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Secretary of State for Work & Pensions v Deane [2010] EWCA Civ 699 (23 June 2010)

This decision overturns CG/449/2008 [2009] UKUT 46 (AAC) which concerned carer's allowance and full time study.

CG/449/2008 discussed the meaning of regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976 (the ICA Regulations), which sets out when a claimant for carer's allowance (CA) is to be treated as receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992 and so not entitled to the allowance.

Judge Mesher considered that there were problems in estimating the number of hours a student studies, as a college or university might state a greater number of hours than the student. His view, following his interpretation of the case law above is set out in paragraph 32.

"In my view the most natural reading of the words of regulation 5(1) of the ICA Regulations is that they are directed to attending a course for 21 hours or more, in the sense of time actually spent in the activities specified in paragraph (2). That is the reading in fact supported by the judgments in Wright-Turner and Flemming.

Evidence as to the time that the authorities of the educational establishment in question expect or require a student to spend in the specified activities is important and relevant and may, depending on all the circumstances, lead to doubt about the reliability of a particular student's evidence that significantly less time is actually spent, but the fundamental test in law remains the time actually spent by the student.

In ICA and CA cases, claimants will often have a ready explanation for having spent significantly less time on study than the authorities expect, in the burden imposed by their substantial caring responsibilities. That distinguishes such cases from that of a student who simply relies on laziness or an ability to get through work quickly. However, the very readiness of the explanation means that it may need to be tested carefully."

CG/449/2008 was overturned in Secretary of State for Work & Pensions v Deane. The Court of Appeal held that, to construe regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for carer's allowance 'is receiving full-time education', and that:

"......concentration on the hours actually spent is the wrong approach. To construe Regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for CA "is receiving full-time education". A student will "receive" that which is provided. If in ordinary circumstances the course upon which the student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, then there must be, ….., "some presumption" that the recipient is in full-time education. There are always exceptions to the rule, for example, the student granted exemptions from part of the course but the task of the fact-finding tribunal is, having balanced what is offered and what is expected of the student against the student's actual performance of the demands made by the course, to look at the matter in the round and ask by way of testing the conclusion, is this applicant receiving full-time education?"

The DWP has issued guidance (Memo DMG 38/10).

CA/2364/2009 [2010] UKUT 231 AAC: Self funding and AA

This decision discusses the effect of a change of circumstances which potentially affects the self funding status of a claimant.

CDLA/3121/2009 [2010] UKUT 239 AAC: Perverse decisions

This decison discusses whether a tribunal had reached a perverse decision based on the evidence before it. Judge Lane reviewed the tribunal's decision and reasoning in relation to the evidence and held that the decision was not perverse.

Note: The principles by which perversity in law is to be judged are set out in Yeboah v Crofton [2002] EWCA Civ 794.

CDLA/3182/2009 [2010] UKUT 183 AAC: Tribunal exercise of discretion where an issue is not raised

This decision raises four questions:

First, does a tribunal have jurisdiction to deal with an aspect of an award that was not put in issue between the parties?

Second, if it does, in what circumstances may the tribunal exercise its jurisdiction?

Third, if the tribunal has jurisdiction, subject to what conditions may it exercise it?

Fourth, in what circumstances will there be an error of law in the tribunal’s decision to exercise its jurisdiction?

After a lengthy discussion of relevant case law Judge Jacobs concludes, with regard to the first three questions that:

• the tribunal has a discretion to consider issues that are not raised by the appeal;
• it does not matter whether the discretion arises under section 12(8)(a) of the Social Security Act 1998 or independently;
• the tribunal must exercise the discretion judicially;
• the points made by Mr Commissioner Rowland are relevant to that exercise, as is the public interest. Commissioner Rowland stated, in CDLA/884/2008, that ….

 “Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.”

Judge Jacobs further notes that if an award is removed by the Secretary of State, the claimant has the right to appeal on fact to the First-tier Tribunal. But if it is removed by the First-tier Tribunal, there is no right of appeal on fact and that Tribunals should bear this in mind when considering using discretion;

• if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;
• it is always good practice to explain why the tribunal exercised its discretion;
• an explanation may be required as a matter of adequacy of reasons.

With regard to the fourth question there will only be an error if the tribunal approached the issue incorrectly or if its exercise was perverse.

