Neligan Digest of Commissioner’s Decisionswebarchive.nationalarchives.gov.uk/20100910235604/http:/dwp.gov.uk/... · The Neligan Digest of Commissioner’s Decisions is available

D e p a r t m e n t f o r W o r k a n d P e n s i o n s

D E C I S I O N M A K I N G A N D A P P E A L S ( P A R T O F L E G A L G R O U P )

Neligan

Digest of Commissioner’s Decisions

Volumes 1 and 2 Supplement 72 – August 2010

1. Attached is Supplement 72 to Neligan.

2. This package is now produced in PDF format only. The amended pages are reproduced in full. The supplement number is printed at the top of each page.

3. This package contains the following Commissioners’ Decisions:

[2010] AACR 1 [2010] AACR 2 [2010] AACR 3 [2010] AACR 4 [2010] AACR 5 [2010] AACR 6 [2010] AACR 7 [2010] AACR 8 [2010] AACR 9 [2010] AACR 10 [2010] AACR 11 [2010] AACR 12 [2010] AACR 13 [2010] AACR 14 [2010] AACR 15 [2010] AACR 16 [2010] AACR 17 [2010] AACR 18 [2010] AACR 19

4. The last two supplement packages issued were:

Supplement 71 – February 2010

Supplement 70 – November 2009

If you choose to print this amendment package and update a hardcopy remove the sheets in the left-hand column of this notice and insert new sheets in the right-hand column (the numbers quoted are those printed at the top of the respective pages). Insert the revised sheets and note the record of amendments pages at the back of both Volumes 1 and 2.

5. We make every effort to ensure the accuracy of this work, but in the event of an error being identified please contact the Publications team on 0113 232 4953.

The Neligan Digest of Commissioner’s Decisions is available on the DWP Website at http://www.dwp.gov.uk/advisers/docs/neligans/index.asp

Remove Insert Volume 1 Volume 1 Chapter 5 Chapter 5 Contents Parts 1 – 4 (1 page) Contents Parts 1 – 4 (1 page) 5.4.5-8 – 5.4.8-10 (1 page) 5.4.5-8 – 5.4.10 (2 pages) Volume 2 Volume 2 Chapter 13 Chapter 13 13.1.1 – 13.1.4-5 (3 pages) 13.1.1 – 13.1.4-5 (3 pages) Chapter 15 Chapter 15 15.5.4-7 – 15.5.4-7 (1 page) 15.5.4-7 – 15.5.7 (1 page) Chapter 17 Chapter 17 17.3.2 –17.4.5 (4 pages) 17.3.2 – 17.3.5 (4 pages) 17.9.4-5 – 17.9.7 (2 pages) 17.9.4-5 – 17.9.6-7 (2 pages) 17.11.1 – 17.11.1-2 (1 page) 17.11.1 – 17.11.2 (2 pages) Chapter 19 Chapter 19 19.1.1 – 19.1.3-4 (6 pages) 19.1.1 – 19.1.3-4 (6 pages) 19.3.3-4 – 19.3.5 (2 pages) 19.3.3-4 – 19.3.5 (2 pages) Chapter 21 Chapter 21 Contents Parts 1 – 12 (1 page) Contents Parts 1 – 12 (1 page) 21.12.4-5 – 21.12.4-5 (1 page) 21.12.4-6 – 21.12.4-6 (1 page) Chapter 23 Chapter 23 23.1.1 – 23.2.1 (1 page) 23.1.1 – 23.2.1 (2 pages) 23.5.1-9 – 23.5.9-10 (1 page) 23.5.1-5 – 23.5.6-10 (1 page) 23.10.1-2 – 23.13.1-6 (2 pages) 23.10.1-2 – 23.13.6 (4 pages) Chapter 32 Chapter 32 Contents Parts 1 – 10 (1 page) Contents Parts 1 – 10 (1 page) 32.1.2-4 – 32.1.2-4 (1 page) 32.1.2-5 – 32.1.2-5 (1 page) 32.4.2-4 – 32.5.1-2 (3 pages) 32.4.2-4 – 32.5.1-2 (3 pages) Appendix 2 Appendix 2 Part 1 Part 1 Howard – Merriman (1 page) Howard – Merriman (1 page) Herbert – Insurance Office (1 page) Herbert – Insurance Office (1 page) AA Ten – W. (E.E.M.) (2 pages) AA Ten – W. (E.E.M.) (2 pages) Appendix 3 Appendix 3 Series CS 1/95 – R(DLA) 1/09 (1 page) Series CS 1/95 - R(DLA) 1/09 (1 page) Series G 5/52 - Series H 9/09 (2 pages) Series G 5/52 - Series H AACR 16 (2 pages) Series I 1/91 - Series S 11/51 (4 pages) Series I 1/91 - Series S 11/51 (4 pages)

General Index General Index Adj – Bys-Cer (2 pages) Adj – Bys-Cer (2 pages) Chi-Cla – Err-Eur (5 pages) Chi-Cla – Err-Eur (5 pages) Fa-Fz –Inc (3 pages) Fa-Fz –Inc (3 pages) Inc-Inv – Jew-Liv (1 page) Inc-Inv – Jew-Liv (1 page) Red-Ret – Ret-Rev (1 page) Red-Ret – Ret-Rev (1 page) Soc – Soc-Sup (1 page) Soc – Soc-Sup (1 page)

CHAPTER 5

Retirement pension

Contents

Part 1: Treated as retired from regular employmentGeneral considerations 5.1.1Does not intend to be an earner 5.1.2‘Or otherwise in circumstances not inconsistent with retirement’ 5.1.3Not retired from regular employment 5.1.4Not only occasionally or to an inconsiderable extent 5.1.5Circumstances inconsistent with retirement 5.1.6Treated as having retired: members of religious orders 5.1.7Persons engaged in agriculture 5.1.8

Part 2: Reduction on account of earningsComputation of earnings 5.2.1Allowable deductions 5.2.2Incidence of income tax 5.2.3What constitutes ‘gainful occupation’ or ‘gainful employment’ for purposes of calculating earnings 5.2.4

Part 3: Married womenIncrease of retirement pension for wife 5.3.1Entitlement of wife on husband’s contributions 5.3.2Whether husband and wife are ‘residing together’ 5.3.3Validity of marriage 5.3.4Marriage by ‘habit and repute’ 5.3.5

Part 4: General considerations affecting entitlementEffect of free in-patient treatment in hospital 5.4.1Detention in legal custody 5.4.2Evidence of date of birth 5.4.3Days for which retirement pension payable 5.4.4Notice of retirement 5.4.5Residence in Great Britain 5.4.6Overlapping benefits 5.4.7Transsexuals 5.4.8Absence from Great Britain 5.4.9GMP deduction 5.4.10

Decisions not included 5 Annex

Supplement 72 [8/2010]

5.4.5-8

retirement could only be accepted from the date given in the fresh notice. See paras.10 and 11. See also CSP 13/49.

6 Residence in GB

i The question whether a person is, or is not, resident in GB is one of fact anddegree. “Resident” is not synonymous with ‘ordinarily resident’. In certaincircumstances a person can be resident in more than one country at the same time. Thuswhen a husband and wife came to GB from Australia in September 1963 and spent sometime travelling on the Continent before returning to Australia early in 1965 they wereheld to have become resident in GB in the September, as from when they did not fallto be disqualified for receiving an increase of RP by force of the regs. then in operation.See paras. 9 to 14 and see also R(P) 1/72.

7 Overlapping benefits

i A widow was awarded RP based on her own deficient contribution record andclaimed that by adding her husband’s contributions to her own she could be entitledto a pension at the full rate. The Minister of Pensions and NI (as he then was) decidedthat on that basis the relevant contribution conditions were fully satisfied. But theclaimant was, however, also in receipt of a dependant’s war pension which exceededthe amount to which she would have been entitled if her late husband’s contributionswere taken into account. It was held that the claimant’s war pension was a “personaldeath benefit” and as a result of the application of the relevant provision of the NI(Overlapping Benefits) Regs. she would derive no benefit from relying on her latehusband’s insurance, but that she was entitled to RP on her own insurance, which wasexcepted from the provisions of the regs.

8 Transexuals

i The claimant who was born a male in 1915 commenced, living and working asa woman in 1960 following medical and psychiatric treatment. The claimant claimedthat pensionable age in her case was the age of 60 on reaching that age in 1975. It washeld that even while living as a woman the claimant was biologically a man and hadnot reached the appropriate pensionable age of 65. See also R(P) 2/80 and R(P) 1/07,19.1.2 xxvii.

ii The term ‘woman’ in s. 27 of the Act refers to a person who is biologically awoman. There is no statutory power whereby a person may change his NI rights fromthose of a man to those of a woman. R(P) 1/80 followed. See also R(P) 1/07, 19.1.2 xxvii.

iii The claimant, a male-to-female transsexual, claimed and was awarded RP at age65. In May 2005 the claimant obtained a GRC under the Gender Recognition Act 2004.Her RP was recalculated from June 2005 to reduce her AP. In May 2006 the claimantapplied for her RP to be awarded to her as a woman back to her 60th birthday, assertingentitlement to equal treatment under Art. 4(1) of Council Directive 79/7. TheCommissioners held that the claimant was entitled to assert a claim under the directeffect of Art. 4(1) (see R(P) 1/09). However any claim is subject to the same generalprocedural requirements, time limits and restrictions as any corresponding applicationsunder domestic law. Applying those requirements, the claimant’s application of May2006 could only be considered as one for the alteration of the RP she had claimed andbeen awarded in 1999, not as a fresh or separate claim. The only relevant power to alterthat award was to supersede it under s.10 of the Social Security Act 1998 with effectfrom the date of her application. There was no ground to revise it back to its originaldate, as any error in failing to accord equal treatment as required by the Directive wasonly shown to be so by R(P) 1/07 and therefore outside the definition of “official error”in reg. 1(3) of the Social Security and Child Support (Decisions and Appeals) Regs.1999. The decision to reduce the claimant’s RP was questioned. That decision had tobe reconsidered, for possible separate revision of the claimant’s award back to that dateif it had failed to give effect to para. 7(4) of Sch. 5 to the Gender Recognition Act 2004with regard to the amount of AP. The claimant was entitled to have include in her RP,


R(P) 2/67

R(P) 4/58

R(P) 1/80

R(P) 2/80

R(P) 2/09

from the effective date of the superseding or revised decision, a percentage increase fordeferment from the date when she could first have claimed RP under the Directive untilits actual starting date in 1999. The date when the claimant had first become entitledto the benefit of equal treatment in her acquired gender was to be determined byapplying the same tests as in the Gender Recognition Act, even as regards periodsbefore it came into force (See R(P) 1/09). See also 19.1.2 xxviii.

iv MP v SSWP (RP) [2009] UKUT 205 (AAC); [2010] AACR 13. The claimant, amale-to-female transsexual, married while a man, but underwent gender reassignmentsurgery and was divorced. The claimant continue to pay NI contributions until shereached age 65. She was paid RP which was calculated on the basis that she was male.The claimant was issued with a GRC and the claimant’s AP was reduced by means ofa supersession. The AT (now FtT) upheld that decision. Before the UT decided theclaimant’s appeal she received a refund of the NI contributions she had paid betweenthe ages of 60 and 65. The UT allowed the appeal and held that the decision reducingthe claimant’s AP was wrong. The UT also held that there was no basis for refundingthe claimant’s NI contributions, since the rationale for the refund was that her AP hadto be recalculated in order to ignore earnings factors accrued between age 60 and 65.If no such recalculation was required, there was no basis for refunding the NI contributions.However, the claimant was entitled to an increase of BP due to deferment under theequal treatment provisions. See also 17.11.1 x, 5.4.8 iii an d 19.1.2 xxvii.

9 Absence from GB

i The claimant, a married couple who had lived in Australia, came to the UK inthe 1970s. On reaching pension age they were both awarded full UK RP as they werecredited with deemed contributions for their residence in Australia under a reciprocalagreement between the UK and Australia. That agreement was subsequently terminatedfrom 2001 save for certain limited provisions preserving and continuing the RP rightsof existing recipients. The claimants moved to France in 2004 and their pensions werereduced to 35% of the standard rate; that being the appropriate rate based on only UKcontributions. The claimants appealed, arguing that Art 10 of Reg. (EEC) 1408/71precludes any reduction in old age benefits simply because a recipient resides inanother member state. The CA held that the reduction was lawful as the claimants werenot protected by Art 10 because Reg 1408/71 does not apply to agreements betweenthe UK and a third state (Annex VI, section Y, para 7). The 1971 Reg. clearly excludedconventions between a single member state and a third non-member state. The Courtheld that the SS (Australia) Order 2000, although revoking earlier agreements, didcontinue in force certain provisions and was thus an agreement between the UK anda non-member state.

ii The claimant, a Canadian citizen, married her late husband in 2001. He was aUK citizen who had emigrated to Canada in 1976, his RP and GRB being “frozen”thereafter so that he was not entitled to any subsequent upratings. Following marriagethe claimant was awarded Category B retirement pension on her husband’s contribu-tions, but frozen at the 1975 rate. After the death of her husband in 2002 she was awardedRP in her own right, plus half of her late husband’s GRB, but again frozen at the 1975rate. A tribunal dismissed the claimant’s appeal, but a Commissioner found that she wasentitled to have her RP uprated from the date of her husband’s death. The Secretary ofState appealed, and the CA held that the general bar on uprating abroad continued toapply to the claimant both before and after she became a widow. There was a strongincentive to read any ambiguity in the regs. so as to accord with the evident policyintention. The Court, however, remitted the case back to the Upper Tribunal so that thematter could be reviewed when the final decision of the ECHR was given in Carson(challenging all frozen rates for persons living outside the EU).

10 GMP deduction - point at which made

i A woman was in receipt of a RP on her own insurance. The pension consistedof a basic and additional pension but was subject to a GMP deduction. On the deathof her husband she became entitled to a pension based on his contributions, also subjectto a GMP deduction. On the death of her husband she became entitled to a pension


R(P) 1/03

5.4.8-10

R(P) 2/08

R(P) 3/09

[2002]AACR 13

based on his contributions, also subject to a deduction in respect of her GMP. As thepension on her own insurance was higher, the issue was whether the deduction in respectof the GMP should be made at the stage of calculating the additional pensionattributable to her own earnings, as this led to a more favourable result. It was held thatthe GMP was to be deducted after the appropriate pension had been worked out and notat some intermediate stage in working it out.

ii W v SSWP [2009] EWCA Civ. 1111; [2010] AACR 7. The claimant was awardedRP. However, the AP was subject to a GMP deduction. The claimant appealed, statingthat the GMP should only be deducted from pre-6.4.97 AP for the period he was incontracted-out employment. The UT commented that the claimant’s position appearedanomalous but, citing Inco Europe v First Choice Distribution [2000] 1 WLR 586,dismissed the appeal. The claimant appealed to the CA. The CA dismissed the appealand held that the absence of any restriction of the statutory set-off to AP accruing inthe contracted-out period of employment was due to an error on the part of the draftsmanand did not represent the intention of the legislature. The CA also held that CMP couldbe deducted even for periods when the claimant was in contracted-out employment.

5.4.10


[2010]AACR 7

xiv The Secretary of State issued a certificate on 12 June 1987 to the effect that hewas not prepared to accept a claim for UB made in 1983 as a claim in the alternativefor sickness benefit. Between 6 April 1987 and 10 April 1988 the question of whethera claim for one benefit could be accepted as a claim in the alternative for another benefitwas not specified as being for the Secretary of State. The decision of the Secretary ofState was therefore null and void. The Commissioner agreed with the claimant’srepresentative that there is no authority for the proposition that the rules in force whenthe claim is made should be applied. In procedural matters it is the rules in force whenthe procedural issue is determined that apply. See also 13.1.1 iv.

xv A claimant was temporarily engaged in short-time working of 37 hours inalternate weeks. He made a claim for IS in order to receive benefit in the weeks whenhe did no work. The Commissioner held that although the claimant had assertedentitlement only in respect of particular weeks, it was open to an adjudicating authorityto treat the claim as made for an indefinite period. The power in reg. 17(3) of the SS(Claims and Payments) Regs. 1987 should not be used solely because hours of workfluctuate. See also 29.2.2 iii.

xvi A separate claim for CHB has to be made for each eligible child. It is not opento a claimant simply to seek a review of an existing award to take account of the birthof another child.

xvii The claimant claimed severe hardship allowance after the replacement of thatbenefit by REA on 1 October 1986. The claim from and including 1 October 1986 wastreated as a claim for REA. The Commissioner held that a claim in respect of the periodbefore 1 October 1986 was not prevented by the repeal of severe hardship allowance,the claimant being protected by the presumption against retrospectivity in commonlaw and S. 16 of the Interpretation Act 1978, and the continuing existence of thestatutory machinery needed to decide the claim. The Commissioner further held thatsevere hardship allowance was not subject to the twelve month limitation on backdatingin S. 1(2) of the Administration Act S. 1(2) of the Act provides an exemption fordisablement benefit and severe hardship allowance falls within this. In ChiefAdjudication Officer v. Maguire [see Appendix 2, part 1 B], the CA rejected an appealagainst the Commissioner’s decision. The court held that once the claimant hadsatisfied the substantive conditions of entitlement to severe hardship allowance, hehad a right for the purposes of S. 16(1)(c) of the Interpretation Act 1978, even thougha claim had not been made. S. 16(1)(c) preserved this right after the repeal of severehardship allowance and the necessary claim could still be made.

xviii On reaching age 60 in 1986, the claimant claimed and received a Category ARP based on her own NI contributions. The claimant’s husband claimed and receiveda Category A RP from October 1992 when he reached age 65. At that time the claimantcould have claimed a Category B RP based on her husband’s NI contributions. ThatCategory B RP would have been at a higher rate than the claimant’s own Category ARP and would have been payable in its place. The claimant did not in fact claim aCategory B RP until March 2000. An award was made but only with effect from 2.12.99.The claimant appealed to a tribunal and then a Commissioner on the grounds that sheshould have received the Category B RP with effect from the date her husband reachedage 65. The Commissioner decided that S. 43(5) of the SS Contributions and BenefitsAct 1992 created an express statutory exception to the rule set out in S. 1 of the SSAdministration Act 1992 that no person is entitled to benefit without making a claimfor it. The Secretary of State appealed to the CA. The Court held that the Commissionerwas wrong in his conclusion about S. 43(5). That section simply provided a mechanismfor choosing between different pensions to which there was entitlement. In particularit was intended to apply where a claim for one category of pension could be treated asa claim for another under reg. 9 of SS (Claims and Payments) Regs. 1987. The claimant’scircumstances did not fall within any of the exceptions to S. 1 of the Admin Act andthus she was not entitled to a Category B RP for any period prior to 2.12.99. See also13.1.1 xix below.

xix Entitlement to an increased Category A RP under s. 51A of the SS Contributionsand Benefits Act 1992 depends on entitlement to a Category B RP for which a separateclaim must be made. The normal time limits for claiming apply. See also 12.1.1 xviiiabove.

13.1.1

R(F) 3/96


R(S) 3/93

R(IS) 8/95

R(I) 3/99

R(P) 2/03

R(P) 1/05

xx The claimant posted a claim form for WB on 4 July 2000. The form did not arriveat a relevant DWP office and the claimant submitted a further claim on 29 October 2001.Benefit was awarded from 29 July by virtue of reg. 6(1)(a) of the SS (Claims andPayments) Regs 1987 which provides that a claim is made on the date on which it isreceived in appropriate office. The claimant argued that reg. 6(1)(a) was ultra vires andthat s. 7 of the Interpretation Act also applied to reg. 6(1). That provides that, unlessa contrary intention appears, a document required to be served by post will be deemedto have been received in the ordinary course of posting if properly addressed andposted. After two unsuccessful appeals to the Tribunal and Commissioner, the claimantappealed to the CA. The appeal was dismissed on the basis that reg. 6(1)(a) was not ultravires and that s. 7 of the Interpretation Act 1978 has no application to reg. 6(1).Consequently, the date of claim was therefore the date it was received in a relevantoffice i.e. 29 October 2001.

xxi The claimant applied for asylum on 9 December 1997 and was granted refugeestatus on 12 October 2001. Notification was sent to her solicitors on 10 January 2002.The solicitors failed to forward this to the claimant and asked the Home Office to issuea replacement, which they did on 17 July 2003. The claimant applied for IS on 13August 2003, requesting backdating to the date she claimed asylum under reg. 21ZA(2)of the IS (Gen) Regs 1987. This was refused on the basis that she was outside the 28 daytime limit which runs from the date of notification of refugee status. The claimantappealed on the basis that notification to her personally was required. After unsuccessfulappeals to the Tribunal and Commissioner, the claimant appealed to the CA. The appealwas dismissed on the basis that receipt of the notification of refugee status by theclaimant’s solicitor constituted notice to the claimant.

xxii The claimant applied for asylum on 25 March 2002. On 10 July 2003 he wasnotified that he had been accepted as a refugee. He became entitled to IS from the datehe claimed asylum. Under reg. 21ZB of the IS (Gen) regs 1987 the time limit for makingthe claim was 28 days from the date of notification of the asylum decision. His solicitorwrongly advised him that he could claim backdated IS or JSA. He was awarded JSA butdid not make a claim for IS until 9 March 2004. This was refused on the grounds thatthe claim was outside the 28 day limit. After unsuccessful appeals to the Tribunal andCommissioner, the claimant appealed to the CA. The appeal was dismissed on the basisthat a breach of reg 4(5) of the SS (Claims and Payments) Regs 1987 does not suspendthe time limits for making a claim. Additionally, a claim for backdated JSA cannot betreated as a claim for backdated IS as claims are only interchangeable if they arespecified as such in Sch. 1 to the SS (Claims and Payments) Regs. 1987.

xxiii Novitskaya v London Borough of Brent and another [2009] EWCA Civ 1260;[2010] AACR 6. The claimant arrived in the UK in July 1999 and claimed asylum. On12th May 2004 she was granted refugee status. On 18th May 2004 she became entitledto IS. On 10th June 2004 she was given a HB claim form and gave a statement requestingbackdating of her benefits or “whatever else I am entitled to” from the date she becamean asylum seeker. She did not return a completed HB claim form until 24th June 2004.The Deputy Commissioner decided that no valid claim for HB had been made in time.The claimant appealed to the CA. The CA upheld the claimant’s appeal and decidedthat

1. any “claim” must make it clear that a claim is being made and that claritycan be obtained from the document itself or that document interpreted in itscontext

2. there is no requirement that every benefit being claimed must be expresslynamed provided the official receiving the document can understand whichbenefits are being claimed

3. the statement of 10th June was a defective claim and was cured by thedelivery of the duly completed form on 24th June.

13.1.1


R(G) 2/06

R(IS) 4/07

R(IS) 4/07

[2010]AACR 6

R(S) 7/51

R(I) 27/52

R(P) 1/74

R(S) 11/83(T)

R(SB) 5/86

CWS 3/48

R (I) 16/51

The court also considered R(S) 1/63, CG/3844/2006 (unreported), R(SF) 1/04 andInvestors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR896, followed.

