2011 05 Welfare Benefits

Wednesday 1 June 2011

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Case Law

In Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC), the claimant was profoundly physically and mentally disabled from birth. Her parents took out a loan in order to have an annex specially constructed for her. A claim for Housing Benefit (‘HB’) was made because they could not afford to continue providing this home unless they received rent from their daughter to offset the mortgage payments. The application for HB was based on a tenancy agreement expressed to be between the claimant’s father and the claimant, in which the father was described as the landlord and the claimant as the tenant. It was signed by the father as landlord, but in the space for the claimant’s signature it was stated that the claimant “is profoundly disabled and cannot communicate at all.” The Upper Tribunal decided that on these facts there was no liability to pay rent under reg. 12 of the HB Regulations 2006 (SI 2006/213) because: (i) the claimant was incapable of being a party to any agreement as she could not communicate; (ii) the parents had no authority to bind the claimant without the authority of the Court of Protection; and (iii) it could not be said that the claimant benefited benefit from the agreement and should therefore pay the rent, as she had no understanding of the basis on which she stayed at her home. (transcript here).

In JB v Oxford City Council and Secretary of State for Work and Pensions (HB) [2011] UKUT 136 (AAC), the Upper Tribunal considered the meaning of “sheltered accommodation”. The claimant, who was 62 years of age, had severe learning disabilities and was a tenant of a housing association property. He was one of four tenants, all of whom had similar difficulties. Each of the tenants had their own bedroom and they shared one kitchen, one bathroom, two toilets, two sitting rooms and one other room. Care, support and supervision was provided by staff 24 hours per day; though care on a one-to-one basis was only provided for two to three hours daily. There were usually two staff members on duty overnight (one awake and one sleeping). The Council decided that the weekly charges relating to communal rooms could not be met by HB as the claimant did not reside in ‘sheltered accommodation’ for the purposes of para. 8 of Sch. 1 to the HB Regulations 2002 (SI 2006/213). The Council contended that for accommodation to be ‘sheltered accommodation’ there must be (i) some type of warden or scheme manager and an emergency alarm system; (ii) the residents must be capable of living independently for part of the time, without round the clock supervision or support; and (iii) the property must be self-contained (i.e. with cooking and washing facilities within the unit of occupation).Allowing the claimant’s appeal the Upper Tribunal held that the term “sheltered accommodation” must be understood in the context of the HB scheme. It could not be governed by policy or guidance or distinctions used for “general counselling and support”. The Judge said that a broad view should be taken of the meaning of “sheltered accommodation” for HB purposes. It referred to accommodation provided for people who were in some way more vulnerable than most people are. Accordingly, if, for reasons relating to the nature of the claimant’s vulnerability, there were resident staff on hand, then there was no reason why, as part of the definition, there needed to be a warden/manager and/or an alarm system. The Council had also been wrong to insist that the accommodation needed to be self-contained. The relevant provisions only came into play if there were common rooms that had to be lit, heated and cleaned (click for transcript).

In AF v Secretary of State for Work and Pensions (ESA) ; [2011] UKUT 61 (AAC) the claimant suffered from fibromyalgia, back pain and carpal tunnel syndrome but scored no points for physical activities under the WCA. In its reasons, the FtT rejected a submission that there was a need to take into account the claimant’s ability to repeatedly and reliably undertake the actions of kneeling and bending. The FtT said such considerations were not relevant under the new ESA scheme as it had deliberately excluded the phrase “sometimes” from the bending descriptor. Allowing the claimant’s appeal, the UT said:

“ …the absence of the “sometimes” descriptor (6)(c) of the incapacity for work descriptors does not have the effect stated by the Tribunal. It means merely that there is no descriptor under which the claimant can score points merely because he is sometimes unable to perform the relevant activity. However, the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/96) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors. In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities. The only “sometimes” descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities,” (at [11]).

The UT added that a FtT would not need to expressly consider this issue unless there was something in the facts which suggested that the claimant might not be able to perform the activity with some degree of regularity e.g. in cases of chronic fatigue syndrome. The case was remitted for redetermination by a new FtT (transcript clerk here).

