 |
access key options 
skip navigation what's new home site map search
disability benefits consortium home page
about us | appeals support | benefits | contact us | frequently asked questions | links | make a donation | membership | publications | services | tax credits | what you can claim
Selected commissioner's decisions from April 2007 to March
2008Back to digests of commissioner's decisions and case law. Click on the decision number to view the full decision.
Past attendance allowance, disability living allowance and incapacity benefit summaries of decisions can also be found in our other digests of decisions.
The claimant was diagnosed as having "simple schizophrenia", a term which now refers to a form of depression rather than actual schizophrenia. The claimant claimed he was refused a pension based on misdiagnosis. The commissioner states that any official error regarding diagnosis should be decided on the basis of knowledge at the time of the decision.
This decision has been reported as R(AF)5/07.
The tribunal was found to have erred in its decision but the commissioner substituted his own decision to the same effect, that the awards for disablement pension were reviewed but not revised. This decision discusses the rules for reviewing awards in some detail.
The claimant suffered from “suppurative otitis” of the left ear and claimed that this was attributable to service. The tribunal dismissed the appeal, finding that the appellant suffered pre service otorrhoea, which was aggravated by service, though there was no reference made to the claimant’s entry medical.
The commissioner found that the tribunal had incorrectly applied Article 4(3) of the 1983 Service Pensions Order (now Article 40(4) of the 2006 Order) when making its decision, which provides:
“Subject to the following provisions of this Article, where an injury which has led to a member’s discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.”
The statutory presumption created by Article 4(3) is known as the “compelling presumption” because it presumes something to be the case unless evidence is supplied to the contrary.
The commissioner held that the condition “suppurative otitis media” is associated with perforation of the ear drum, but that the tribunal’s reasons for its decision did not deal with the issue of why the entry medical report failed to mention perforation of the ear drum if that condition existed at the date of the appellant’s enlistment.
"The tribunal’s reasons for dismissing the appeal are very brief, but the chairman gave much fuller reasons for the tribunal’s decision when refusing the application for leave to appeal. Assuming that I am entitled to take those reasons into account as supplementing the reasons given immediately following the hearing (which I very much doubt), I am still not satisfied that they establish that Article 4(3) was correctly applied. Although those reasons do refer to the absence of any indication of abnormality in the record of the entry medical, they simply treat that as one piece of evidence, which is then weighed with the other documentary evidence. Since Article 4(3) of the 1983 Service Pensions Order created a compelling presumption in favour of the appellant that he did not have that condition on entering service, the correct approach was for the tribunal to consider whether the other documentary evidence was of such cogency that it displaced the compelling presumption and established beyond reasonable doubt that the appellant was in fact suffering from suppurative otitis media before entering service. In considering that question, the tribunal had of course to take into account the appellant’s reasons for disputing the reliability of those documents."
The tribunal (PAT) erred in law by failing to explain its conclusion that Gulf War syndrome was not a discrete pathological entity and by failing to explain its view of the arguments and evidence put forward by the claimant.
The commissioner also noted that none of the documents or submissions form medical services or the secretary of state dealt with the implications of the Martin case and the concession made on behalf of the secretary of state and acted on by the PAT there.
The tribunal’s decision was erroneous in point of law because it did not give the claimant the opportunity to comment on the significance of a submission that his hearing loss did not occur through all frequencies.
The issue was summarised in paragraph 7.
"The tribunal in this case was dealing with an entitlement appeal in respect of the condition “thrombophlebitis right knee”, governed by Article 5 of the 1983 Service Pensions Order, and identified that condition as being separate from the condition “varicose veins”. If they were satisfied that the appellant was suffering from a new condition, the tribunal ought to have decided whether the appellant had raised a reasonable doubt in his favour that the new condition resulted from service aggravation of his varicose veins, and should have upheld the rejection of entitlement in respect of that condition only if they were satisfied beyond reasonable doubt that the appellant would have suffered from the condition even if his varicose veins had not been aggravated by service. In failing to consider that issue, the tribunal erred in law and their decision must therefore be set aside."
The decision cites Owen v Minister of Pensions and National Insurance (1966) 5 WPAR 699.
This appeal is about the allowance for lowered standard of occupation (ALSO) under Article 15 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006.
Article 15(1) provides that where a member of the armed forces is in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience he shall be awarded an allowance for lowered standard of occupation at the appropriate rate.
The claimant was subsequently employed by the British Legion and the calculation of his ALSO involved comparison of his earnings from this employment with that of his captain's pay. The tribunal was correct in considering his London weighting as part of his Legion earnings but erred in placing too much emphasis on whether this was taxable. It also failed to carry out a "like for like" comparison of the two occupations, including whether a similar allowance would have been payable to an officer of the claimant's rank stationed in central London on a long-term basis.
This decision has been reported as R(AF)4/07.
The tribunal erred in law in failing to consider whether a should have been, reviewed on the ground of official error, so as to entitle the appellant to backdating of his award in respect of post traumatic stress disorder to the date of the original awarding decision.
The claimant had been shot whilst serving in Kenya during the Mau Mau uprising and had been awarded a pension based on his physical injuries and anxiety. This anxiety had subsequently been diagnosed as post traumatic stress disorder. As the state of medical knowledge in relation to post traumatic stress disorder, at the time of the original decision, requires expert medical knowledge, the case is referred back to a new tribunal.
The claimant had served in the Royal Air Force and was the mechanic of an aircraft which crashed with loss of life in a widely reported accident in 1994. On 3 June 2005 a decision was made accepting depressive illness and post traumatic stress disorder (PTSD) as attributable to service, and internal derangement of the left knee as aggravated by service, and the appellant was assessed as 50% disabled.
A further claim for “laceration of the right hand with tendon damage” was rejected by the tribunal, who considered that a physical injury which results from a psychological condition which is attributable to service is too remote a consequence of service to fall within the scheme.
The commissioner disagreed, citing Freeman v Minister of Pensions and National Insurance [1966], which concerned a sailor who committed suicide following the amputation of his legs.
There were also discrepancies in the claimant’s reasons for lacerating his hand.
“These vary from being affected by a low flying aircraft, anger at recent documentation from the Veterans Agency, anxiety at an impending social services inquiry regarding the risk (because of (the appellant’s) PTSD) to their unborn baby, and a flashback.”
Under article 41(5) of the 1983 Service Pensions Order 1983, if upon reliable evidence, a reasonable doubt exists whether the conditions of entitlement are fulfilled, the benefit of that reasonable doubt is to be given to the appellant. Following R v Department of Social Security ex parte Edwards (CO/2281/1990) the commissioner decided in favour of the claimant.
“I take the view that the objective circumstances of the accident give credence to the appellant’s case that his injury was caused by an outburst of anger resulting from his psychological condition. The cut to his finger damaged a tendon and was more severe than would be expected if the appellant possessed normal self-control and was injured merely accidentally.”
The letters sent to the claimant failed to tell her that her hearing would be heard in her absence.
It was also arguable that there was a breach of the principles of natural justice and possibly of Rule 20(2) of the Pensions Appeal Tribunal ( England and Wales) Rules 1980 (the PAT Rules). These rules allow a hearing to take place in the claimant’s absence but place a duty on the tribunal to give adequate reasons for doing so.
The claimant was a wireless operator and took part in operations with Bomber Command against Germany in 1944 and 1945 and also in the questioning of prisoners of war, rising to the rank of Flight Sergeant. On 19 February 1946 the claimant was released from service under Class B. Class B releases were made into specific occupations, in this case farm work. If a person released under Class B discontinued the employment to which he had been directed (except for ill-health), the release would be revoked and the person recalled to service. The claimant did work on a farm at Bucklersbury where in 1947 or 1948 he had an accident in which he caught his left hand in a hay baler, causing injuries leading to the amputation of his left little finger.
He sought to claim that this injury was received whilst still in service. The commissioner did not accept this and concluded that the claimant had not established on the balance of probabilities that he was serving as a member of the armed forces at any date which could possibly be relevant in relation to the connection to service of the injury to his left hand.
“It is clear from the conditions stated in the `Release and Resettlement' booklet and in RAF Form 2520/25 that on release under Class B a person remained under quite significant obligations relating to the armed forces. It was quite clear that a person had not been finally discharged from service and became a member of the reserve forces, on special terms specific to the class of release. In that sense, the person might be said still to be a member of the armed forces. But I have no doubt that, in the terms of the definition of service for Service Pensions Order purposes, the person was not serving as a member of the armed forces.”
The commissioner decided that the tribunal had no jurisdiction to hear the appeal. The decision discusses the relevant law regarding late appeals.
The claimant stated that he was treated for Malaria whilst in the services. He asked the Veterans Agency (VA) to obtain evidence from a named witness to prove this. The VA was correct in refusing this but committed a breach of natural justice because it failed to inform the claimant that the responsibility to contact the witness lay with him.
"A PAT has no power to obtain written evidence directly, rather than through the parties, except in the case of an expert opinion on a difficult medical or technical question under rule 15 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (the PAT Rules). In the absence of any evidence that the claimant was informed of that responsibility, either in relation to the specific evidence or in general terms that were clear enough, there was a breach of natural justice in the PAT of 31 January 2007 proceeding to make a decision without having given the claimant a further opportunity to produce evidence from his fellow-serviceman."
