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Click on the decision number to view the full decision.
You cannot make a claim for compensation due to the effects of passive smoking because this is excluded under item 32 of part 2 of Schedule 6 to the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006.
The tribunal erred in finding the claimant's mobility needs had changed based on evidence of improvement after the date of the decision.
With regard to the low rate mobility component the tribunal also failed to give sufficient reasoning for finding that a person who finds himself in unfamiliar surroundings without knowing how he got there failed to satisfy the test.
In relation to the care component the tribunal made few findings of fact other than to comment on the claimant's repeated use of alcohol. In doing so it failed to properly consider this in relation to R(DLA)6/06.
The tribunal's reasoning for preferring the evidence of a cardiac nurse over the claimant's GP was found to be flawed. This was chiefly because the nurse last saw the claimant 7 months before the date of claim whilst the GP saw the claimant just before this date. This was arguably more representative of the claimant's condition at the time of the decision.
The claimant's deceased wife was in receipt of an 'ABL' retirement pension, which is the DWP's ‘administrative' name for a composite pension consisting of a category A pension with a top-up of category B pension.
The claimant argued that his wife should be treated as having been in receipt of a Category B pension at the time of her death, which would entitle him to bereavement benefits based on her contributions. The tribunal allowed the appeal but Deputy Judge Paynes, after analysing the relevant legislation, and R(G)1/06 held that the claimant's wife was in receipt of Category A pension at the time of her death, so that the claimant does not satisfy the conditions for entitlement to a bereavement payment.
The claimant had been in receipt of housing benefit as a lone parent, which was terminated when it was discovered that her husband had been living with her and was also working. The local authority decided that she had been overpaid almost £60,000 and that this amount was recoverable from her.
The claimant's appeal regarding cohabitation was rejected but the tribunal erred in failing to consider the applicability of regulation 104(1) of the Housing Benefit Regulations 2006.
This regulation requires the Authority to deduct any amount of HB which should have been determined to be payable in respect of the whole or part of the overpayment period on the basis of the claim as it would have appeared had any misrepresentation or failure to disclose been remedied before the decision and on the basis of the claim as it would have appeared if any change of circumstances had been notified at the time that change occurred.
In this case, the husband's wages had been fully disclosed before the decision maker had made the decision, and should undoubtedly have been taken into account. Also a child had been born to the couple during the relevant period. As a result, Judge Lane made a substitute decision that the amount of recoverable overpayment was approximately £3,500.
On submitting a housing benefit claim form in November 2007 the claimant ticked a box saying that she did not have any payslips required but provided a letter from her employer confirming her expected hours and rate of pay.
The local authority wrote to the claimant asking her to send wage slips as soon as she got them and stating that if she did not reply within a month it would assume that she didn't wish to proceed with her application and the claim would be withdrawn. The claimant did not reply and on 20 December 2007 the local authority wrote to her to say that her claim had been unsuccessful.
The claimant did not appeal against this decision but reclaimed housing benefit in March 2008 when she was awarded income support requesting that it be backdated to the date of the previous claim.
The local authority refused the backdating request. This was upheld by the tribunal following an appeal made in May 2008.
Judge Mesher found the following:
Judge Mesher set aside the decision of the tribunal and substituted his own decision to the effect that the claimant was entitled to housing benefit from 3 December 2007.
Regulation 7(16)(c)(iii) of the Housing Benefit regulations 2006 allows benefit to be paid for up to 52 weeks where the claimant (or his partner or dependent child) is undergoing 'medical treatment, or medically approved convalescence, in accommodation other than residential accommodation.
This decision states that there needs to be a link between the reason for the absence from home and the medical treatment being undergone.
This did not apply to the claimant who had been sentenced to a prison term of 15 months but was released fifteen weeks later although throughout the period of imprisonment he suffered from Crohn's Disease and was on medication.
This decision considers the extent to which a housing benefit decision is bound by decisions made by the DWP when a claimant is found to have made a misrepresentation.