2 Time limits

See the SS (Claims and Payments) Regs. 1975, reg. 13 and Sch. 1.

i The period of three months from the receivable date of a postal draft does notinclude that date.

ii In a case where disablement benefit is paid by way of a gratuity, and not by wayof a pension, there is no statutory time limit for the making of a claim for disablementbenefit. See also R(I) 51/53.

iii A married woman who had no title to a basic RP was entitled to a graduated RPunder S. 36(7) of the National Insurance Act 1965, and an application for the determinationof her provisional entitlement to a RP on her husband’s insurance was treated as a claimfor a graduated pension. No time limit for the making of such a claim was laid down,but it was held that an increase of RP by way of graduated pension was “any benefit”within the meaning of Ss. 48(1) and 49(3) of the National Insurance Act 1965 (see nowS. 79(1) of the Act). The right to, and the receipt of, a graduated pension wereconditional on the making of a claim within the prescribed time. It was held further thatthe prescribed time for the claiming of an increase of RP for a dependant had alwaysbeen taken to be that prescribed for the claiming of a basic pension. It had never beendoubted that that was also the prescribed time for the claiming of an increase of RP byway of graduated pension. Accordingly it was held that that must also be the prescribedtime for the claiming of a graduated pension. In the case of the claimant, therefore, agraduated pension was payable from the date on which application was made for theprovisional determination of her entitlement to RP on her husband’s insurance. Seepara. 4 to 5. See now para. 5 of Sch. 1 to the SS (Claims and Payments) Regs. 1975.

iv The effect of the twelve months rule in S. 82(2) of the SS Act 1975 is to create adisentitlement to the benefit claimed. See also R 2/85 (NCIP), 18.6.2 i. Considered in R(U)7/85. Followed in R(S) 8/85. Rejected in R(P) 3/85.

v Reg. 5(2)(b) of the Supp Ben (Claims and Payments) Regs. provides for thebackdating of a Supp Ben claim in certain circumstances to the date of an earlier claimunder the SS or Family IS Acts. The requirement that the Supp Ben claim be made assoon as reasonably practicable after receipt of the decision on the claim for the otherbenefit was held merely to impose a time limit within which the Supp Ben claim mustbe brought; it did not prevent the Supp Ben claim from being made at an earlier date.

3 Computation of time limits

i Under the regs. then in force the prescribed time for making a claim for sicknessbenefit was a period of three days from the earliest day in respect of which the claimwas made (see now para. 2 of Sch. 1 to the SS (Claims and Payments) Regs. 1975). Itwas held that “a period of three days” meant three consecutive days and that, when theperiod of three days was being computed, Sundays should be disregarded. See also CI14/49 and compare CG 47/49.

ii Under the regs. then in force the prescribed time for the making of a claim fordisablement benefit in the case of a person who was not in receipt of injury benefit wasa period of one month after the commencement of the injury benefit period. It was heldthat “month” means “calendar” month. See para. 13, but see now, as to the prescribedtime for claiming disablement benefit, para. 7 of Sch. 1 to the SS (Claims and Payments)Regs. 1975. See also CU 66/49.

iii The claimant, who was an in-patient in hospital, could have been deemed to havehad good cause for his failure to make a claim for sickness benefit for three weeks after hisdischarge from hospital (see now regs. 2(5) and 13 of para. 2 of Sch. 2 to the SS (Claims andPayments) Regs. 1975). In fact, the claimant did not make a claim for sickness benefit untilthe 25th day after his discharge from hospital, and it was held that, although Sundays wereto be disregarded when any period of consecutive days were being computed, Sundayscould not be disregarded when the number of weeks were being calculated.


13.1.1-3

R(S) 3/56

R(IS) 10/06

iv The phrase “subject to a maximum extension of 3 months” in reg. 19(4) of theSS (Claims and Payments) Regs. 1987 means that benefit cannot be awarded for anyperiod falling more than three months before the date of claim. Also the provisions forextending the time for claiming under reg. 19(4) and (6) cannot be aggregated. See also13.6.1 viii.

v The claimant made a defective claim on 22 November. Further informationabout savings was requested and the claim form was received back on 28 November.On 5 December it was returned again to the claimant asking for details of money heldin trust. The correctly completed claim form was received on 31 December. Theclaimant maintained that the claim had been delayed because the letter dated 5December was not received until 14 December upon which he had taken prompt actionto obtain the necessary information and send it to the Department. The question aroseas to the extent to which the time for claiming could be extended under reg. 19(6) ofthe SS (Claims and Payments) Regs. 1987. The Commissioner held that:

1. when considering backdating the maximum period of extension shouldbe calculated backwards from the actual date of claim, not forwards from the firstday of the period claimed for;

2. an unjustified failure to make a claim before the beginning of the periodof claim does not prevent the operation of reg. 19(4) or (6);

3. claimants should not be disadvantaged by circumstances occurringimmediately before the date of claim simply because there might have been anearlier unjustified delay in claiming.

On that basis the Commissioner decided that the time for claiming could be extendedto 14 December (but no earlier) because adverse postal conditions over the Christmasperiod were partly responsible for the claim of 31 December not being made earlier.

vi The claimant requested an IS claim form on 21 July. This was received on 2August but without the verification of CHB and so was a defective claim. Theverification of child benefit was returned on 31 August. The Commissioner held thatreg. 6(1A)(b) of the SS (Claims and Payments) Regs. 1987 contain two possibilities forbackdating:

1. if a properly completed claim form is received within one month fromwhen the intention to claim was notified, the claim can be treated as made onthe date of the earlier notification;

2. if a properly completed claim form is received within one month of thereceipt of a defective claim, the claim can be treated as made on the date of thedefective claim.

In this case, a properly completed claim form was received within one month of thereceipt of the defective claim and so the Commissioner decided that the date of claimwas 2 August. See also R(IS) 16/04.

4 Period of disqualification

i The commencing date of a period of disqualification for the receipt of UB shouldnormally be the day following the end of the employment, except where the claimanthad received, or was entitled to, benefit. In that case disqualification should commenceon the first day of the benefit week following the date of the decision.

ii At para. 9 of the decision it was said that the statutory authorities have adiscretion as to the length of the period of disqualification for the receipt of UB, subjectto a limit of six weeks. But they should exercise the discretion judicially and, unlessthere are mitigating circumstances in the nature of the misconduct, they should notimpose a period of disqualification which in effect afforded no real protection to theNI fund. But see R(U) 8/74, 13.1.4 vii below.

R(U) 27/52

CU 19/48


13.1.3-4

R(IS) 3/01

R(IS) 16/04

iii A man made a delayed claim for UB and the local tribunal found that he did nothave good cause for his failure to make a claim for UB within the prescribed time butpurported to reduce the period of disqualification for the receipt of benefit. It was heldthat they had no power to do so and that the claimant must be disqualified for the receiptof UB for the whole period covered by his late claim.

iv If a claimant proves good cause for the delay in claiming benefit during thewhole period of delay he can escape disqualification for the receipt of benefitaltogether. If he proves good cause for the delay during the latter part of the periodhe can escape disqualification for that part. But if he proves good cause for the delayonly for the earlier part of the delay he cannot escape disqualification for the receiptof benefit. See also 13.3.1 xi, R(I) 1/84, 13.2.2 v below, and R(S) 2/84, 17.3.8 xi below.

v It was held that a bus driver who was convicted of a motoring offence shouldhave been disqualified for the receipt of UB for the maximum period of six weeks onthe ground that he lost his employment through misconduct. In the absence ofmitigating circumstances “in the nature of the misconduct itself” the period ofdisqualification should not be reduced. See R(U) 27/52, 13.1.2 ii above, and compareR(U) 1/71 and R(U) 10/71.

vi It was held that the reduction of a period of disqualification for the receipt ofUBs is justified only by a finding of mitigating circumstances or by a common senseexercise of discretion, not by a conflict of evidence, which it is the determiningauthority’s duty to resolve.

vii In a case where a girl of 21 voluntarily left her employment as a mother’s helpit was held by a tribunal of Commissioners that disqualification for six weeks was notnecessarily appropriate only in the most serious cases. To say that there are only twopossible approaches to the determination of the period of disqualification, one startingat the top and working down, the other starting at the bottom and working up, is wrong.References in earlier decisions to disqualification not being a penalty may have beenmisunderstood. S. 22(2) of the NI Act 1965 (see now s. 20(1)(a) of the Act) gave thestatutory authority a completely unfettered discretion, provided it was exercisedjudicially, as to the period of disqualification to be imposed. The statement in para.3 of decision R(U) 17/54 (q.v.) that the burden of proving that there are circumstancesjustifying a reduction in the period of disqualification will seldom be a light one iserroneous. The correct approach is to regard each case as one in which a sensiblediscretion has to be exercised in such a manner as the justice of the case requires.

5 Interchange with claims for other benefits

i The Secretary of State refused to treat a claim for Supp. Ben. made in 1970 asa claim for AA under reg. 9(5), SS (Claims and Payments) Regs. 1979. The reg., whichis permissive not mandatory, did not apply to that particular claim, which was madeunder the Supp. Ben. Act 1966 not the Supp. Ben. Act 1976. The continuing paymentsof Supp. Ben. did not constitute a claim to which reg. 9(5) applied. The Supp. Ben.(Claims and Payments) Regs. 1977 did not assist for treating the original claim as acontinuing one.

ii Reg. 9(5) of the SS (Claims and Payments) Regs. 1979 stated that a claim forSupp. Ben. may also be treated as a claim for AA. This provision was revoked with effectfrom 1988. Two claimants had applied for Supp. Ben. before 1988. They both claimedAA in the 1990s and asked for their claims to be backdated to the date of their firstapplications for Supp. Ben. On appeal the Commissioner held that the Secretary ofState still had the power to treat a claim for Supp. Ben. The CA held that the power totreat a claim for Supp. Ben. as a claim for AA had been discretionary. As a result no rightsthat might have been preserved by S. 16 of the Interpretation Act 1978 had accrued andthat the power could no longer be exercised. The CA also held that the Commissionerhad no jurisdiction to determine the issue since it had been for the Secretary of Stateunder s. 95(1)(e) of the SS Act 1975.

13.1.4-5


R(A) 3/81

R(A) 1/97

R(U) 24/64

R(U) 2/72

R(U) 8/74(T)

R(S) 2/63

R(U) 35/56

a period of seven days beginning with Sunday as defined in Sch. 20 to the SS Act 1975[now s. 122(1) of the SS Contributions and Benefits Act 1992]. The Commissioner alsoheld that reg. 4 of the ICA Regs does not allow for averaging out the hours of caringso as to satisfy the 35 hour test. To satisfy the test, the claimant must be engaged incaring for at least 35 hours in that week, and also be regularly engaged in caring. TheCommissioner dismissed the appeal. See also R(F) 1/84, 6.1.2 vii.

5 Entitlement because severely disabled person admitted to hospital and AA notpayable

i The claimant (the carer) was paid ICA because he was looking after his severelydisabled mother and he met the conditions of entitlement in s. 70(1) of the SSContributions and Benefits Act 1992. An AO decided that the mother had not beenentitled to AA for certain periods because of her admissions to hospital. In consequenceit was also decided that the carer was not entitled to ICA because he had received itduring those periods when his mother was hospitalised. On appealing the AO’sdecision, the tribunal decided that the claimant’s mother was not a “severely disabledperson” within the meaning of s. 70(2) when she was not entitled to AA. TheCommissioner held that s. 70(2) exclusively provides for the definition of “severelydisabled person”. Reg. 4(1) of the SS (ICA) Regs. 1976 deals with the meaning ofs. 70(1)(a) and is not intended to involve any departure from the statutory definitionat s. 70(2). Further, there is no conflict or inconsistency between reg. 4(2) and s. 70(2)with its statutory definition; and there is nothing in the regulatory powers of s. 70(8)to disapply the statutory definition.

6 Calculation of number of hours of education: meaning of “attends a courseof education at” - meaning of “supervised study”.

i The claimant’s entitlement to ICA was reviewed and withdrawn on the groundsthat she was receiving full-time university education as laid down in s. 70(3) of the SSContributions and Benefits Act 1992. The claimant appealed to the CA arguing that,in assessing whether education was “full-time” (twenty-one hours or more a week)under Reg. 5(1) of the SS (ICA) Regs. 1976, the phrase “attends a course of educationat” should be construed as requiring the student’s physical presence at the premises ofan educational establishment. She further argues that the expression “supervisedstudy” in reg. 5(2) did not include private study at home. The CA dismissed the appealand held that. The expression “attends a course of education at a university” is to beconstrued in the sense of being enroled upon such a course and does not bear a locationalconnotation. Hours of study away from the premises of the university are therefore capableof coming within the period during which the student is attending a course of education.As regards reg. 5(2), the test of what is “supervised study” does not depend on the periodof time for which the supervisor is present with the student. However, the study must bedirected to the curriculum of the course of education involved and in addition there mustbe a degree of direction by and answerability to a supervisor. The fact that the work is “set”– in the sense that is work which the student is expected or required, by the curriculum orby a supervising member of staff, to do – will (save in exceptional cases) bring it squarelywithin the concept of “supervised study”. It was also agreed that the ascertainment of hoursof attendance is question of fact to be determined by the DM or tribunal. The approach ofthe Northern Ireland CA in Bronwyn Wright-Turner v. Department for Social Developmentwas broadly correct and should be adopted.

7 Earnings

i The claimant, relying on R(IS) 4/05, argued that in SS Benefit (Computation ofEarnings) Regs. 1996, reg. 10(4) “amount paid by way of tax” includes tax which she isliable to pay. Rejecting this, the Upper Tribunal followed CG/1054/2005, holding that shecould not reduce her earnings by the amount of any tax liability resulting from receipt ofcarer’s allowance because no tax had in fact been paid.


15.5.4-7

R(G) 2/02

R(G) 1/02

R(G) 1/09

ii C v SSWP (CA) [2009] EWCA 1333; [2010] AACR 17. The claimant’s final paymentconsisted of wages and holiday pay which was a payment in lieu of outstanding annualholiday entitlement. The question before the UT was whether the claimant’s holiday paywas “earnings of the same kind” as payment of ordinary wages for the purposes of regulation6(2)(a) of the Social Security Benefit (Computation of Earnings) Regulations 1996 inwhich case that reg specifies the period over which those earnings are to be treated as paid.This involved consideration and interpretation of the words used in the legislation. It washeld that–

i holiday pay is payable in respect of a period so falls within reg 6(2)(a);

ii “of the same kind” in reg 6(2)(a) is intended to distinguish those earningspaid in respect of a period and covered by reg 6(2)(a) and those other kindsof earnings to which reg 6(2)(b) applies;

iii reg 6(2)(a) is a deeming provision designed to identify an end date when aperiodic payment is made which does not consist of ordinary pay.

[2010]AACR 17


15.5.7

R(IS) 2/96

substance what was a refusal to review into a review. In addition, there was no reasonwhy, where there has been a review, an earlier decision should cease to exist so as toprevent an appeal against it, provided that the appeal was in time or leave was grantedfor an out of time appeal.

Note: The system of decision-making was radically altered in 1999. However thisdecision may still have some relevance if similar questions arise under the new scheme.

xxviii The claimant contended that the review necessary as a precondition to the recoveryof an overpayment had not been carried out. At the tribunal hearing the presenting officerstated that the original review had been carried out on the computer and a letter had beensent to the claimant notifying him of the decision. A computer print out was produced butthere was no copy of the letter. The tribunal, by a majority decision, decided that there hadbeen a review. Even though the majority tribunal had decided that there had been a reviewthe Commissioner held that the question of review might have been open to the tribunalto consider as a matter which first arose in the course of the appeal before them for the purposeof s. 36(1) of the SS Administration Act 1992. The Commissioner decided that it was notappropriate for this to be conducted at Commissioner level.

xxix The Commissioner held that, by virtue of S. 12(8)(b) of the SS Act 1998 (“theSSA 98”), the “down to the date of hearing” rule did not apply to an appeal to a disabilityAT made on or after 21.5.98. In the case of DLA, the tribunals jurisdiction was limitedto the period from the date of the claim to the date of the decision under appeal.Evidence was not admissible if it related to a period later in time than the period withinthe tribunal’s jurisdiction. However, the tribunal was not limited to evidence that wasbefore the officer who made the decision under appeal or that was in existence at thedate of that decision, provided the evidence related to the period within the tribunal’sjurisdiction. Finally, the Commissioner confirmed that the “down to the date of hearingrule” also ceased to apply to Commissioners despite the lack of a provision in S.14equivalent to S. 12(8)(b).

xxx On 1.11.00 a DM decided that the AP was liable to pay £31.91 pw CSM witheffect from 21.8.00. On 12.4.01 this decision was revised. The revised decision was thatliability was £54.31 pw, also effective from 21.8.00. The parent with care appealed toa tribunal disputing the extent to which the AP had shared “day to day care”. Thetribunal considered evidence of shared care for a period ending in Easter 2001.

The Commissioner examined the effect of S. 20(7)(b) of the Child Support Act 1991in this case. This provides that, in deciding an appeal, a tribunal “shall not take intoaccount any circumstances not obtaining at the time when the decision or assessmentappealed against was made”. The Commissioner held that, as the tribunal had beforeit the decision of 1.11.00 as revised by the decision of 12.4.01, S. 20(7)(b) meant thatthe tribunal could not take into account changes of circumstances that occurred afterthe date of the original decision, even if those changes occurred before the date of therevision decision.

It followed that S. 20(7)(b) does not override the limitation expressed in reg. 17(6)(a)of the Child Support (MAP) Regs. 1992 which prevents revision in respect of a materialchange of circumstances (such changes being a matter for the supersession procedure).

The tribunal therefore erred in taking into account changes in the shared care that hadoccurred after 1.11.01.

xxxi A tribunal of Commisioners considered three cases together in which, althoughthe right of LAs to recover overpaid HB was not disputed, the landlords to whom thebenefit had been paid each challenged the decision to recover sums from them.

As well as dealing with certain procedural matters the Commissioners examined thequestion of appeal rights at some length and they held:-

17.3.2

Supplement72 [8/201q0]

R(DLA) 3/01

R(CS) 1/03

R(H) 3/04 (T)

1. A person from whom overpaid benefit is determined to be recoverableunder S. 75 of the 1992 Administration Act has a single right of appeal under para.6(6) of Sch. 7 to the Child Support, Pensions and Social Security Act 2000. Theappeal is by way of a complete rehearing of the factual and legal basis for thedetermination itself.

2. There is no separate right of appeal against any choice made by the LAas to its choice, or otherwise, to use its powers under S. 75 of the 1992 Act. Inany appeal under para. 6(6) of Sch. 7 to the 2000 Act the appellant can challengethe choice to make a determination against them, but only on judicial reviewgrounds (i.e. that the decision in question was unlawful).

3. A tribunal may confirm the determination under appeal or substitute itsown notwithstanding any procedural irregularities on the part of the authorityso long as there has been no significant prejudice to the appellant incapable ofbeing corrected by the appeal process.

xxxii The claimant was entitled to a small occupational pension, but due to anoversight payment was severely delayed. He received unadjusted IS in the meantime.When arrears of occupational pension were paid, the Secretary of State made twodecisions. Firstly, an overpayment was recoverable under S. 74 of the SS AdministrationAct 1992. Secondly there was a recoverable overpayment under S. 71 in respect of ISpaid after the payment of the occupational pension but before the claimant notifiedreceipt. The claimant appealed both decisions. The Commissioner held the overpaymentcalculation did not involve a double deduction, as the means-testing calculation didnot involve a double deduction, as the means-testing calculation for IS was differentfrom the way a guaranteed minimum pension was allowed for in the state retirementpension itself, and the Secretary of State had applied the legislation correctly.

The Commissioner also confirmed that there is a right of appeal as a S. 74(1)determination falls within S. 8(1)(c) of the SS Act 1998 as a decision to be made underthis section. This is reinforced by the express reference in S. 12(4) of the SS Act 1998.The overpayment of IS was held to be recoverable.

xxxiii An AT is entitled to make a decision less favourable to the claimant than thedecision under appeal. See also 17.3.5 xx, 17.3.8 xix and 17.6.7 iii.

xxxiv The CA, in an appeal from a decision of the Commissioner, held that legislationdoes not provide a right of appeal against a refusal to revise on the ground of officialerror. See also 19.4.3 vi.

xxxv A tribunal has no jurisdiction to adjudicate on whether the Secretary of Stateshould exercise discretion to make payments in the absence of a claim. Under s 12(1)of the Social Security Act 1998 a tribunal has jurisdiction to hear an appeal only fromcertain “decisions” of the Secretary of State, and not otherwise.

xxxvi As a tribunal is entitled to cure defects in a decision of the Secretary of State,it is not always necessary for a tribunal to determine the nature of the decision underappeal to it and, in this case, it was sufficient for the third tribunal simply to decide whatdecision the Secretary of State should have given, taking account of any new evidenceavailable to it. The first tribunal had set aside the first decision of the Secretary of Statebased on notional capital but had not decided that the claimant was entitled to IS andso it was still open to the Secretary of State to decide that the claimant was not entitledto IS because she possessed actual capital exceeding £8,000 following the purchaseof the flat but, as the claimant’s interest in the flat was valued at only £7,650, he andthe third tribunal had erred in failing to consider whether her total capital still exceeded£8,000 at the date of his decision. See also 17.11.1 ix below.

xxxvii LM v London Borough of Lewisham [2009] UKUT 204 (AAC); [2010] AACR12. A First-tier Tribunal judge issued case management directions requiring theappellant to provide to the tribunal and to the respondent a copy of any specialist reportor draft report obtained. The appellant’s solicitors applied to the First-tier Tribunal fordirections that both the instructions and the draft of any report were privileged from

17.3.2


R(IS) 14/04

R(IB) 2/04(T)

R(H) 8/05

R(IS) 12/05

R(IS) 2/08

[2010]AACR 12

disclosure. A different judge of the First-tier Tribunal refused to amend the directionsas requested. The appellant’s solicitors applied for permission to appeal to the UpperTribunal against the disputed parts of the directions. The First-tier Tribunal judgerefused to review the decision and also refused permission to appeal against it to theUpper Tribunal. An Upper Tribunal Judge gave permission to appeal, limited toquestions relating to the jurisdiction of the Upper Tribunal to consider interlocutoryappeals, questions relating to legal professional privilege, and questions relating to thepower of the First-tier Tribunal to give the case management directions that were given.The respondent argued that this was in reality an attempt to appeal against the refusalto review, which is an excluded decision under s 11(5)(d) of the Tribunals, Courts andEnforcement Act 2007. The Judge found that the purpose of the exclusion in s 11(5)(d)was to prevent an appeal being brought against a review decision where it should bebrought against the decision which it has been sought to have reviewed and the currentappeal was in reality an appeal against the decision confirming the decision to makethe case management directions and, as such, not an excluded decision, so that therewas a right of appeal to the Upper Tribunal under s 11 of the 2007 Act. See also entryunder “Evidence, Disclosure of evidence” heading in this chapter.

3 Jurisdiction: contribution conditions

i The decision of the local tribunal who purported to decide that the contributionconditions for the receipt of benefit were not satisfied was held to be a nullity since adecision of the Minister of NI (as he then was) is binding on the statutory authorities.See also CG 21/48 and CI 2/48.

ii A claimant for maternity allowance contended that a deficiency in her contributionrecord was due to misdirection at the local office of the Ministry of Pensions and NI anda majority of the local tribunal allowed her appeal from the insurance officer’s decisiondisallowing the claim for maternity allowance. The majority of the tribunal acceptedthe claimant’s contention and purported to decide the contribution question in herfavour. It was held that the tribunal had no jurisdiction to decide that question and thatthey should have directed the insurance officer to refer it to the Minister for his decision.See para. 6 where guidance is given on contribution questions. See also 17.1.1 ix above.

iii A SSAT upheld the decision of an AO that the claimant was not entitled to UBbecause she did not have enough credited contributions to satisfy the secondcontribution condition. They also decided a question of potential credits ofcontributions for the period of the claimant's holiday abroad. The Commissioner heldthat the tribunal had erred in law by deciding a question reserved for the Secretary ofState under S. 93 of the SS Act 1975. R(G) 1/82 was distinguished on its facts. See also1.1.5 i, 2.1.4 i, 17.1.1 xiv above, R(G) 1/82, 3.4.2 iii, 17.1.1 xi, 17.3.2 ix above, 17.4.1vi below.