This appeal, by the claimant, succeeds because all parties agreed that the decision of the tribunal was wrong in law.
This is a claim for a pension under the new armed forces compensation scheme which came into effect April 2005.
Sergeant T was an army cook who died in a motorcycle accident whilst reporting for duty. He had traveled to work early because he was worried about the reliability of the cooks under him (army stores had gone missing).
The commissioner considered articles 9 and 10 of the the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005 (SI 2005/439).
"Article 9 deals with cases in which death was caused by service. Article 10 deals with cases that do not fall within article 9, because the death was not caused by service. It deals with circumstances which would not normally be considered as part of service as a member of the forces."
He concluded that Sergeant T's death occurred whilst he was in service but that this was not the predominant cause of his death. At the time of his death he was not on duty, he was reporting for duty.
An argument that he was responding to an emergency was also rejected. The need for supervision lest stock should go missing was not sufficiently serious to amount to an emergency.
Commissioner's decision R(A)1/07 suggests that if care home and nursing care allowances are the only help that someone gets towards their residential costs they can keep their disability living allowance or attendance allowance.
Note: Following on from R(A)1/07 and R(A)2/07 new regulations have been passed. Under SI 2007/2875 - The Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 2007, where any qualifying services provided for a person in a care home are met, in whole or in part, out of public or local funds under a specified enactment, DLA care component or AA will not be payable.
Commissioner's decision R(A)2/07 states that home and nursing care allowances should be considered as part of any accommodation costs, which would mean that someone would lose your their disability living allowance or attendance allowance if they receive these allowances.
Note: Following on from R(A)1/07 and R(A)2/07 new regulations have been passed. Under SI 2007/2875 - The Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 2007, where any qualifying services provided for a person in a care home are met, in whole or in part, out of public or local funds under a specified enactment, DLA care component or AA will not be payable.
The tribunal failed to make findings of fact on the claimant's medical condition, the effects of medication and the use of a commode. The claimant was using a bucket instead of an upstairs toilet. The commissioner's view was that this was an emergency measure rather than the use of a commode in an appropriate location.
This does not count as attention with bodily functions.
"It seems to me that in these circumstances, the tribunal were right to conclude that, driving the claimant to places of social activities, did not fall within the ambit of attention. Whilst it is accepted that the import of R(A)2/98 [Secretary of State v Fairey and Cockburn v CAO], and other authorities is that attention is not restricted to the necessities of life and can encompass what enables a claimant to carry out a reasonable level of social activity, the essential prerequisite is that what is provided must be what can in law be properly regarded as attention. That is not the case here in relation to driving because transporting the claimant in a motor vehicle lacks the degree of physical intimacy required."
The claimant was entitled to claim child benefit because she had a right to reside under the EEA regulations through her father.
"The claimant is a direct descendant of her father and was under 21 at the date of the child benefit claim and decision. Accordingly, she satisfied the definition of "family member" without the need to satisfy any further condition about actually being a dependant of her father. Thus, if her father was a qualified person, with a right to reside under the Regulations, so was the claimant. "
The claimant claimed child benefit for his son and was refused because he was not regarded as residing in the United Kingdom. The point was also made that his son was not in Great Britain at the time of claim. He had a second son and applied once more for child benefit. This claim was also refused, the reason given that that he was not ordinarily resident in Great Britain.
The claimant appealed against both decisions on the grounds of appeal that he was ordinarily resident in Britain at the time. He also argued that at both times he was a Crown servant working abroad and so entitled to be regarded as ordinarily resident. At the time of the first claim for child benefit the claimant was working for the British Embassy abroad as a consular correspondent. He was later appointed Honorary British Consul.
The tribunal rejected his appeal but the commissioner found that it had erred for a number of reasons. Under regulation 30 of the Child Benefit (General) Regulations 2006, for the purposes of section 146(1) of Social Security Contributions and Benefits Act 1992, a Crown servant posted overseas shall be treated as being in Great Britain if, immediately prior to his posting or his first of consecutive postings, he is ordinarily resident in the United Kingdom; or if immediately prior to his posting or his first of consecutive postings, he was in the United Kingdom in connection with that posting.
The commissioner found that the claimant was a Crown servant because in his capacity as both consular correspondent and Honorary British Consul.
The tribunal had also failed to adequately consider both the claimant’s ordinary residence and the residence of his children.
A person in whose favour a residence order is in force under the Children Act 1989 counts as a “parent” of the children concerned for child benefit purposes under Part IX Social Security Contributions and Benefits Act 1992.
The claimant fractured a leg in his home, which was not the subject of a compensation claim. The claim was made against subsequent negligent medical treatment of another fracture discovered following an X ray. The hospital denied liability but paid £50,000 to the claimant, of which £18,734.91 was offset to cover his IB and DLA payments. Arguments that the payments of those benefits were for the original leg injury, not the hospital's alleged negligence were rejected. In fact identifying the actual injury was less relevant than establishing that the hospital had felt the need to pay compensation.
"The key has to be identifying whether the payment of £50,000 gross by the Trust was paid in consequence of an accident, injury or disease. ...In my view, where a claim is made for compensation for personal injuries and a payment is made in settlement of that claim without there being anything to identify any specific elements making up the global payment, one must look to the claim as the primary factor in identifying what the payment was made in consequence of. Here, the claim was made in respect of the adverse physical effects on the claimant from 1 August 2001 onwards, said to have been caused by the negligence of the surgeon in the carrying out of the operation of 30 January 2001 and of other employees of the Trust in not taking reasonable steps after that operation to get the deformity corrected. That was the claim that was still in being when the settlement was agreed. ...Nor, in the light of the Trust's refusal to say what it regarded the sum of £50,000 as made up of, was there any evidence that the payment was made otherwise than in consequence of the claim as then still in being. The word "injury" is wide enough to include those adverse physical effects on the claimant and is not in my judgment limited to an identification of particular acts or omissions that caused injury."
This case considers how the Social Security (Recovery of Benefits) Act 1997 should be applied where a claimant recovers damages at common law in respect of psychiatric injury alleged to be caused by an employer and also statutory compensation for unfair dismissal.
The claimant was a PE teacher who had been dismissed following allegations of inappropriate behaviour with four female pupils. The education authority failed to fully investigate these allegations and the claimant claimed damages as well as unfair dismissal.
The commissioner held that 1997 Act applies only to common law damages, and not to statutory unfair dismissal compensation under the Employment Rights Act 1996. Benefits paid by the State were recoverable following the claimant's success in recovering damages from his employer.
Payment – offset under regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 – whether arrears resulting from the suspension of payments pending the making of an award superseding a previous award can be offset against an overpayment arising as a result of the subsequent award
The claimant suffered from autism and received DLA middle care and lower mobility components. In September 2001 he began boarding at a residential college funded by the Learning and Skills Council, continuing to live with his parents during school holidays and half-terms. He was therefore not entitled to the care component except during the vacation periods. When the change of circumstance came to light, on renewal of the DLA claim by SB’s father on 27 May 2003, the payment of the care component was suspended under regulation 16(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 pending investigation. A decision was issued on 13 October 2003, described as superseding the award of 14 July 2000, ruling that no care component was to be paid for the period SB was in the residential home and that any DLA already paid should be treated as paid on account of that benefit awarded. The suspension was lifted but no payments were made of the care component unpaid since May 2003. On January 2004 the overpayment was found not to be recoverable but calculated to include the amount of care component due for the summer of 2003 (£529) as a sum which could be offset against the overpayment. The tribunal, on appeal from the claimant’s father, upheld the decision that the overpayment was not recoverable; this involved also upholding the decision that the arrears due could be offset against the overpayment although the tribunal’s reasons did not address this issue. The claimant appealed and the Secretary of State requested that the Commissioner address the legitimacy of offsetting the sum relating to the later period against the overpayment held to be irrecoverable. The Commissioner accepted the Secretary of State’s argument that regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (the Regulations) entitled the decision-maker to offset the arrears and dismissed the appeal. The claimant appealed to the Court of Appeal. It had been argued at all stages by both parties that the October decision superseded the original decision with retrospective effect and both parties sought a determination as to the proper construction of regulation 5 on that basis.
Held, allowing the appeal, that:
1. regulation 5(1) allows for overpayments to be offset against “arrears” of entitlement “under the subsequent determination”. However the Regulations were passed pursuant to section 71(6)(b) of the Social Security Administration Act 1992 which empowers the Regulations to deal with “arrears” payable “by virtue of the subsequent determination”. The sum in this case was in arrears, not by virtue of the subsequent determination on entitlement but by virtue of the decision to suspend payments and/or by virtue of a delay in reaching a decision as to the amount of the overpayment (paragraphs 24 to 26);
2. regulation 16(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 draws the line at allowing recovery of recoverable overpayments against arrears due to suspension of payments and, while the same distinction is not drawn in the 1988 Regulations in relation to non-recoverable overpayments, any interpretation should reach a logical result which will not be seen as arbitrary or capricious (paragraphs 27 and 28);
3. even if the decision of October 2003 had entirely replaced the July 2000 decision, the entitlement to £529 for the summer months was not arrears of entitlement under (or by virtue of) the subsequent decision, but was arrears by virtue of the suspension of payment directed in May 2003. The determination in October 2003 was simply determining that, during the period of overpayment, that overpayment should be being treated as paying on account that now held to be due (but in arrears) over that same period (paragraph 30).
