Highlighted decisions June 2008

Great Britain and Northern Ireland decisions highlighted by the Editorial Board in June 2008

CCS/2342/2007
Calculation of income – "salary sacrifice" arrangement – whether salary sacrificed was actual income – whether notional income.

CCS/3674/2007
Application for a variation for a debt from the former relationship – mortgage on home up for sale – regulation 12(3) (a), (h) (k), and (m) of the Child Support (Variations) Regulations 2000 considered.

CSDLA/500/2007 / CSDLA/524/2007 (Tribunal of Commissioners)
Tribunal practice – record of proceedings – whether note of submissions required – whether a tribunal’s breach of a procedural requirement (legible record of proceedings) necessarily renders its decision erroneous in point of law

CDLA/3839/2007 Higher rate mobility component – impaired mobility resulting from autism.

CH/4250/2006
Housing benefit – eligible payments – mooring charges – whether a narrow boat was a "houseboat" despite lack of planning consent for residential mooring.

CH/2567/2007
Housing and council tax benefits: recovery of overpayments – official error – local authority tenant – information notified to housing authority and not passed on to benefits service (see also CH/3586/2007 below)

CH/2675/2007
Income – whether loan is income – loans to pay rent while claim for housing benefit is determined.

CH/3586/2007 Housing and council tax benefits: recovery of overpayments – official error – local authority tenant – information notified to housing authority and not passed on to benefits service (see also CH/2567/2007 above)

CI/732/2007
Meaning of accident – vaccinations received in course of employment – whether untoward or unexpected events if claimant not informed of risks – no untoward consequences proved – however decision that declaration of industrial accident cannot be made is not given conclusive effect by section 29(4) Social Security Act 1998 so declaration possible in future if better evidence of connection between vaccinations and claimant’s medical condition became available.

CIB/2619/2007
Exemption from personal capability assessment for severe mental illness – whether regulation 10(2)(e)(viii) Social Security (Incapacity for Work) (General) Regulations ultra vires – severity of mental illness is to be calibrated by its effects – whether beneficial effect of medication to be taken into account.

CIS/408/2006 Right to reside – EU citizen leaving work to care for her husband who is not an EEA national – whether they retain rights of residence under Article 18(1) of the EC Treaty.

*CIS/2358/2006
Right to reside – whether a former worker has a right of residence under Article 18(1) of the EC Treaty
*Note: Leave was granted to the claimant by the Commissioner on 06.03.08 to appeal to the Court of Appeal under the name of Kaczmarek v Secretary of State for Work & Pensions. The case is likely to be heard on 13 or 14 October 2008).

CIS/2364/2006
Right to reside and European law:

EEA jobseeker’s availability should generally be assessed under domestic law
workseeker – whether work sought must be likely to be effective and genuine

C3/07-08(IS)
Recovery of overpayments – failure to comply with notification requirements under regulation 28 of the Decisions and Appeals Regulations.

CIS/2100/2007
Right to reside and European law – family member of worker within the meaning of Article 2 of Directive 2004/38 – meaning of "dependent" – requirement for material support to be provided.

CIS/3101/2007 / CIS/3102/2007 / CIS/3103/2007 / CIS/3104/2007
Whether boarding–out allowance saved by foster–carer to meet future expenditure counts as capital and if so whether held on trust.

Precedent – later decision of a Commissioner is not necessarily to be followed in preference to an earlier one – R(IS) 3/93 preferred to CIS/515/2006 – R(IS) 13/01 no longer good law.

CIS/3611/2007 Recovery of overpayments – amount recoverable – undeclared capital of claimant’s children – whether regulation 14 PAOR Regulations (diminution of capital) applies.

CIS/3655/2007
Supersession for ignorance or mistake of fact – what is a "material fact" – relevance of new evidence – whether Saker (reported as an Appendix to R(I) 2/88) applies to supersession.

CIS/4299/2007
Right to reside – permanent residence derived in part from lawful residence as a jobseeker before 2 October 2000.

CIS/4304/2007
Right to reside and EU law – retained worker status – temporarily unable to work as a result of an illness or accident – test of ability to work based on EU law not domestic law.

CIS/43/2008
Prescribed categories of person – entitlement for carer before child benefit awarded – tribunal failed to consider categories other than "lone parent".

CIS/102/2008
Housing costs – whether loan taken out "to acquire alternative accommodation more suited to the special needs of a disabled person" – suitability of accommodation for disabled child is not confined to physical characteristics – CIS/14551/1996 considered and followed.

CJSA/63/2007
Jobseeker’s allowance – voluntary unemployment – whether just cause for leaving stop–gap employment.

CJSA/3513/2007
Tribunal procedure – statements of reasons – whether a chairman can set aside a decision of a tribunal under section 13(2) of the Social Security Act 1998 without the application being accompanied by a statement of reasons R v S of S ex parte Jeyeanthan 1999] EWCA Civ 3010 applied – CDLA/1685/2004 [http://www.osscsc.gov.uk/aspx/view.aspx?id=1688] not followed.

CP/4205/2006
Contribution conditions – determining disputed issues in connection with a contributor's entitlement to home responsibility protection, actual contributions paid and other aspects of the contribution contributions necessary to claim state retirement pension – whether and how European law may be relevant to a contributor's contribution record.

CP/1425/2007 / CP/2862/2007 / CSP/503/2007 (Tribunal of Commissioners)
Pension rights of male–to–female transsexuals under EU directive 79/7 and gender recognition Act 2004 – time limits for claim – entitlement on basis of deferment.

CPC/204/2006
Housing costs – estimated service charges – supersession of award of state pension credit when actual service charges known.

CPC/3396/2006
Whether failure to make regulations allowing backdating of award of state pension credit to successful asylum–seeker in breach of Article 14 of European Convention on Human Rights read with Article 1 Protocol 1.

CPC/1370/2007
Metamorphosis of income into capital for state pension credit purposes – diminution of notional and actual capital under state pension credit rules.

CPC/3992/2007
Housing costs – loan taken out in "relevant period" – backdating of state pension credit claim on advice of DWP visiting officer resulting in loss of entitlement to housing costs – CPC/3226/2005 followed – mischief and possible remedies considered.

Note:
From 3 November, 2008 the new Upper Tribunal has taken over the work of the Social Security, Child Support and Pensions Appeal Commissioners. The Commissioners formerly handled appeals from tribunals that are now covered by the Social Entitlement Chamber, and the War Pensions and Armed Forces Compensation Chamber, of the First-tier Tribunal.
The Upper Tribunal also deals with appeals from the Health, Education and Social Care Chamber of the First-tier Tribunal.