4 Jurisdiction: whether a person is an ‘insured person’ or an ‘employed person’

i Insurability is a special question which was for decision by the Minister of NIand is now for decision by the Secretary of State for Social Services. Accordingly, whena local tribunal purported to decide that an incident arose out of the claimant’semployment and that the employment was insurable, it was held that their decision wasa nullity.

ii A local tribunal purported to decide that a woman who was available for workonly as an out-worker was available for Class 1 employment, but their decision wasdeclared to be a nullity since any question of the classification of insured persons wasfor decision by the Minister of NI. See also CI 36/49 and R(I) 13/53 at 17.1.1 iv above.

iii A woman made a claim for a guardian’s allowance in respect of two childrenwhose parents were both dead. After the death of the children’s father their mother cameto GB on a visit for two months and on her return to Kenya she was killed when theaeroplane crashed. There was evidence that, although she had no insurance card, shehad been employed under a contract of service during the two months she was in GB.It was held that if the question whether a person is an insured person is raised thestatutory authorities must determine it, and it was held further that the mother had been

17.3.3-4

CG 28/48


R(G) 1/61

R(U) 6/89

CI 20/49

CU 74/49

R(G) 8/62

an insured person and remained so until her death. Accordingly, for the purpose ofdetermining the right to guardian’s allowance, the question as to the class of insuredpersons in which the mother should have been included (which was a question for theMinister) did not arise.

iv The claimant disputed that he did not satisfy the contribution conditions for IB.The Commissioner found that it is for HMRC NI Contributions Office to decide anyquestion about the contribution record of a claimant. The Commissioner also held thatany challenge to that decision on either an issue of fact or a question of law goes to atax tribunal (from 1.4.09 the FtT (Finance and Tax Chamber)), not a SS tribunal (from3.11.08 the FtT (Social Entitlement Chamber)). If an appeal involving a question abouta claimant’s contributions comes before a SS tribunal, then that tribunal must applyreg. 38A of the Social Security and Child Support (Decisions and Appeals) Regs. 1999.This requires it to adjourn the appeal and refer the matter to the Secretary of State foronward reference to HMRC for decision. The tribunal may decide the appeal only aftera decision has been received from HMRC to a particular claim. The Commissioner alsoheld that if a claimant disputes the decision of the Secretary of State on any issue offact or law arising under the Social Security (Earnings Factor) Regs. 1979, then thatdispute is to be decided by a SS tribunal. This includes any dispute about calculatingthe earnings factor attributable toa claimant under those Regs. If necessary, it is the taskof the tribunal itself to check any disputed calculations. See also 17.12.1 iii and 17.12.2ii below.

5 Considerations on appeal to a Social Security appeal tribunal

i A man was in receipt of sickness benefit for 8 months at a reduced rate, but it wasthen discovered that he satisfied the contribution conditions for payment of benefit atthe full rate. When the insurance officer discovered that the claimant had satisfied thoseconditions he decided that sickness benefit should be paid at the full rate, but did notreview his original decision because, if he had done so, he would have been limitedto allowing payment of the increased rate of benefit for a period of 6 months only.Accordingly, in order to avoid injustice to the claimant, the insurance officer invitedhim to make a late appeal against the insurance officer’s original decision, but the localtribunal treated the appeal as if it were an application for review, which was not correct.It was held that it was clearly a case in which it was proper for the tribunal to entertaina late appeal.

ii A claimant appealed to the Commissioner from a decision of a local tribunal butdied before the appeal was heard and no-one was willing to be appointed to representthe deceased. It was held that the appeal abated and could be disposed of only if someperson was duly empowered to proceed with it or was dismissed at the instance of someperson entitled to apply for its dismissal. See also 17.4.2 iii below, and R(SB) 25/84,17.4.2 x, 30.8.4 iii below.

iii The hearing of an appeal before a local tribunal is a rehearing of the whole caseand it is open to the tribunal to deal with any points and with any questions of law thatmay be put before them, but always provided that the claimant is given a properopportunity of meeting any fresh points that may be raised. An insurance officerdecided that family allowances were payable for some though not for other periods, butsubsequently discovered that he had made errors of law with respect to the periods forwhich awards had been made, and in his submission to the local tribunal, to whom theclaimant had appealed, pointed out the errors. The tribunal decided that the submissionwas correct and dismissed the appeal, and it was held that the tribunal’s dismissal ofthe claimant’s appeal was justified. See also R(P) 1/55, paragraph 12. See also 17.4.2v below. (W.e.f. 23.4.84 see also Adjudication Regs. 1984, reg. 89.)

iv A claim for FIS was dated 18 May 1981. It was date stamped as received in anoffice of the Department of Health and Social Security on 27th May 1981. TheSecretary of State was not prepared to treat the claim as made on any earlier date (amatter which could have been crucial to the claimant’s entitlement to FIS). In referringthe matter back for determination by an appeal tribunal, the Commissioner, whiledoubting the authority by regulation to fix a date of claim as made any later than on

17.3.4-5


R(FIS) 3/82

R(F) 1/72

R(S) 7/56

R(S) 20/51

R(IB) 1/09

R(SB) 18/83

R(SB) 1/84

the date on which it is made, observed that under the general law, in the absence of anyprovision like s. 79(6) of the Social Security Act 1975, a claim is not made until it iscommunicated to the person to whom it is made (para.7). See also 31.1.2 ii and 31.3.1ii below and R(FIS)? 6/83, 31.1.2 v below.

v In a case in which a claimant for supplementary benefit lived with his brotherand shared with him the rent and household bills, the benefit officer decided that theclaimant was not a householder for the purposes of reg. 5(2) of the Supp Ben(Requirements) Regs. 1980 and accordingly on assessment as a non-householder thathe was not entitled to a supplementary allowance. The AT decided that he was a jointhouseholder, but their decision merely referred to the basis upon which the benefitofficer’s decision should be revised (which the Commissioner found to be wrong - see30.1.1 iv and 30.1.3 vi below), but did not go on to revise the assessment. TheCommissioner expressed the view that, where a tribunal decision necessitates a revisedassessment, the decision is incomplete unless a revised assessment is provided (Para.16). See also R(SB) 16/83, para. 21.

vi A person claimed supp ben for himself and his wife. After the death of both of themit transpired that the wife had had significant, but undisclosed, capital assets, of which,it was alleged, the husband had no knowledge. The son took out letters of administrationof the wife’s estate. No grant representation was taken out in respect of the husband’sestate. On reference to an AT, notice was given to the son’s solicitors alleging non-disclosure and mis-representation by the claimant and his wife and the tribunal wereinvited to certify that they had incurred a recoverable overpayment. The Commissionheld that there could be no ‘woolliness’ as to what was the proper subject matter of thereference; what the allegations were which constituted the issues or what the certificationwas which the tribunal was being asked to render; all these matters had to be taken asexpressed in the notice, unless amended by leave or consent. It was further held that,since the son was not the legal personal representative of the claimant’s estate, therewas no jurisdiction in the tribunal to reach upon that reference any decision or to issueany certificate binding on any estate the father might have left. (Para. 2, 5, 7 and 9).(For more general matters see 17.8.1 ii below). R(SB) 40/84, 17.8.1 ix below. See alsoR(SB) 18/85 and R(SB) 3/86.

vii In an appeal by a benefit officer against an AT’s allowance of a claim foradditional allowance of supp ben for gas central heating, the Commissioner, inallowing the appeal, described the following 5 grounds upon which a tribunal decisionmight be erroneous in point of law, namely (1) if it contains a false proposition ex facie;(2) if it is supported by no evidence; (3) if the facts found are such that no person actingjudicially and properly instructed as to the relevant law could have come to thedetermination in question; (4) if there has been a breach of the rules of natural justice;or (5) if there has been any breach of rule 7(2)(b) of the Appeals Rules 1980 (as it thenwas) to include in the record of the tribunal’s determination ‘a statement of the reasonfor their determination and of the findings on material questions of fact’ (R(SB) 11/82,17.3.9 xii below, followed). See also 30.2.1 iii below.

viii It is contrary to natural justice for a supp ben officer not to tender to an ATrelevant letters written by accountants to the Department of Health and SS regarding,amongst other things, the value of shares held by the claimant in a private (family)company, or only to tender some of the letters. The tribunal should have admitted themwhen they were subsequently by the claimant’s son. Had they done so the omissionwould have been repaired. (Para. 11.)

ix In an appeal against an AT’s determination awarding a claimant a singlepayment of supp ben for linoleum floor covering for her kitchen, but refusing it for thereplacement of thermal plastic tiling on her hall floor, the Commissioner held that thetribunal should have found facts as to whether the lino was ‘equivalent’ to polyvinylchloride in the context of reg. 9(h) of the Single Payments Regs. 1981 (para. 6); and,in relation to hall covering, whether the claimant’s existing floor covering was a‘suitable alternative item’ in the context of reg. 3(2)(b) ibid and, if unsuitable, whethera need for an alternative form of floor covering, such as carpeting, existed at the dateof claim in the context of reg. 30.2.1 i, 30.2.2 iii, R(SB) 19/82, 30.3.1 vi, 30.3.4 iv belowand R(A) 1/72, 15.1.2 i above.


17.3.5

R(SB) 11/83

R(SB) 21/82

R(SB) 20/82

R(SB) 13/86

R(SB) 14/86

R(SB) 1/87

x The Commissioner held that, where a question arose under s. 5 of the Supp BenAct 1976 as to whether a claimant was available for employment, the normal coursewould be for the adjudicating authority to refer it for determination under the SS Act1975; but, if the same question has already been so determined, the determinationgiven would be conclusive for Supp Ben purposes and a fresh referral would not becalled for (para. 11(1)); however, for it to be so conclusive,it must be that, on a correctanalysis, the determinations already given in all material respects covered the sameground as would fall to be covered by a reference from the Supp Ben adjudicatingauthority. He also observed that a determination under regs. made under the SS Actthat a day was not a day of unemployment was not necessarily a determination that aclaimant was not available for employment (para. 20(2)); further, if the adjudicatingauthority in the Supp Ben claim relied upon the conclusiveness of the determinationunder the SS Act, it was not open to them to investigate the correctness of thatdetermination; the latter could only be challenged by appeal under the Act (para.17(7)).

xi An AT had upheld a decision of the benefit officer under S. 20 of the Supp B Act1976 that benefit was recoverable on grounds of failure to disclose a material fact.Before the Commissioners, it was conceded that the tribunal’s decision was erroneousat law, but the benefit officer’s written submissions appeared to contemplate that itwould have been open to the tribunal to uphold the benefit officer’s decision insubstantive effect in reliance upon the alternative formulation in S. 20(1) as to theclaimant having ‘misrepresented’ a material fact. On this the Commissioner held thatit was not open to the tribunal simply to uphold the benefit officer’s decision byreference to misrepresentation where the decision was originally given by reference tonon-disclosure. It would nevertheless have been open to the tribunal to have substituteda decision of their own, e.g. on grounds of misrepresentation, but that, before doing that,it would have been a prerequisite that the tribunal had indicated to the claimant that theyhad such a course under consideration and had indicated the misrepresentation ormisrepresentations to be relied upon and had afforded the claimant adequate opportunityto meet the altered case without being disadvantaged by surprise (para. 12). (For fullersummary of this decision see 17.8.1 ix below.)

xii On an appeal against a single payment of £100 awarded for an item of furniturethe AO submitted that he had contacted a supplier who quoted a price of £99.90 for theitem, but did not give evidence in support of the submission. Held that no tribunalshould accept contested statements made by the AO’s representative if he did notadduce evidence in support of them or submit himself for questioning. The tribunalmust either decide the appeal on the basis that the facts were unproven, or adjourn togive the officer an opportunity of proving them. For other synopses of this decisionsee 17.2.2 vii, 17.9.4 iii and 30.3.4 xiv.

xiii The application of reg. 4(3) of the Supp Ben (Resources) Regs. (notionalearnings) involved a discretion which was to be exercised in a judicial manner takingaccount of all the circumstances. Sufficient facts must be found for the exercise of thediscretion and sufficient reasons must be found for the exercise of the discretion andsufficient reasons must be given to make clear why it was exercised in the way that itwas. These facts and those reasons must be set out in the record of the tribunal’sdecision. For a fuller account of this decision see 30.2.1 xii below.

xiv A Supp Ben claimant had capital assets in a building society and was joint ownerof a bungalow with his nephew who lived in Tasmania. It appeared that no valuationof his interest in the property had been made. The Commissioner held that if it wasapparent that the value of the claimant’s interest added to his other assets would totalmore than the prescribed capital limit a tribunal could reach a conclusion as to someminimum value after the deduction of expenses. The tribunal had considered theapplication of reg. 6(1)(a)(iii) of the Resources Regs. but only at the date of claimwhereas on a continuing claim it should have been considered week by week (R(SB)14/85 followed). For a further synopsis of this decision see 30.2.2 xxviii.

xv The heating system built into the housing estate where the claimant lived had beenrecognised by the Secretary of State as having disproportionately high running costs, butthe claimant was not currently using the heating system because her fuel supply hadbeen disconnected. The AO’s decision to refuse a heating addition under para. 6 of Sch.4 to the Supp Ben (Requirements) Regs. was upheld by the AT on the ground that it


17.3.5

R(SB) 10/86

R(SB) 40/84

R(SB) 3/84

would not be reasonable to allow such an addition when the fuel supply wasdisconnected. It was held by the Commissioner that neither reg. 12(1) of, nor para. 6of Sch. 4 to, those Regs. entitled the adjudicating authorities to refuse the additionbecause they did not consider it reasonable to make a special extra allowance. A furthersummary of this decision is at 30.1.2 xii.

xvi The Commissioner held that AT decisions recorded in writing on or after6 April 1987 could be appealed to the Commissioner only on a point of law. An ATdid not err in law simply because it took no account of evidence which was not laidbefore it. It was therefore essential that claimants had their medical evidence in goodorder before the AT hearing as this would likely be the final occasion where suchevidence could effectively be produced.

xvii It was held that the principle that the decisions of SSAT on questions of factshould not be disturbed unless there was some demonstrable error of law was of crucialimportance (para. 16). For another synopsis of this decision see 30.2.1 xvii below.

xviii The daughter of a deceased claimant represented his estate at an AT hearing. Atthe time of the hearing there had been no Grant of Probate of any will of the claimant,nor had Letters of Administration been made in respect of the estate. The daughter hadnot been appointed by the Secretary of State under reg. 28(1) of the Supp Ben(Claimsand Payments) Regs. 1981. It was not until later that the daughter obtained such anappointment. The Commissioner held that an appointment made by the Secretary ofState under reg. 28(1) is retrospective in operation and validates the earlier proceedingsof the appointee. The appeal to the tribunal was properly heard and the daughter'sappeal to the Commissioner was properly constituted. See also R(SB) 8/88 17.3.2 xxi.

xix The tribunal upheld the AO’s decision that the claimant had not proved that hewas incapable of work following advice from a tribunal member who had experienceof work carried out by handicapped people. Held that there was a breach of naturaljustice because the specialist knowledge of the member was not presented as evidencebut given in privacy during the tribunal’s deliberations. Tribunals are not bound bythe strict rules of evidence. Members may present evidence to the tribunal based onpersonal knowledge, but it must be presented at the hearing where all parties wouldhave the opporutnity to challenge it.

xx On an appeal against a decision superseding or refusing to supersede the tribunalhas jurisdiction to make a revising decision, and likewise on an appeal against adecision that has been revised, or not revised following a claimant’s application forrevision, has jurisdiction to make a superseding decision. However, in the latter casethe tribunal can only take account of circumstances down to the date of the originaldecision. See also 17.3.2 xxxiii, 17.3.8 xix and 17.6.7 iii.

xxi On renewal, the claimant was awarded a reduced rate of DLA. On appeal thetribunal removed the whole award. Claimant appealed. In the meantime she applied forsupersession of the tribunal’s decision, but the DM decided not to supersede. Claimantappealed this decision. Commissioner set aside the earlier tribunal decision. Bothappeals were then heard together. Tribunal reinstated the reduced award of DLA anddismissed the appeal against the decision not to supersede. Both decisions wereappealed to the Commissioner, who, in dismissing the appeals, held that:

1. an application for supersession resulting in a refusal to supersede does notterminate the period under consideration on an appeal against the originaldecision;

2. live proceedings arising out of an application for supersession based onignorance of or mistake as to a material fact lapse when the decision to besuperseded is set aside on appeal, but not where the application is based on achange of circumstances.

xxii The effect of the decision of the CA in Howker v. Secretary of State for Work andPensions [2002] EWCA Civ 1623 meant, with respect to any of the regs. in the SocialSecurity (Incapacity for Work and Miscellaneous Amendments) Regs. 1996 which wereheld to be invalid, then the Social Security (IB) (General) Regs. 1995 required to beread as if the 1996 changes had not been made. A decision was required as to whetherthe effect of a particular amendment was potentially adverse to the claimant. In eachcase, the tribunal must carry out a legal reasoning process whether a particularamendment could be categorised as “neutral”.

17.3.5


R(DLA) 2/04

R(IB) 5/05

R(SB) 1/88

R(SB) 6/88

R(SB) 5/90

R(S) 1/94

R(IB) 2/04(T)

17.9.4-5

v The need for verification of information provided by the claimant does not, initself, justify a delay in the submission of the claim to an AO (R v. S of S for SocialServices and another, ex parte Child Poverty Action Group and others [1990]2 QB540). If a claimant is thought by the AO to have provided insufficient evidenceon an issue relevant to the claim, that issue should be decided against the claimant. Itis not in itself a ground of disentitlement that a claimant has failed to provide sufficientevidence to support his claim.

5 Evidence of incapacity

i The question whether a person is incapable of work is not entirely a medicalquestion, but is one which must be decided by the statutory authorities in the light ofall the available evidence, which includes the reports of medical boards. A medicalboard reported that a man who was suffering from pneumoconiosis was not incapableof very light employment and that he could be trained for light factory work. He had,however, done no work for seven years and his own doctor and an earlier medical boardhad considered that he was totally incapable of work. It was held that the local tribunalwere not bound to accept the latest medical board’s opinion and that on the evidenceas a whole the claimant was incapable of work.

ii There was a conflict of evidence between a claimant’s own doctor and twomedical officers of the Ministry of Health as to whether he was incapable of work. Thelocal tribunal considered that they were obliged to accept the evidence ofthe claimant’s own doctor. It was held that whether a person is incapable of workis a question of fact to be determined, the Commissioner’s decision being borne in mindas to what the expression means. The certificates of the claimant’s own doctor, thereports of medical officers of the Ministry of Health and any other relevant evidencemust all be taken into account. There is no question of the insurance officer’s beingbound to decide in the same way as any particular doctor certifies.

iii A colliery worker who had made 33 previous claims under the NI Act made aclaim for injury benefit. It was contended that the claimant was shown to be incapableof work during the period in question because the only medical evidence showed thathe was incapacitated. The fact that he had received benefit on a number of previousoccasions was irrelevant unless it could be shown that the previous claims were notgenuine. It was held that the statutory authorities are not bound to accept the opinionof any doctor. A doctor’s certificate is not conclusive evidence of incapacity, butmerely represents a particular doctor’s opinion and must be weighed with all the otherrelevant evidence in forming a judgment on the case. In some cases non-medicalevidence may outweigh a doctor’s opinion on the question of capacity for work. Thefact that a number of previous claims had been made may, or may not, be of value whenthe genuineness of a particular claim is being determined. But in any case it should notbe altogether excluded from the evidence.

iv Where doctors disagree, the statutory tribunals have to decide on the balanceof probability which of the contrasting opinions is more probably correct. If none ofthe doctors gives any details of the condition of the claimant as found by them nosatisfactory decision can be reached, and in the case in question the Commissionerarranged for the claimant to be examined by a consultant.

v A miner who was said to have an extraordinary benefit record was held not tohave suffered personal injury caused by accident as he claimed he had. See as to thesignificance of the claimant’s extraordinary benefit record, para. 11.

vi A long-distance lorry driver frequently became an in-patient for short periodsin different hospitals all over the country, occasionally being admitted on the same dayas he had been discharged elsewhere. He contended that it was due to severe attacks of renalcolic caused by driving. Hospital reports were obtained but were not put in evidencebecause of medical advice that they would be detrimental to the claimant. It was heldthat, as the reports from the hospital were not included in the evidence, they could notbe used and that the other evidence available did not justify holding that the normalinference that an in-patient of a hospital was incapable of work was rebutted.


R(I) 8/66

R(IS) 4/93

R(I) 58/52

R(S) 1/53

R(I) 13/55

R(S) 4/56

R(S) 1/58

vii. Claim for DLA was disallowed and the claimant appealed. The appeal wasdismissed by the tribunal who accepted the evidence of the examining medicalpractitioner, stating that he was “an independent examiner”. The claimant appealed tothe Commissioner arguing that the examining medical practitioner was not independentas he was paid by DSS, trained by DSS and open to be influenced by the “gloss” putupon the law by the Department. It was also argued that the tribunal failed to addressthe claimant’s evidence of deterioration in his health. At para. 11, the Commissionerheld that neither CDLA/692/1994, nor CM/361/1992, nor para. 7 of CDLA/148/1994could be considered authority for the proposition that examining medical practitioner’sevidence must necessarily prevail over the claimant’s. Such evidence might prevail inthe majority of cases once the tribunal had carried out the weighing exercise that theywere required to carry out, but that did not mean that as a matter of course the examiningmedical practitioner’s must prevail because that would fly in the face of the obligationof a tribunal to consider all the evidence in a case.

6 Disclosure of evidence

i At an appeal before the Commissioner the insurance officer’s representative wastaken by surprise by fresh evidence which came to light in the course of cross-examination so that an adjournment was necessary to enable the evidence to beconsidered. The Commissioner said that the case illustrated how desirable it is thatthere should be candid disclosure of evidence by each party to an appeal to the other,in all cases where the party’s advisers consider that such a disclosure can properly bemade without prejudice to the party’s interests. If, in that particular case, the evidenceadduced for the claimant at the hearing of the appeal had been brought to the noticeof the insurance officer at an earlier stage it may have been that the appeal would neverhave been brought. The costs, not only of bringing the parties and numerous witnessesto a hearing, but also of the medical assessor and other professional gentlemen engaged,might thus have been saved.

ii At a hearing before a local tribunal an expert and closely reasoned opinion froma consultant physician was produced which the insurance officer and his medicaladvisers had not had any opportunity of considering. On appeal to the Commissionerit was said that where an expert opinion is to be relied upon without calling the witnessin person it is desirable that a copy of the opinion should be given to the other side inadvance of the hearing. Otherwise the chairman may feel obliged to grant an adjournmentat the request of the party taken by surprise.

iii Before the AA Board, but not disclosed to the claimant, was “additional information”from the doctor who examined the claimant at his home, in which he said that prior to hisvisit he observed “a man sitting ... with his back to the window” although when he wentinto the house the claimant was lying on a couch apparently unable to respond to thedoctor’s questions. Plainly this was not medical but purely factual evidence and shouldnot have been withheld from the claimant on the basis that it was “harmful information”.When any tribunal exercises a judicial or quasi-judicial function justice should not onlybe done but also be seen to be done. That can not be achieved if a claimant is denied thechance to comment upon evidence likely to have an adverse effect on his case. The powerto withhold medical advice or medical evidence which it is considered would be harmfulto the claimant’s health is a proper and necessary one, but is one which should be exercisedwith caution.

iv LM v London Borough of Lewisham [2009] UKUT 204 (AAC); [2010] AACR 12.A First-tier Tribunal judge issued case management directions requiring the appellantto provide to the tribunal and to the respondent a copy of any specialist report or draftreport obtained. The appellant’s solicitors applied to the First-tier Tribunal fordirections that both the instructions and the draft of any report were privileged fromdisclosure. Following refusal by the First-tier Tribunal to amend the directions asrequested the appellant’s solicitors applied to the Upper Tribunal for permission toappeal which was granted. The Upper Tribunal judge found that the traditional rule isthat confidential communications between a client and a legal adviser or between alegal adviser and a third party need not be given in evidence by the client and, withoutthe client’s consent, may not be given in evidence by the legal adviser in a judicial

17.9.5-6


R(A) 4/89

R(I) 36/56

R(I) 6/51

R(DLA) 3/99

[2010]AACR 12

proceeding if the communication is made either to enable the client to obtain, or theadviser to give, legal advice (“legal advice privilege”) or with reference to litigationthat is actually taking place or was in the contemplation of the client (“litigationprivilege”). Procedural rules cannot deprive a party of substantive rights given by thegeneral law and outside the specific exceptions that have developed there can be nodoubt that legal advice privilege does apply to proceedings in the First-tier Tribunaland that the tribunal has no power to give a direction, compliance with which wouldinfringe the privilege. Proceedings before the First-tier Tribunal are litigation for thepurposes of litigation privilege but, as the tribunal in this case did not require eitherparty to disclose a report unless it proposed to rely upon it, there would at the time ofdisclosure necessarily have been a waiver of privilege in both the report and theinstructions upon which it was based except insofar as the instructions containedmaterial protected by legal advice privilege. The only error in the tribunal’s directionswas that it did not expressly exclude from the ambit of the instructions that had to bedisclosed any instructions to which legal advice privilege attached. See also entryunder “Appeal tribunals, Jurisdiction: generally” heading in this chapter.