The decision concerns a case where the EMP had sat with the Chair on three occasions in the previous two years prior to the hearing. It follows the tests for perceived bias laid out in CSDLA/364/2005 but rejects that decision's "principled approach" when deciding bias. The principled approach was based on the decision outlined in Lawal v Northern Spirit Ltd [2003] which was considered narrow in that the House of Lords was asked to address the matter before it as a point of principle without regard to all the surrounding circumstances.
Instead the commissioner follows two other decisions. Firstly, in the Cunningham case an EMP sitting once or twice a long time ago would not be considered to give rise to the perception of a real possibility of bias. Secondly, Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] guards against any rigid rule when deciding bias.
"It would be dangerous and futile to attempt to find or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided ."
In the current case the EMP had last sat as a panel member three and a half months before the claimant's hearing. Based on the facts of the case the commissioner found that this lapse of time was insufficient to remove a doubt as to bias.
This case has now been reported as R(DLA)3/07.
The tribunal misdirected itself in two ways. It failed to consider help given outdoors as attention and it excluded evidence by applying a test of context (help with cooking, cleaning, shopping, domestic duties etc) rather than considering whether it was help with bodily functions.
The decision cites a number of other key decisions - Mallinson, Fairey, Cockburn, Ramsden and Moyna.
This is a decision with a complicated history. An initial appeal to commissioners lapsed following the reinstatement of a struck out decision. In the subsequent appeal it was argued that the tribunal's statement of reasons was brief and inadequate, but the commissioner rejected this. The tribunal's decision could be adequately discerned from the statement of reasons and the other documents in the case, notably the medical report. It may be good practice to provide more detailed reasons but it was not an error of law not to do so.
The claimant argued that the decision on her claim in 1995 failed to take account of the Mallinson decision (communication considered as a bodily function). The test for this is set out in CDLA/4099/2004.
". the claimant must show not only that the decision was wrong but also that is it more probable that it was wrong due to the adjudicating officer taking a view of the law shown in Mallinson to be erroneous, than that it was wrong due to some other error of law or ignorance of, or a mistake as to, a material fact. That is no easy task."
The claimant's argument failed. Firstly, in 1995 she was issued with DLA434, a claim form which specifically covered Mallinson issues and there is no reason to suppose that the decision maker failed to consider the evidence on this form. Secondly, the claimant failed to make an appeal at the time.
Following R(DLA)1/07 (formerly CSDLA/133/2005) where thinking is considered as a bodily function, this decision states that previous attempts to link dyslexia to problems with seeing are incorrect. It discusses previous case law referring to dyslexia. The decision refers to CDLA/3204/2006.
The commissioner found no error of law in the conclusions the tribunal reached from the facts. The decision discusses the use of evidence of normal walking speeds as produced by the Road Research Laboratory (100 metres can be walked by a fit person in 1 minute 16.9 seconds).
“The quoted figure provided a benchmark of a “normal” speed against which the tribunal’s view of the expected speed of the claimant’s walking, expressed in an easily understood form, could be compared.”
Claimant did not satisfy the severe behavioural problems rules as outlined in regulation 12(6)(a) and (b) of the Social Security (Disability living Allowance) Regulations 1991 (S.I.1991/2890). These state that such behaviour must be extreme and regularly require someone to intervene and physically restrain the claimant to prevent physical injury or damage to property.
“…the evidence in this case is that there are substantial periods of each day when the claimant is quite well behaved. Moreover, even when he is not, he often does not require physical restraint and, when he sits down and refuses to walk, the intervention required to get him to move may be the opposite of “restraint” and will not necessarily be required “to prevent him causing physical injury to himself or another, or damage to property”. There is really no evidence that his behaviour is generally or regularly “extreme” and I am very doubtful that he even falls within the scope of regulation 12(6)(b). The occasions when he actually requires physical restraint to avoid injury or damage are probably not sufficiently frequent for that to be regarded as a regular requirement but the occasions when his behaviour is “extreme” are fortunately even rarer, notwithstanding that eternal vigilance is required and caring for the claimant must be very wearing for his parents."
Seeing a screen can be analysed into at least four stages. Impairment and a resulting disablement can occur at any of these stages. Problems with dyslexia occur at the fourth stage - the interpretation stage. Although the decision refers to seeing the approach is consistent with that in CDLA/1983/2006.
Section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992, which states that a condition must continue for a period of at least six months applies to renewal claims.
"In my judgement, a renewal claim for disability living allowance is, for the purposes of the above statutory provision, a fresh claim for benefit. That means that the six months prospective test applies from the date from which any renewal award would commence."
The claimant had previously been in receipt of DLA care component but had then had the award removed. The tribunal's statement of reasons were inadequate because the reasons were insufficient to enable the claimant to understand why the new decision was different. However, the commissioner substituted a new decision refusing the DLA award.
The claimant had been put under a supervision and treatment order when he was found unfit to stand trial for a crime. The tribunal was held to have properly considered the evidence obtained from psychiatric medical reports in relation to this crime. It also correctly restricted its consideration of the crime itself to the question of how far it was right to say he was suffering the physical disabilities he had been claiming.
The claimant was awarded the DLA higher rate mobility component in 2004 but this was later removed, following an examining medical practitioner's report. Her mobility problems prevented her from attending the tribunal hearing, so a paper hearing was held and the appeal was dismissed. The tribunal erred because it had no papers relating to the earlier award and so could not properly explain to the claimant why her benefit could not be renewed despite her contending that her condition had not changed or worsened (cites R(M)1/96 in support of this approach). It is suggested that a domiciliary hearing should be considered by the new tribunal.
These can count for the cooking test if they are used to produce a labour intensive main reasonable daily meal.
The claimant had been in receipt of Mobility Allowance since 1989 but was subsequently videoed walking a half a mile to the pub, something he achieved within 10 minutes.
There was a question as to whether there were powers to review a transitional decision (see CDLA/2999/2004) but it was held that revision was allowed under CDLA/1570/2004.
Feelings of nausea are relevant when considering the cooking test. The claimant suffered from primary biliary cirrhosis and felt sick at the thought of preparing or cooking food. This decision takes the opposite view to CSDLA/854/2003, which states that nausea when cooking is outside the scope of the notional cooking test. .
"In the Claimant’s case her nausea is a symptom of her disability, and if, when applying the cooking test, one were to leave it out of account, one would not be “calibrating the severity of her disability” accurately."
This decision found that the tribunal had not erred in its consideration of the facts of the case. At the time of the decision the tribunal found that the claimant did not satisfy the disability conditions for DLA mobility. It also found that the claimant was unlikely to satisfy the disability condition for the following six months.
The claimant's condition deteriorated at a later date but the tribunal was right in not considering this as it cannot take into account circumstances which occurred after the decision maker's decision.
The tribunal erred in dismissing evidence from three witnesses as "oath helping" - evidence which serves to bolster a the claimant's credibility. Oath helping is inadmissible in criminal law (R v Turner 1975 and R v Robinson 1994) but is permissible at appeals, which are not bound by the same proceedings.
The appeal succeeded because Commissioner Ovey found that the tribunal had failed to fully consider the claimant's walking and continence needs. At issue was its over reliance on an EMP report, which stated that the claimant had been observed walking (in a small room) 50 metres, with little discomfort and reported no problems with continence (the claimant stated that she had informed the doctor that she used a commode).
The tribunal found that the claimant did not have mental health problems but erred in failing to consider the evidence of a letter stating she suffered from depression.
The claimant had osteoarthritis of the right hip and claimed disability living allowance in 2004. She was awarded the higher rate of the mobility component of DLA and the highest rate of the care component.
In January 2006 she completed a renewal claim form. The decision-maker made a fresh award with effect from March 2006, at the lower rate of the mobility component and the middle rate of the care component.
The claimant appealed. Her first tribunal adjourned to obtain fresh evidence from an EMP. A second, differently constituted, tribunal removed both components of her award.
The tribunal erred in two ways. Firstly it failed to give adequate notice to the claimant of an intention to reduce an award.
"The claimant was appealing against the Secretary of State’s decision of February 2006, which had awarded the claimant some DLA, but not as much as had been awarded to her in 2004. The issue raised by the appeal was whether the February 2006 award was too low, not whether it was too high.
This meant that the tribunal were not obliged to consider whether the February award was too high, but had power to do so. However, R(IB)2/04, which is referred to in the commissioner’s reasons for granting leave and in the Secretary of State’ submission to the commissioner, makes it clear (a) that a tribunal must reach a conscious decision to make use of its power under section 12(8)(a) to consider whether an award is too high and (b) that in order to comply with the claimant’s right to natural justice and a fair hearing, the tribunal must warn the claimant that they are thinking of considering whether the award should be cancelled or reduced; that is in order to give the claimant an opportunity to prepare his or her case and also an opportunity to consider whether to withdraw the appeal and at least keep the award that the Department gave."