CDLA/22/2010 [2010] UKUT 210 AAC: credibility and failure to properly consider evidence

The claimant believed she had been poisoned as a result of exposure to chemicals at work although a toxicologist could not pin down any particular condition to explain the many symptoms she described.  Despite this she was awarded incapacity benefit without having to undergo the personal capability assessment. 

Her appeal against a refusal to award disability living allowance was dismissed by the tribunal, who did not accept her account of her symptoms as credible. The tribunal’s decision was set aside because it failed to explain its decision adequately, and in particular to consider and explain the discrepancy between the respective outcomes of the incapacity benefit and the disability living allowance claims.

In relation to the issue of credibility Judge Wikeley follows CIS/4022/2007 which states that there is no universal obligation on tribunals to explain assessments of credibility in every instance but that there an obligation on a tribunal to give adequate reasons for its decision.

“33..…the fact that the appellant was found to be exempt from the personal capability assessment for the purposes of incapacity benefit in February 2009 could certainly not determine the outcome of a claim for disability living allowance made a few days later and decided the following month.  It was, however, a potentially material consideration, and certainly the evidential basis for the application of the exemption needed to be explored.”

CDLA/280/2010 [2010] UKUT 201 AAC: Mobility component - severe mental impairment

The tribunal failed to find sufficient facts or give adequate reasons for a decision to award the highest rate mobility component on grounds of severe mental impairment. Judge Wikeley does a stage by stage examination of what is needed to satisfy the severe mental impairment test, citing relevant case law at each stage.

CDLA/636/2010 [2010] UKUT 202 AAC: section 25 of the Tribunals, Courts and Enforcement Act 2007

Decision of a three judge panel.

This decision concerns the use of enforcement powers under section 25 of the Tribunals, Courts and Enforcement Act 2007, which allow the Upper Tribunal to impose penalties (including imprisonment) for refusing to attend a hearing. Upper Tribunal Rule 7 allows this power to be extended to include  failure to attend a Lower Tribunal hearing where this is referred to the Upper Tribunal.

The tone of the decision implies that tribunals should exercise caution when considering such referrals.

The lower tribunal requested a copy of the claimant’s medical records from her GP, Doctor M.  When these were not supplied the tribunal issued a direction requiring Doctor M to attend a hearing. The doctor did not attend and the tribunal allowed the appeal but issued a separate decision, referring the case to the Upper Tribunal under rule 7(3) of the Tribunal Procedure (First-tier Tribunal (Social Entitlement Chamber) Rules 2008 (‘the SEC Rules’) because of the doctor’s non compliance.

Doctor M said that he had not received the summons.

The Upper Tribunal accepted that Doctor M did not receive the notice to attend and so failure to comply did not warrant the exercise of enforcement powers under section 25 of the 2007 Act.

It also questioned the whether Doctor M needed to attend the tribunal. The tribunal should have investigated whether it was possible to proceed without the doctor’s records, before deciding to require the doctor to attend. Also the original directions were for Doctor M to provide a print-out of the claimant’s medical records and consultants’ letters.

“There is no suggestion that Doctor M needed to give oral evidence at the hearing and, in any case, the appeal was finally determined without either the medical records or Doctor M’s attendance.  An order to compel a practising doctor to attend a hearing should not be made without a very compelling reason for doing so, and in this case there is no indication of why it was considered that an order for Doctor M’s attendance at the tribunal was a necessary and proportionate response to his apparent failure to comply with the directions given at the first hearing of the appeal.”

The tribunal also failed to fully investigate whether the letter to Doctor M had been delivered to Doctor M’s address before referring the matter to the Upper Tribunal.

“…a cursory examination of the letter to Doctor M of 12 August 2009 would have shown that it misspelt his name and contained no indication of the address to which it was sent. The tribunal’s finding that Doctor M had “ignored the summons” could only be justified on the basis that the letter had actually been delivered to Doctor M’s address.  That was a matter which should have been investigated before the tribunal found Doctor M guilty of “a lack of professional behaviour”, and decided to refer the matter to the Upper Tribunal. Indeed, even if that investigation had established that Dr M had received the July notice, the tribunal would need to consider any explanation offered by the doctor and assess whether in the light of that explanation the matter did indeed warrant a reference to the Upper Tribunal.”

The Upper tribunal decided to make no order on the reference from the First-tier Tribunal and gave guidance to the Lower Tribunal on how to proceed when giving directions to attend in future.

