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Latest posted decisionsClick on the decision number to view the full decision.
In the Commission of the European Communities v the European Parliament and the Council [2007] ECR I-8695 the European Court of Justice ruled that the care component of DLA, AA and carer’s allowance (CA) should be paid to people who move from the UK to another country within the European Economic Area. The court held that DLA care component, AA and CA were not special non-contributory benefits and so were exportable under EC regulation 1408/71.
This decision discusses in detail the law in relation to exporting and backdating DLA care component where the claimant is a pensioner living abroad in Germany. A decision on the mobility component is deferred pending the outcome of an upper tribunal test case.
This decision concerned a supersession on the ground of a change of circumstances. The tribunal erred by ignoring regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which requires consideration of whether the claimant could reasonably have been expected to know that a change of circumstances should be notified.
“It ought to be second nature for a tribunal hearing an appeal against a supersession decision to consider the date from which the supersession should be effective, particularly where it knows that recovery of an overpayment may be an issue.”
The tribunal incorrectly superseded a decision on a renewal claim from the date of the hearing instead of from the renewal date.
The claimant had neck and back problems as well as abdominal problems which led to “sudden attacks of diarrhoea and fear of and actual incontinence”. When considering high rate mobility component the tribunal failed to consider her physical condition as a whole, including her bowel incontinence, and the degree to which she limits her walking out of doors because of her physical problems.
“It seems to me that the evidence of the claimant together with that of the GP establishes that in practice it is probable that the claimant is, on the whole, virtually unable to walk without severe discomfort caused by physical factors. These factors include not only any referred or residual effect of her neck and back problems, but also the physical and muscular effort of trying to control her bowels and the very real effects of an episode of faecal incontinence, including discomfort, soreness and so on.”
A request was made by fax, within the one month time limit, for a statement of reasons. There was a delay in this request reaching the tribunal chairman so it was treated as out of time. Subsequently proof of the fax being sent was supplied though the fax was never found.
“Under regulation 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a document required to be sent to the clerk to the appeal tribunal (such as a request for a statement of reasons) is to be treated as having been sent on the day it is received by the clerk to the appeal tribunal. As proof of transmission by fax to the number held out for the purpose has been provided, I find that it is more likely than not that the faxed version of the solicitors' letter was lost in the office of the Tribunals Service. In these circumstances, the request for a statement of reasons was in time.”
Despite this the District Chairman took a formal decision not to prepare a statement of reasons because the tribunal chairman stated that she would find it very difficult to supply a statement in view of the time that had elapsed.
Following this the claimant's solicitors applied to the Upper Tribunal but outside the time limit. Judge Ward however allowed the appeal.
“Under rule 21(3) of the Upper Tribunal Rules the application to the Upper Tribunal should have been made within one month of when the First-tier Tribunal refused to admit an application for permission to appeal. That was the effect of the telephone conversation of 7 January 2009 [the application was made on the 16 February 2009] in which the solicitors were told to apply to the Upper Tribunal. I have extended time because (a) the delay at this point was short; (b) given the history of the matter, there was no very clear baseline from which time started to run; (c) the solicitors had made considerable efforts earlier to advance matters; and (d) it is a matter of some concern that a claimant has been unable to obtain a statement of reasons to which he was entitled and without which he would be powerless to pursue an application for permission to appeal based on perversity, as the claimant's - at least in part - is: see R(IS)11/99. For similar reasons I consider it to be in the interests of justice for the purposes of rule 21(7) to admit the application.”
The tribunal had erred in failing to supply a statement of reasons. The decision also stresses the importance of the chairman keeping adequate notes in his or her judicial notebook to enable statements to be written in such circumstances.
In R(DLA)3/06 (a decision by a tribunal of commissioners) when deciding decisions concerning children with behavioural problems, paragraph 40 states that
“It will be apparent from what we have said that, in our judgment, behaviour cannot itself be a disability - but it may be a manifestation of a disability, namely an inability to control oneself within the accepted norms of behaviour. Therefore, ......the correct approach was not to have sought a specific diagnosis of a serious mental illness, but to have asked whether it was in the claimant’s power to avoid behaving as he did. If it was not in his power to avoid that behaviour, he would be “disabled” within the terms of sections 72 and 73(1)(d), although it would be a separate question as to whether that disability was severe enough to entitle him to benefit.”
This decision states that, in the case of young children, this conclusion does not apply.