Secondly it did not fully consider severe discomfort.
“The tribunal’s conclusion that the claimant was not virtually unable to walk was based on a combination of the claimant’s statement in the claim form that she could walk 300 metres and the report of the EMP. The EMP’s conclusion that the claimant could walk 250 metres before the onset of severe discomfort was qualified by the EMP’s finding that pain would cause her to stop five times over this distance for 15-30 seconds. The claimant had also qualified her statement about walking 300 yards by the statement at page 84b, accompanied by a photograph (page 154), to the effect that she had to stop after crossing the width of her street. The statement of reasons does not refer to the need for these stops. The commissioner who granted leave to appeal found it arguable that the tribunal had not properly considered whether the claimant’s ability to walk 250 metres was only achieved at the cost of severe discomfort. The Secretary of State has submitted that the tribunal made insufficient findings of fact."
The claimant was given an indefinite award of the highest components for both care and mobility but was subsequently found to have misrepresented her needs on the claim form (a representative had filled it out on her behalf).
The tribunal held that the decision maker (Secretary of State) should have only awarded the claim for a year instead of making an indefinite award and decided that the claimant was only guilty of misrepresentation for a year, the overpayment for the rest of the period being due to the Department's flawed decision.
The commissioner rejected this. The Secretary of State's decision was reasonably made, given the evidence available at the time of the original decision (the tribunal's award of low rate care was overturned for the opposite reason).
However, even if the Department's decision had been flawed, it would not have broken the "causal link" established by the claimant's original misrepresentation, which meant that the overpayment liability, subject to the decision of the new tribunal, would still extend beyond a year.
The case concerned the award of the mobility component on grounds of severe mental impairment and behavioural problems. The claimant was diagnosed as having autism but the tribunal stated that there was no evidence of arrested development of the brain.
Commissioner Jacobs stated that the tribunal went wrong in law because its reasons were wrong. It should have followed previous case law in reaching its decision, in particular that of Commissioner Rice (CDLA/1678/1997).
“Mr Rice made a finding that was based on evidence from an acknowledged national expert that was not challenged before him, was later accepted as correct before the Court of Appeal [M(a child) v Chief Adjudication Officer (reported as R(DLA) 1/00)]”
Commissioner Jacobs then considers that the traditional understanding of precedent, decisions that are binding only for the propositions of law that they embody, should be reconsidered in some cases to apply to findings of fact.
This applies in the current case where CDLA/1678/1997 established as a fact that autism is caused by “…a state of arrested development or incomplete physical development of the brain…” and so falls within the definition of severe mental impairment contained in the relevant legislation. The decision is therefore useful in similar cases.
However Commissioner Jacobs then considers extending the notion of precedent of fact to other cases. Here the decision becomes more problematic.
In support of this he cites asylum case law (Shirazi v Secretary of State for the Home Department [2003] and Januzi v Secretary of State for the Home Department [2006]) and case law concerned with discretion (Merchandise Transport Ltd v British Transport Commission) because they show the willingness of the courts to allow decisions on issues of fact and judgment to have a degree of authority.
He concludes that “there is no general doctrine, either in the courts or tribunals, that recognises the existence of a category of precedent that is authoritative on issues of fact.” but that “such a category would, though, be consistent with general principles and, as this case shows, would meet a need.”
He is, however, mindful of the pitfalls of applying factual precedent in appeal. Such an approach might be useful in appeals where previous case law contains evidence from experts which inarguably establishes a fact. He implies that a tribunal should not challenge this expert interpretation unless it can show that the consensus amongst the experts in the particular field has changed – presumably either by referring to publications in academic literature or specific evidence from another expert.
The Commissioner was unwilling to identify other situations where the case law could establish matters of fact.
"Lacking as I do the foresight of a prophet, I do not intend to define the limits within which factual precedent should operate. It is sufficient for me to say that, whatever those limits may be, the decision in CDLA/1678/1997 falls within them. The tribunal was wrong in law not to follow it."
In addition to the above the tribunal also erred in its interpretation of the Associate Specialist Paediatrician's evidence.
The claimant, a 7 year old girl had hypertrophy of the right side of her body. In 2002 she was awarded high rate mobility component on ground of virtual inability to walk. This was based on the evidence of the EMP report as the claimant's other estimated that she could walk half a mile without discomfort.
A renewal form was completed in 2006. This time the mother said the child could walk 3 miles in 30/40 minutes on a good day. The decision maker found her no longer virtually unable to walk. The tribunal agreed (at a paper hearing).
The commissioner found that the tribunal had erred in accepting the mother's evidence because of its improbability.
"As I stated when granting leave to appeal, the average walking speed of an able-bodied adult woman under the age of 50 is 3.1 miles per hour (source: Research on Road Traffic (HMSO 1965)). Such a woman would cover a distance of 3 miles in a little over 58 minutes. The walking speed that is implied by the tribunal’s finding is between 4.5 and 6 miles per hour. It is overwhelmingly improbable that an eight year-old girl with well-documented physical defects in her legs should have a walking speed that exceeds that of an able-bodied adult woman by a factor of between 45% and 93%."
In the absence of other evidence the tribunal should have adjourned the paper hearing and asked the mother to attend an oral hearing.
"As this was a case in which an oral hearing was necessary for the tribunal to reach a decision, it should have adjourned with directions that such a hearing be held and explained to the appellant’s mother why it was necessary for her to attend.
A further reason for directing an oral hearing of this appeal was that the appellant is a child who did not have the benefit of professional advice or representation. I am sure that her mother has done her very best to explain the appellant’s case but, through no fault of her own, she does not appear to have any particular experience of how the social security system operates and may not realise the importance of expressing herself with precision when dealing with the Department. It is also clear that she shares the difficulties experienced by many people when estimating distance and time. As the main problem facing the tribunal was the inconsistency and improbability of the mother’s evidence, those considerations should have weighed heavily in favour of an oral hearing: a tribunal should be careful not to permit the interests of a child to be prejudiced by inadequate representation."
Where there is evidence that panic attacks are unpredictable, supervision might be needed most of the time as a precautionary measure.
The decision also discusses how the evidence of Disability Analysts - doctors and health care professionals undertaking assessments for state benefits - should be treated.
The claimant's appeal failed. She suffered from chronic fatigue and depression and had difficulty completing her claim form (this was done in pencil and was illegible in places).
The tribunal was found to have properly considered all evidence, namely oral evidence from the claimant, a psychiatrist and her GP.
"The tribunal could only decide her case on the evidence she presented to it, and this evidence, whether it gave a true representation of her abilities or not, showed her to be a person suffering considerable physical, mental and emotional problems, but it did not show her to be a person whose functional abilities were so severely limited as to satisfy the very stringent criteria for award of any component of DLA."
The claimant had been awarded high rate mobility component but sought the care component when her claim was renewed. The high rate mobility component was renewed but the care component was refused. She appealed and the tribunal found that she was not entitled to both components. The commissioner substituted a decision awarding high rate mobility component but not the care component. The main reasons were summarised in paragraph 5.
“It is the lack of explanation for not accepting the Secretary of State’s unchallenged decision in respect of the mobility component that is the flaw in the tribunal’s decision. This was a borderline case. The tribunal was entitled to take the view that the claimant was not virtually unable to walk but the Secretary of State was equally entitled to take the opposite view. Where a tribunal’s findings are not materially different from the Secretary of State’s and the Secretary of State’s conclusion in favour of the claimant is not perverse, a tribunal should be slow to interfere and must, in accordance with the R(IB)2/04, give reasons for considering it necessary to do so. No reasons were given in this case and the claimant was entitled to some explanation for the sudden loss of entitlement to a benefit she had been receiving for more than five years.”
The tribunal erred, when refusing a request to adjourn, in not recording both the request and reason for refusal in the statement of reasons and record of proceedings.
“In such cases a tribunal is making two decisions. The first is to start the proceedings despite being asked to adjourn – in effect either to hear the application at length or to postpone it until the substance has been explored. The second is to make a full decision without adjourning. There is nothing on the record about either decision. The application to adjourn was clearly relevant to the proceedings. It was expressly in issue. The tribunal should have recorded that the application was made somewhere in the tribunal record. And it should at least have recorded briefly its decision on the application. The absence of any note of the application or note or explanation of the tribunal’s decision is itself an error of law.”
When considering severe discomfort test the tribunal referred to the examining medical practitioner’s (EMP) assessment, which stated that:
“whilst she had some discomfort on walking, [the claimant] was able to walk 100 metres before the onset of severe discomfort, although she [might] require a halt after 50 metres”;
As support to this the tribunal cited the evidence of the claimant’s own GP, which was set out as being that:
“her walking ability varies according to the level of pain experienced and … realistically she can probably walk only 50 to 100 yards without being in severe pain”.
