HM Courts & Tribunals Service (HMCTS) with effect from 1 April 2011
Highlighted decisions November 2020
Great Britain and Northern Ireland decisions highlighted by the Editorial Board in November 2020
Disability Living Allowance
TS (by TS) v SSWP (DLA); EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC)
CDLA/2208/2018 and CDLA/2019/2018
1. The Upper Tribunal does not have jurisdiction on a statutory appeal to consider breaches of the Public Sector Equality Duty ("PSED"). Obiter dicta in AK v SSWP [2017] UKUT 420 (AAC) followed. Decision of the High Court in Hamnett v Essex CC [2014] EWHC 246 (Admin) not followed.
2. If, contrary to 1, the Upper Tribunal does have jurisdiction in respect of the PSED, SSWP was in breach of it in relation to children aged 3-16 in extending the Past Presence Test (PPT) from 26 weeks to 104 weeks.
3. The extension of the PPT is in breach of Art 14 with A1P1 in relation to the appellant British national children returning to Great Britain from a period of residence abroad. FM v SSWP [2017] UKUT 380 not followed.
4. Where the challenge is directed to the human rights implications of making existing legislation more onerous, the appropriate remedy is to disapply the amending legislation: RR v SSWP [2019] UKSC 52 applied.
5. The existing line of authority derived from CSDLA/852/2002 regarding advance claims for DLA followed.
Disclosure and Barring Service
CD v DBS [2020] UKUT 219 (AAC)
V/954/2019
The individual had referred in his representations in a rather fleeting way to an assessment carried out by the Probation Service which viewed him as low risk. Acting in person, although intelligent, his representations were diffuse and largely aimed at the wrong matters. He twice indicated that he was content for DBS to proceed to its decision. It might have made perfect sense for DBS to have obtained a probation report (after all, a probation officer would have regular contact with an offender) but we were unable to construct from the statutory remit of DBS and Probation, or from DBS's published Guidance, any duty on them to do so in the circumstances of the case. It is worth noting that the ARMS (Active Risk Management System) assessment which Probation carry out is viewed as a protected document and the individual had to resort to a Subject Access Request - which took ages, leading me eventually to make an order under r.16 against the Probation Service for its production.
PF v Disclosure and Barring Service [2020] UKUT 256 (AAC)
V/0565/2019
This is the decision of the special panel set up to decide as a preliminary issue the proper approach for the Upper Tribunal to take to its jurisdiction over mistakes of fact. It explains the scope of that jurisdiction and its application.
European Union Law
HK v SSWP (PC) [2020] UKUT 73 (AAC)
CSPC/330/2019
The line of authority based on C-370/90 Surinder Singh, C-291/05 Eind and C-456/12 O and B precludes a requirement that the British citizen who has worked in an EU member State and then returns, with a non-British family member, to the UK, should be a "qualified person" within reg 6 of the Immigration (European Economic Area) Regulations 2016 following their return, if the family member is to be able to derive a right of residence from them. Reg 9 of the 2016 Regulations must be read accordingly.
Income Support
PMcC-v-Department for Communities (IS) [2020] NICom 65
C2/20-21(IS)
This decision considers the admissibility of improperly or unlawfully obtained evidence in tribunal proceedings in Northern Ireland.
It is of relevance to Northern Ireland principally, as admissibility is addressed in Great Britain by the Tribunal Procedure (FTT)(SEC) Rules 2008. Tribunals in Northern Ireland are still working from the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, which are silent on admissibility.
In short, from first principles, I arrive at a position which essentially mirrors GB rule 15(2)(b)(iii).
The reason why it may be of broader interest is that I also suggest some criteria that might be relevant when assessing fairness in the particular context and model their application.
Information Rights
Moss v the Information Commissioner and the Cabinet Office [2020] UKUT 242 (AAC)
GIA/1531/2017
Whether European Court of Human Rights’ decision in Magyar applies in domestic law in terms of Article 10(1) of European Court of Human Rights covering a right of access to information or whether Upper Tribunal should follow the Supreme Court’s decision in Kennedy as to Article 10(1)’s scope – if Magyar does apply, whether criteria laid down in that decision for engaging a right under Article 10(1) met – if Article 10 applied, whether Freedom of Information Act (section 12) cause of any potential breach of Article 10 – whether Upper Tribunal can provide any remedy available for such a breach.
Job Seekers Allowance
DC v. SSWP (JSA)[2020] UKUT 257 (AAC)
CJSA/197/2020
Jobseeker’s allowance – whether regulation 23 of the Jobseeker’s Allowance Regulations 1996 is permissive or exhaustive - whether claimant must show good reason for failure to participate in an interview under regulation 25(1) or whether he is only required to make contact with an employment officer – whether good reason in fact shown - consequences of good reason not being shown.
Mental Health
AR v West London NHS Trust and the Secretary of State for Justice [2020] UKUT 273 (AAC)
HM/0121/2020
On an application for a public hearing in a mental health case: The capacity to conduct proceedings is to be assessed as a whole, provided the patient's capacity is not fluctuating. Guidance on the salient factors that the patient should understand in order to have capacity to apply for a public hearing. There is power to hold a public hearing, even if the patient lacks capacity to have an informed view. AH v West London Mental Health Trust [2011] AACR 15 explained.
Special Educational Needs
RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN) [2020] UKUT 0278 (AAC)
HS/1170/2019
Registration procedure for disability discrimination claims –refusal to register part of a claim as ‘time barred’ in plainly disputed issue – ignorance or oversight of relevant law (Equality Act 2010, Schedule 17, paras 4(5)(b) (conduct extending over a period) and 4(3) (discretion to extend time) – refusal tantamount to striking out without protection of relevant Procedure Rules – decision made unilaterally by judge without argument – requirement to exercise a statutory discretion consciously - lay appellant – standard paragraphs in information in Directions both misleading and in regrettably small print – was unfairness at interlocutory stage made good by F-tT at the hearing?
Discrimination arising from disability (s. 15) – more than one cause – when is a cause operative – more than trivial – structured approach to findings on proportionality – materiality.
Reasonable adjustments (s20 – 21) – need for structured approach – failure to find a PCP or a comparator – claim should have failed in limine
Extent of interaction of Children and Families Act 2014 duties and Equality Act 2010 duties. F-T v The Governors of Hampton Dene Primary School (SEN) [2016] UKUT 468 (AAC) distinguished and disapproved.
Universal Credit
EAM v Secretary of State for Work and Pensions (UC) [2020] UKUT 247 (AAC)
CUC/1773/2018
Universal credit—other—capital—disregards—proceeds of sale of former home—whether the “reasonable certainty” test in R(IS) 7/01 remains good law following In re B (Children) [2008] UKHL 35. Universal credit—other—capital—disregards—proceeds of sale of former home—Universal Credit Regulations, Schedule 10, para.13(a)—meaning of “attributable to the proceeds of sale”. Universal credit—other—migration from existing benefits—whether “natural” migration from existing benefits gives rise to transitional protection from the universal credit capital limit.
