidance on this.
The use of standard interest in determining housing costs is not discriminatory under Human Rights law article 14 (non-discrimination).
Student loans count as income for the whole period of the loan even if it is repaid earlier because the student abandons the course.
Claimant misdirected by DWP and failed to claim jobseeker's allowance. Follows R(IS)3/2001.
Student loans paid to part time students count as income but are not covered by the rules on disregards for full time students. Discusses case law in relation to loans and estoppel.
Discusses situations where a decision can be amended where further evidence or information is provided.
Case concerns the treatment of earnings of a monthly paid term time worker. The method of calculation meant that although, in reality, there were times when she was not receiving earnings (partly because they were sometimes paid in arrears) she was not entitled to contribution based JSA.
Covers two areas; firstly, the right of an individual to get formal decisions about how much state pension he or she is entitled to receive on retirement and secondly, how he or she can appeal those formal decisions. Step-by-step guidance for the correct decision and appeal process is provided (Paragraph 43).
Concerned a dispute over pension calculation. Discusses the interrelationship of retirement pension with transitional invalidity allowance and contracted out occupational pension in relation to Sections 46 and 47 of the Pension schemes Act 1993.
Separate decisions should be made for entitlement to category A and category B pensions. Category ABL pensions are not recognised in law, being departmental jargon.
Concerns earnings and other income. Income tax deductible includes foreign income tax. Also states that the tribunal chair is not required to give reasons for refusing leave to appeal to commissioner. Commissioners, on the other hand, always give reasons (see para 10).
Imposed a duty on HM Revenue and Customs to produce a decision so that a claimant had the right of appeal.
Case concerned a dispute over whether contributions were contracted in or contracted out.
Discusses interrelationship of dependant's addition and invalid care allowance (now carer's allowance). Invalid care allowance defined as a personal benefit not intended for the support of the person receiving care.
Discusses the Working Families Tax Credit rules for assessing a company director's earnings and other income.
Discusses the valuation of a child's interest in capital held in trust. In this case the interest is not deemed to be a future interest. This decision need to be read carefully and may be of use for anyone wanting advice on setting up trust funds.
Technical error in law in which the tribunal failed to consider whether the claimant's husband believed the answers on her form were accurate. however a recoverable benefits decision was substituted by the commissioner.
Not held to be discriminatory because a higher proportion of term time workers were female. Tribunal did err in failing to consider claimant's arguments adequately.
Martin Inch and Ian Greaves
May 2004