The commissioner found that the tribunal had erred in treating two sets of evidence as if they both applied the same criteria. In the GP's case the test appears to be a more stringent "severe pain" test.
"On the basis of the authorities on what constitutes being virtually unable to walk, this case is on the borderline. It is therefore of particular importance that the findings of fact should be made having strict regard to the various elements of the statutory criteria and that the reasons should be adequate to explain the acceptance or rejection of evidence. I conclude that in this difficult case, the tribunal’s reasons were not adequate, in that they involved treating two pieces of medical evidence apparently given on the basis of different legal tests as being consistent with each other without explanation. In that respect, there was an error of law on the part of the tribunal."
This decision was summarised in paragraph 8.
"The tribunal failed to deal adequately with the supersession question. The Secretary of State made the decision, and therefore the burden of showing it was rightly made rested on the Secretary of State. The ground on which the award was superseded was not identified by the Secretary of State and it was not identified by the tribunal....."
"The tribunal’s decision both on the decision notice and in the statement of reasons for the tribunal's decision disagree with the corrected decision notice which was subsequently issued. This is a fundamental flaw. The decision notice itself, in the standard format – which is very ill suited to recording accurately decisions made on supersession – simply stated that the claimant was not entitled to either component of DLA from 5 October 2006. The statement of reasons for the tribunal’s decision made it clear that it had considered the lowest rate care component and did not accept that the claimant satisfied the conditions for this award. The decision under appeal was the Secretary of State’s supersession. It removed the award of middle rate care component and substituted lowest rate care. Therefore the tribunal, in addition to dealing with the supersession question identified above, also needed to identify the grounds for its own supersession. It did not do this. When the DWP raised a query about the decision notice, the tribunal chairman purported to correct it to say that the claimant remained entitled to the lowest rate care component, but only ‘because no warning was recorded that she might lose her award’. The facility of correcting a decision notice does not enable the tribunal to change the decision. It allows accidental errors, and slips of the pen to be corrected. It does not enable a completely different decision to be substituted. In changing the decision notice in this way the tribunal chairman was unilaterally replacing the unanimous decision of the tribunal with a decision made by him alone."
Following Lees v Secretary of State for Social Services a claimant cannot qualify for high rate mobility component by virtue of being blind. This decision states that there is also no qualification for high rate mobility component when anxiety is allayed by guidance or supervision from another person.
The EMP had sat with the tribunal chair once or twice in the last five years. In Lawal v Northern Spirit Ltd [2003] it was stated:
"The principle to be applied [for perceived bias] is that stated in Porter v. Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?"
"In Lawal the House of Lords decided that if the barrister had previously sat with a member of the Tribunal on only one occasion that would be enough to give rise to a complaint of apparent bias. The question in this case is whether it is enough that the EMP in the case has sat once with the tribunal chairman as the medical member of the tribunal. Do the same criteria apply as apply between the advocate in a cause who had previously sat at the legal chairman with the wing members?"
The commissioner held that there was no distinction between the two situations. Wing members rely on the legal chairman for legal advice and might possibly give him more credence when appearing as an advocate. Similarly the legal chairman and the lay wing member rely on the medical member for medical advice in the tribunal and might therefore give an EMP [an expert witness] more credence than they might give to an EMP with whom they had not sat and thus there might be apparent bias.
The commissioner adopts a "principled approach" when deciding this decision..
".otherwise, each sitting will have to be decided on the facts relating to the frequency and timing of sittings of each case, where the range of opinions may differ. Such an approach is unlikely to inspire confidence in the tribunal system.."
"In the context, where Lawal has decreed that a part time chairman should never appear as an advocate in a tribunal case, having regard to the other statutory prohibitions referred to in that case, I am of the opinion that a modern fair-minded and informed observer would find it unacceptable that a chairman may sit with an EMP for an uncertain number of occasions and that does not display apparent bias, but that over some uncertain figure the courts will hold that there is bias. In my opinion, such an observer is likely to take the view that the Lawal principal should also be applied to EMPs appearing as expert witnesses."
This case was taken to the Scottish Court of Session as Secretary of State for Work and Pensions v McNab. The claimant subsequently withdrew from the case and the Court of Session on 20.03.07 discharged the hearing assigned for 21.03.07 and reversed the Deputy Commissioner's decision insofar as it related to the composition of the tribunal.
The commissioner also cites the Cunningham case.
Note: This decision in relation to the composition of tribunals has been overturned by Secretary of State for Work and Pensions v McNab [2007].
This decision of a tribunal of social security commissioners states that failure to make/ supply a record of proceedings (in this case failure of the clerk to produce a legible copy) in breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), is not of itself an error of law.
“…we are satisfied that Parliament cannot have intended that all breaches of regulation 55, whatever their materiality, should render appeal proceedings defective such that a tribunal’s decision is necessarily erroneous in point of law on that ground alone. We would stress that to make, preserve and upon request produce a record of proceedings is a regulatory requirement: chairmen and administrators charged with making, keeping and producing records should appreciate both the mandatory nature of regulation 55 obligations and their practical importance. However, where there is no record of proceedings, that is not necessarily fatal to the integrity of the appeal proceedings. On an appeal to disturb a decision, an appellant must show that the failure to comply with regulation 55 was material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. Insofar as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed.”
The decision upholds the approaches taken in CSSB/212/1987, CDLA/16902/1996, CIB/867/1997 and CDLA/1389/1997.
In the case of CSDLA/500/2007 the appeal did not succeed. Although the record of proceedings had already been lost when the chairman came to write the statement of reasons, she was able to rely on other notes she had made and included in the statement of reasons an indication of the evidence given at the hearing. An alternative ground that the reasons given by the tribunal were inadequate was also rejected.
In the case of CSDLA/524/2007 the appeal was upheld. The first ground of appeal, namely that the tribunal’s decision was erroneous in point of law simply because the record of proceedings was illegible was rejected. But the second ground for appeal, that the statement of reasons for the tribunal’s decision was inadequate (in part due to the illegible record of proceedings) was accepted.
“In short, in the face of written evidence from the claimant and her husband that she could not walk for more than 30-40 metres without developing severe discomfort, the tribunal found that she could walk 100-200 yards. The reasons do not explain the evidential basis of this finding and an explanation cannot be found in the documents that were before the tribunal or, of course, the illegible record of proceedings. We consider it is now too late to require the tribunal chairman to provide a legible transcript of the record of proceedings. We allow the claimant’s appeal on that ground.”
A tribunal can consider the ability to walk on familiar routes without guidance or supervision, when considering the ability to walk on unfamiliar routes. CSDLA/12/2003 sees this consideration as a two stage process:
“(a) First of all, [a tribunal] must determine whether, through disablement, the appellant is unable to walk on familiar routes without guidance or supervision, in which case he satisfies;
(b) However, if the appellant does not qualify in this way, the tribunal must then ask if it is different if the routes are unfamiliar viz. is the appellant unable to walk on such routes without guidance or supervision? If he is not so able, he satisfies.”
In this appeal the tribunal ran together the two stage process but addressed the relevant issues.
"It first of all explained (when rejecting entitlement to the higher rate of the mobility component) why it refused to accept the claimed physical difficulties in the present case (particularly the asserted collapses of the appellant’s left knee), which were in the circumstances relevant also to an ability both on familiar and unfamiliar routes. It then turned to the assertion about anxiety and panic attacks, which had greater significance with respect to unfamiliar routes. For reasons it fully explained, the tribunal refused to accept that any of these claims were other than exaggerated. No error is demonstrated in the way the tribunal weighed the evidence and it was entitled to rely, if it wished, on the EMP’s report.”
When considering whether a claimant is unable to walk on unfamiliar routes without guidance or supervision, it may be evidentially relevant to consider any difficulties with familiar routes.
"When a claimant does not differentiate between problems on familiar and unfamiliar routes, and there is nothing inherent in his condition to suggest a relevant distinction, then if he is unable to satisfy a tribunal that he has the required difficulty on familiar routes, in a context where the onus of proof on all matters lies on him, a tribunal may legitimately infer that he therefore would not need guidance or supervision on unfamiliar routes either. It is not that an adjudicating authority is requiring as a matter of law that he has difficulties on familiar routes before it will accept entitlement to lower mobility but rather that, from all the evidence, when considering his capacity on unfamiliar routes, it makes deductions from the information about his ability on familiar ones. A tribunal usually has to so reason because a claimant often says that he never walks on unfamiliar routes, which is entirely understandable."
The Secretary of State argued that an award should be reduced because the claimant's condition had improved and her needs reduced. The tribunal rejected this and was entitled to do so because the Secretary of State had failed to provide comparative evidence to establish that a tribunal had erred in maintaining an award - it is necessary to compare the circumstances as they were at the time of the award with those at the time of the supersession.
"The tribunal had no evidence compatible with the favourable award made by the 2001 tribunal from which it could deduce any primary facts about circumstances which had subsequently changed in any, or in any relevant, way, and having regard to the burden which lay on the Secretary of State; the tribunal therefore made its finding that there had been no such change. Unless that conclusion is one which no rational tribunal could make, then such a finding cannot be criticised as being one in error of law."
