2011 07 Welfare Benefits

Monday 1 August 2011

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In HL v Secretary of State for Work and Pensions (DLA) [2011] UKUT 183 (AAC) the UT gave guidance on the assessment of medical evidence and what inference may be drawn from a GP’s evidence. The claimant’s claim for DLA had been refused following an interview and examination by an examining medical practitioner. The claimant exercised her right of appeal. A Welfare Rights Officer wrote a detailed letter to the claimant’s GP practice asking for information on specific disabilities relevant to her claim. The GP’s provided a reply stating that they would anticipate that the claimant would need help with dressing, bathing and getting in and out of bed. A FtT dismissed the claimant’s appeal and criticised the GP’s report as being limited in the relevant information it provided saying that the GP had not carried out a specific examination and appeared to form his view on the basis of information provided by the claimant. The Judge commented that GPs were not trained to undertake an examination that was specifically directed to the requirements of DLA. However, the GP had the claimant’s full medical records available which would have included all consultations, records of examinations, reports of x-rays and scans, and reports by Consultants that would include their own clinical findings. The Judge said that this was by far a greater body of evidence, accumulated over time, than was available to an examining medical practitioner. Further, that all doctors needed to take account of information provided by the claimant when assessing disablement and that including examining medical practitioners and their evidence was rightly not discounted for doing so. The Judge commented that while the reports provided by GPs are often limited in the relevant information that they provide:

“Nevertheless, reports such as the ones provided in this case are often the only sort of evidence that is available or attainable from a claimant’s medical advisers. In that respect, they do not compare favourably with the reports of examining medical practitioners. That does not mean that they are valueless. Claimants are at a disadvantage compared to the Secretary of State when it comes to obtaining evidence in the form that will be of most value to the tribunal. Nevertheless, they have a statutory right of appeal and that right must be made effective. All too often, judges present the tribunal’s reasons as if the tribunal had a choice between accepting the evidence of the GP or of the examining medical practitioner. There may be cases where that is so, but in many cases the reports each have their strengths and each their limitations as an assessment of the claimant’s disablement. In those cases, what a proper analysis usually requires is for the tribunal to show a balance between the value that can be distilled from each report and its limitations,” (at [14]). Click here for transcript.

In SS v Slough Borough Council (HB) [2011] UKUT 128 (AAC) the Judge considered whether part-time work was “effective” so as to establish worker status in a case where the claimant’s right to reside was at issue. The claimant was a Dutch national who came to the UK in January 2005. She was a single parent and had a part-time cleaning job, working for 13 hours a week at £5 per hour from March 2005. She lived with friends for over a year but in July 2006, while still in that employment, she moved into a three-bedroom house with £875 per month rent and claimed HB. The claim was refused and a FtT upheld the decision on the basis that the claimant’s employment was not “effective” because it did not provide her with sufficient income to meet her needs. The FtT referred to the decision in CH/3314/2005 in which it was held that the need for social assistance to supplement earnings from part-time work was a relevant factor when deciding whether a claimant was a worker. The claimant appealed. In the meantime, she was awarded HB/CTB from February 2007 because she had by then become a jobseeker claiming JSA. Before the UT the claimant contended that CH/3314/2005 was wrongly decided and had been expressly disapproved in CIS/4144/2007 and that according to EU case-law on the meaning of a ‘worker’ regard could not be had to the proportion of the claimant’s needs that she was able to meet from her earnings (Kempf v. Staatssecretaris van Justice(Case 139/85) and Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst (Case C-413/01). Judge Rowland dismissed these submissions stating that it was perfectly proper in cases where a right of residence was in issue to consider whether work is “marginal” having regard to the extent of a person’s need or intention to claim social assistance saying that, (i) Kempf and Ninni-Oraschedo not hold that a need to rely on social assistance is totally irrelevant and in any event the question of whether employment was “genuine and effective” was a matter for the national court to determine (Genc v Land Berlin(Case 14/09)). Judge Rowland said he was prepared to accept that the formulaic approach suggested in CH/3314/2005 was “apt to raise as many questions as it answers” and said the better approach was to simply considering what was proportionate. That approach enabled all possible relevant matters to be taken into consideration. The Judge said that the case was unusual as she had needed only £100 p.w. from public funds while living rent-free, compared to £300 p.w. if she was to pay her rent in her new accommodation. It was a case in which it had been decided that the claimant had been a worker but had ceased to be one through a change of circumstances unrelated to her employment. The position had been complicated by the fact that HMRC had made decisions awarding CB and CTC. Once those benefits were awarded the claimant’s earnings were sufficient to enable her basic needs to be met (as measured by the “applicable amount” for income-related benefits) while she and her children were living in free accommodation. Against that background the Judge said he felt constrained to find that the claimant’s work had not been marginal and that she was a worker but said that if the claimant had only just started work he would have dismissed the appeal. Click here for transcript.