"It is apparent from what is said there that the Tribunal of Commissioners accepted that behaviour itself cannot be a disability. It is said that it can be the manifestation of a disability. However in my view in dealing with young children, such as the claimant, an inability to control oneself within the accepted norms of behaviour, which the Tribunal of Commissioners have appeared to use as a definition of a disability, does not of necessity demonstrate a disability. Young children whether disabled or not do not have the capacity to understand what constitutes, and confine their behaviour to, the “accepted norms of behaviour”. The behaviour of any young child can go beyond what would be the “accepted norms of behaviour” in older people. A young child, due to a lack of capacity caused by age, does not have it within his power to avoid behaving as he does. It seems to me in these circumstances that the test of disability set out by the Tribunal of Commissioners in paragraph 40 cannot be applied in its terms to young children."
In such cases it is legitimate for a tribunal to look to see whether or not there was a diagnosis of any physical or mental condition in relation to the claimant which could give rise to his behaviour as a starting point.
In Hinchy v Secretary of State for Work and Pensions [2005], a House of Lords decision, it was decided that a claimant is under a duty to inform the relevant office where a decision about one benefit may affect entitlement to another. R(A)2/06 discusses situations where the duty to disclose may be modified.
Both those decisions and the issues contained within them are discussed in this case. The claimant was on carer's allowance and was subsequently awarded her retirement pension. She informed her local office, who passed this information onto the carer's allowance unit.
When she received a further increase based on her husband's pension she failed to disclose because the social security office had closed. However at some point her husband did phone the pension service and mention his wife's carer's allowance award.
Judge Williams considered that the claimant had a duty to inform under Hinchy. Her old order book did in fact tell her who to contact and in what circumstances. This duty remained with the claimant regardless of the internal administrative structure of the DWP or the efficiency of any computer systems being used. The duty remained even when the claimant was no longer paid by order book, instead receiving payments through her bank account.
However this duty to inform was initially modified because she had successfully notified her first pension award through her local office. At the time of her second award the office was closed, although her husband had phoned the pension service.
The tribunal erred in not considering whether the duty to inform had been modified in this second case because the claimant had successfully used indirect notification in the past.
This might also have an effect on the period of overpayment in question. There is a continuing duty to notify where a claimant has informed a different office than the one dealing with the benefit in circumstances where it is reasonable to expect this information to be passed on.
What this means is that the claimant, after a period of time, should have checked that the carer's allowance unit had received notification of her change in circumstances and taken steps to correct this if they hadn't. However until that period of time has elapsed the claimant has discharged her duty and should not be liable for any overpayment until such point as she was required to make further enquiries.
"The tribunal must decide on all the evidence whether the Secretary of State has satisfied it that that duty remained unmodified or undischarged despite the evidence of Mrs G and her husband that they considered that they had discharged the duty, as modified orally by the Secretary of State, by the telephone call or calls that took place at the time her pension was increased. If the tribunal is satisfied that the duty was not modified, then it must find as fact whether Mrs G was aware of the increased pension from the date it was first payable or from some later date. If the tribunal is satisfied that the duty was modified and discharged at the time the increased pension was payable, then it must consider how long it remained discharged and if and when Mrs G should have taken further action to stop the overpayment."
Also to be considered by the new tribunal was whether the carers allowance unit had, at some point, all the information necessary to make the correct decision, regardless of the claimant's duty to inform.
The tribunal failed to make findings on the duration of the job-share arrangement and the terms of that arrangement in terms of the financial split.
In this decision a council was wrong to refer the claimant's rent to the Rent Service because there was only one occupier of her dwelling. This decision was prompted when her son became a full time student. Judge Williams found that at all times relevant to this appeal he normally occupied as his home the dwelling occupied by his mother.
He was during that period occupying as a non-dependant within the scope of regulation 74(7) of the Housing Benefit Regulations 2006.
This decision concerns the increase in housing benefit and council tax benefit from the dates on which the claimant became entitled to the relevant rates of disability living allowance. The relevant regulations are regulation 7(2)(i) and 8(14) of the Housing Benefit and Council Tax Benefit (Decisions & Appeals) Regulations 2001.
A question arose concerning the authenticity of two pieces of medical evidence. The claimant's first appeal was adjourned to give her a chance to attend an oral hearing and provide proof of authenticity.
The claimant failed to attend the new hearing and the tribunal dismissed the appeal. The tribunal erred because the chair telephoned the surgery of the claimant's GP to enquire about the evidence letters. Because the appeal was a paper hearing it further erred in not putting its findings to the appellant.
The tribunal should have taken one of three options:
Application for contributions based jobseeker's allowance requires the claimant to be resident in the UK during the course of his or her last employment. In this case the claimant was resident in Italy.
The claimant asserted that although he had not been paid for work done he was expecting to be paid. His appeal was dismissed because he provided no proof of this and so it was held that he was not in remunerative work.
The tribunal failed to properly consider the claimant's responsibility for his son during the day time, when the child was at school.
Martin Inch - 16 June 2009