The facts concerning the original award were not known so grounds for supersession on grounds of material fact could not succeed.
The claimant was an autistic child, age three, with behavioural problems. The commissioner states that the higher rate mobility component can be satisfied on grounds of being virtually unable to walk, provided the walking problems stem from the claimant's physical disablement and his physical condition as a whole (cites CDLA/1678/1997 and R(M)3/86). The other route to the mobility component is where the child qualifies for the highest rate of DLA care component, is severely mentally impaired and shows disruptive behaviour (cites R(DLA)1/00 and R(DLA)7/02).
The decision maker removed an award on grounds of a mistake as to a material fact. The tribunal upheld this. Both erred because the decision was based on new evidence, which indicated a possible change of circumstance rather than an error of fact at the time of the original decision.
The tribunal failed to properly consider how far the child's sleeplessness was due to her functional impairment. Commissioner Parker cites and discusses case law that is useful when determining the care needs of a child (CDLA/4100/2004 and R(DLA)3/06.
The tribunal also failed to properly identify day and night needs for the child. The child's mother usually stayed up until 1.00 am but the tribunal should follow R(DLA)1/04, which states that night time is not necessarily the point at which the household goes to bed, between 11pm and 7am being the average time for most households.
The decision also discusses the rules for advance claims..
The claimant failed to establish, on balance of probabilities, that he had sufficient night needs to satisfy the test. The application also failed to properly distinguish between day and night at times. For example help with getting up in the morning is a day time need, not a night need.
It was not found to be discriminatory or in contravention of the Human Rights Act to take the date of claim as the date of receipt of a form rather than the date of a recorded phone call for CA claimant's over the age of 60. Claimant's who were under age 60 and required to participate in a work focused interview were allowed to have claims dated to the the date of their initial phone request. This was unlawful but did not mean that over 60's should be treated in a similar way.
The rules for determining the date of claim do not discriminate between over and under 60's at all. This decision refers to legislation in force at March 2005.
The claimant's wife died in July 2000. He claimed widow's benefit in October 2005 after hearing of other widowers who were receiving money in settlement of claims made by reference to European Union law. This was outside the three month time limit. Following the House of Lords' judgment in R (Hooper and Others) v Secretary of State for work and pensions, the claimant could only establish a right to widow's benefits if he could rely on European Union law or the European Convention on Human Rights.
European Council Directive 79/72 does not provide for the implementation of equal treatment with regard to survivor's benefits. EEC Regulation 1408/71 does apply to survivor's benefits, its essential protection against discrimination is on the grounds of nationality and residence and so is of no help to the claimant. EEC Regulation 1612/68, on the freedom of movement of workers within the European Union, is also of no relevance.
As a consequence, Commissioner Williams held that the claimant has no rights under European Union law on which he can base any challenge to the time limits applied to him by the tribunal.
As an examiner, a claimant is deemed to be self-employed. Regulation 2(1) of the Computation of Earnings Regulations provides that any earnings should be averaged over a year rather than a month. This meant that the earnings were below the weekly earnings limit throughout all the periods of employment.
A claimant appealed against an overpayment decision dated 8 November 2005. The tribunal not only considered this decision but also found that the decision dated 19 March 2005, superseding the original decision to award carer's allowance was invalid. It had no powers to do this as the 19 March decision had not been appealed by the claimant.
The tribunal chairman erred by misinterpreting regulations 13 and 14 of the Social Security Benefit (Computation of Earnings) Regulations 1996.
This was an appeal by a landlord against a decision to pay rent direct to the claimant, which the claimant subsequently failed to pay.
Under regulation 77 of the Housing Benefit (General) Regulations 1987 the landlord should have been notified in writing of a decision on the claim as a "person affected" by it.
The council had a discretion to make payments to the landlord under regulation 94 of the Housing Benefit (General) Regulations 1987 but, following CH/3629/2006, this cannot be paid when payment has been made to a claimant for the same period.
The only remedy that the landlord has is to claim compensation from the council for maladministration (failure to notify landlord and failure to correctly initiate regulation 94 action).
A claimant's landlord was owed arrears but the claimant had already been paid HB. The tribunal stated that it had the right to hear the landlord's case and that the local authority should had suspended payment of HB pending enquiries. It found in the landlord's favour. The commissioner agreed with the tribunal on all but one point - regulation 98 of the Housing Benefit Regulations 2006 prohibits double payments.
"So far I have decided that the tribunal was entitled to substitute its judgment for that of the local authority on where the overriding interests of the claimant lay and that the chairman was right to say that the local authority could have suspended payment while it made enquiries of the landlord. The actual disposal of the case depends on my decision on the double payment issue. I have decided in CH/3629/2006 that it is not possible to make payment of housing benefit in respect of the same entitlement for the same period to both the claimant and the landlord. It follows that the tribunal should have decided that the effect of the offset provision in regulation 98 of the 2006 Regulations was to prevent payment being made to the landlord once it had been made to the tenant. I have substituted a decision to that effect for the decision given by the tribunal. The practical effect is that the landlord derives no benefit from the appeal to the tribunal having succeeded."
This decision provides a detailed analysis of the interpretation and operation of regulation 72(11) of the Housing Benefit (General) Regulations 1987and a step-by-step approach as to how the start date of housing benefit entitlement should be determined. It has been reported as R(H)9/07.
An asylum seeker was wrongly informed that he had been granted asylum and claimed HB and JSA. The error was later notified by the Home Office but in the meantime a second application was granted, though not backdated to the date of the original application. The tribunal case dealt with a period covered by the second application and erred in considering matters concerned with the period covered by the first application.
The claimant, a prisoner under license, was recalled to prison. The tribunal erred in treating the claimant's estimate of his own release date as determinative, when deciding whether he would be absent for thirteen weeks or more from his home.
"Assuming that it would take a little while for the claimant to organise a request for a hearing, the hearing would still have taken place well within the 13 week period. ... the evidence that was before the hearing would have been the same as the evidence on which the recall was based, and it could be predicted that the claimant's release would be ordered at the hearing. It should have been predicted that this would all probably be accomplished within 13 weeks."
The commissioner allowed the claimant full backdating on grounds of good cause, back to the date when his original claim ceased.
This concerns a council tax benefit claim where the husband of the claimant failed to provide information to the local authority. It goes into some detail on the correct procedures when requesting information and terminating a claim in such cases.
There was some confusion on the part of the local authority as to whether the husband or wife was the claimant - it was the wife because she had submitted the claim form. However the commissioner accepted that letters to the husband should be treated as addressed to the claimant as he had acted in relation to the claim.
The claimant found work in May and was overpaid housing benefit and council tax benefit. However the local authority wrongly considered that the excess council tax benefit continued till the end of the financial year - 31 March ( When an award is made the computer credits the claimant with benefit for the whole financial year).
"I can quite understand that computers are so set up that it is easier to manage a council tax account by making a single advance credit in respect of an indefinite award of benefit and then adjusting it if an award of benefit is terminated, but I do not consider it appropriate to regard those exercises as the payment of benefit and the recovery of excess benefit. They are paper, or notional, movements of money. It does not follow from the fact that some credits to council tax accounts represent council tax benefit that all such credits do at the time they are made. The initial credit is not justified by there being an indefinite award of benefit that is liable to be terminated at any time. It is justified by the need for the council tax account to show that the council tax payer is not in arrears while the award of benefit continues and, presumably, some practical difficulty in making weekly credits."
This decision points out the absurdity of this approach and ramifications for all local authorities if they followed such a bizarre course of action. He substituted his own decision limiting the overpayment to the relevant period.
"I doubt that there would even have been an appeal to a tribunal in this case if the claimant had been told that only £15.14 due in respect of one week was recoverable as excess benefit. There would certainly have been no appeal to a Commissioner."
The tribunal erred in failing to consider whether the claimant's life interest in a single room was on a commercial basis. In particular they did not establish whether the rental agreement was enforceable or question the high rent.
"In this case the claimant claims to have been granted a life interest of a single room in his landlady's flat. It is difficult to imagine circumstances in which parties to an agreement on a commercial basis would enter into such an arrangement, but the tribunal failed to refer to this issue in their reasons for holding that the agreement was not on a commercial basis."
"I also consider that the tribunal should have dealt specifically with the very high level of rent said to be payable for the room. Although the claimant's landlady stated that the rent for the room on an unfurnished basis was £200.00, and that £50 per week was paid by the claimant for other amenities in the house, the rent was nevertheless extremely high for a single room in a London flat with shared use of other facilities. The tribunal failed to explain how a rent of that amount was consistent with an agreement on a commercial basis, and I consider that the statement of reasons was inadequate for that reason also."
The landlord and the claimant had previously been partners and the commissioner in his substituted decision the commissioner noted that their arrangements were still above and beyond that of a landlord/tenant.
"The claimant and his landlady were formerly partners, and they have both been at pains to emphasise that that he was allowed to live in his landlady's flat as an act of kindness by her when he was released from prison in poor health. Although the claimant has his own room, the rest of the flat is shared. The claimant pays his landlady the whole of his pension and she provides for him and subsidises him when necessary. On her own account, she was prepared to forego payment of rent until such time as the claimant recovered money in his High Court action. In her letter of 14th May 2005 the claimant's landlady states ".I have only done all of this because of my true friendship and our agreement for the life tenancy that I have agreed with him."