7 Destruction of evidence

i A tribunal upheld an appeal from an AO’s decision refusing to review entitlementfrom a long gone date. A significant portion of the documents relating to the case weremissing, as a result of the Department’s routine destruction of old papers. This posedproblems for the authorities having to establish if there were grounds for review. Theclaimant’s representative argued the legal principle applied in The Ophelia [1915] P129and [1916] 2 AC 206, omnia praesumuntur contra spoliatorem (every presumption is madeagainst a wrongdoer) established that the destroyed documents must be presumed tosupport his case. It was held that:

1. there is a clear distinction to be drawn between the deliberate destructionof documents with the intention of destroying evidence and deliberate destructionwhere there is no such intention. Adverse presumptions can only be drawn inthe former situation; otherwise the only detriment suffered by the destroyingparty is a loss of corroboration the documents might have provided;

2. in SS jurisdiction no presumptions as to the contents of documents canbe drawn where they have been routinely destroyed to clear storage space orbecause there appears no point in retaining them;

3. adjudicating authorities should take account of all available evidence,including secondary evidence, and decide on the balance of probabilities whatthe original document might have contained. There may be cases where it isnot possible to reconstruct the contents of missing documents, and this maymean grounds for review cannot be established. See R(I) 1/71, 17.9.2 v.

17.9.6-7


R(IS) 11/92

viii The claimant was required to pay estimated service charges and pay anyshortfall when actual charges were calculated after the end of the financial year.2002/2003 service charges were paid on the basis of the service charges for2001/2002. On 5th March 2003 the claimant’s award was revised so as to reducethe amount of housing costs to the estimated 2002/03 figure. The actual servicecharges for 2002/03 (invoiced in September 2003) were higher than the estimate.The claimant did not notify this increase until November 2004. The Secretaryof State refused to award the difference on the basis that the decision sought tobe revised was the revision decision of 5 March 2003, so that the applicationmade on November 2004 was outside the 13 month time limit imposed by Reg4(3)(b) of the SS and Child Support (Decisions and Appeals) Regs 1999. Theclaimant appealed and the tribunal dismissed his appeal. The Commissionerheld that

1. the tribunal erred in law by treating the case as one of revision. The awardshould have been superseded for a change of circumstances as the liability foractual service charges was a new liability which was separate from the liabilityto pay estimated service charges;

2. the expiry of the 52 week period over which housing costs are paid is achange of circumstances. The decision maker can increase the award by theweekly amount of housing costs, and simultaneously terminate the award 52weeks later under Reg. 6(2)(a)(ii) on the basis of an anticipated change ofcircumstances at the end of the 52 week period;

3. housing costs should be calculated on a weekly basis starting on the dateon which liability for the costs arose. A claimant who makes a supersessionapplication more than one month after incurring liability for a housing cost andwho cannot bring himself within the conditions for a longer period to be allowedunder Reg. 8 of the Decision and Appeals Regs. is entitled to an increase inbenefit only during the balance of the 52 week period;

4. The 52 week period had expired when the claimant informed the Secretaryof State of his liability for the final amount of service charges for 2002/03 andhe did not satisfy the conditions of Reg. 8, so that he was not entitled to asupersession decision in respect of his liability for those costs.

ix The claimant had been in receipt of invalidity benefit, which took effect as anaward of IB under the SS (Incapacity for Work) (Transitional) Regs. 1995. In September2002 he started work, continuing working until April 2004 without informing theSecretary of State. In August 2004 the Secretary of State made a supersession decisionto the effect that the claimant was not entitled to IB for the period he was working. Thedecision was upheld on appeal to the tribunal and Commissioner. Before the CA it wasargued that the decision superseded by the Secretary of State was an “incapacitydecision” as defined in reg. 7A(1) of the SS and Child Support (Decisions and Appeals)Regs. 1999, and so could be superseded only from the date that the claimant knew orcould reasonably have been expected to know that the change of circumstances shouldhave been notified. The Court held that reg. 7(2)(c)(ii) did not apply, since transitionalwards of IB were not “incapacity decisions” as defined. See also 17.8.1 xxxxiv aboveand 17.11.19 i below.

x The claimant gave her parents £13,000. She subsequently borrowed a further£15,000 and she and her parents then bought a flat in their joint names. The Secretaryof State decided that she was not entitled to IS because she had disposed of the £13,000for the purposes of obtaining IS and should be deemed still to possess it. A tribunalallowed her appeal, deciding that she did not have notional capital, but it did not recorda decision on the question whether she possessed actual capital as a result of thepurchase of the flat and it did not state that she was entitled to IS. The Secretary of Statethen made a supersession decision to the effect that the claimant was not entitled toIS because she had actual capital exceeding £8,000 following the purchase of the flat.The claimant’s appeal on the ground that the issue had been determined in her favourby the first tribunal, which had been aware of all the relevant circumstances wasdismissed.

17.11.1


R(IB) 4/07

R(IS) 2/08

R(PC) 2/08

17.11.1-2


A further appeal was heard by a Tribunal of Commissions, which held:

1. although reg. 6(2)(a)(i) of the SS and Child Support (Decisions andAppeals) Regs. 1999 appears to permit the Secretary of State to supersede adecision of a tribunal on the ground that there has been a change ofcircumstances since the tribunal’s decision took effect, he should not do sowhere the change of circumstances occurred before the decision that was underappeal to the tribunal and the tribunal was well aware of the change ofcircumstances and could have taken it into account;

2. when a tribunal sets aside the original outcome decision withoutsubstituting another outcome decision, the Secretary of State must thenconsider the new issue and make an outcome decision giving effect to thetribunal’s decision on the original issue unless, at the time he makes theoutcome decision, he is satisfied that there are grounds on which to supersedethe tribunal’s decision so as, for instance, to take account of any changes ofcircumstances that have occurred since he made the decision that was thesubject of the appeal to the tribunal. See also 17.3.2 xxxvi above.

xi MP v SSWP (RP) [2009] UKUT 205 (AAC); [2010] AACR 13. The Claimant, amale-to-female transsexual, married while a man, but underwent gender reassignmentsurgery and was divorced. The claimant continue to pay NI contributions until shereached age 65. She was paid RP which was calculated on the basis that she was male.The claimant was issued with a GRC and the claimant’s AP was reduced by means ofa supersession on the ground that there had been a change of circumstances. The AT(now FtT) upheld that decision. Before the UT decided the claimant’s appeal shereceived a refund of the NI contributions she had paid between the ages of 60 and 65.The UT allowed the appeal and held that a decision taken on the Secretary of State’sown initiative, whenever made, would not fall within s 27 and that provision did notinclude “entitlement” for the purpose solely of determining whether, in relation to RPentitlement during a subsequent period, there should be an increase for deferment. TheUT also held that the refund of NI contributions was made on the basis of a mistakenview of the law and could not have been a ground for superseding and reducing theclaimant’s RP entitlement. See also 5.4.8 iv.

2 Revision

i In June 1994, a Child Support Officer (CSO) made a Category A InterimMaintenance Assessment effective from 4.5.94. The AP’s solicitors wrote to say thatthe AP was not habitually resident in the UK. In September 1998 a CSO wrote to theAP accepting that “at present” he was not habitually resident, adding that the casewould be “closed” with effect from 2.9.98. There are indications that the case was “re-opened” from April 2004. In May 2001 a DM acting on behalf of the Secretary of Staterevised the cancellation decision of September 1998, replacing it with a decision tocancel the (Interim) MA from the outset (i.e. from and including 4.5.94).

The main legal question for the Commissioner was whether the DM, acting in 2001 hadthe power to revise the CSO’s cancellation decision of September 1998 on the groundsof official error under reg. 17(1)(c) of the Child Support (MAP) Regs 1992. In R(I) 5/02 it was decided that the definition of official error in reg. 1(2) of the Social Securityand Child Support (Decisions and Appeals) Reg. 1999 (which was the same as thedefinition in reg. 1(2) of the MAP regs.) did not include an error by an AO. This wasbecause an AO was not “an officer of the Department… acting as such”.

The Commissioner decides that he is not obliged to follow R(I) 5/02. Firstly becauseno opposing view was argued before the Tribunal of Commissioners and secondlybecause the Commissioners had not been referred to the amendment to the definitionof “official error” that took effect from 19 June 2000.

The Commissioner concludes that official error can include an error by a CSO. Howeverthe Commissioner was cautious about whether the revision decision of May 2001 wascorrect and remitted the matter to a fresh tribunal.

R(CS) 3/04

[2010]AACR 13

ii A request for benefit in respect of a period between the termination of one awardand a new claim should be treated as both a request for revision or supersession of thedecision to end the previous award and a request for backdating of the new claim. anappeal should be treated as being against the decision ending the first award and thedecision on the new claim.

In a case where a claimant has failed to “sign on” and JSA has been disallowed fromthe day after he last “signed on”, if he applies for revision within the appropriate periodand provides evidence to show that he continued to be entitled to JSA, the decisionto disallow can be revised so as to take effect from the date of the failure to “sign on”.See also 23.2.1.


17.11.2

R(JSA) 2/04

operating the correlation of insurance periods and or periods of residence in all MemberStates under Art. 46(2)(a) the claimant will have such prior entitlement, then he willalso, by operation of Art. 45(1) have satisfied the condition for grant of the benefit. Itwas held that even though the claimant was resident in Germany, and had been soresident during the relevant periods, he was, nevertheless, entitled to invalidity benefitin GB. (Also reported in [1971] 1 CMLR 494). Application was then made on behalfof the insurance officer to the High Court for an order of certiorari to quash theCommissioner's decision and on the hearing of the application the Divisional Court ofthe Queen's Bench Division, pursuant to Art. 177 of the Treaty of Rome, referred thefollowing questions to the European Court for a preliminary ruling:

“Where the legalisation of a Member State makes the acquisition of a right toinvalidity benefit conditional upon the person concerned having been entitledto sickness benefit under the legislation for a total of 168 days in the immediatelypreceding period that condition being subject to, so far as material, (a) thecompletion of insurance periods; (b) the making of a claim therefore in aprescribed manner and within a prescribed time:

(i) do the provisions of Art. 51 of the Treaty of Rome preclude applicationof such a condition to a case to which Art. 40, 45, or 46 of Reg. (EEC) No.1408/71 relates?

(ii) do the provisions of (a) Art. 45 or (b) Art. 46 relate to such legislation?

(iii) do all or any of the said Arts. 40, 45 or 46 (a) enable such a condition tobe treated as wholly or partly satisfied; or (b) require such a condition tobe wholly or partly disregarded; and, if so, to what extent?”

The European Court ruled that (i) the competent institution of the said Member Statemust take into account insurance periods completed under the legislation of anyMember State as though they had been completed under the legislation which itadministers; and (ii) the condition that a claim must be made in a prescribed mannerand within a prescribed time must be regarded as satisfied in so far as such a claim hadbeen duly made in accordance with the legislation of the State of residence R v. N.I.Commissioner, Ex parte Warry [1977] 2 CMLR 783.

ix A national court covered by Art. 177(2) of the Treaty of Rome has a discretionto decide for itself the point at which it is expedient to refer a question raised to the ECJ.It does not have first to exhaust all possibility of deciding the case in hand undernational law alone. Quaere whether positive grounds for disqualification for a SSbenefit fulfilled by a Community national in another Member State than that in whichthe claim is made and a disqualification laid down conflicts with Art. 19(1)(b) or Art.22(1)(a)(ii) of EEC Reg. No. 1408/71. The Commissioner referred three questions to theECJ under Art. 177(2) of the Treaty of Rome in connection with a claim by an Irishmanfor British sickness benefit covering period in which he was in detention in or near anIrish prison, detention in prison being a ground under English law for disqualification(Bonaffini v. I.N.P.S. [1975] ECR 971 applied, dictum of CA in H.P. Bulmer Ltd v. JBollinger S.A. [1974] Ch. 401 not applied) Kenny v. the Insurance Officer [1978] 1CMLR 181.

x The Commissioner in R(S) 1/81 found that a claimant was not disqualified forreceiving sickness or invalidity benefit by reason of imprisonment in Ireland. Thisdecision was quashed following the grant of an order of certiorari by the DivisionalCourt which held that disqualification for receipt of benefit under s. 49(1)(b) of the NIAct 1965 (now s. 82(5)(b) of the SS Act 1975) by reason of imprisonment was applicableto somebody undergoing imprisonment anywhere in the world. (See R(S) 1/81 and R.v. N.I. Insurance Commissioner, Ex parte Warry above). The claimant was disqualifiedfor receiving sickness benefit or invalidity benefit.

19.1.1


RS 1/81

R(S) 2/81

xi In a case in which, by virtue of s. 85(2)(a) of the SS Act 1975, a claimant wasdisqualified for receipt of sickness benefit in respect of a period of incapacity whilsthe was on holiday in France, a question arose as to whether EEC Regs. 1408/71 appliedto him. The Commissioner held that, as there was a judicial remedy under British lawagainst his decision, he was not bound to refer the question to the European Court (R(S)4/74, 19.1.1 i). He further held that it was preferable for any reference of theinterpretation question to be made by the higher court before which any appeal fromhis decision would lie (para. 9).

xii A claimant for (British) UB had worked in England and paid British Class 1contributions from 1947 to 1956. He then went to West Germany, where he lived andworked until 25 March 1982. Then he returned to England and claimed UB. Therelevant past year for the purpose of the second contribution condition for the UBclaimed was the 1980/81 tax year. This, in turn, raised the question, amongst otherquestions, as to the application of the reciprocal convention with Germany, Scheduledto the NI (Germany) Order 1961 in the light of Community law. The Commissioner heldon this issue that the claimant was not assisted by that convention, since under Art. 6of Council Reg. (EEC) No. 1408/71, that Reg. replaces, as regards persons and matterswhich it covers, SS conventions between Member States (paras. 5 to 7). See also R(G)1/82, 3.4.2 ii, 17.1.1 xi, 17.3.2 ix, 17.4.1 vi, R(S) 3/83, 7.5.1 ii above. Followed in R(U)7/85.

xiii The claimant lived in the Republic of Ireland. In 1982 his continued entitlementto invalidity benefit under the SS Act 1975 was reviewed by an insurance officer in Englandand his decision was upheld by a local tribunal in England. On appeal to the Commissionerthe claimant requested an oral hearing and also requested that that hearing should be inNorthern Ireland to enable him and his solicitor to attend and give evidence (sic). On thatpoint the Commissioner in GB held that, by virtue of Art. 39(1) of Reg. (EEC) No. 1408/71, the appellate jurisdiction in this case was that of GB and that no jurisdiction wasconferred on Northern Ireland. Art. 3 of Sch. 1 to the SS (Northern Ireland ReciprocalArrangements) Regs. 1976 did not operate to transfer jurisdiction to the Commissioner inNorthern Ireland, but only conferred jurisdiction upon him by removing an otherwiseconclusive impediment to jurisdiction. But that Art. did not assist the claimant because hispresence in Northern Ireland solely for the purposes of attending an oral hearing of theappeal would not, in the circumstances of this case, suffice to render Northern Ireland “theterritory in which the claimant is” for the purposes of that Art. (paras. 9 and 17 to 20.)Northern Ireland decision, Appeal No. 31/82 (IVB) distinguished. R(U) 9/61 followed.

xiv A claimant lived and worked in W. Germany from 1980 to 1984. On his return tothe UK he claimed UB. He had been insured under the W. Germany insurance scheme butthe W. German authorities did not authorise the export of their UB. It was held that theclaimant fell within Art. 1(a) of Reg. (EEC) No. 1408/71, and that he could not then beassisted by the convention between the UK and W. Germany by virtue of Art. 6 of that Reg.

xv Following a reference to the ECJ, a tribunal of Commissioners on 16 December 1991decided that a SSAT had been in error of law [Johnson v. COA - R(S) 1/95]. As a result, theclaimant in this case made a new claim for SDA which was treated as a request for reviewof a disallowed claim in 1984. That decision was revised to award SDA but was restrictedby s. 69 to payment from the date of the judgment of the ECJ. On appeal to the Commissionerit was held that the “relevant determination” for s. 69 was not the ECJ ruling on a preliminaryquestion, but the later determination of the appeal by the tribunal of Commissioners. Theclaimant had therefore been overpaid by the incorrect review decision. The Commissioneralso found that s. 69 was not contrary to European law as the restrictions were not lessfavourable than those applied to domestic law. The Commissioner rejected an argumentthat the tribunal of Commissioners in R(S) 1/95 did not find the decision of an adjudicationauthority to be erroneous in law because the decision set aside was that of an SSAT onappeal. It was held that the decision of a first tier adjudication authority can be found tobe erroneous in law notwithstanding the fact that it is the second tier appeal decision whichis set aside.

19.1.1


R(S) 5/83

R(U) 4/84

R(S) 5/85

R(U) 4/86

R(S) 1/99

19.1.1-2

xvi SSWP v PS (IB) [2009] UKUT 226 (AAC); [2010] AACR 14. The claimant lived inSpain from 1992, working self-employed and paying insurance contributions under therelevant Spanish legislation. She was awarded a form of sickness benefit from February2006 to September 2006. She and her husband returned to the UK in December 2006, andmade a joint claim for JSA(IB) in January 2007. Her husband then found work and theclaimant made a claim to IB on 1.2.07. The claim was refused because contributionconditions were not met. That decision was appealed, the claimant arguing that insurancecredits associated with her joint JSA claim meant that UK rather than Spanish social securitylaw applied. At the UT, the Judge held that entitlement to credits can only be decided atthe end of the tax year. The applicable legislation for a sickness benefit is determined byArt. 13 of Regulation (EEC) 1408/71. Even if prospective entitlement to credits were tobring her within the definition of employed person, the claimant had not actually beenemployed in the UK, and no provision of Art. 13 caused her claim to be subject to UK law.

2 Sex discrimination

i A SSAT decided that a married woman who was living with her husband, and whohad given up work to care for her mother, was entitled to ICA notwithstanding the termsof s. 37(3)(a)(i) of the SS Act 1975 (which disentitled to ICA a married woman residingwith her husband) on the ground that the section was discriminatory on grounds of sexcontrary to EEC Directive 79/7/EEC. On appeal by the AO the Chief Commissionerreferred certain questions to the ECJ. The Court ruled that “discrimination on groundsof sex contrary to art. 4(1) of Directive 79/7 arises where legislation provides that abenefit which forms part of one of the statutory schemes referred to in art. 3(1) of thatdirective is not payable to a married woman who lives with or is maintained by herhusband, although it is paid in corresponding circumstances to a married man.” (Case150/85, [1986] 3 CMLR 43. Also reported in Drake v. Chief Adjudication Officer[1986] 3 A11 ER 65 CJEC and [1986] 3 WLR 1005). In the light of the Court's rulingthe Chief Commissioner decided that the claimant was entitled to ICA as from5 February 1985. A further reason for dismissing the AO’s appeal was the repeal ofs. 37(3) of the 1975 Act by s. 37 of the SS Act 1986 with retrospective effect from11 February 1994. Another synopsis relating to this decision is at 15.5.1 i.

ii The claimant a single parent, claimed family income supplement for a familyconsisting of herself and two children. In order to make herself available for work sheplaced the children with a child minder at a cost of £25 per week. The claimantcontended that the childminding expenses should be deducted from her earnings inorder to determine her normal gross income, and that unless this was done there wouldbe indirect sex discrimination which would be contrary to Directive 79/7/EEC of theCouncil of the EEC. The tribunal held that the Directive had no application to familyincome supplement. Failure to take into account childminding costs did not thereforeconstitute indirect sex discrimination. For another synopsis of this decision see 31.2.1xi below.

iii Art. 4(1) of Directive 79/7/EEC can be relied upon from 23.12.84 to preventbeyond that date the effect of national provisions which are inconsistent with Art. 4(1).In the absence of appropriate measures for the implementation of that Art. women areentitled to be treated in the same manner, and to have the same rules applied to them,as men who are in the same situation, since where the Directive has not been implemented,those rules remain the only valid point of reference.

iv The claimant was not entitled to an increase of her Category A RP for her husbandbecause she did not satisfy the conditions of s. 45A(1)(a) of the SS Act 1975. TheCommissioner held that s. 45A placed women in a less favourable position than menin relation to increases of RP for spouses, but that the section did not breach EECDirective 79/7 on equal treatment for men and women in matters of SS. Anothersynopsis is at 7.6.1 i.

v The claimant attained pensionable age on 13 June 1975 from which date shewas awarded graduated RP only. But for the provisions of the SS Act 1975 then in force(the “married women’s half-test”) she would also have been entitled to a Category ARP. The married woman’s half-test was abolished on 23 July 1985 by the SS Act 1985


R(G) 2/86

R(FIS) 2/88(T)

R(S) 2/88

R(P) 3/88

R(P) 4/88

[2010]AACR 14

19.1.2

with effect from 22 December 1984, the last day of the period within which compliancewith EEC Directive 79/7 (equal treatment for men and women in matters of SS) wasrequired to be effected. The claimant made a further claim for Category A RP on 25January 1986. Good cause for delay in claiming was accepted and an award was madefrom 25 January 1985. The claimant contended that the withholding of pension for theperiod before 25 January 1985 was discriminatory and therefore unlawful under theDirective. The Commissioner held that:

1. the UK complied with the Directive by abolishing the half-test from 22December 1984 (para. 4);

2. the claimant could have claimed a Category A RP at any time after 23 July1985 which could have been backdated 22 December 1984 (para. 3);

3. no discrimination arose directly from the operation of s. 165A of pre-condition to entitlement and the claimant did not claim until 25 January 1986(para. 4);

4. the claimant was not excepted from the requirement to make a claim -neither of her claims in 1975 and 1979 could assist her because a claim for RPcould not be made earlier than four months before the date of entitlement, andentitlement to Category A RP was precluded by the half-test until 22 December1984 (para. 5).

vi The claimant became entitled to an occupational pension from 1.9.85 at whichtime he was aged 63. He claimed UB on 2.9.85 but the AO decided that UB was notpayable because the amount of occupational pension exceeded the amount prescribedunder s. 5 of the SS (No. 2) Act 1980 by such amount as reduced his entitlement to UBto nil. This decision was upheld by the SSAT. On appeal to the Commissioner theclaimant contended that the abatement rule was discriminatory both in respect of ageand sex. The Commissioner held that:

1. Art. 119 on the EEC Treaty of Rome (stating the principle of equal payfor men and women) had no application because it was the claimant’s UB thatwas being abated and that did not fall within the meaning of “pay” as definedin that Art. (para. 7);

2. the question before the tribunal was the proper construction andapplication of Council Directive 79/7/EEC on the progressive implementationof the principle of equal treatment for men and women in matters of SS and inparticular:

(a) whether s. 5 of the 1980 Act whether alone or in conjunction withs. 27 (1) of the SS Act 1975 (pensionable age) was directly or indirectlydiscriminatory contrary to Art. 4 of the Directive; and

(b) if so, whether such discrimination arose from (i) the determinationof pensionable age for the purposes of granting old age and retirementpensions or (ii) the possible consequences thereof for other benefits (para.8 and 10);

3. it was important correctly to identify the relevant “pool” or group ofpersons as to which the issue of discrimination of potential discrimination arose(para. 12);

4. the class of persons concerned in the present case was made up of thosewho fall within s. 5(1) in conjunction with s. 27(1); namely those aged 60 or overbut under 65 who have not retired, who are out of work, available for employmentand entitled to UB and who are in receipt of an occupational pension (para. 13);

5. in fact that there are a greater number of men than women in that class ofpersons amounts to indirect discrimination in accordance with existing


R(U) 10/88(T)

19.1.2


principles, with the result that s. 5 of the 1980 Act is indirectly discriminatoryon grounds of sex (para. 14);

6. the indirect discrimination is one of the possible consequences for UB ofthe determination of pensionable age and as such is excluded from the scope ofthe Directive by the derogation in Art. 7(1)(a) (paras. 16 and 17).

vii A widow receiving widows pension gave up work to care for her daughter. Sheclaimed ICA on 25 November 1986. An AO decided that ICA was not payable from andincluding 25 November 1985 (twelve months prior to the date of claim) because reg.4 of the SS (Overlapping Benefits) Regs. 1979 (“the Regs”) applied. A SSAT upheldthis decision. the claimant appealed to a Commissioner, submitting that the regs. werediscriminatory on grounds of sex, within the terms of EC Council Directive 79/7/EECof 19 December 1978. It was held that the regs. were not discriminatory. The fact thatthe claimant received a widows pension put her in a situation different from any manin that, if both had title to ICA, she would lose the allowance for a reason which couldnever apply to a man. This was not discrimination because her situation was differentfrom that of any man. A rule or reg. is discriminatory, either directly or indirectly, ongrounds of sex within the meaning of Art. 4, if when applied it results in a person orgroup of people who start from the same situation as others from the opposite sex, beingtreated less favourably. See 4.3.5 ii and 15.5.2 i above.

viii A woman aged 61 claimed ICA. That claim was disallowed in accordance withs. 37(5) of the SS Act 1975 because she was over pensionable age (which is 60 for awoman) and had not been entitled to ICA immediately before reaching that age.Pensionable age is 65 for man. The Commissioner decided that:

1. s. 37(5) of the Act discriminated against women contrary to EC Directive79/7;

2. this discrimination was not permitted by art. 7(1)(a) of that Directive;

3. as a result women are entitled to ICA on the same terms as men. Thereforefor the purposes of s. 37(5) of the Act pensionable age should be regarded as 65for women.