In RG v Secretary of State for Work and Pensions and North Wiltshire District Council (HB) [2011] UKUT 198 (AAC) the UT considered a human rights challenge to the Local Housing Allowance (LHA) rules and whether special provision was required for disabled children unable to share a bedroom under the Thlimmenos principle. The Claimant lived in a privately rented 4 bedroom house with his wife and 3 children, a son and two daughters, aged 10 and 8. The older girl, Natasha, had Down’s syndrome and the younger one, Hannah, had Spina Bifida. The condition of the daughters was such that they could not reasonably share a bedroom. The rent was £229.61 p.w. but in July 2008 the Council made a decision that the claimant was only entitled to HB of £155.77 p.w. as a 3 bedroom property was deemed to be appropriate for a claimant with 3 children of that age and sex under reg. 13D(3) of the HB Regulations 2006 (SI 2006/2013). The Council awarded the claimant a discretionary housing payment in the sum of £63.56 p.w. towards the shortfall. The claimant appealed arguing that he ought to be entitled to HB based on the rent appropriate for a 4 bedroomed house and that special provision should be made for his daughters by reason of their disabilities on the basis of the case of Thlimmenos v Greece (2000) 31 EHHR 15, at para. 44. The appeal was stayed the appeal pending a decision by Judge Howell in IB v Birmingham City Council [2011] UKUT 23, which raised a similar point. In January 2011, Judge Howell decided that the failure to treat the claimant in IB differently in relation to the number of rooms for which he qualified under the LHA rules was objectively justified. The Judge held that the reasoning in IB was valid for the instant case having regard to: (i) the wide margin of appreciation given to the State in matters of social policy and the allocation of public resources; (ii) the fact that the claimant and his family were in receipt of substantial sums by way of other social security benefits by reason of the daughters’ disability (including DLA and Carer’s Allowance), (iii) that additional administrative costs would be incurred and (iv) the mitigating factor of the availability of discretionary housing payments. The Judge concluded that the prima facie discrimination in the failure to treat the claimant’s case differently for the purpose of the calculation of the LHA rate was therefore objectively justified. The Judge said he was willing to grant permission for the matter to be considered by the Court of Appeal along with IB. for which permission had already been granted by Judge Howell. Click here for transcript.

In KN v Secretary of State for Work and Pensions (ESA) [2011]: UKUT 229 (AAC) Judge Wikeley gives guidance to tribunals on the relevance of evidence that a claimant has been on a holiday abroad when assessing a claimant’s ability to mobilise for DLA and ESA appeals. In October 2009 a decision was made that she was not entitled to ESA. In March 2010 the appellant flew to the West Coast of the USA for a 10 day holiday. When the claimant’s appeal was heard in September 2010 the FtT used the holiday to cast doubt on the claimant’s account of her condition with regard to particular physical descriptors. The Judge concluded that there was no satisfactory explanation, for why the FtT felt it could rely on the USA holiday in the way that it did given the prohibition in s.12(8)(b) of the Social Security Act 1998 on having regard to circumstances that arose after the date of the decision under appeal. As there was no finding that the claimant’s condition was essentially the same in October 2009 as it was in March 2010 the FtT’s failure to do so was an error of law. The Judge continued:

“There is no doubt that many tribunal judges and members ask appellants about their holidays. There is nothing wrong with this at all, if it is relevant and focussed. The danger, however, is that some tribunals may jump from a simple finding of fact that the claimant had managed on one occasion in the last year to negotiate an airport to go on holiday to the conclusion that therefore s/he cannot possibly either have limited capability for work or be entitled to the higher rate mobility component of DLA. Such tribunals do so at their peril, as they arrive at an outcome without passing Go, or at least the departure gate for proper fact-finding and adequate reasoning.

Tribunals should be wary of becoming fixated on the fact that an appellant may have undertaken a long-haul flight to some exotic holiday destination. The reality, unsurprisingly, is that most social security claimants are not frequent flyers. For some people, if they do fly, it is for a holiday of a lifetime or because of some pressing family business. Given that the assessment of the effects of a person’s condition for the purposes of both DLA and ESA is meant to be looked at in the round, it may be more helpful for tribunals to focus rather more on (for example) the sort of walking that claimants do in a typical week, rather than on an infrequent and quite probably exceptional foray through a major domestic airport,” (at [23]-[25]). Click here for transcript.

In Jessy St Prix v Secretary of State for Work and Pensions [2011] EWCA Civ 806 the Court of Appeal considered whether an EU National who stopped work when pregnant would retain worker status under Article 7 of Directive 2004/38. See 'Welfare Benefits' section for case note.

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