19. …Tribunals must make clear in plain English what things must be done. They must also make clear the possible consequences of any failure to do what the tribunal has required. In order to make clear what may happen if the necessary things are not done we think it highly desirable, at the very least, that a statement under rule 16(4)(b) of the SEC Rules of the consequences of a failure to comply with a summons or citation should spell out the penalties that may be imposed for failure to comply. In England and Wales these include imprisonment, a fine, and sequestration of assets.”

The tribunal also breached rule 16(2)(b) of the SEC Rules because the summons did not include any provision for the payment of Doctor M’s expenses.

CE/313/2010 [2010] UKUT 244 AAC: Functional approach to test and audited medical reports

This decision examines the correct approach to the interpretation and application of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794) which lists the limited capability for work activities and the proper approach to evidence of a healthcare professional that has been amended by another on audit.

It holds that the correct approach to the ESA medical test is the same as that outlined in R(IB)2/03 (an earlier decision by this judge) which states:

"The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each."

Each activity is therefore concerned with a particular function of the body in relation to capacity for work.

In this decision there was a dispute as to whether the claimant satisfied manual dexterity descriptor 6(f) - Cannot do up/undo small buttons, such as shirt or blouse buttons. Judge Jacobs held that:

"14. The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.”

The second issue concerned a medical report completed by a registered nurse on 17 March 2009 which was amended following an audit by a doctor on 24 March 2009.

Judge Jacobs stated that the way that the report was presented to the tribunal and to the claimant was unsatisfactory and  “destined to give rise to suspicion and complaint”. Ideally, the tribunal should have asked the Secretary of State for a fuller explanation and for the original unaltered medical report in order to ensure that the “provenance of the evidence” is always clear so that the tribunal can properly assess it.

In this case however Judge Jacobs did not consider that the outcome was materially affected and the appeal was dismissed.

"24. The issue for me is whether in relying on the evidence in the form submitted the tribunal made an error of law in its decision. In this case, I am satisfied that it did not have any impact on the outcome. The sole issue on the descriptors that has been raised concerns manual dexterity. The nature of the claimant’s disability alone is a significant factor in applying my interpretation. The clinical findings are also relevant and they are not inconsistent with the claimant’s own evidence. He took a different view from that adopted by the decision-maker, but the difference arose from his interpretation of the descriptor.

25. I have considered whether other issues might have arisen if the claimant and the tribunal had been told the full history of the report. In the circumstances of this case, I can see no other issue that would have arisen, given the claimant’s disability and his own evidence of his difficulties."

CSE/121/2010 [2010] UKUT 245 AAC: Relevance of Moyna

The case concerned manual dexterity descriptor 6(e) - Cannot physically use a conventionalkeyboard or mouse". Judge May considers that the approach taken in the key DLA decision Moyna v Secretary of State for Work and Pensions might be useful when analysing evidence.

“5…In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation. 

In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot.  It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email. 

The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands. 

I consider that Mr Olsen’s argument is too extreme and I do not accept it.  The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna. It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor.  There are no absolutes by which “can” and “cannot” can be defined.  In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c).  Accordingly I set their decision aside.  I am persuaded that the appropriate disposal is to remit the matter to a freshly constituted tribunal.”

Martin Inch - 19 August 2010

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Click on the decision number to view the full decision. Collected summaries for 2010-2011 are at www.disabilityalliance.org/comm9.htm.

mcdonald, r (on the application of) v royal borough of kensington & chelsea [2010] - changing a care plan to save money

This decision concerns the right of a local authority to withdraw or amend care support where the recipient's circumstances are unchanged. Click on the link for a summary.

CDLA/765/2010 [2010] UKUT 318 AAC: Severe behavioural problems

In this decision the tribunal failed to fully investigate whether the claimant had severe behavioural problems for the purposes of high rate mobility component.

The decision discusses watching in some detail and cites:

• R(DLA)7/02 which states that the test is not satisfied if the environment or carer prevents disruptive behaviour taking place.
• R(DLA)9/02 where it was held that the claimant did not require another person to be watching over him because of his specially adapted room.
• CDLA/2955/2008 [2008] UKUT 24 (AAC) where the lower tier tribunal failed to consider the supervision provided by the claimant's father when she got up in the night and went downstairs. The father slept downstairs and was ready to intervene when necessary.