Mr Lintott submitted that the agreement between the claimant and his landlady were, in the words of Sedley J., ".a truly personal arrangement which is merely clothed in the garments of a legal liability." Even accepting the claimant's evidence in its entirety and taking the agreement between the parties at face value, it is difficult to imagine more personal and less commercial arrangements than those between the parties in this case. I therefore consider that no useful purpose would be served by referring this case for rehearing and accordingly substitute for the tribunal's decision the decision set out in paragraph 1 above."
This decsion considers whether payments called service charges are actually rent and the issue of suitable alternative accommodation.
Re-affirms that there can only be one claimant in housing benefit claims. The tribunal recognised this but erred in being ambiguous on this point in its record of proceedings.
This case was heard together with CH/1821/2006. This too is a case where the landlord was attempting to be paid arrears of rent from the local authority when HB had already been paid to the tenant. Regulation 95 and 96 of the Housing Benefit Regulations 2006 allow payments to be made to the landlord but regulation 98(1) offsets previous payments which have already been made to the claimant/tenant.
Initially HB had been paid direct to the landlord but the claimant requested that this should stop. The local authority complied but did not inform the landlord of it's decision to do so.
The commissioner discusses remedies in such a case. The local authority could have suspended HB pending enquiries (see CH/1821/2006). The landlord also still has the option of civil proceedings (though this may prove a fruitless exercise against a claimant on benefits) or could obtain compensation from the local authority.
"The housing benefit was being paid direct to the landlord. This was changed without notification to the landlord. The local authority accepts that that was wrong. What would have happened if the landlord had been notified? The notification would have been generated by the computer at the same time as the notification to the claimant. The landlord would immediately have applied for the decision to be reversed under regulation 95(1)(b) or 96(1)(b). The local authority would then have investigated and made a decision. The landlord could have produced the evidence on which the local authority has now accepted that regulation 95(1)(b) applies. In other words, the landlord would not have been out of pocket if the local authority had notified its decision."
The claimant died after his appeal had been heard and the local authority had sought to take the appeal to commissioners.
Regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 allows a relevant authority to appoint someone to lodge an appeal in the place of the deceased but regulation 1(2) of the same regulations states that "appeal" means an appeal to an appeal tribunal not to a commissioner.
There is no equivalent rule in the Social Security Commissioners (Procedure) Regulations 1999 so following R(S)7/56, R(I) 2/83, R(I)2/83, R(SB)25/84), R(SB) 8/88 and R(IS) 6/01 the case is abated and does not proceed.
A caravan, based at a non-residential site is capital for the purposes of HB/CTB but is disregarded because it is a personal possession.
Commissioner Jacobs defines "personal possessions" as "any physical assets other than land and assets used for business purposes".
Regulation 10 of the Housing Benefit (General) Amendment Regulations 1995 provides that an older version of regulation 11 Housing Benefit (General) Regulations 1987 shall continue to apply in certain cases, one of which is that of a person "who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation." This is accommodation which is... "provided by a non-metropolitan county council .. a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision."
In cases where the old form of regulation 11 applies a council cannot restrict the amount of rent eligible for housing benefit unless there is suitable accommodation available to the claimant and it is reasonable to expect them to move.
This case affects 50 similar appeals. The claimant was living in accommodation, previously owned by Adapt properties, who provided both accommodation, as well as care and support. Adapt was then acquired by Regard Partnership. Regard continued to provide care and support to the claimant but his tenancy (along with those of 14 other properties) was now transferred to Reside Housing Association.
What was under consideration was whether Reside was providing care and support and as a consequence the claimant was able to get increased HB under the exempt accommodation rules. The appeal failed because the support provided by Reside was minimal. There appears to be five basic rules when deciding this:
This decsion has been reported as R(H)7/07.
The claimant and his family lived in and owned a flat in a block of flats. His parents owned the empty upstairs flat. In 2003 the claimant finding it difficult to accommodate his large family in the downstairs flat alone, extended his occupation to both flats.
The flats are valued as separate hereditaments for rating and council tax purposes and so are both chargeable for council tax purposes. The tribunal erred in finding that the claimant could not receive council tax benefit for both flats. The claimant resided in both at the same time so his sole or main residence was within two chargeable dwellings, which meant he could claim benefit for both.
The claimant was a citizen of Mexico and had limited leave to remain on the condition that he had no recourse to public funds. He was in receipt of funds from Mexico but in August 2005 these were disrupted for a period of less than 6 weeks. On 31st March 2006 he applied to the local authority for housing benefit and council tax benefit with effect from 8th March 2006.
This was refused, a decision upheld by Commissioner Levenson.
Regulation 10(4) of the Housing Benefit Regulations 2006 provides that housing benefit (there is similarly worded legislations for council tax benefit) can be paid to a person who is temporarily without funds for a period not exceeding 42 days during any period of limited leave.
The commissioner understood the phrase “is temporarily without funds” to refer to the state of affairs at the date of the claim or the date of the award (otherwise the provision would have stated “has been temporarily without funds”).
“Once it has been established that there is a relevant disruption, then if it has already exceeded 42 days before the claim is made, there can be no entitlement. If it has not exceeded 42 days, then there can be entitlement to benefit while the disruption continues, but only until the disruption has continued for 42 days, or entitlement has lasted for 42 days, whichever comes first.”
“It is possible that, if the claimant had applied for benefit at the time of the disruption of funds, there could have been entitlement. However, he made no such claim, nor did he ask for any award to be backdated to such time and, in fact, he was at the time of the disruption living at a different address from that that in respect of which he did make his claim.”
Where a long leasehold interest has been granted at a low rent, the person with the ability to dispose of the freehold, is the owner.
The case concerns a claimant who held the freehold on a terraced house, which was divided into three dwellings with 99 year leases on each. The claimant granted the lease of the ground floor flat to his former partner then occupied this flat with her under an agreement by which he was liable to pay a substantial weekly rent to her. His claim for housing benefit was refused on the ground that he was the "owner" of the dwelling which he occupied and so was precluded from entitlement to benefit under regulation 10(2)(c) of the Housing Benefit (General) Regulations 1987.
This decision has been reported as R(H)8/07.
The local authority argued that this tenancy and 21 others were contrived. The tenants rented from SIL, who rent flats and provide support to their tenants. The claimants pay rent and charges for support services to SIL. SIL leases the premises from a company (SMS). The "main controlling mind" of SMS is a Mr C who set up SIL through which he provided accommodation and services. The premises were then transferred to SMS and SIL became a not for profit organisation with Mr C as a consultant. This reorganisation took place at the time when the Transitional Housing Benefit scheme was being brought into force.
The local authority became suspicious about the increase in rents and charges and at the difficulties it had obtaining explanations from Mr C and others associated with SIL and SMS. Although SIL was run on a not for profit basis, Mr C stood to gain through his directorship of SMS and his consultancy with SIL.
The claimant appealed against the local authority decision to refuse benefit and the tribunal upheld the appeal. The local authority appealed to the commissioner. This appeal failed. The commissioner analysed in detail the approach taken by the tribunal and found that it had acted correctly.
"It is not for me to say whether the tribunal was right in fact to come to the decision that it did on the evidence before it. That issue does not arise before me. ......The issue for me is whether the tribunal went wrong in law in coming to the decision that it did. My decision is that it did not. I am sure that the chairman would have worded his statement differently had he known in advance the sustained assault that Ms Findlay [the local authority representative] would bring to bear on it. But his reasoning is clear and involves no misdirection in law. As far as the reasons are concerned, they satisfy the legal test of adequacy. The tribunal did not go wrong in law."
A tribunal has the right to consider the whole project when deciding on the HB for a particular tenancy.
The claimant failed to supply information and had his claim suspended. The claim was subsequently terminated. This decision states that terminations following suspension are appealable. It sets out in some detail the legislation underpinning this.
Following CH/3811/2006, this decision found that the support provided by the landlord to the claimant was not more than "de minimis" and so did not come under the exempt accommodation rules.
The decision also considers whether support provided is relevant where the claimant is unlikely to need it.
"Even if support which is available to tenants generally, but has not been taken advantage of by a particular tenant, is relevant, it must also be relevant also to look at whether in reality the particular tenant is likely to need the support. If, for example, a provider of supported housing were to admit a tenant who clearly has no support needs, the fact that support is theoretically available to him would not mean that support is “provided” to him."
The losses in a claimant's business cannot be offset against a partner's employed earnings.
Appeals by the claimants was upheld because it was unclear whether the tribunal had used the correct legal wording when considering whether support had been "provided by the landlord" under the exempt accommodation rules.
Tribunal failed to make adequate findings on the level of care and support that the landlord was providing. Where the dwelling is part of a larger building (e.g. a flat) the exempt accommodation test should only be applied to the claimant's accommodation. It does not necessarily apply to the building as a whole.
This decision discusses the construction of regulation 9(1)(h) of the Housing Benefit regulations 2006.