The Secretary of State appealed against that decision. The CA dismissed that appealand decided that:

1. the exceptions in art. 7(1)(a), which set out when the Directive will notapply, must be applied strictly and in accordance with the principle ofproportionality;

2. Member State can only retain conditions of entitlement for benefits otherthan retirement or old age pensions which are linked to the different pensionableages for retirement pension when this is a necessary consequence of the differentpensionable ages for men and women for RP purposes;

3. the discrimination in s. 37(5) of the Act is not excluded from the effectsof Directive 79/7/EEC by the exclusions in art. 7(1)(a).

The Secretary of State made a further appeal to the HL. On 27.11.91 the HL referredpreliminary questions to the ECJ. The ECJ (case 328/91) decided that:

1. the discrimination which results from linking the condition of entitlementfor benefits other than RP to the different pensionable ages for men and womenfor RP purposes is only acceptable if it is necessary and objectively linked tothese different ages;

2. the awarding of non-contributory benefits such as SDA and ICA has nodirect influence on the financial equilibrium of contributory pension schemes.

R(S) 2/89

R(G) 3/89

The ECJ referred the case back to the HL for a final decision who confirmed the decisionof the CA.

ix A man born on 5.1.27 claimed RP on 27.7.88. That claim was disallowed becausehe did not reach pensionable age (65 for a man) until 5.1.92. The claimant appealedon the ground that the different pension ages for men and women discriminate againstmen contrary to Directive 79/7/EEC. The claimant also argued that, although an ECcountry could fix pension ages which are different to those in other Member States, itwas not permitted to fix different ages for men and women. The Commissioner decidedthat:

1. the different pension ages for men and women do discriminate. HoweverArt. 7 of Directive 79/7/EEC allows Member States to discriminate and to fixdifferent pension ages for men and women;

2. the Directive is not concerned with Member States fixing a pension agefor their populations generally.

x The claimant’s husband was in receipt of invalidity benefit including adependency increase for his wife who worked part time. The claimant gave up work tocare for her father and claimed ICA which resulted in her husband’s increase ofinvalidity benefit being extinguished under the overlapping benefit rules. The claimantappealed and the Commissioner found that the overlapping benefit regs. werediscriminatory against women but that they were objectively justified. On appeal bythe claimant the CA held that Directive 79/7 could not apply in this situation as theclaimant had been awarded ICA without restriction. It was the claimant’s husband whohad his benefit reduced and there was no discrimination against women.

xi The Commissioner decided that Supp. Ben. is not covered by Directive 79/7/EEC. The Directive was drafted and adopted on the basis that certain matters wereoutside of its scope. Art. 2 of the directive shows that it is intended to cover schemeseither directly or indirectly linked to the proportion of the working population.Although members of the working population are awarded Supp. Ben. that scheme isnot limited to members of the working population. The claimant appealed to the CA.The Court did not decide whether Supp. Ben. was covered by the Directive. The Courtdismissed the appeal on the ground that the legislation does not treat personsdifferently on the grounds of sex but only on the ground of being a member of a couplemarried or unmarried, irrespective of sex. This difference in treatment was not indirectdiscrimination contrary to art. 4 of the directive. It was therefore unnecessary to decidewhether the supplementary scheme was covered by the Directive.

xii The Commissioner decided that:

1. Directive 79/7/EEC is the first stage in implementing the principle ofequal treatment in SS matters;

2. Supp. Ben. is not included within the scope of art. 3 of Directive 79/7/EEC.

The claimant appealed to the CA. On 21.12.90 the Court referred preliminary questionsto the ECJ (jointed cases c63/90 and c64/90). The ECJ confirmed the Commissioner’sdecision that Supp. Ben. is not within the scope of Directive 79/7/EEC. See also R(JSA)1/05 at 19.1.2 xxvi.

xiii The Commissioner decided that Directive 79/7/EEC applies only to matters ofSS set out in art. 3 of the Directive. IS is a statutory scheme which provides protectionagainst the risk of poverty and does not provide protection against any of the risks setout in art. 3 of Directive 79/7/EEC. The claimant appealed to the CA. On 21.12.90 theCourt referred preliminary questions to the ECJ (joined cases c63/90 and c64/90). TheECJ confirmed the Commissioner’s decision that IS is not within the scope of Directive79/7/EEC. See also R(JSA) 1/05 at 19.1.2 xxvi.

19.1.2


R(G) 2/91

R(SB) 6/91

R(SB) 8/91

R(IS) 10/91

R(P) 3/90

xiv When comparing a class of men and women to establish whether discriminationexists the Commissioner preferred the test applied by the CA in Jones v. the CAO (R(G)2/91) to the pool test applied by the tribunal of Commissioners in R(U) 10/88.

xv Several women claimed either ICA or SDA and were refused benefit because theywere not entitled when they reached pension age (60). The CA held that they wereentitled by virtue of the equal treatment Directive 79/7/EEC. The Secretary of Stateappealed to the HL who referred questions to the ECJ for preliminary rulings. The ECJheld that:

1. the rule was discriminatory and could only be allowed if it fell within thederogation in Art. 7(1)(a) which permits different ages to be prescribed for menand women for the purposes of old age pension and the possible consequencesfor other benefits;

2. discrimination is only permitted for other benefits where it is objectivelynecessary in order to avoid disrupting the financial equilibrium of the SS systemor to ensure consistency between RP schemes and other benefit schemes;

3. the grant of non-contributory benefits has no direct influence on thefinancial equilibrium of contributory benefit schemes, and the discriminationwas unnecessary to preserve the financial equilibrium of the entire SS system;

4. the grant of benefits such as ICA and SDA constituted a right which couldnot be denied on the grounds that the woman’s situation was exceptional bycomparison with most women.

The S of S appeals were dismissed by consent following the judgment of the ECJ.

xvi A woman became incapable of work when she was 58 years of age, and as hercontribution record was deficient she claimed IS. On reaching 60 years of age, she waspaid RP. When aged 67, she sought to de-retire in order that she could re-qualify forinvalidity benefit, which although paid at the same rate as her RP, would in turn enableher to qualify for the higher pensioner premium of IS. It was decided that she was notentitled to de-retire because, being over 65, she did not satisfy the provisions of s. 54of the SS Contributions and Benefits Act 1992 and reg. 2(1) of the SS (WB and RPs)Regs 1979. It was held that those provisions were discriminatory on the ground of sexand contrary to Directive 79/7/EEC. The Commissioner held that the case wasindisinguishable from the ECJ (case 243/90) decision in Smithson (the provisions atpara. 10, Sch. 2 of the IS Regs. are identical to para. 10, Sch. 2 of the HB (General) Regs.).Therefore, the reasons given by the Court in that case were equally applicable in thiscase. Consequently, the higher pensioner premium is an inseparable part of IS and assuch is not a benefit which falls within Art. 3(1) of Directive 79/7/EEC. The Commissionerdecided that the provisions of s. 54 of the SS Contributions and Benefits Act 1992 andreg. 2(1) of the SS (WB and RPs) Regs. 1979 did not breach Directive 79/7/EEC.Consequently , the claimant was not entitled to de-retire as she was over 65 years of age.

xvii The claimant was in receipt of IVB when she reached pension age (60) and herbenefit was restricted to the rate of RP to which she was entitled. A tribunal dismissedher appeal and she appealed to the Commissioner on the grounds that she had been thevictim of discrimination because a man in her position would have continued to receiveIVB until he was 65. The Commissioner allowed the appeal holding that the claimantwas entitled to IVB at the standard rate and he awarded IVA at the lower rate. The CAOand S of S appealed to the CA who referred questions to the ECJ for preliminary rulings.The ECJ held that:

1. where a Member State prescribes different pension ages for men andwomen the permitted derogation under Directive 79/7/EEC was limited to theforms of discrimination existing under other benefit schemes, which were linkedto the difference in pensionable age and were objectively necessary;

19.1.2


R(U) 3/92

R(G) 2/94

R(P) 1/95

R(S) 2/95

2. since IVB was designed to replace income from work there was nothingto prevent a Member State from providing for the end of IVB and its replacementwith RP when a person would normally be expected to cease work at pension age;

3. the derogation also applies to the qualifying ages for IVA.

The CA allowed the appeals of the CAO and S of S.

xviii A woman was divorced in 1979 and remarried in 1983. Up to 1979 she paid thereduced rate married woman's contributions which do not count towards RP. From 1979until her retirement in 1992 she paid full rate contributions. However these contributionswere insufficient to entitle her to full pension. The claimant argued that she was entitledto have her first husband’s contributions treated as hers by virtue of s. 48 of theContributions and Benefits Act 1992. However, s. 48(3) provides that where a personmarries more than once , only the last marriage counts for that purpose. The claimantcontended that s. 48(3) was discriminatory contrary to Directive 79/7/EEC. It was putto the Commissioner that the question concerned the satisfaction of contributionsconditions and as such was for the S of S to decide. The Commissioner decided that,although the provision concerns contributions, the question of whether s. 48(3) wasdiscriminatory contrary to Directive 79/7/EEC was a question of general law andtherefore not for the S of S to decide. The Commissioner subsequently held that theprovisions at s. 48(3) of the Contributions and Benefits Act 1992 were not discriminatorycontrary to Directive 979/7/EEC.

xix Where a member state has provided for increases in long-term old age benefitsin respect of a dependant spouse to be granted only to men, Art. 7(1)(d) of Directive79/7/EEC does not prevent that state from implementing measures which would havethe effect of reducing, but not abolishing entirely, that discrimination only againstwomen who fulfil certain conditions. See also 7.6.1 ii.

xx The claimant, a lone parent, was disallowed FC from 26.4.89 because herearnings of £487 a month exceeded the limit. She appealed arguing that child mindingfees should be deducted from her earnings. The tribunal agreed that the fees constitutedexpenses necessarily incurred in the performance of her duties. The Commissioner gavean interim decision that there was no provision for the deduction of child minding costsbut referred to the ECJ the question of whether the benefit fell within the scope ofDirective 76/207/EEC. The ECJ held that the FC scheme came within the scope of theDirective because by encouraging workers to take up low paid employment and toremain in such employment it is concerned with “access to employment”. On receiptof the judgment the Commissioner had to decide whether the scheme was indirectlydiscriminatory. He decided that it was but that, taking into account evidence that in1989 a lone parent with average childcare costs was better off in work and receivingFC than unemployed, the scheme met the test that it was appropriate to achieve thepolicy aim. The absence of a provision for deduction of childcare costs was notprecluded by Directive 76/207/EEC.

xxi The claimants in five cases were all in receipt of REA but had that benefit eitherfrozen or replaced by RA because they had reached pension age. The cases were chosenas representative of many appeals to the Commissioner by claimants or the AO. Theyraised questions whether the different treatment linked to unequal pension ages for menand women amounted to unlawful discrimination on the grounds of sex contrary toCouncil Directive 79/7/EEC. This reported decision includes the three questionsreferred by the Commissioner to the ECJ and the judgment of the Court. Following thejudgment the Commissioner decided against all the claimants by a short decision (notreproduced). The Court held that REA is a benefit which falls within the scope ofDirective 79/7/EEC. It is not excluded as an old age pension under Art. 7(1)(a) but canbe classified under that Art. as a benefit for which the determination of retirement agehas repercussions. The requirement in Art. 8 to bring into force such laws to complywith the Directive within six years does not prohibit a Member State which has setdifferent retirement ages from adopting new measures linked to that age difference afterthe expiry of that period. The degeneration in Art. 7(1)(a) must be interpreted asapplying to a benefit such as REA introduced after the expiry of the prescribed periodand subject to age conditions which differ according to sex.

19.1.2


R(P) 1/96

R(P) 2/96

R(FC) 2/98

R(I) 2/00

xxii A widow aged 55 arrived in the UK on 22 August 1994. Although she had theright of abode, and her late husband had resided in the UK she had lived all her life inBangladesh. She claimed IS on 26 August 1994 and was refused on the ground that shewas not habitually resident. The SSAT allowed her appeal and the AO appealed to theCommissioner. In dismissing the appeal the Commissioner held that as a matter ofordinary language, a person is not habitually in a country unless he has taken upresidence and lived there for a period. It is not sufficient for a person to express theintention to settle. He must show residence in fact that has become, and is likely toremain habitual. The required period is not fixed and may be short but it should bedetermined on the circumstances of each case. Where a person is returning to the UKafter a spell abroad the AO might be satisfied that he is resuming his previous habitualresidence. The CA upheld the decision of the Commissioner by a majority and theclaimant appealed to the HL. The HL held that the Commissioner and the majority ofthe CA were right in law to decide that the claimant was not habitually resident whenshe claimed IS. They also agreed that it was proper to remit the case to a new tribunalto investigate the facts because there were factors pointing to habitual residence havingbeen established by the date of the original tribunal or earlier.

xxiii The claimant, who was pregnant, applied for JSA whilst on leave of absence fromthe third year of her full time university course. The claim was refused on the basis thatshe was still a full time student and following an unsuccessful appeal to the tribunalthe claimant appealed to the Commissioner. Allowing her appeal the Commissionerheld that JSA is a single benefit within the scope of Art. 3 of Council Directive79/7/EEC and that the discrimination against a pregnant student is direct discriminationcontrary to Art. 4 of the Directive. He further held that the discrimination was notobjectively justified. On appeal by the Secretary of State the CA found that the regs.made no express discrimination between men and women and did not seek to deal withwhether a woman was or was not pregnant. The claimant's ineligibility for JSA derivedfrom her status as a student and leave of absence did not alter that position. It is anoversimplification to assert that for a pregnant women to suffer any detriment connectedwith her condition must amount to discrimination. The regs. do not deprive a womanof the right to benefit because she is pregnant and are not directly discriminatoryagainst women generally and are not therefore in breach of the Directive.

xxiv The claimant was disallowed JSA because she restricted her availability to 20hours a week. She appealed to the Commissioner on the ground that the reg. wasindirectly discriminatory against women contrary to Council Directive 79/7/EECbecause more women than men who did not have children worked part time and weretherefore affected by the rule. The Commissioner held that there was no indirectdiscrimination because the requirement is not one which a greater proportion of onesex than the other is unable, as distinct from unwilling, to comply. The claimantprovided statistics relating to the working population to show the discriminatory effectbut the Commissioner held that as JSA is available to the non-working population, thepool of consideration is not the working population. It is not possible to identify acategory of claimant who are unable to comply with the reg. and compliance musttherefore be regarded as a matter of individual choice for each claimant. The claim ofindirect discrimination must therefore fail.

xxv The three claimants were all employed in work which was available only in termtime of the school or college and were treated as engaged in remunerative employmentthroughout the year in which there was a cycle of work. Reg. 51(2)(c) which appliesonly to work in a school or similar establishment which observes school holidays inwhich the claimant does no work can disadvantage some claimants when comparedwith the effect of reg. 51(2)(b)(1) which is applied to all other claimants who have acycle of work.

Following a concession by the Secretary of State, the Commissioner held that statisticalinformation clearly showed that reg. 51(2)(c) was indirectly discriminatory in that itaffected more women than men contrary to Council Directive 79/7/EEC. He alsorejected the argument that such discrimination was not unlawful because it could beobjectively justified. The fact that the reg. was introduced specifically to enable certainpeople to be in remunerative work in order that they could claim FC (now Working

19.1.2


R(JSA) 3/02

R(JSA) 4/02

R(JSA) 4/03 (T)

R(IS) 2/00

Families Tax Credit) did not help to justify the discrimination because it was notnecessary for the JSA reg. to have the same method of calculation of remunerative workas the FC reg. See also R(JSA) 4/03 23.3.l ii.

xxvi The claimant was separated from his wife. His two children resided with him forroughly half of each week, but his estranged wife was in receipt of CHB from them.Although entitled to JSA, the AO decided that the amount payable should not includeany additional amount in respect of the children. He could not be treated as responsiblefor them by the definition in reg. 77(1) of the JSA Regs. Following appeals to thetribunal and Commissioner, the CA allowed the claimant’s appeal. They held thatcontributory and income-based JSA form part of a comprehensive scheme whichprovides protection against the risk of unemployment, and therefore both fall withinArt. 3 of Directive 79/7/EC. The Court remitted the case to the Commissioner toconsider the issue of discrimination. See R(JSA) 2/05 at 23.6.1.

xxvii The claimant was registered male at birth but underwent gender reassignmentsurgery in 2001. She claimed RP from 28.2.02, her sixtieth birthday, but this wasrefused on grounds that the claimant had not reached age 65, pension age for a man.That decision was upheld at tribunal. The claimant appealed to the Commissioner,arguing discrimination contrary to Article 4 of Council Directive 79/7 EEC. TheCommissioner referred the question to the European Court of Justice who held that thederogation in Art. 7 allowing different pension ages for men and women until pensionsystems are adapted, must be interpreted strictly. Art. 4(1) of Directive 79/7 must beinterpreted as precluding legislation that denies a person who has undergone male tofemale gender reassignment entitlement to RP until age 65, when she would have beenentitled to RP at age 60 had she been held to be a woman as a matter of national law.The Court also noted that the entry into force of the Gender Recognition Act 2004 on4.4.05 was liable to lead to the disappearance of such disputes. In the light of the answergiven by the European Court of Justice, the Commissioner allowed the appeal andawarded RP from 28.2.02.

xxiv The claimant, a male-to-female transsexual, attained female pension age of 60in 2002 when still living as a man. The claimant had gender reassignment surgery inDecember 2005, and obtained a full gender recognition certificate in December 2006.RP was awarded from December 2006 but the claimant appealed against the refusal ofan earlier claim in May 2006, asserting entitlement to equal treatment with a personof the same age born a female. Dismissing the appeal, the Tribunal of Commissionersheld that the claimant could rely on the direct effect of Art. 4 of Council Directive 79/7, but that the claimant had been awarded RP from the first day that she became ableto demonstrate a change of gender in accordance with the conditions of the GenderRecognition Act, and the conditions in the Act were not inconsistent with therequirements of the Directive. They further held that the 12 month time limit on arrearsof possible entitlement following a claim to benefit was not inconsistent with theclaimant’s right to equal treatment because it was a limit of universal application.

xxv The parents shared care of their two children equally, CHB being paid to themother. The Secretary of State decide that the mother was the parent with car. The father,having lost his appeal to the tribunal, appealed to the Commissioner contending thatthe regs. operated in an unfair and discriminatory way and that there must be some roomfor discretion. It was held that the rule in reg. 8(2)(b)(i) of the child Support (MaintenanceCalculations and Special Cases) Regs. 2000 was not irrational or ultra vires (R(CS) 14/98 followed). There was no breach of European Union Law as neither the child supportscheme nor the CHB scheme was within the scope of council Directive 79/7/EEC. Evenif the child support scheme came within Art. 8, there was no breach of Art. 14 in thiscase as the CHB arrangements between these parents were voluntary and any theoreticalpossibility of gender-based discrimination within the CHB did not apply to them.