Judge Mark holds:

"11…..The issues for the tribunal to address for the purpose of 12(6)(c) [of the Social Security (Disability Living Allowance) Regulations 1991] are unpredictability of disruptive behaviour giving rise to the need for a person to be present and watching over him whenever he is awake.  Interventions may be regular if they are frequent in one context but infrequent, or even rare, in another context provided that looked at overall there is a regular requirement to intervene and physically restrain the claimant.

10. If, however, the structured environment is such that there is no real risk of unpredictable violence or not such a risk as to make it reasonable for somebody to be present and watching over him whenever he is awake, then he cannot be said to need another person to be present and watching over him because of his unpredictable disruptive behaviour.  If, in practice, he is regularly left alone in his room for lengthy periods while awake, or is not watched over at school because of his unpredictable disruptive behaviour, then that would suggest that his behaviour is not unpredictable, or at least is not unpredictable to such an extent as to require another person to be present and watching over him whenever he is awake."

CE/406/2010 [2010] UKUT 352 AAC: WCA activity 15, 16, 19, 20, 21

The activities in dispute in this decision were 15 (execution of tasks), 16 (initiating and sustaining personal action), 19 (Coping with social situations), 20 (Propriety of behaviour with other people) and 21 (Dealing with other people).

For Activity 15 it was held that lack of motivation to begin tasks is immaterial. The decision also states that the way in which a tribunal approaches this activity may vary from case to case. Here the tribunal found that the appellant was routinely able to run her home and family, and therefore was entitled to infer that the appellant was not taking a longer time to complete her everyday tasks.  In these circumstances, the tribunal performed its inquisitorial role adequately and was justified in its conclusion. 

For activity 16 there was also no error of law. The tribunal only needed to decide whether the appellant could not initiate or sustain personal action without verbal prompting. 

"It did not have to decide whether she was able to perform at the highest level the appellant set for herself.  The evidence in this appeal was that she could.  The tribunal reasoned that although the appellant’s ability in this sphere was variable, she was nonetheless able to do everything necessary to run the household without verbal prompting from another.  The tribunal made adequate findings of fact and was clearly correct to find on the evidence before that she did so without verbal prompting."

The tribunal had also properly considered the medical report in relation to this activity and by implication, considered that at the date of decision the report did not reflect the appellant’s mental health condition.

For Activity 19 Judge Lane's reasoning follows CE/2373/2009 [2010] UKUT 50 AAC. It was considered that the tribunal erred in law.

“22. In this appeal, the tribunal did not, on balance, deal adequately with the issues.  The Record of Proceedings records evidence that she has few friends, but she sees them sometimes; she shops (which requires social interaction on a number of levels), and takes her child to school (which may require interaction with other parents).  On the other hand, there was also evidence that she restricted herself to social activities which she had to perform to survive or meet her legal obligations.  While the tribunal would have been justified in finding that the appellant did not satisfy 19(a), she may have satisfied that (b) or (c) had she been questioned more carefully.  This might have given her either 9 or 6 points.”

For Activity 20 the tribunal erred because it failed to fully explore some of the statements made in the claimant’s self-assessment questionnaire (she wrote that she was always getting cross with her children for no reasons or for little things. 

“This does not appear to have been explored by the approved healthcare professional and was not explored adequately during the hearing or in the Statement of Reasons.  The tribunal failed in its inquisitorial duty in this respect.  It is possible that she may have been entitled to 6 points for 20(f).”

For Activity 21 the tribunal erred because did no more than state its conclusion without examining relevant evidence given by the appellant in her ESA50. 

CE/903/2010 [2010] UKUT 301 AAC: Activity 11 and alcohol misuse

Activity 11 concerns remaining conscious during waking moments. The claimant had a history of depression caused by alcohol misuse. Judge May rejected the claimant's appeal because he failed to establish a specific bodily disease or disablement which would enable the claimant to score points for this descriptor.

Activity 11 requires that the specific bodily disease or disablement be physical, whereas depression is a mental health condition. The claimant provided no other evidence of physical disability brought on by alcohol misuse.

The decision also rejects R(DLA)6/06 as relevant to the work capability assessment.

CE/1005/2010 [2010] UKUT 340 AAC: Burden of proof during assessment phase

The claimant was suffering from depression but scored no points, based on the approved disability analyst's (ADA) report. This decision was made during the assessment phase. 