The claimant had disclosed income on his claim form, which had been adjusted to take account of a £15 deduction by the DWP. The local authority assumed that the adjustment had not been made to the amount stated on the form and made a further adjustment which led to an overpayment.
The tribunal found that the overpayment was not recoverable on grounds of official error. The commissioner upheld the appeal in part, stating that the tribunal had the right in this case to decide that there was official error in the original completion of the council tax benefit claim form but that it had erred in not finding that the authority was entitled to recover the excess benefit which remained credited to the claimant’s account.
This decision considers this issue and discusses it in relation to regulation 101 of the Housing Benefit (General) Regulations 1987 and section 75 of the Social Security Administration Act 1992.
This appeal, that the tribunal had failed to take proper account of a supporting people contract, was rejected.
"The chairman’s statement must be read as a whole. It is clear that she accepted that an arrangement could be commercial even if it involved support or rehabilitation. She focused on the particular circumstances of the arrangements in these cases and decided that they were not on a commercial basis. She listed the particularly significant factors that she took into account. She classified them as being for a commercial basis, against or neutral. She then considered the circumstances as a whole and reached her conclusion. I find that her analysis was rational. I cannot see that she overlooked any relevant consideration or that she took into account anything that was irrelevant. Her approach to the issue of commercial basis was correct in principle and it is impossible to say that she was plainly wrong in her conclusion."
The claimant stated on her housing benefit and council tax benefit claim form that she was paid £210 weekly for a 40 hour week. The local authority wrongly noted this as £46.95 (The claimant subsequently provided the information a second time when she was sent a postal check form by the local authority).
Regulation 100 of the Housing Benefit Regulations 2006, SI 2006/213) states that overpayments are not recoverable “where they arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.”
This appeal succeeds because the claimant’s full explanation for not recognising the difference in earnings quoted was never put before the tribunal. She was not asked any questions about how she could reconcile what the tribunal in its statement of reasons referred to as a clear statement that her weekly earnings were £46.95 with her knowledge of her actual earnings.
“It seems to me that this amounted to a failure by the tribunal to ask material questions pursuant to its duty to act inquisitorially and as such was an error of law”
There was also an error of law because the tribunal had not dealt separately with the issue whether the claimant could reasonably have been expected to realise that the local authority had made a mistake leading to an overpayment a second time just after she had again provided them with all the correct information.
The first day of absence from home is the date on which a prisoner is first remanded.
This decision considers in some detail the decision makers guidance on credits and credited earnings as well as the correct application of regulation 8A of the Social Security (Credits) Regulations 1975 - SI 1975/556.
The claimant had gender reassignment at the age of 63 and was recognised as male. He tried to claim IB but was refused. This is wrong under Article 4 of Council Directive 79/7/EEC.
"The 2004 Act fails to comply with Article 4, because it deprives the claimant of the link between entitlement to incapacity benefit and a retirement pension. I can remove that discrimination by disapplying the legislation to the extent necessary in order to allow that link to be maintained in the circumstances of his case. For practical purposes, that result can be achieved by deciding the claim for incapacity benefit as if it was made the day that his entitlement previously ceased. The claimant must, of course, be incapable of work, but for other purposes the gap in entitlement is to be disregarded."
The case concerned a claimant who made a claim in 2005 but who wished to claim credits, on ground of incapacity for work, back to 1989. He maintained that he was misinformed about whether he could claim at the time. A number of issues were considered by the commissioner but the chief one concerned the claimant's decision to wait 16 years before rechecking what he was told. The commissioner held that it was reasonable for the tribunal to conclude that the time lapse between the alleged misinformation and the claimant's follow up was too long.
"It is not whether a claimant had good cause for the delay in claiming credits or whether there were reasonable grounds for the delay, but the more general test of what is a reasonable time in the circumstances for a claim to be made. ……..As a general proposition it can be accepted that the longer the gap from the tax year in question the more compelling the other circumstances must be for it to be concluded that the time for claiming, outside the following benefit year, is reasonable.
………even if it were accepted that a claimant who had been specifically turned away from claiming sickness/invalidity benefit might reasonably fail to realise that there was anything to enquire about as to credits for incapacity for work, it would still be difficult to conclude that 16 years was a reasonable time in the circumstances for claiming. For the most recent relevant tax years, up to 2000/2001, the lapse of time to May 2005 was considerably less. A claim by the beginning of January 2003 would automatically have been in time for that tax year. However, the claimant was not, for a substantial period before May 2005, in a simple position of ignorance. He had received the deficiency notice in January 1992 and the pension forecast in October 2003, together with the further letter from the National Insurance Contributions Office in 31 August 2004. All of those alerted the claimant to the gaps in his contribution record, including some mention of credits, in such a way that the appeal tribunal was entitled to conclude that, even in relation to 2000/01 and the immediately preceding years, the time for claiming credits was no longer reasonable by May 2005."
A claimant was awarded the old invalidity benefit, under section 102 of the Social Security Contributions and Benefits Act 1992, because she had an industrial accident in 1992. Following the introduction of incapacity benefit in 1995, section 102 was repealed but the claimant continued to receive benefit under transitional regulations so long as her incapacity was the result of her industrial accident (regulation 21 of the 1995 transitional regulations).
In 2006 an EMP decided that although the claimant would pass the personal capability assessment test her incapacity was no longer due to her work accident so the IB award was superseded.
The appeal tribunal, consisting of a single chair, found that the claimant had 15 points under the personal capability assessment due to post 1992 disabilities but had insufficient points based on her 1992 accident to satisfy regulation 21.
The claimant appealed to commissioner, on the ground that there was no medical member of the tribunal. Deputy Commissioner Paines considered regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which covers the composition of appeal tribunals. He concluded that regulation 36(2)(a) (i) applies to all issues raised on the appeal concerning the personal capability assessment, including old regulation 21 cases. The tribunal therefore erred in not providing a medically qualified member on the panel.
In relation to the operation of regulation 21, the Deputy Commissioner did not accept that a claimant was required to score 15 points arising solely out of an industrial accident.
"it seems to me that in a case where the combined effect of an industrial injury and other pre-existing disabilities was to make a claimant incapable of work, the incapacity would be as a result of the industrial injury and it would be no answer to say that the effects of the industrial injury would not have been sufficient to make the claimant incapable of work if he or she had not had the pre-existing disabilities as well. Conversely, where a claimant recovered partly from the effects of the industrial injury but remained incapable of work as a result of the combination of the continuing effects of the injury and of those of a subsequently acquired condition (where neither set of effects was sufficient on its own to incapacitate the claimant), it seems to me that the claimant would still be correctly described as incapable of work as a result of the industrial injury."
The tribunal failed to fully consider whether the claimant satisfied the personal capability assessment descriptors 13(d) (loses control of bowels once a week) or 13(e) (loses control of bowels occasionally). Where a claimant isn't always able to get to the toilet in time he or she "loses control" on those occasions when they fail (the claimant lost control of his bowels once or twice a month).
Deputy Commissioner Ovey found that the tribunal erred in its findings on the following descriptors - frequently distressed at some time of the day due to fluctuation of mood, unable to cope with changes in daily routine and gets irritated by things which would not have bothered her before she got ill.
The Deputy Commissioner substituted his own decision, awarding two extra points, though this meant that the claimant still fell short of the required score of 10 points.
This decision discusses the caselaw concerning the type of work referred to when considering exceptional circumstances. Commissioner Williams decided that there must be a link between the work undertaken and the risk involved and that the work considered must be, in this case, that which the claimant is realistically capable of doing, according to his or her education and skills, rather than by using some abstract test.
The Commissioner also stated that, whilst decision makers are bound to consider the pca test before the exceptional circumstances test, tribunals are not. He also expressed some doubt about the reliability of the evidence produced on an electronic 85.
"The failure by the doctor to cancel out the computer-generated inconsistency in this list of factors - let alone the inconsistencies with other statements and opinions recorded by the doctor elsewhere in the IB85 - gives rise to the question whether this is actually a report of the doctor or merely unchecked automatically generated wording from the underlying software programme."
The tribunal failed to give adequate reasons as to why the exceptional circumstances test was not met. The decision discusses how a tribunal might consider the type of work which will cause a risk to the claimant or others.
"The degree of detail in which those consequences will need to be thought through will depend on the circumstances of the case; while I agree with Mr Jacobs that this involves considering the types of work that the claimant might be required to do, I do not consider that it will necessarily involve a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre, or testing the degree of risk to health by reference to specific detailed job descriptions. A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial. For example, in my decision in CIB/1695/2005, which concerned a claimant suffering from epilepsy, I considered that the requirements of regulation 27(b) were not satisfied because - while one could readily imagine types of work that the claimant could not safely perform, such as work involving driving or the operation of heavy machinery - there was an adequate range of work that the claimant could do in which there would not be a substantial risk to health from his suffering a seizure in the workplace."
"In short the reason why the tribunal erred in law is as follows. The tribunal failed to explain why descriptor 7(d) did not apply. Indeed, although the Statement of Reasons is in many ways admirably thorough, it does tend