R v Housing Benefit Review Board of Penwith DC ex p. Menear (1991) is the authority for the proposition that the housing benefit decision-maker is bound by a DWP decision on income and capital issues.
However R v South Ribble Borough Council, ex p. Hamilton (2000) held that -
"... where fraud has underlain the income support assessment the reasoning no longer applies. The income support assessment is no longer a valid and reliable basis for the housing benefit claim ... this is particularly so where fraud only becomes apparent after the award of income support."
In setting aside the tribunal's decision - in part because it failed to consider the arguments as to the impact of the income support award and of the judgments in Menear and Hamilton - Judge Wikeley held that, in light of Hamilton:
".. if the local authority can show on the balance of probabilities that the income support awards at the material times were obtained by fraud or dishonesty, then it can show that the award of income support underpinning the awards of housing benefit and council tax benefit was vitiated by such fraud or dishonesty."
This decision considers the correct approach that tribunals should take when considering paper hearings - particularly situations where adjournment should be considered in the case of vulnerable claimants - in this case the claimant had ADHD .
Judge Jacobs emphasises that a tribunal exercising its discretion as to whether to deal with a case without an oral hearing or adjourn must make the decision in light of the overriding objective set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as listed in paragraph 13.
Where a tribunal makes an inference about the severity of a condition because of the absence of additional treatment it should indicate in the statement of reasons the treatment it expects the claimant to be receiving.
The tribunal also failed to make a number of other findings. There were:
This decision states that regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 - substantial risk to the mental or physical health of any person if [s]he were found capable of work - may not apply if the claimant can do part time work.
Regulation 27(b) does not apply if a claimant can undertake work for a 'reasonable number of hours' without substantial risk to his or her mental or physical health. It is up to the tribunal to decide what constitutes a 'reasonable number of hours. The primary factor when determining this is the existence of a real possibility of obtaining work for that reduced number of hours or pattern of work.
This concerns a case where the claimant had a medical examination in the Republic of Ireland carried out on behalf of the DWP.
Judge Wikely ascertained that, apart from Spain,no formal training is given to examining doctors in other countries although doctors receive a copy of the questionnaire completed by the claimant, a blank report form and a detailed guidance note on how to complete the report.
CIB/4445/2004 considers the correct approach in cases where examinations are made by non UK doctors.
"...a medical examination and report exactly following the form used by approved doctors in the UK for the personal capability assessment is not essential, but the questions that have to be answered remain the same, so whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue."
In this case the claimant complained about the quality of the medical examination. Firstly the examining doctor appeared to be unfamiliar with the form supplied (IB-N-54C). The completed form was also returned with the wrong surname and stated incorrectly that the claimant did embroidery. There were also issues about the time spent on the examination, which were not recorded.
It was suggested by Judge Wikely that the Secretary of State might wish to consider reviewing the IB-N-54C form, or its equivalent for employment and support allowance, to ensure it is 'fully fit for purpose'.
This appeal was successful because the tribunal had not adequately addressed the issue of the variability of her condition in its reasoning and provided in adequate reasons for rejecting the appellant's account of her difficulties with sitting, standing and walking and for dismissing her challenges to the examining doctor's report.
As the Secretary of State's representative noted that there were inconsistencies in the evidence regarding variability it was suggested that the Secretary of State should make a supplementary submission for the benefit of the new tribunal which addresses this apparent inconsistency. In particular, that further submission should make it clear whether or not it is conceded that the examining doctor addressed the question of variability adequately.
This decision discusses whether the refusal to pay a social fund funeral grant because a prisoner was not in receipt a qualifying benefit breached article 14 (non-discrimination) of Human Rights Convention
In order to decide this Judge Williams first examines the position, in 2003, of prisoners in relation to all of the qualifying benefits for a social fund funeral grant and summarises it as follows -
Judge Williams held that there was no direct discrimination against prisoners in the application of the social fund rules and that if there was any indirect discrimination it could be justified on the grounds that, where surviving relatives are unable to pay for a funeral, there is a statutory duty to provide one by either the local authority or national health service.