The claimant questioned the:

• inadequate time spent on the ADA examination
• refusal of the tribunal to adjourn to enable a fuller mental health assessment to be carried out by a better qualified person than the ADA, and to challenge the admissibility of the ADA’s report
• tribunal’s failure to address the question of the burden of proof which is said, in the case of an existing award, to be on the Secretary of State

The examination was a short one (22 minutes) but, following CIB/908/2003, it was held that this was sufficient.

"15…….In the present case, the assessment took 22 minutes. There was no dispute that the claimant suffered from depression.  It is plain that as a registered nurse the ADA had no mental health qualifications.  Any opinion she expressed therefore in relation to the claimant’s mental health would be of little or no value. She was trained, however, to question him as to the effects of the depression on his ability to perform the relevant descriptors and she did report on his answers.  There is no suggestion that the factual information that was provided is not admissible evidence, or that she failed to ask the right questions, except that in my view she might perhaps have asked more specific questions as to whether there was any specific place that he could not go to without being accompanied. 

16. In any event, any deficiency in her questioning, or indeed any failure to conduct the examination properly does not invalidate the assessment procedure.  It simply means that the tribunal should consider whether the resulting report, or some part of it, can be relied on at all, and if so, what weight should be given to it.  A medical examination is not a requirement before a decision is taken by the Secretary of State but an option available to him (see regulation 23(1) of the ESA Regulations).”

It was held that the ADA had gathered enough relevant information sufficient to provide a basis for the decision maker to supersede the initial award made during the assessment phase. The tribunal also heard further evidence from the claimant, his GP and his counsellor. 

"On the basis of the claimant’s own evidence it was clear that he did not score any points for any of the descriptors and his claim had to fail.  I can see no reason why the tribunal should have adjourned for a mental health assessment on the facts of this case and it was right to refuse to do so.  If the claimant had wanted to provide a full mental health assessment, he had had 7 months in which to obtain one, and there is no suggestion that he had made any attempt to do so, or that it could have affected the outcome of the appeal bearing in mind his own evidence."

Judge Mark also states that during the assessment phase, following R(IB)2/09, (paragraph 46) there is no formal burden of proof on either side (paragraph 17).

Note: previous case law - R(S)/13/54 & R(S)13/52 - states that at the beginning of the claim, the burden of proof lies with the claimant.

CE/1032/2010 [2010] UKUT 295 AAC: Tribunal procedure and practice - fair hearing

This decision succeeded for the reasons summarised at paragraph 3.

“The same medical member of the First-tier Tribunal sat with different presiding judges in this case on 25th June 2009 and 8th December 2009, and on the earlier occasion considered the papers in preview with the judge. Thus the medical member had already discussed the case with a judge and therefore should not have sat on the later occasion. This was a breach of the rules of natural justice and fair procedure.”

CIB/2631/2009 [2010] UKUT 290 AAC: Incapacity benefits mental health descriptors

The tribunal accepted the findings of the examining health care professional (HCP) in relation to the mental health descriptors and made no reference in the statement of reasons to the claimant's oral evidence which contradicted some of the HCP’s findings.

The tribunal also stated that nothing in the claimant's manner suggested that he was in 'psychological discomfort of any kind'. Amongst the evidence was a letter from the claimant’s consultant psychologist stating that “although [the Claimant] appears contained in his demeanour, he suffers from severe psychological difficulties including depression, sleeping difficulties and anxiety.”

The tribunal erred in failing to make reference to the oral evidence.

“12.... If the claimant has given evidence to the tribunal which, in the tribunal’s view, confirms the HCP’s conclusions, then it will generally be sensible for the tribunal to say so, however briefly. If he has given evidence which on the face of it is contrary to those conclusions, the tribunal will in general need to say what it makes of that evidence. ……But it will rarely be satisfactory for the tribunal to make no comment at all on the substance of the oral evidence given by the claimant in relation to the mental health descriptors.”

The appeal was therefore successful. However Judge Turnbull went on to state that he would have also allowed the appeal on the ground that the tribunal erred in disregarding the consultant psychiatrist's caution about the claimant's demeanour.

“If the Tribunal was going to attach the significance which it did to the manner in which the Claimant gave his evidence (as opposed to the substance of his answers), I agree that it should have adverted specifically to Ms Mahtani’s [the consultant psychiatrist] caution, which was one to which she plainly attached importance.”