3 Nationality discrimination

i The widow of an Irish worker is, under Art. 3(1) of EEC Reg. No. 1408/71, to beplaced in the same position as a British national with regard to entitlement to BritishAA and a rule applying to “a person who is neither a British subject nor a Britishprotected person” does not apply to her. Where the ECJ has not given a ruling on a

19.1.2-3


R(A) 2/78

R(JSA) 1/05

R(P) 1/07

R(P) 1/09

R(CS) 1/09

particular point, but the Advocates General have on several occasions expressed aconsistent opinion on that point, the latter point may be followed as a correct statementof the law. Art. 3(1) of EEC Reg. No. 1408/71, read in light of the rules againstdiscrimination on grounds of nationality in Art. 7 of the treaty of Rome and on groundsof residence in case law on Art. 48 EEC result in the widow of an Irish worker who claimsAA in the UK being treated, not as a British subject born abroad, but as a British subjectborn in the UK. The Commissioner held that British AA should be paid to the claimant,an Irish national born in Ireland and widow of an Irish worker, in accordance with therules applicable to a British subject born within the UK and not those applicable eitherto a British subject born abroad or to an non-British subject. Re Resident Conditions[1978] 2 CMLR 287.

ii The claimant, who has both British and German nationality, was disqualified forreceiving sickness benefit because she was absent from GB. She appealed on thegrounds that the disqualification indirectly discriminated against her on the groundsof nationality contrary to Art. 7(1) of the EEC treaty and Art. 3(1) of Reg. (EEC)1408/71. The Commissioner decided that

1. the principles which apply to indirect discrimination on the grounds ofsex also apply to indirect discrimination on the grounds of nationality;

2. in deciding whether there is indirect discrimination the pool of comparisonis the class of persons who are receiving sickness benefit who are absent fromGB but do not come within reg. 2(1) of the Persons Abroad Regs.; and

3. the provisions disqualifying a person for being absent from GB s. 82(5)(a)of the SS Act 1975 and reg. 2(1) of the Persons Abroad Regs.) do not discriminate,either directly or indirectly, on the grounds of nationality. In particular they donot have a disproportionate impact upon non-British EEC nationals comparedwith British nationals. See also 2.6.13 i.

iii The claimant, an Irish national, claimed an SF funeral payment following thedeath of his son in London. The claim was not allowed because the funeral took placein Ireland and it is a condition of entitlement that it take place in the UK. The tribunalupheld that decision but on appeal the Commissioner found the tribunal to be in errorbecause they had not considered whether the condition was discriminatory contrary toEC law. The Commissioner then went on to reject that argument and re-impose thedisallowance. On appeal by the claimant the CA set aside the decision and remitted theappeal to a different Commissioner who referred four questions to the ECJ for preliminaryrulings. The ECJ held that:

1. a funeral payment constituted a “social advantage” under Art. 7(2) ofCouncil Reg. (EEC) 1612/68 and migrant workers should enjoy that advantageunder the same conditions as national workers;

2. the conditions imposed could more easily be satisfied by nationalworkers and therefore indirectly discriminated against migrant workers;

3. there would be no discrimination if the condition could be objectivelyjustified but the Court did not accept the arguments put forward by the UK.

The Commissioner allowed the claimant’s appeal.

iv The Bobezes case concerned a migrant worker, with a dependent child,who hadIS withdrawn after four weeks of the child’s absence in another European Unioncountry. The child was staying with grandparents in Portugal. Both the Commissionerand the CA accepted that reg. 16(5) of the IS Regs. was intrinsically liable to affectmigrant workers more than national workers and there was a risk that it would placemigrant workers at a particular disadvantage. The CA determined the issue under ECReg. 1408/71 not 1612/68 although both prohibited different treatment of migrantworkers and national workers. The Court confirmed the order of the Commissioner anddirected a new tribunal to decide whether the discrimination could be justified by theSecretary of State.

19.1.3


R(S)2/93

R(IS) 6/05

R(IS)4/98

19.1.3-4

v The claimant was born in the United States and had dual Irish and Americannationality. As part of his college studies he spent one semester in the UK, andsubsequently did casual or part-time work in the UK for approximately ten months in1981/82. He then returned to the United States and worked there and in Africa. On31.5.98 he returned to the UK, seeking work in the social services sector, and claimingJSA(IB) on 8.6.98. The claim was disallowed on grounds that the claimant was nothabitually resident in the UK. The disallowance decision was subsequently upheld attribunal, and then by the Commissioner following a preliminary ruling on questionsof European law by the ECJ. The Commissioner held that the residence test in JSA wasobjectively justified and proportionate in requiring a genuine link with the UKemployment market. The claimant appealed to the CA, challenging the Commissionersinterpretation of the ECJ judgement. Dismissing the appeal, the CA held that thehabitual residence test, which imported a requirement for a genuine link to the UKemployment market rather than simply that the search for work was genuine, was notincompatible with community law.

vi The issue considered by the CA concerned SF Funeral Payments, and whetherthe condition that the funeral must take place in the UK was discriminatory, contraryto Art. 14 of the Convention. All the claimants had relatively recent family origins inoverseas Muslim countries and continuing personal ties with those countries. In eachcase the deceased was returned to the country of family origin for burial there, althoughfacilities for Muslim burials exist in the UK. In each case all other conditions ofentitlement were met, but a funeral payment was refused because the funeral was notheld in the UK. The decisions were upheld at tribunal, and subsequently, theCommissioner held that the refusal involved indirect discrimination against theclaimants as members of the group consisting of recent migrants, but that no substantiveArts. of the Convention were engaged. Dismissing the claimants’ appeals, the CA heldthat there was no relevant discrimination since there was no basis for identifying peoplewho might elect for a burial abroad as a group sharing a personal characteristic withinthe scheme of the Convention. The court further found that, even if one were to acceptthat recent migrants had an identifiable status for the purposes of Art. 14, any resultinggrounds of discrimination would fall within the “margin of appreciation” allowed byStrasbourg jurisprudence. They held that R(IS) 4/98 (see entry 19.1.3.iii above) wasbased on the special legal status afforded by the EU Treaty to migrant workers fromother Member States.

vii In both cases the claimants were EEA nationals who had entered the UK, and thenclaimed income related benefits (IS, HB, and SPC) after 1.5.04. Neither was a workeror otherwise economically self-sufficient at the relevant time. The claims were rejectedon grounds that the claimants were not habitually resident, because they did not havea right to reside in the UK. The decisions were eventually appealed to the CA, who heldthat simply being lawfully present did not equate to having a right to reside under UKlaw, for which it is necessary to be a “qualified person”: and that was not inconsistentwith the UK’s obligations under ECSMA or the European Social Charter. The Courtconcluded that Art. 18 of the Treaty does not create a right of residence for an EEAnational in another member state where the limitations imposed under Directive 90/364/EEC are not satisfied. Where a person has no right of residence under either theTreaty or domestic legislation, there was no question of discrimination under Art. 12(discrimination on grounds of nationality).

4 Worker

i Where a person has, during the last complete contribution year, paid themaximum 52 weekly NI contributions but, because he left employment during the yearto become a self-employed person, 38 only of those contributions were as an employedperson and 14 as a self-employed person, he satisfies the conditions under British SSlaw for receipt of full-rate sickness benefit (those contributions being aggregated forthat purpose). If the employee’s contributions were taken alone he would have receivedbenefit at a reduced rate, but if the self-employed were taken alone he would not beentitled to any benefit. In such circumstances he is to be regarded as a “worker” for thepurposes of EEC Reg. No. 1408/71 in order to enjoy benefit for periods while he wasoutside the UK in another Member State, Re An Ex-Civil Servant [1976] 1 CMLR 257.


CSS 2/75(unreported)

R(IS) 8/07

R(JSA) 3/06

R(IS) 11/06


where a worker was obliged to cease work to care for a spouse who is temporarilyseriously disabled. They both retained rights to residence.

xv The claimant, a Polish national, came to the UK in 2002, initially as a studentand subsequently in employment. Following the birth of her child, she gave up workin 2005 and claimed IS. This was disallowed as she did not have a right to reside andthe claim eventually reached the CA. The claimant argued that entitlement arose underArt. 12 or 18 of the Treaty because it was disproportionate to deny a right of residenceto someone who is lawfully resident and substantially settled. The CA held that Art.18 can be relied on to fill a lacuna in a Directive but that Council Directive 2004/38/EC gave an authoritative insight into the parameters of proportionality, providing fora right to permanent residence after 5 years lawful presence. Dismissing the appeal, itheld that it was not disproportionate to exclude the claimant from IS when, at the timeof claim she had been in GB for 3 years and was economically inactive.

xvi The claimant, a Turkish national, was granted temporary admission when shecame to the UK as an asylum seeker. She was still an asylum seeker in 2006 when sheclaimed HB. The claim was refused because she did not have a right to reside, and waseventually appealed to the CA. The claimant argued that, as a national of a state whichhad ratified ECSMA, she was not excluded from entitlement to benefit under s. 115 ofthe Immigration and Asylum Act. Dismissing the appeal, the Court held that there isa clear distinction between lawful presence and a right to reside and although notexcluded from benefit under the Immigration and Asylum Act, this did not giveautomatic entitlement. She did not have a right to reside because she did not satisfythe provisions in domestic legislation.

xvii Pedro v SSWP [2009] EWCA Civ 1358; [2010] AACR 18. The claimant, aPortuguese national, came to the UK in 2004 to join her son. She initially received JSAbut then claimed SPC on reaching age 60. This was disallowed on grounds that she didnot have a right to reside. The claimant appealed, claiming a right to reside as adependent family member of an EU national with worker status. The appeal eventuallyreached the CA, argument centring on whether the claimant had, first, to provedependency in her sate of origin as well as in the UK. The Court held that the claimantsatisfied the definition of “family member” in Art. 2(2)(d) of the Citizens Directive2004/38/EC, and that article does not specify when the dependency has to have arisen.In contrast Art. 3(2) concerning “other family members” (being those outside thedefinition of family member in Art. 2) does specifically require dependency in the stateof origin. It followed that the claimant, being a family member as defined in Art. 2(2)(d),did not need to first prove dependency on her son whilst she was in Portugal.

4 Habitual residence - domestic

i The claimant was a British national. He had qualified in England in technicalgraphics in the Summer of 1981, when he was 20. In April 1981, before so qualifying,he had commenced employment in West Germany on an eight month engagement. Hereturned to England to take his qualifications examination but, subject to that, heremained employed in West Germany for a succession of fixed periods, totalling twoyears. His employers were three successive, though associated, employment agenciesand the actual work was done for a single firm to whom each of his employerssuccessively contracted his services. In Germany he first lived in an hotel and then afurnished flat. When his employment ended, he returned to England after drawingGerman UB for 2½ months. While working in Germany, he returned home only on threeoccasions, for nine days to take his examination, and for one holiday of two or threeweeks each year. He left all his possessions in his parent’s home, which he used as hisaddress and in which he jointly shared a room with his brother and to which he returnedwhen he came to England. His parents continually were on the look-out for employmentfor him in England. He originally intended only to be in Germany for the eight monthperiod of his initial employment. On his return to England he claimed and was awardedWest German UB for the three months ending 29 September 1983 under Art. 69 of EECReg. 1408/71. He claimed UK UB from 30 June 1983 to 25 April 1984, but from 4August 1983 to 11 August 1983 he was in Spain looking for employment and his

19.3.3-4

R(U) 7/85

R(IS) 5/09

R(H) 7/09

[2010]AARC 18

disqualification from benefit for that period was not disputed. It was contended thatthe claimant’s West German contributions could not be counted towards the satisfactionof the contribution conditions for the UK benefit and accordingly he did not satisfythose conditions; that, once having availed himself under art. 69, he could not at leastduring the period before the Commissioner maintain a claim for the UK benefit (seeobiter dictum in R(U) 4/84); and that, in any event, the period from 30 September 1983to 2 October 1983 should be accounted as waiting days, because the claimant wasprecluded from drawing the UK benefit while drawing the German benefit. Thereforehe should be regarded as disqualified from receiving the UK benefit during that periodand the days in that period were not to be treated as days of unemployment. TheCommissioner held that:

1. subject to certain exceptions, Community law did not provide for theright of an unemployed worker to claim UB under the legislation of a MemberState other than the State in which he became unemployed (art. 67(3)) (para. 5);

2. in this case the relevant exception was in art. 71(1)(a)(ii) and (b)(ii) andin relation to that Art. the question in issue was whether the claimant was“habitually residing” in the UK while working in Germany (see arts. 1(h) and71(1)) (para. 6);

3. during that period the claimant was habitually residing in the UK for thepurposes of those provisions (paras. 7 to 15);

4. the fact that the claimant was precluded from receiving the UK benefitdown to 30 September 1983 by reason of his receipt of the German benefit didnot amount to disqualification for receipt of the UK benefit, nor to disentitlementto it (paras. 18 to 20);

5. the claimant was entitled to UK UB from 30 September 1983 to24 April 1984, but not from 30 June 1983 to 3 August 1983 or from 12 August1983 to 29 September 1983 (paras. 1 and 16).

The Commissioner also ruled that the expression “stable employment” in the Di Paolocase [1977] ECR 315 should be interpreted as meaning permanent or steady employment(para. 13). R(U) 4/84 followed and obiter dictum explained and distinguished. CS 174/49 (KL), R(S) 2/65, R(U) 13/80 and R(S) 11/83 considered.

ii The claimant had a right of abode in the UK. She was born in Burma and livedthere all her life until June 1992 when she first came to the UK, having separated fromher husband. Her husband and children remained in Burma. She found long term workand rented accommodation. She was made redundant in May 1994 after which sheclaimed and was paid IS. In July 1994 she left the UK to visit her husband as he wasthought to be terminally ill. She returned to the UK on 20 August 1994 and claimedIS. The AO decided she was not habitually resident in the UK and the tribunal upheldthat decision. The Commissioner decided that the claimant had become habituallyresident in the UK before she left on 20 July 1994 and that her temporary absence inBurma did not cause her to lose that habitual residence. He held that:

1. a person who is not resident in this country at all cannot be habituallyresident. Residence is a more settled state than mere physical presence in acountry. To be resident a person must be seen to be making a home. It need notbe the only home or a permanent home but it must be a genuine home for the timebeing (para. 19).

2. it is a question of fact whether a person who has established residence ina country has also become habitually resident. This must be decided byreference to all the circumstances of the particular case (para. 20);

3. the most important factors for habitual residence are the length, continuityand general nature of actual residence rather than intention (para. 21);


19.3.4

R(IS) 6/96

R(IS) 2/02

R(IS) 9/94

4. an “appreciable period of time” together with a settled intention will benecessary for a person to be habitually resident. The relevant time is not in thefuture, but one which has largely or wholly elapsed (paras. 21 and 23);

5. the “appreciable period of time” depends on the facts of each individualcase and should be a period which shows, according to good sense andjudgment, a settled and viable pattern of living here as a resident (para. 28). Thepracticality of a person’s arrangements for residence is a necessary part ofdetermining whether it can be described as settled and habitual (para. 29);

6. established habitual residents of this country who have periods oftemporary or occasional absence of long or short duration may still be habituallyresident in this country during such absences.

iv The claimant was awarded MIG (and then SPC) from January 2003, but this wassubsequently disallowed in April 2006 when it was found that she was subject to asponsorship agreement, signed in November 2002. The claimant appealed and producedevidence, including a British passport and naturalisation certificate, showing that shehad become a British citizen in 2004. Despite this, the tribunal upheld the disallowance.The Commissioner held that all British Citizens have a right of abode in the UK anda British citizen can never be regarded as a sponsored immigrant or barred for thatreason from public funds.

5 Sponsored immigrants

i A 17 year old claimant had been granted leave to remain in the UK as a refugee.He was refused IS on the grounds that none of the circumstances in which a person inrelevant education may be entitled to IS (reg. 13) applied to him. The claimant was notestranged from his parents in Somalia or any person acting in their place (reg. 13(2)(d)and his parents were not prohibited from entering GB (reg. 13(2)(e)(iii). The Commissionerheld that:

1. a sponsor is not acting in the place of parents as his duties are not the sameas those of a parent (para. 13);

2. when determining if a claimant has of necessity to live away from hisparents due to physical or moral danger, that expression should be given a wideinterpretation. The “physical or moral” danger need not emanate from theparents (para. 14);

3. most persons who are not British citizens are prohibited from entering theUK unless given leave to do so in accordance with the Immigration Act 1971.There does not have to be a specific prohibition of entry into GB (para. 17).

ii The claimant entered the UK as a visitor but was subsequently granted indefiniteleave to remain when his nephew signed a sponsorship undertaking. In 1996 theclaimant returned to the UK after a spell of several months abroad and was given leaveto enter as a returning resident. He again left the country for a short time in 1997 andwas again granted leave to enter on the same basis. His claim for IS was rejected on theground that he was a sponsored immigrant who had not been present in the UK for fiveyears and was accordingly a “person from abroad” with an applicable amount of nil.Following an unsuccessful appeal to the tribunal the claimant appealed to theCommissioner who decided that the sponsorship agreement was continuous andapplied to the fresh leave to enter or remain granted on the claimant's return to the UK.The CA dismissing the claimant's appeal held that:

1. the undertaking should be construed in the light of the immigrationscheme as a whole

2. the Commissioner was right to decide that the undertaking was acontinuing one which applied to the further grant of leave on return to the UK

R(PC) 2/07


19.3.4-5

3. the use of the words “upon an undertaking” in reg 21(3)(i) of the IS(General) Regs 1987 should be construed so that the leave granted on return tothe UK was on the basis of the undertaking

4. S 135(2) of the SS Contributions and Benefits Act 1992 permits anapplicable amount of nil to be prescribed and use of that power cannot rendera reg. ultra vires.

iii The claimant aged 71 came from Pakistan to live with her daughter and son inlaw who had signed a sponsorship undertaking to maintain her for 6 months. Her claimfor IS was refused on the basis that she was a sponsored immigrant who had not beenin the country for more than 5 years. Following an unsuccessful appeal the claimantwas refused leave to appeal to the Commissioner. She then applied for judicial reviewof the Commissioner’s refusal in the High Court on the ground that the undertakingwas not on the official form [RON112 or SET(F)] and was not a valid undertaking onwhich entry clearance had been granted by immigration officials.

The Court held that decisions CIS/2474/99, CIS/47/02 and CIS/2816/02 were correctlydecided. Whether an undertaking is for the purposes of the relevant legislation is aquestion of fact. The document was sufficiently formal and definite to constitute anundertaking, it contained an express undertaking that the claimant would be maintainedwithout recourse to public funds and was drawn up by a solicitor and witnessed. Therewas evidence that the leave to enter was granted on the basis of the undertaking. Thetribunal’s finding that it was valid for more than 6 months was one they were entitledto reach.


19.3.5

R(IS) 11/04

CHAPTER 21

Child support

Contents

Part 1: JurisdictionCourt orders and written maintenance agreements 21.1.1Applications under s. 6 21.1.2Habitual residence in the UK 21.1.3Disputed parentage 21.1.4Old scheme or new scheme 21.1.5

Part 2: Requirement to co-operateInterim maintenance assessments 21.2.1Welfare of children 21.2.2Reduced benefit directions 21.2.3

Part 3: Effective datesDate maintenance enquiry form is sent 21.3.1Effective date of MA made after interim maintenance assessment 21.3.2

Part 4: Maintenance formula issuesProperty or capital transfer allowance 21.4.1Disposable income 21.4.2Assessable income 21.4.3

Part 5: EarningsExpenses 21.5.1Pension contributions 21.5.2Income tax 21.5.3Self-employed 21.5.4

Part 6: Other incomePayments of compensation for personal injury 21.6.1Notional income 21.6.2Rental income 21.6.3Dividends from shares 21.6.4Drawings 21.6.5

Part 7: Housing costsMeaning of “principle home” 21.7.1Eligible housing costs 21.7.2

Part 8: Special casesContribution to maintenance 21.8.1More than one AP 21.8.2Shared care 21.8.3Child in LA care 21.8.4Child in boarding school 21.8.5

Part 9: Cancellations and terminationsAP returns to live with PWC and qualifying child 21.9.1Child temporarily ceases to live with PWC 21.9.2


Part 10: DeparturesProperty or capital transfers 21.10.1Lifestyle inconsistent 21.10.2Costs arising from illness or disabiltiy 21.10.3Debts incurred before separation 21.10.4Decision-making and appeals 21.10.5Contact costs 21.10.6

Part 11: OtherValidity of legislation 21.11.1Estoppel 21.11.2Matters outside the scope of the maintenance formula 21.11.3Effect of the Limitation Act 21.11.4

Part 12: VariationsProcedure 21.12.1Just and Equitable 21.12.2Special expenses 21.12.3Dividend 21.12.4Decision making and appeals 21.12.5Qualifying child 21.12.6


21.12.4-6


3. reg. 25 is used to work out the weekly amount of additional income andmerely involves dividing the amount of the dividend by 52 - paras. 15 - 18. Thereis no need to consider the period with respect to which the dividend was statedto be paid or the fiscal year, and the weekly amount must be nationally relatedto the weeks succeeding the date of payment because it cannot otherwise beadded to any future payments - para. 19.

5 Decision making and appeals

i One issue within this appeal was whether the rejection of an application for avariation on preliminary consideration carried a right to appeal. S. 20 of the ChildSupport Act 1991 (as amended) does not expressly provide for an appeal against adecision not to revise. It was held

1. the essence of revision is that it corrects mistakes in the decision and sowhere the original decision stands unaffected the appeal lies against thatdecision within the terms of s. 20(1)(a);

2. the legislation itself expressly provides for an appeal against the originaldecision, and that is sufficient to include the original decision when a decisionhas been made not to revise it.

6 Qualifying child

i Child Maintenance and Enforcement Commission v NC (CSM) [2009] UKUT106 (AAC); [2010] AACR 1. The NRP argued that he should be entitled to a variationon the grounds of contact costs for visiting another daughter who lives in France. TheFtT had allowed his appeal on the basis that the child in France was a qualifying childunder the general definition in s. 3 of the Child Support Act 1991, so that he was entitledto a variation under reg. 10(1). The UT Judge held that the FtT went wrong in law byfailing to have regard to the definition of “qualifying child” in reg. 1(2) of theVariations Regulations - see R(CS) 5/00. There was nothing in the context of reg. 10that required that the reg. 1(2) definition not be applied, as the language of the enablingpower in para. 2(3)(a) of Sch. 4B to the Act pointed strongly against the adoption ofany other meaning, the immediate legislative context was entirely neutral and theeffect of the provision did not create anomalies within the Child Support scheme.

The NRP’s arguments concerning EC and Human rights law were rejected by the UTJudge.

R(CS) 5/09

[2010]AACR 1

CHAPTER 23

Jobseeker’s allowance

Part 1: General

1 Attendance

i A Commissioner decided that reg. 26(a) of the JSA Regs. 1996 was probablyof no effect to terminate benefit. In the case in question the claimant had last attendedand signed a declaration on 18th May. He missed his signing day on 1st June and thenattended on 14th June. The DM ended entitlement from and including 19th May. TheCommissioner decided that, as reg. 26(a) could have no effect, entitlement could onlyend from and including 1st June.

The CA overturned the Commissioner’s decision, finding that reg. 26(a) could and didhave effect. The Court found that in this case entitlement ended on 19th May. Theyfurther found that that meant there was no entitlement for that day (so the claimant waslast paid for 18th May).

ii The claimant was in receipt of JSA, and was notified under reg. 23 that he wasrequired to attend an interview. The claimant failed to attend the interview, contendingthat he had not received the notification. The claimant was informed of the decisionwhen he next signed on to register, by which time he was too late to exercise his rightunder reg. 27 to show good cause for failure to attend within 5 days. The Commissionerheld that the tribunal were correct to treat the appeal against the refusal to backdatethe claimant’s fresh claim also as an appeal against the decision that entitlement underthe previous award had ceased. He held that reg. 7 of the Interpretation Act wasrelevant, and that the service of a document is accepted unless the contrary can beproved. In particular, under reg. 23 notifications where the time of receipt is important,it was open for the claimant to prove that he had not received the notification at all.


23.1.1

R(JSA)6/03

R(JSA) 1/04


R(JSA) 3/01

R(JSA) 2/04

R(JSA) 2/07

Part 2: Jobseeking

1 Availability for work

i This case was the subject of an appeal to the CA in Secretary of State for SS v.David. It concerned a claimant’s availability and whether his detention in policecustody fell within reg. 13(3) of the JSA Act 1996 which provides that “A person mayrestrict his availability in any way providing that the restrictions are reasonable in thelight of his physical or mental condition”. The Commissioner decided that as theclaimant was in police custody he was not free either in practical or legal terms to leave,so that any restriction on his availability was not only reasonable, but also inevitable.The CA allowed the appeal stating that the reference in reg. 13(3) to the claimant’s“physical or mental condition” is confined to some personal disability. The provisionapplies prospectively only and specifically with regard to the completion of thejobseeker’s agreement. The Court held that if the Commissioner’s approach wasaccepted there would be no need for reg. 55 as such a person could invoke reg. 13(3).

ii The claimant “signed on” on the 14th June, but failed to do so on the 28th June.A decision was made that his “claim was closed” with effect from the 15th June. Theclaimant made fresh claim to JSA on the 12th July and also included information onthe JSA5 that was subsequently accepted as showing that he had continued to satisfythe conditions of entitlement to JSA throughout the period from 15th June to the newclaim. The request for backdating was refused and benefit awarded from the 12th Julyonly.