Judge Williams rejected the Secretary of State's additional ground that the exclusion of prisoners from benefit entitlement was part of their punishment as there is no legislative provision that shows such an intent by Parliament.
Article 7(3)(c) of EC Directive 2004/38 provides that someone can retain worker status if they have registered as a job-seeker with the relevant employment office.
This decision by a three judge panel held that there is no requirement to claim jobseeker's allowance.
"29. We conclude that the Secretary of State has not shown that the UK has defined specific mechanisms as being the only ways in which an individual can, for the purposes of Article 7(3)(c) “register as a job-seeker with the relevant employment office”. That being so, the tribunal was entitled to hold that the Secretary of State's factual concessions meant that the claimant succeeded in her appeal. In summary:
a. What the Directive contemplates is that a claimant has done what is needed in order to have his or her name recorded as looking for work by the relevant employment office
b. Whether or not this has been done is a question of fact
c. There is no rule of law that such registration can be effected only by way of registering for jobseeker's allowance or national insurance credits, less still only by successfully claiming one or other of those benefits
d. Nor was there at the material time an administrative practice to that effect (even assuming – without deciding - that to be a lawful way of implementing the Directive)
e. Successfully claiming jobseeker's allowance or national insurance credits will no doubt provide sufficient evidence to satisfy Article 7(3)(c); but
f. Those who are able to show not merely that they were seeking work, but that they had done what is needed in order to have their name recorded as looking for work by the relevant employment office – will meet the registration requirement of Article 7(3)(c).
g. It being conceded that the claimant had stated on the Habitual Residence Test documents that she was seeking work and that the extent of the work being sought was sufficient, it follows that she met the relevant test."
Note: Judge Howell disagreed with Mr Justice Walker and Judge Ward, concluding that the words 'has registered as a jobseeker with the relevant employment office' require -
".. a procedure to be gone through with the employment authorities in the host member state to verify and establish such people's genuine continuing status as a jobseeker and hence connection with the labour market in that state, as distinct from merely recording the fact that they were unemployed and had said they did not wish to be."
This is one of three linked appeals. All three concerned the effect of a retrospective termination of an award of working tax credit on a claimant's entitlement to jobseeker's allowance or income support. The others were CIS/1564/2008 and CIS/1853/2008.
The main issue of this decision is summarised in paragraph 1.
“A claimant was wrongly receiving tax credit. The payment led to a reduction of an income-related benefit. Subsequently, the overpaid tax credit was recovered. Can the claimant then be paid the income-related benefit that would have been paid if the tax credit had not (wrongly) been in payment at the time?”
Judge Jacobs says 'no' for the following reasons -
The effect of this decision is that the State both avoids paying the income-related benefit and recovers the tax credit that was overpaid. The claimant, on the other hand, loses both the income-related benefit and the tax credit.
This appeal was heard together with CIS/4331/2006, CIS/3004/2008, CIS/900/2009 and CJSA/4471/2006. Each case concerned claims for either income support or jobseeker's allowance by three claimants, who were A8 nationals. They had all been working prior to claiming but had registered their work with the home office less than 12 months before their employment ended.
Regulation 2 of the Accession (Immigration and Worker Registration) Regulations 2004 requires:
“…in summary, 12 months of (broadly) continuous work in registered employment. Each had worked for longer than 12 months; the employment of each had been registered with the Home Office ; however, this had not been done at, or, the Secretary of State argued, sufficiently soon after, its commencement. If the date that counted was when the registration process was complete and the relevant certificate issued, none of the claims could succeed. If however the registration was operative from the date of commencement of employment, then, subject to specific points relating to each claim, the door was opened to the claims succeeding.”
Judge Ward dismissed the appeals of all three claimants, arguing that the date of registration was what counted, not the date of employment.
Martin Inch - 12 March 2010
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