CIS/330/2010 [2010] UKUT 308 AAC: Proper approach to loans for repairs and improvements

Paragraph 16 of Schedule 3 of the Income Support (General) Regulations 1987 allows loans for repairs and improvements to the dwelling occupied as the home to be regarded as eligible housing costs where 'repairs and improvements' means specified measures 'undertaken with a view to maintaining the fitness of the dwelling for human habitation'.

This was an successful appeal by the Secretary of State against a tribunal decision allowing £40,000 in housing costs under paragraph 16 of Schedule 3. The Tribunal’s decision was set aside for inadequacy of reasoning. What makes the decision useful is the guidance provided on:

• the meaning of  ‘maintaining the fitness of the dwelling for human habitation’
• the meaning of the word ‘provision’
• the meaning of ‘damp proof measures’ and ‘insulation’
• the level of evidence required to satisfy paragraph 16 of Schedule 3.

CIS/544/2010 [2010] UKUT 345 AAC: Definition of care home

This decision considers whether a residential college comes within the definition of care home for the purposes of regulation 42(4A) of the Income Support (General) Regulations 1987. These allow any notional income to be disregarded in full under paragraph 66 of Schedule 9 to the same Regulations.

Judge Wikeley held that…

“20. The First-tier Tribunal concluded that the college was “first and foremost an educational establishment... [and] therefore should not be treated as a care home”.  In doing so it erred in law; the two concepts are not necessarily mutually exclusive.  There is no suggestion in either the Care Standards Act 2000 or in the Income Support (General) Regulations 1987 that a care home ceases to be a care home by virtue of fulfilling some other function, unless there is an express statutory exception in the primary or secondary legislation.”

The college was a care home within section 3 of the Care Standards Act 2000 because it provided 'accommodation, together with nursing or personal care' for 'persons who are disabled or infirm' within section 3(1) and 3(2)(c) of that Act. It was also not excluded by any of the specific exemptions listed in section 3(3)(a)-(c) of the Act and that...

“22.Section 3(3) also makes provision for an establishment not to be a care home if it is of “a description excepted by regulations”.  At the material time regulation 3 of the Care Home Regulations 2001 (SI 2001/3965) specified certain types of establishment as being excluded from the definition of care home.  The only possibly relevant exception is in regulation 3(1)(d), which refers to “an institution within the further education sector as defined by section 91(3) of the Further and Higher Education Act 1992”.  However, according to regulation 3(3), that exception itself does not apply if

“(a) the establishment provides accommodation together with nursing or personal care to any person; and
(b) the number of such persons is more than one tenth of the number of students to whom it provides both education and accommodation.”

23. Whether or not the college falls within the complex definition of a further education institution in section 91(3) of the Further and Higher Education Act 1992, it is plain from the tribunal’s findings and the evidence on file that the college falls within the ‘exception to the exception’ as set out in regulation 3(3).  As the tribunal also noted, the college was the subject of an inspection report by the CSCI (now the Care Quality Commission), demonstrating that it was registered as a care home under section 11 of the 2000 Act.”

Judge Wikeley set aside the decision of the tribunal and remade the original decision to the effect that the claimant was entitled to income support as his income did not exceed his applicable amount.

CTC/1518/2009 [2010] UKUT 288 AAC: Child tax credit

This decision considers whether education outside UK counts when linking periods of full time education. It considers the situation as at December 2007.

CTC/3179/2009 [2010] UKUT 323 AAC: Child tax credit payable to person living in EC country

The Claimant was aged 60. He and his wife were granted a residence order in respect of their granddaughter (Dominique), aged 6. They were awarded child tax credit in respect of Dominique from 6 April 2005 but then subsequently moved to Spain in October 2006, taking Dominique with them.

Claimants outside the UK but inside the European Union are not entitled to claim child tax credit (CTC) because it is not defined as a 'family allowance for persons receiving pensions for old age, invalidity, or an accident at work or occupational disease' in Article 77.1 of EC Regulation 1408/71.

Had Dominique been the claimant’s child, as opposed to grandchild, Judge Turnbull suggests that the case might have fallen within the subsequent words of Article 77.1: “and increases or supplements to such pension in respect of the children of such pensioners.”

“The relevant “pension” in the present case was incapacity benefit. In view of the way in which it is calculated, it may possibly be correct to regard child tax credit as and “increase or supplement to” incapacity benefit.”

He suggests that if this is the case CTC/1853/2009, where the claimants were the parents of the child, would have been wrongly decided.

Martin Inch - 24 November 2010

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