The Commissioner held that where the claimant subsequently produces, within thetime allowed, information or evidence showing continued entitlement to JSA until atleast the date he failed to “sign on”, the Secretary of State should revise the decisionso as to make it effective from the date of the failure to “sign on” (regs. 25 & 26).Production of such information/evidence in respect of circumstances at the time of thedecision, and that the claimant was entitled to JSA for the period from 15th June to 27thJuly. See also 17.11.2ii.

iii The claimant applied to vary the terms of his Jobseeker’s agreement, which hesaid he had signed “under duress”. He disagreed with having to be available onSaturdays in addition to Monday to Friday and also with the total number of weeklyhours. The claimant’s proposed changes were rejected apart from a maximum of 40hours availability. The claimant signed an agreement restricting his availability to 8hours a day Monday to Friday. The DM decided the claimant was not available andthat the claimant’s proposed variation would not satisfy the availability for workcondition, but did direct a variation to 40 hours availability instead of 54. The claimantappealed. The tribunal upheld both decisions, but allowed the exclusion of customerservice occupations from the types of job to be looked for. The Commissioner, inallowing the claimant’s appeal, decided that the effect of reg. 7(2)(b) is that if a claimanthas put restrictions on the hours or days of availability and their availability is not thesame as, or is less restrictive than, the pattern of availability recorded in theirJobseeker’s agreement, the claimant is not available for work - regardless of havingreasonable prospects of securing employment on their pattern of availability. TheCommissioner also decided the Secretary of State, or an AT, can direct that a variedagreement should take effect retrospectively. If the variation took effect before the dateof the first decision under appeal - then the circumstances at the date of the decisionunder appeal were altered - and the claimant’s pattern of availability should then havebeen tested against the pattern of availability recorded in the retrospectively variedJobseeker’s agreement.

iv HS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 177 (ACC);[2010] AACR 10. The claimant’s jobseeker’s agreement stated that she was lookingfor clerical work with the only restrictions on availability referred to being related todays, hours and locality. The Jobcentre notified the claimant of a vacancy as a checkoutoperator. The claimant refused to apply for the job and so her jobseeker’s allowance

[2010]AACR 10

23.2.1

was sanctioned on the grounds that she had, without good cause, failed to apply for avacancy notified to her. The claimant appealed, arguing amongst other things thataccording to her jobseeker’s agreement she need only look for clerical positions. Thetribunal reduced the period of sanction but otherwise dismissed the appeal. Theclaimant appealed to the Upper Tribunal.

In dismissing the appeal, the Judge of the Upper Tribunal held that the true constructionof the jobseeker’s agreement was not that the claimant was restricting her availabilityto certain types of job but rather that those were the types of job which she had agreedto look for in order to be actively seeking work. See also 23.5.4.i.


23.2.1

Part 5: Sanctions

1 Length and period of a sanction

(at the time of going to print there was no recorded decision on this matter)

2 Misconduct


3 Leaving voluntarily


4 Refusing employment

i HS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 177 (ACC);[2010] AACR 10. The claimant’s jobseeker’s agreement stated that she was lookingfor clerical work with the only restrictions on availability referred to being related todays, hours and locality. The Jobcentre notified the claimant of a vacancy as a checkoutoperator. The claimant refused to apply for the job and so her jobseeker’s allowancewas sanctioned on the grounds that she had, without good cause, failed to apply fora vacancy notified to her. The claimant appealed, arguing that according to herjobseeker’s agreement she need only look for clerical positions and that the vacancynotified to her would cause her stress. The tribunal reduced the period of sanction butotherwise dismissed the appeal. The claimant appealed to the Upper Tribunal.

In dismissing the appeal, the Judge of the Upper Tribunal held that in determiningwhether a claimant has good cause not to apply for a vacancy, the fact that the claimantmay have restricted their availability to a certain type of work does not necessarilymean that the claimant has good cause but it is a factor to be considered particularlywhere there is a significant difference between the notified vacancy and the type ofemployment for which the claimant is said to be available. The tribunal had consideredthis and had not erred in law. See also 23.2.1.iv.

5 Neglect to avail

i The claimant was made redundant after 43 years of work, the last 20 years as afinance manager. He claimed and was awarded JSA but after two weeks started part timework as a control assistant for the ambulance service. He left this job within a monthafter working five shifts including training. He made a new claim to JSA which wasawarded but after two months the award was superseded as the Secretary of Statedecided that under s. 19(1), (3) and (6)(b) of the Jobseekers Act 1995 JSA should notbe paid for six weeks as the claimant had voluntarily left his employment without justcause. The claimant appealed against this decision but the AT dismissed the appeal sothe claimant appealed to the Commissioner about the imposition of the sanction andits length. He argued that the job was one that he was not required to take during his“permitted period” of restriction of employment under reg. 16 of the Jobseeker’sAllowance Regs. 1996 and that if he had been unemployed longer he could have madeuse of the trial period concession in reg. 74 of those regs. The Commissioner dismissedthe appeal and held that the fact that the claimant could have declined the job did notgive him just cause for voluntarily leaving the employment, the fact that the employmentwas a stop-gap until the claimant found something more suitable did not justify himleaving a job without reasonable prospects of obtaining other employment and the factthat he need not have taken the employment was relevant to the length of sanctionimposed. In this case the claimant had not met all the conditions of the trial period rulesin reg. 74 as he had left the job prematurely so in the circumstances the Commissionerconsidered that a six week sanction was reasonable.


23.5.1-5

R(JSA) 1/08

[2010]AACR 10

6 Jobseeker’s direction


7 Losing an employment programme or training scheme throughmisconduct


8 Neglect to avail of an employment programme or training scheme


9 Refusing employment programme or training scheme

i The claimant was required to attend an employment programme provided by aprivate company. He wrote to the Jobcentre manager objecting to his personal detailsbeing passed to a private company. He refused to attend the programme and a sanctionof two weeks was imposed. This decision was upheld by the appeal tribunal.

The Commissioner set aside the tribunal decision, finding it to be erroneous in lawbecause the tribunal had not considered whether the claimant’s objection to attendingthe programme could be considered as a conscientious objection. If not, they shouldhave decided whether there was some fact or circumstance which would have causeda reasonable person in the claimant’s position to act as he did, in order to decide whetherhe could be regarded as having “good cause” for refusing to attend the programme.

The Commissioner then decided that a principled objection is not the same as aconscientious objection. Attendance at the course would not have required theclaimant personally to act in a way which was contrary to his ethical or moral principles,and so, applying the principles established by UB cases, his objection was not aconscientious objection.

There might be rare cases where “good cause” could result from a state of mind otherthan a conscientious objection, but the state of mind must exist independently of therefusal as a fact preventing attendance. This did not apply here, and so the claimant hadnot shown good cause.

The claimant could not escape sanctions because of any failure by the trainingprovider to comply with the Data Protection Act, since there was no requirement inthis part of the legislation that the requirement to attend should be reasonable.

The Commissioner found the claimant did not have good cause and a two weeksanction was imposed.

See 13.3.1 iii.

10 Failure to attend training course

i The claimant was in receipt of JSA. He was referred for a 13 week IntensiveActivity Period employment programme under reg. 75(1)(iv) of the JSA Regs. 1996.The course commenced at 9.30 am on 21 March 2005 but the claimant failed to arriveon time, arriving over an hour late so he was informed he was unable to start the coursedue to his lateness. A DM imposed a two week sanction on the grounds that the claimanthas failed, without good cause, to attend the course. The tribunal also dismissed hisappeal on the basis that his late arrival at the course amounted to a failure to attend thecourse. The Commissioner upheld the tribunal decision that there was no good causeand that the tribunal was correct to construe the word “attend” as meaning “attend atthe time prescribed by the course provider”.


R(JSA) 7/03

23.5.6-10

R(JSA) 2/06


Part 10: Self-employed earners

1 Seasonal worker - “calculation of average earnings”

i The claimant worked as a self-employed seasonal worker and had done so forseveral years. His working season lasted from early July to early November each year.In November 1999 the claimant made a claim to JSA. The DM decided that theclaimant was gainfully employed throughout the year from July 1999. As a result, theclaimant's earnings from self employment fell to be calculated under reg. 95(1)(a) ofthe JSA Regs. 1996. The earnings were therefore calculated by means of a weeklyaverage over the whole year. The claimant appealed against this decision arguing thathe should not have been treated as gainfully employed as there was some doubt as towhether he would be granted a license to trade the following year. The tribunalallowed the appeal, but only to the extent of reducing the amount of earnings to betaken into account. The claimant appealed to the Commissioner who held, followingCIS/422/95 that in the case of a seasonal worker there is likely to be a cycle of workof one year, and that if the claimant was gainfully employed for on average less than16 hours per week over the year he would not be excluded from JSA on the groundsof being in remunerative work (see 23.3.1ii), but his earnings would need to becalculated with reference to his average weekly earnings over the whole year inaccordance with reg. 95 of the JSA Regs. The Commissioner also held that the tribunaldid not err in law in concluding that that claimant was gainfully employed as a self-employed earner on the grounds that since the claimant had always been granted alicence in previous years it was likely that one would be granted again.

2 Self-employed earnings if claimant engaged in part-time or remunerativework

i Claimant was a self-employed carpenter. He had a period of entitlement to JSAbut then worked. Reclaimed JSA but his claim was disallowed on the ground that hewas in remunerative work as he had said that usual break between jobs or contractswas normally 12 weeks. Claim accepted from August 2007 when 12 weeks had elapsedsince he last worked. Claimant appealed against disallowance of JSA but tribunaldismissed appeal. Secretary of State relied on CIS/166/94 which held that earningsfrom self-employed are taken into account as long as claimant remained in gainfulemployment. Further appeal allowed and held that JSA regs, Sch. 6, para. 4 uses twodistinct concepts “engaged in remunerative work or part-time employment” andbeing “employed” and that this is less confusing than term “gainfully employed” usedin CIS/166/94. The nine issues accepted in CIS/166/94 are mainly relevant to thequestion of whether a person is “engaged in remunerative work or part-time employ-ment” and not to whether a person is “employed”. The question to be determined whena person who has been self-employed claims JSA is are they still “employed” and ifyes are they carrying out activities connected with the self-employment in relevantweek and by virtue of reg. 52 are they treated as engaged in work during periods ofno activity that are normal incident of self-employment. The next question is whetherthe work is “remunerative” or merely “part-time” employment” looking at the numberof hours calculated by taking the average over a prescribed period. If the hours are part-time then earnings may need to be considered by applying reg. 95(1) to determine theperiod over which earnings should be averaged. See also 23.3.1 vii above.

ii M v SSWP [2009] EWCA Civ 1289; [2010] AACR 9. The claimant was in receiptof IS when it came to light that he was the registered owner of a property in France butwhich the claimant said was beneficial owned by a Ms V, with whom he was livingin England. Ms V had provided the purchase price and renovation costs. The propertythat had been put in the claimant’s name and he had bequeathed the usufruct to herunder French law, to secure the succession to the property under French law of theirson rather than Ms V’s adult children. The DM decided that the property was theclaimant’s capital so he was not entitled to IS. His appeal to an appeal tribunal wasdismissed and he appealed to the Commissioner. The claimant argued that Englishlaw should be applied meaning that the property was held on an implied trust for Ms

23.10.1-2

R(JSA) 1/03

R(JSA) 1/09

[2010]AACR 9


V and so was not his capital. The Commissioner held that French law was the applicablelaw and on the basis of expert evidence, that French law gave Ms V no proprietaryinterest in the property. The claimant applied to the CA for permission to appeal.Permission was granted. The Commissioner found on a proper understanding ofcommon law principles, that French law was the applicable law, as France was thecountry with which the parties’ arrangements had the closest connection (Webb v Webb[1991] 1 WLR 1410 and Lightning v Lightning Electrical Contractors Ltd CA 23 April1998 distinguished). The same result would follow from the application of Art. 7 of theHague Convention and the Recognition of Trusts Act 1987 to ascertain the system oflaw with which the arrangement had the closest connection. In those circumstancesthere was no need to consider what would be the position about the terms of an impliedtrust of the property, if English law were applicable. In the light of the expert evidencethe Commissioner had made a properly informed decision on French law which couldnot possibly be said to be perverse or plainly wrong and no important point of principleor practice arose which would justify the grant of permission for a second appeal.

23.10.2


23.11

Part 11: Participants in the self employment route


Part 12: Other income

1 Student loan to part-time student

i The claimant was a student in receipt of JSA(IB). From the start of the academicsession 1999-2000 he increased the amount of his academic work to the equivalent ofa full-time student load and applied for and was awarded a student loan. Two decisionsthat he was a full-time student and not entitled to JSA(IB) were overturned by a tribunal,so he was to be treated as a part-time student. This was conceded and not an issue beforethe Commissioner. However the Secretary of State decided that the student loan wasincome and this meant that his income exceeded his applicable amount. The claimantappealed against this and the tribunal allowed his appeal stating that the student loanwas only income where defined as such in reg. 136 of the JSA Regs, which only appliedto full-time students. The Secretary of State appealed and the Commissioner allowedthe appeal and said that the correct approach was to consider the purpose of the loanand as that was to enable the claimant to meet his living needs the loan fell to be treatedas income other than earnings. The disregards applicable to student income were alsonot appropriate in this case. The loan was payable in respect of the academic sessionso should be averaged over this period and the fact that the loan may not be properlypayable did not affect the position.

23.12.1


R(JSA) 4/04

Part 13: Capital

1 Capital limit


2 Calculation of capital


3 Disregard of capital of child or young person


4 Income treated as capital


5 Calculation of capital in the United Kingdom

i The claimant declared an interest in his former matrimonial home, which wasoccupied by his estranged wife and their daughter aged under 18. The AO decided thatthe claimant should be treated as jointly owning the property under reg. 114 of the JSARegs. 1996. On the basis of the valuer’s opinion the AO decided that the claimant wasnot entitled to JSA(IB) as his capital exceeded £8,000 and the decision was upheld bythe SSAT. The claimant appealed to the Commissioner. The Commissioner decidedthat it was not enough for a tribunal to accept the opinion of a valuer, as to the valueof a property, without some reasons being given for adopting the value put forward.The Commissioner followed CIS/191/1994 and held that there is no rule of law that,where a wife and child are still living in the matrimonial home, the value of theclaimant’s share in that property must be regarded as nil. The value of the claimant'sshare must be considered on the evidence in each case. But, where a property is ofmodest value and none of the value can be realised by the claimant, or anyone acquiringhis interest, for a lengthy and undetermined period, it may have little or no value. Itwas decided what proper valuation evidence should include, and that the valuer’sreport should say what is missing and the assumptions upon which the report is basedif there is a lack of relevant information and the valuer has to proceed on the basis ofassumptions. The Commissioner decided there was no evidence that the claimant’scapital exceeded £8,000.

ii KS v SSWP (JSA) [2009] UKUT 122 (AAC); [2010] AACR 3. The claimant wasfound to have capital in excess of £16,000 and therefore to be ineligible for JSA. Thetribunal agreed and relied entirely on its findings as to capital which it found theclaimant had acquired in the years up to 2005. They ignored the fact that he had beenadjudged bankrupt in October 2006 and that a trustee in bankruptcy had beenappointed in January 2007, although evidence of those facts had been submitted to it.The claimant appealed. The UT Judge held that once a bankruptcy order is in force, aclaimant’s assets should either be treated as not his capital at all or be valued at nil forbenefit purposes as he is prohibited from dealing with them without the consent of thecourt and CIS/634/1992 was wrong in holding otherwise (CJSA/1556/2007 applied).A claimant could not deprive himself of capital while a bankruptcy order is in force.However, a claimant might deprive himself of capital if he submits to a bankruptcyorder or delays its annulment for the purpose of securing entitlement. The tribunal haderred in making no satisfactory findings as to his assets or proper investigation as towhether he might have deprived himself of assets or concealed them prior to thebankruptcy. The Judge remitted the case to a new tribunal to investigate the bankruptcywith a suggestion that it might wish to use its powers to obtain oral or written evidencefrom the trustee in bankruptcy or to require the claimant to give evidence under oath.

6 Disregarded capital

i This case was the subject of a CA decision in Secretary of State v. Miah. Theclaimant was a married man with eleven children, eight of whom were dependant. Heowned two three-bedroomed houses in the same street, separated from each other bytwo other houses. A claim for income-based JSA was refused on the grounds that the


R(JSA) 1/02

R(JSA) 9/03

23.13.1-6

[2010]AACR 3

23.13.6


value of only one house could be disregarded as the dwelling occupied as the home.On appeal, the tribunal upheld that decision. However, the Commissioner held that the“dwelling occupied as the home” might comprise more than one building but remittedthe case to a fresh tribunal to make findings of fact as to the extent of the use of thesecond house by the claimant and his dependant children. The Secretary of Stateappealed to the CA. By the time that appeal was heard, a second tribunal had acceptedevidence that the second house was occupied by the claimant and his family and it hadbeen conceded by the Secretary of State that there would be statutory overcrowdingif the claimant and his family were to occupy only one of the houses. The CA dismissedthe Secretary of State’s appeal.

The CA held that the expansion of the word “dwelling” into the phrase “dwellingoccupied as the home” gave the impression that the legislature had intended to conveyits function as a home for the claimant rather than its bricks and mortar and that homewas not necessarily confined to a single building. A test for determining whether twobuildings were one home was to ask whether one house was, in effect, used as an annexof the other or whether it was a single home on a split site. Applying that test, a claimantwas using as his home the place where he lived, where he ate, slept, bathed, relaxed andwhich he enjoyed with his family.


CHAPTER 32

Housing Benefit & Council Tax Benefit

Contents

Part 1: OverpaymentsOfficial error 32.1.1 Offsetting

32.1.2Amendments to legislation on recoverability - whether retrospective 32.1.3For HBCTB purposes 32.1.4Recovery of overpayments: overpayment of housing benefit paid direct

to landlord’s agent - whether recoverable from landlord as well asfrom agent 32.1.5

Part 2: Liability to make payments in respect of a dwellingWhether tenancy or a commercial basis 32.2.1Whether a tenancy agreement is a sham 32.2.2Eligible and ineligible payments 32.2.3Income treated as capital 32.2.4Rent to former partner for home previously shared - possible discrimination 32.2.5Payments by an owner 32.2.6Whether claimant and landlord reside in the dwelling 32.2.7Dwelling previously owned by claimant 32.2.8Payment to tenant or landlord 32.2.9Whether two tenancies on different properties constitute a single

dwelling 32.2.10

Part 3: AppealsChoice from whom to recover 32.3.1Responsibilities of LA as respondent 32.3.2Right of appeal - refusal to give decision on claim 32.3.3Right of appeal - landlord 32.3.4Right of appeal - termination 32.3.5Meaning of “houseboat” 32.4.8

Part 4: Conditions of entitlementNew tenancy - whether benefit to be paid from second or

third week of tenancy 32.4.1Occupying a dwelling as the home 32.4.2Incapacity for work under a savings provision 32.4.3Meaning of “exempt accommodation” under a savings provision 32.4.4Meaning of “long tenancy” 32.4.5Right to reside 32.4.6Meaning of “resident” for CTB purposes 32.4.7

Part 5: Membership of the familyMeaning of “partner” 32.5.1Whether a LA is bound by a decision awarding JSA to a

claimant and his wife as a “married couple” 32.5.2

Part 6: ClaimsLack of evidence 32.6.1

Supplement 72[8/2010]

Part 7: Capital and income - generalExpenses of self-employed earners 32.7.1Self-employed earners - calculation of income 32.7.2Whether gross income means Incapacity Benefit actually received

or the notional rate 32.7.3

Part 8: CapitalNotional capital 32.8.1Calculation of capital 32.8.2

Part 9: PaymentsBenefit paid to tenant where duty to pay to landlord -

whether possible to pay to landlord for same period 32.9.1

Part 10: Suspension and TerminationSuspension of awards and payments of benefit pendingprovision of information or evidence; and terminationof award for failure to provide 32.10.1

Decisions not included 32 Annex

of his actual means and all other circumstances. All the actual income which theclaimant had obtained, including wrongly obtained benefits, had to be includedexcept where the claimant could show that the amounts were legally recoverable andwere being fully recovered from him.

3 Amendments to legislation on recoverability - whether retrospective

i The issue for the Upper Tribunal was whether the amendments to the law onrecoverability of overpayments of HB that came into force in April 2006 applied toliability in respect of payments made before that date, the difference being that underthe former law the claimant and his landlord would, for the period when benefit waspaid to the landlord, be jointly and severally liable to repay, whereas under theamended law the claimant would be solely liable.

Held, dismissing the appeal, that:

1. Reg. 101 applies to decisions taken after it came into force and therefore topayments that were made before it came into force, and, since it effected a realchange in liability, was retrospective in its terms. Therefore it was necessary toconsider whether that retrospective effect was so unfair that it was not permissibleto attribute to Parliament the intention that it should so operate.

2. The presumption against retrospective effect is flexible and how the questionof fairness will be answered in respect of a particular statute will depend on theinteraction of several factors, each of them capable of varying from case to case.

3. The presumption did not apply in this case, since the retrospective effect didnot result in any significant change in the ultimate legal position of any personaffected.

4. While s. 75 does not authorise retrospective provision expressly, in mostcircumstances a payment in excess of entitlement inevitably involves aretrospective change to that entitlement and so the provision authorisesretrospective provision by necessary and distinct implication.

4 For HBCTB purposes

i The authority decided that the claimant was not entitled to HB or CTB becauseof her husband’s capital and that the resultant overpayment was recoverable from her.On appeal, although the recovery decision was made after bankruptcy, the claimantargued that the overpayment was not recoverable because the liability to repay was abankruptcy debt incurred before the bankruptcy order and therefore, unless obtainedfraudulently, was deemed to form part of the bankruptcy estate. Held: that the liabilitythat arose was not a bankruptcy debt and therefore there was no question of there beingany inhibition on the making of the recoverability decision or of the debt beingdischarged on the subsequent discharge from bankruptcy (R (on the application ofSteele) v Birmingham City Council and Secretary of State for Work and Pensions,[2005], EWCA Civ 1824, [2006 1 WLR 238) and Secretary of State for Work andPensions v Balding [2007] EWCA Civ 1327, [2008] 1 WLR 564) followed); andwhether debts have been obtained fraudulently is only relevant when the debt is abankruptcy debt, having been incurred before the date of the bankruptcy order. (Seealso 17.8.5.)

5 Recovery of overpayments: overpayment of housing benefit paid direct tolandlord’s agent - whether recoverable from landlord as well as from agent.)

i Walsall Borough Council v GP Ltd (HB) [2009] UKUT 247 (AAC); [2010]AACR16

Held, that:

R(H) 3/09


32.1.2-5

R(H) 9/09

[2010]AACR 16

1. The extension to the definition of “landlord” in reg. 93(1) of the HousingBenefit (General) Regulations 1987 (95(1) of the Housing Benefit Regulations2006) to include inter alia agents has the effect of directly authorising paymentto an agent expressly or impliedly authorised to receive rent from the tenant inquestion;

2. Under general principles of the law of landlord and tenant and of agency, thepayment of HB to an agent goes to discharge the claimant’s liability to thelandlord and in those circumstances the housing benefit has been paid not onlyto the agent, as decided by R(H) 10/07, but also to the landlord;

3. The reference in s. 75(3)(a) of the SSAA to “the person to whom” benefit waspaid does not require that only one person can be regarded as having had benefitpaid to them;

4. The overpayment in the present case was legally recoverable from the agentand the landlord under s. 75(3)(a), since neither of them escaped liability underreg. 101(1), as well as from the claimant under s. 75(3)(b) and reg. 101(2)(c) ofthe 1987 Regulations (paras. 28 and 32).