CP v Secretary of State for Work and Pensions(IS) [2011] UKUT 157 (AAC), concerned a young woman with Down’s Syndrome who received a substantial payment of compensation (in excess of £200,000) which was being held on her behalf by the Court of Protection, after her mother (and primary carer) was killed in a road traffic accident when the claimant was a child. Later, at the age of 22, she claimed Income Support but it was refused on the basis that she held capital in excess of the prescribed amount. It was argued that the capital could be disregarded under paras. 12 and 44 of Schedule 10 to the Income Support (General) Regulations 1987 (SI 1987/1967). Dismissing the claimant’s appeal the Upper Tribunal held that the disregard in para. 12 – covering payments made in consequence of any personal injury - did not apply given the use of the phrase “to the claimant”. It did not apply where the personal injury (or rather the fatality) was suffered by the claimant’s parent. The Upper Tribunal held that the claimant faced the same difficulty in relation to para. 44(2)(a) – capital administered by the Court of Protection derived from an award of damages for personal injury – given the use of the phrase “to that person”. So far as para. 44(2)(b) was concerned, the Upper Tribunal said that the reference to the claimant being “under the age of 18” did not refer to the time the fatality occurred but the age of the claimant when they claimed Income Support. Accordingly, the disregard would cease to apply once the claimant was over the age of 18. The Upper Tribunal also affirmed that capital held by the Court of Protection on behalf of the claimant amounted to a bare trust, such that as a patient she had an absolute beneficial interest in those monies and they would be taken into account, subject to any disregard (R(IS) 9/04 followed). The Upper Tribunal also rejected a human rights argument that, given the material difference between the claimant (who needed care all her adult life) and non-disabled people who have received compensation for the death of one or both parents during childhood, the failure to make special provision within para. 44 for the claimant amounted to unlawful discrimination within the Thlimmenos principle. The Upper Tribunal held that the claimant’s challenge was broadly akin to the unsuccessful human rights challenge in IB v Birmingham CC and Secretary of State for Work and Pensions and EHRC [2011] UKUT 23 (AAC), on whether HB should cover an additional room used by a carer who was not an occupier, and should be dismissed for the same reasons (click for transcript).

In what is likely to become a seminal case on the ‘right to reside Zambrano v Office national de l’emploi Case C-34/09 (click for transcript) concerned the refusal to grant unemployment benefit under Belgian legislation based on the lack of a right to reside. In issue was the effect on EU citizenship under Article 20 of the Treaty on the Functioning of the European Union (TFEU) where a minor national of a member state remained within his or her own state. Z and his wife were both Colombian nationals who applied for asylum in Belgium. In September 2000, the Belgian authorities refused their applications but decided that they should not be sent back to Colombia in view of the civil war in that country. Although Z did not hold a work permit he started full-time work. In April 2004, Z and his wife applied to have their situation regularised, referring to the birth of their second child who had acquired Belgian nationality under Belgian law, since Colombian law does not recognise Colombian nationality for children born outside the territory of Colombia where the parents do not take specific steps to have them so recognised. This was refused. Following the birth of their third child, Z and his wife lodged an application to take up residence in Belgium. This was rejected on the basis that Z, by not registering his child with the Colombian authorities, was trying “to legalise his own residence.” When Z brought an action to review that decision he was issued with a ‘special residence permit’ for the duration of that action.

In the meantime, Z’s employment contract was temporarily suspended on economic grounds, which led him to lodge an application for unemployment benefit, which was rejected by the National Employment Office. When Z brought an action against that decision the Aliens’ Office confirmed that Z and his wife could not pursue any employment and when Z was found to be at work during an inspection he had to stop working immediately and the next day Z’s employer terminated his contract of employment with immediate effect and without compensation. Z then lodged an application for full-time unemployment benefit. This was also rejected and Z brought an action against that decision. Both of the decisions refusing unemployment benefit were based on a finding that the relevant qualifying periods were not completed by Z because of his residence status as a foreign worker. Before the Employment Tribunal Z submitted that he enjoyed a right of residence directly by virtue of the EC Treaty or, at the very least, that he enjoyed the derived right of residence, recognised in Case C-200/02 Zhu and Chen [2004] ECR I-9925 for the ascendants of a minor child who was a national of a Member State and therefore was exempt from the obligation to hold a work permit. The Tribunal decided to stay the proceedings and make a reference to the ECJ for a preliminary rulingon the question of whether the provisions of the TFEU on European Union citizenship were to be interpreted as meaning that they confer on a relative in the ascending line, who is a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that Member State.

The ECJ said that Directive 2004/38 did not apply to Z’s situation as the directive applies to Union citizens who move to or reside in a Member State other than that of which they are a national (art.3(1)). Z’s second and third children possessed the status of Belgian nationality because the conditions for the acquisition of nationality was a matter for the Member State in question to lay down (Zhu and Chen, para. 20 applied). Citizenship of the Union was a fundamental status of nationals of the Member State (see Zhu and Chen, para. 25). The ECJ held that in those circumstances Article 20 of the TFEU precluded national measures which had the effect of depriving citizens of the Union of the genuine enjoyment of those rights. A refusal to grant a right of residence to Z, a third country national with dependent minor children in a Member State where those children were nationals and resided, and also a refusal to grant Z a work permit, would have that effect. The Court held that “it must be assumed” that such a refusal would lead to a situation where those children would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to Z, he would risk not having sufficient resources to provide for himself and his family, which would also result in his children having to leave the territory of the Union. Accordingly, the ECJ’s answer to the question referred was:

“Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

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