32.1.2-5


“adaptations” for the purpose of reg. 5(6)(c)(i) and the claimant was not entitled tohousing benefit until the date when he moved in to the new property.

v Claimant in receipt of HB & CTB for her three bedroom tenancy. Non-dependentson becomes a full time student. Authority and Rent Officer determine HB entitlementbased on two bedroom accommodation. FtT determine son was normally resident withclaimant, that she was entitled to HB based on three bedrooms (Reg. 7(16-17)), and thatno non-dependent deduction was appropriate (Reg. 74(7)). Upper Tribunal confirmedFtT determinations: a full time student is to be treated as occupying the dwelling henormally occupies as his home during any period of absence not exceeding 52 weeks;no non-dependent deductions appropriate in respect of both HB & CTB.

3 Incapacity for work under a savings provision

i The appeal concerned an exemption from a rent restriction and turned onwhether the claimant was incapable of work under the pre-1996 version of reg. 11(3)(b)of the HB (General) Regs. 1987. This continued to apply to her claim as a result of thesavings provision in reg. 10 of the HB (General) Amendment Regs. 1995. TheCommissioner decided that incapacity for work had to be determined by reference tothe present law rather than that in force before the 1995 reforms and that the decisionon incapacity fell to be determined by the Secretary of State rather than the DM. Anappeal lay against a determination embodied in the HB decision or against anydetermination on incapacity made in the context of a SS decision.

4 Meaning of “exempt accommodation” under a savings provision

i The appeal concerned an exemption from a rent restriction under the savingsprovision in reg. 10 of the HB (General) Amendment Regs. 1995. The issue was whetherthe care provider was acting on the landlord’s behalf in providing housing relatedsupport so as to income within the definition of “exempt accommodation” in reg. 10(6).The Commissioner decided that it could not be said that the care provider was actingon the landlord’s behalf in the absence of a contractual or statutory obligation on thepart of the landlord to provide the care, support and supervision. The provider wouldnot be acting on behalf of the landlord even if in practice the landlord would wish totake steps to ensure such provision. The care must be provided either by the landlordor by a person acting in some sense for him and it is not sufficient that the provisionof care benefits the landlord.

ii The appeal concerned an exemption from a rent restriction under the savingsprovision in reg. 10 of the HB (General) Amendment Regs. 1995. The issue was whetherthe landlord had to be the main provider of care, support or supervision in order for theaccommodation to come within the definition of “exempt accommodation” in reg.10(6). The Commissioner decided that it was wrong to read this requirement into theprovision. Furthermore the care, support or supervision did not have to be providedpursuant to a contractual or statutory obligation on the part of the landlord. Howeverthe care, support or supervision must be more than minimal.

iii The appeal concerned an exemption from a rent restriction under the savingprovision in reg. 10 of the HB (General) Amendment Regs. 1995. Reg. 10(6) definesexempt accommodation as including accommodation provided by certain bodieswhere the landlord or a person acting on its behalf also provides the claimant with care,support or supervision. It was argued on behalf of the claimants that that provisionapplied where the person providing support acted on behalf of the landlord in anyrespect, not necessarily in providing support. The Commissioner decided that thetribunal had been correct in construing reg. 10(6) as limiting the saving provision tocases where the support provider was acting on behalf of the landlord in providingsupport.

iv The claimant, a Polish national, came to the UK in 2004. She initially workedbut gave birth to a child in August 2005 and subsequently claimed IS; having separatedfrom the child’s father, a French student. The claim was refused because she did nothave a right to reside. This was overturned on appeal, the tribunal finding that she hada right to reside as the parent and primary carer of a child of an EU student with a rightto reside in the UK. The tribunal decision was set aside by a Commissioner who found


32.4.2-4

R(H) 3/07

R(H) 3/06

R(H) 7/07

R(H) 6/08

R(IS) 3/09

R(H) 8/09

R(IS) 8/07

32.4.4-6


the claimant had not shown that the father was a student at the relevant time, or thatthe child was dependent on him. Dismissing a further appeal, the CA held that theCommissioner’s decision was in accord with the evidence before him, that it was forthe claimant to provide the necessary information in this case, and that the Commissionerwas entitled to proceed on the basis that claimant’s counsel had supplied him with allthe information relevant to the appeal. The Court further held that the Commissionerhad considered the proportionality of finding that the child did not have a right toreside and, having rejected this argument, it was thus unnecessary to consider whetherthe claimant would have an indirect right to reside as primary carer.

v The appeal concerned an exemption from a rent restriction under the savingprovision in reg. 10 of the HB (General) Amendment Regs. 1995. Reg. 10(6) definesexempt accommodation as including accommodation provided by certain bodieswhere the landlord or a person acting on its behalf also provides the claimant with care,support or supervision. The Commissioner decided that the provision of supportinvolves the landlord doing more than exercising ordinary property managementfunctions, implies a degree of continuity and connotes the giving of advice andassistance in coping with the practicalities of everyday life.

vi Chorley Borough Council v IT(HB) [2009] UKUT 107 (AAC); [2010] AACR 2.The appeal concerned an exemption from a rent restriction under the saving provisionin reg. 10 of the Housing Benefit (General) Amendment Regulations 1995. Reg. 10(6)defines exempt accommodation as including accommodation provided by certainbodies where the landlord or a person acting on its behalf also provides the claimantwith care, support or supervision. The Judge decided that the provision does notencompass persons who have played a part in the accommodation becoming availablebut who have no proprietary interest in the accommodation. However in this case thelandlord had undertaken to provide items of support that provided significant benefitto the tenants.

5 Meaning of “long tenancy”

i The appeal concerned the meaning of “long tenancy” in reg. 10(2)(a) of the HB(General) Regs. 1987. The issue was whether the tenancy agreement which was statedto be for a term of 25 years amounted to a long tenancy. The Comnmissioner confirmedthe tribunal’s decision that it was not. He held that DM’s, tribunals and Commissionerscannot form conclusions as to whether an agreement not made by deed is specificallyenforceable. The provisions on long tenancies are designed to set a dividing linebetween claimants who are not in economic terms the owners of the property theyoccupy and those who are. The IS regime applied to owners is not intended to be appliedto claimants unless they hold a long term interest of a sort which typically has a capitalvalue. The reference in reg. 10(2)(a) to a “tenancy granted” is to a tenancy granted atcommon law and does not include an agreement to grant such a tenancy, even ifenforceable in equity.

6 Right to reside

i In both cases the claimants were EEA nationals who had entered the UK, and thenclaimed income related benefits (IS, HB, and SPC) after 1.5.04. Neither was a workeror otherwise economically self-sufficient at the relevant time. The claims were rejectedon grounds that the claimants were not habitually resident, because they did not havea right to reside in the UK. The decisions were eventually appealed to the CA, who heldthat simply being lawfully present did not equate to having a right to reside under UKlaw, for which it is necessary to be a “qualified person”: and that was not inconsistentwith the UK’s obligations under ECSMA or the European Social Charter. The Courtconcluded that Art. 18 of the Treaty does not create a right of residence for an EEAnational in another member state where the limitations imposed under Directive 90/364/EEC are not satisfied. Where a person has no right of residence under either theTreaty or domestic legislation, there was no question of discrimination under Art. 12(discrimination on grounds of nationality).

R(H) 2/07

R(H) 4/09

[2010]AACR 2

ii The claimant was awarded MIG (and then SPC) from January 2003, but this wassubsequently disallowed in April 2006 when it was found that she was subject to asponsorship agreement, signed in November 2002. The claimant appealed and producedevidence, including a British passport and naturalisation certificate, showing that shehad become a British citizen in 2004. Despite this, the tribunal upheld the disallowance.The Commissioner held that all British citizens have a right of abode in the UK anda British citizen can never be regarded as a sponsored immigrant or barred for thatreason from public funds.

iii The claimant a Norwegian national with four children, came to the UK in 2003to live with her elderly father, who had himself claimed asylum. Her father became anaturalised British Citizen in 2004 and she then claimed IS mentioning that she hadto care for her father. The claim was disallowed because she did not have a right toreside, and that was subsequently upheld by an AT. Confirming that the claimant didnot have a right to reside as her father’s carer, the Commissioner then consideredwhether she might, alternatively, have such a right as a dependant of her father.However, the Commissioner held that the claimant had no right of residence as adependant under the Immigration (EEA) Regs. 2000 because her father’s right ofresidence was only by virtue of domestic legislation rather than under EuropeanCommunity law.

iv London Borough of Hillingdon v MJ and another (HB) [2009] UKUT 151(AAC); [2010] AACR 4. The claimant, a Dutch citizen, came to the UK in January 2006and was in receipt of JSA(IB) when she claimed HB and CTB in September of that year.Although any award of JSA(IB) must include a positive determination that the claimantis habitually resident, the LA were advised that this had probably not been investigatedwhen JSA(IB) was first awarded. The LA interviewed the claimant and decided that shedid not have a right to reside, and was therefore a person from abroad with noentitlement to HB or CTB. Before the UT, the LA argued that R(H) 9/04 was authoritypermitting the LA to conduct their own investigations and to decide a claimant werenot habitually resident, even though JSA(IB) was in payment. The Judge held that reg.10(3B)(k) of the HB Regs. 2006, and reg. 7(4A)(k) of the CTB Regs. 2006 wasabsolutely clear that a person in receipt of IS, JSA(IB), or ESA(IR) was not a person fromabroad for HB or CTB claims. The only exception might be where the award of IS,JSA(IB), or ESA(IR) was subsequently found to have been obtained fraudulently. Thecomments by the Deputy Commissioner in R(H) 9/04 regarding habitual residencewere obiter and not binding; and that same Deputy Commissioner had acknowledgedhis oversight in a later decision (CIS/34/2006).

7 Meaning of “resident” for CTB purposes

i The appeal concerned two contiguous self-contained flats both of which theclaimant occupied with his nine children. The flats were valued as separate hereditamentsfor council tax purposes. The question was whether a person could be resident in bothproperties for CTB purposes. The Commissioner decided that as the claimant was liablefor council tax on both flats as a resident he qualified for CTB on both as a resident.

8 Meaning of “houseboat”

i The claimant was living on a canal narrow boat. It was fitted out for permanentresidence but was registered as a leisure craft and had only a cruising licence. Thequestion was whether this was a houseboat for the purposes of reg. 10(1)(f) of the HB(General) Regs. 1987. The Commissioner decided that the term “houseboat” was anordinary English word without a technical meaning. The tribunal had erred in relyingon the lack of a licence for residential mooring when deciding that there was noentitlement. It was a matter of fact in an individual case and here the claimant wasentitled.

32.4.6-8


R(PC) 2/07

R(H) 3/08

R(H) 9/08

R(IS) 6/08

[2010]AACR 4

Part 5: Membership of the family

1 Meaning of “partner”

i The claimant signed her claim for HB on 12 May 2001, naming her husband asher partner. In her claim form she stated that her tenancy had been granted by herbrother-in-law and that it had begun on 15 February 2001, although she had actuallyresided at the property since 1999. The tenancy agreement provided for a weekly rentof £110, and, on 1 June 2001, HB of £60 per week was awarded. On 27 July 2001 theclaimant was interviewed by an officer of the LA. The claimant stated she had originallymoved into the property with her husband in 1999, that he had at that time told her thathe owned the property, and that they had paid no rent. However, her husband had leftthe country in February 1999 and she did not know if he would return. Following herhusband’s departure, her brother-in-law had told her that she would have to start payingrent and she now believed him to be the owner of the property. She paid him £240 permonth and did not make up the difference between this and the stated rent in the tenancyagreement. She did not have a rent book nor did she receive any sort of receipt for thepayments she made. A decision was taken on the same day to terminate the claimant’sentitlement to benefit with effect from 7 May 2001. The claimant appealed against theremoval of her award. A tribunal disallowed the claimant’s appeal. It found that theclaimant was not entitled to HB from 7 May 2001 because the tenancy was notcommercial. Moreover, the tribunal found further that reg. 7(1)(h) of the HousingBenefit (General) Regs. 1987 applied, to the effect that the claimant could not betreated as liable to pay since her husband had previously owned the dwelling withinfive years of the claimant’s claim.

In allowing the appeal, the Commissioner held that in relation to the application of reg7(1)(h) the relevant “partner” was the person who was the claimant’s partner betweenthe date of claim and the date the determination was given. Moreover, having regardto the definition of the term “married couple” in reg. 2(1), the claimant’s husbandwould not be her partner once he ceased to be a member of the same household. Thetribunal therefore erred when it applied reg. 7(1)(h) because at the relevant time theclaimant’s husband had ceased to be her partner within the meaning of reg. 2(1).

2 Whether a LA is bound by a decision awarding JSA to a claimant and his wifeas a “married couple”

i The claimant had separated from his wife in late 2000 and the divorce wasfinalised at the end of 2002. In July 2003 the LA refused the claimant’s claim for HBon the ground that the claimant should be treated as not liable to make payments inrespect of the dwelling occupied as his home by virtue of reg. 7(1)(c)(i) of the HB(General) Regs. 1987, which applies where a claimant’s liability is to his former partnerand is in respect of a dwelling which he and his former partner occupied before theyceased to be partners. The LA DM found that the claimant and his wife had not ceasedto be “partners” in March 2001, referring to the fact that the claimant’s then wife hadnamed him as her partner in her application for CTB made at that time and that theyhad been paid income-based JSA as a couple by the DWP. The claimant appealed toan AT. The tribunal allowed his appeal, accepting his evidence and that of his ex-wife,and finding that they had been living in separate households at the material time. TheLA appealed to the Commissioner, citing R v. Penwith District Council ex parteMenear (1992) 24 HLR 115 as authority for the proposition that it was bound by theJSA decision. In dismissing the appeal, the Deputy Commissioner held that the effectof ex parte Menear was limited to requiring a HB DM to treat a person on IS or income-based JSA as having no income or capital and therefore automatically entitled, fromthe financial point of view, to HB. As the claimant contended that the DWP’s decisionas to his family status was wrong, the LA had to reach its own conclusion on that issue,especially as it was unlikely that the DWP’s position represented a considered view.However, in cases where parallel decisions fell to be made by the DWP and a LA, theLA could regard the existence of a considered decision by the DWP as satisfactoryevidence of a state of affairs, in the absence of anything to compel a contrary conclusionsee also 32.4.6 iv above.


32.5.1-2

R(H) 9/04

R(H) 6/04

APPENDIX 2

Part 1

JudiciallyHigh Court etc. decisions considered

in

Howard v. Secretary of State [1974] 1 A11 ER 644 at 648, which is judicially R(IS) 3/92considered in this decision

Howker v. Secretary of State for Work and Pensions [2002] EWCA Civ 1623 R(IB) 3/03R(IB) 5/05

Howker v. Secretary of State for Work and Pensions [2002] EWCA Civ 1623 R(IB) 2/07reported as R(IB) 3/05

Hudson v. Secretary of State for Social Services – see under Jones v. Secretaryof State for Social Services

Hunt v. Chief Adjudication Officer; reported in R(S) 3/86 —

Imrie v. Supplementary Benefits Commission [1979] SB 27 R(SB) 10/82

Insurance Officer v. Hemmant [1984] 1 WLR 857 CA; R(M) 2/84 Appendix R(M) 1/85R(M) 5/86

Insurance Officer v. McCaffrey [1984] 1 WLR 1353; [1985] 1 All ER 5HL; R(P) 3/85R 2/85 (NCIP) Appendix R(S) 8/85

R(S) 7/85R(A) 1/86R(S) 1/86R(SB) 6/86R(M) 4/86R(SB) 19/87R(P) 1/88R(S) 1/89R(S) 2/89R(G) 2/90R(S) 2/91

Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] [2010]1 WLR 896 - judicially considered in N v. London Borough of Brent and another AACR 6[2009] EWCA Civ 1260; [2010] AACR 6

Jefferson Ltd v. Bhetcha [1979] 1 WLR 898 R(IS) 4/08

Johnson v. Unisys Limited [2007] UKHL 13 R(CR) 1/07

Jones v. Challenger [1961] 1 QB 176 CA R(IS) 26/95

Jones v. Secretary of State for Social Services; Hudson v. Same [1972] Ac 944; R(I) 2/73[1972] 2 WLR 210; [1972] 1 All ER 145, HL; reversing sub nom. R. v. NI R(I) 2/74Commissioner, ex p. Hudson; R. v. NI Commissioner, ex p. Jones [1970] 1 QB R(I) 13/75477;[1970] 2 WLR 182; 7 KIR 478 sub nom. R. v. NI Commissioner, ex p. R(I) 3/76Hudson and Jones [1970] 1 All ER 97 CA; R(I) 10/68 Appendix; R(I) 3/69 R(I) 12/80Appendix; affirming [1969] 2 WLR 639 and 647; [1969] 2 All ER 631 and 638: R(I) 1/816 KIR 123, DC; R(I) 10/68 Appendix: R(I) 3/69 Appendix R(SB) 2/89

R(I) 1/00

Jones v. Chief Adjudication Officer [1990] IRLR 533 R(G) 2/91R(U) 3/92

Jones v. Chief Adjudication Officer [1994] 1 WLR 62, 64C R(IS) 14/96R(IS) 16/96

Jones (Receiver) (on behalf of H. W. Wilde) v. Insurance Officer R(A) 3/83Appx


B

APPENDIX 2

Part 1

JudiciallyHigh Court etc. decisions considered

in

Kerr (AP) (Respondent) v. Department of Social Development (Appellant) R(IS) 1/05(Northern Ireland) [2004] UKHL 23 [2004] 1 WLR 1372

Kerr v. Department for Social Development [2004] UKHL 23, [2003] 1 WLR 1372 R(H) 3/05R(PC) 1/07R(IS) 4/08R(PC) 1/09R(IS) 3/09

Kerr v. Department for Social Development [2004] NICA 16 reported as R(IS) 4/01 R(DLA) 2/07

Kilburn v. The Chief Adjudication Officer; R(SB) 9/87 Appendix R(SB) 10/88

Konstanczwk v. The Chief Adjudication Officer, August 21, 1992, CA R(FC) 1/97

KV Fields Properties Ltd v. Skirt ‘A’ Slack Centre of London Ltd 1987 SLT 1 R(IS) 17/94

Kynaston v. The Chief Adjudication Officer [1988] R(SB) 20/87Appx

Langford Property Co. Limited v. Goldrich [1949] 1 LR 511 R(SB) 10/89

Larkin v. Minister of Pensions [1948] 3 Chapman’s Pensions Appeal Reports R(I) 28/611449 R(I) 35/61

Lawal v. Northern Spirit Ltd. [2003] UKHL 35, [2003] 1 CR 856 R(DLA) 3/07

Lawrence Building Co. Ltd. v. Lanark County Council 1978 SC 30 R(IS) 17/94

Lees v. Secretary of State for Social Services [1985] 1 AC 930; R(M) 1/84 R(M) 3/86Appendix R(M) 1/88

[Appx]R(M) 1/89R(M) 2/89R(M) 1/90

Leeves v. CAO [1999] ELR 90 R(IS) 6/03

Lester Commock v. Chief Adjudication Officer R(SB) 6/90Appx

Lloyds Bank plc v. Waterhouse [1993] 2 FLR 97; CAO v. Sherriff; Duggan v. CAO R(IS) 4/06

Locabail (UK) Ltd. v. Bayfield Properties Limited [1999] EWCA Civ 3004 R(DLA) 3/07

Longsdon v. Minister of Pensions and National Insurance [1956] 1 QB 587 R(P) 2/60

Lowe and another v. The Adjudication Officer [1985] 1 WLR 1108; [1985] 2 All R(FIS) 1/87ER 903; R(FIS) 2/85 Appendix

Mann v. Malcolmson, The Beta [1865] 3 Moo PCCNS23 R(IS) 26/95

McCorquodale v. The Chief Adjudication Officer; R(SB) 1/88 R(SB) 4/89

Marshall v. Southampton & South-West Hampshire Area Health Authority R(IS) 10/91[1986] 2 All ER 584

Master Ladies Tailors Organisation v. Minister of Labour and National Service R(H) 1/09[1950] 2 ALL ER 525

Merriman v. Insurance Officer; reported in R(S) 3/86 R(U) 6/88


B

Herbert v. Byrne [1964] 1 WLR 519 R(SB) 7/86

Hewitson v. St. Helen’s Colliery Co Ltd [1924] AC 59; 16 BWCC 230 R(I) 67/51R(I) 6/76R(I) 1/88

Hill v. William Hill (Park Lane) Ltd [1949] AC 530 R(A) 2/80

Hill Patent Glazing Co Ltd v. Douglas [1937] 30 BWCC 145 CA; Digest Supp R(I) 24/57

Hoe & Co Ltd v. Dirs [1941] 1 KB 34; 33 BWCC 307 R(I) 24/57

Hodgson v. Armstrong [1967] 2 QB 299 R(SB) 8/89

Hodgson v. Robbins, Hay, Walters & Hay [1914] 7 BWCC 232 R(I) 3/56R(I) 4/58

Holden v. Premier Waterproof and Rubber Co Ltd [1930] 23 BWCC 460 R(I) 76/54

Hollington v. Hewthorn [1943] 1 KB 587 R(G) 2/90

Holness v. Mackay and Davis [1899] 2 QB 319 R(I) 5/67

Holmes v. Bradfield RDC [1949] 2 KBI R(M) 1/81

Holwell Securities Ltd v. Hughes [1974] 1 All ER 160 R(DLA) 3/05

Hopkins v. Hopkins [1951] P. 116; [1950] 2 All ER 1036 R(F) 1/62

Hornal v. Newberger Products Ltd [1957] 1 QB 247 R(G) 2/90

Horner v. Wandsworth, Wimbledon & Epsom Gas Co [1919] 88 LJKB 355; 12 R(I) 45/59BWCC 21

Houghton, re [1915] 2 Ch 173 R(P) 1/88R(G) 2/90

Housing of the Working Classes Act 1980, ex p. Stevenson [1982] 1 QB 609 R(SB) 12/83

Howe v. IRC [1919] 2 KB 336 R(SB) 20/84

Howell v. Falmouth Boat Construction Ltd [1951] AC at 837 R(P) 1/80

Howells v. Great Western Railway Co [1928] BWCC 18 CI 220/49R(I) 28/55R(I) 5/67

Howells v. Powell Duffryn Steam Co Ltd [1926] 1 KB 472; 18 BWCC 427 R(I) 7/52R(I) 5/67

Howells Application, in re [1972] Ch. 509 R(U) 4/82

APPENDIX 2

Part 2

Judicially Decision considered

in


Howgate v. Bagnell & Anor [1951] 1 KB 265 R(I) 2/63

Huddersfield Police Authority v. Watson [1947] KB 842 (DC) R(SB) 3/86

Hughes v. Griffiths; Momford v. Hitchcocks R(SB) 8/89

Hughes v. Lancaster Steam Collieries, Ltd [1947] 2 All ER 556; 40 BWCC 164 CSI 25/49

Hunter v. Chief Constable of the West Midlands Police [1982] AC 529 R(G) 2/90

Huntley v. Thornton [1957] 1 All ER 234 R(U) 1/74

Hussain v. Hussain [1982] 3 WLR 679; [1982] 3 All ER 369 R(SB) 17/84

Hutchings v. Devon County Council [1931] 23 BWCC 320 CI 114/49

Hutchinson v. Kiveton Park Colliery Ltd [1926] 1 KB 279; 18 BWCC 508 CI 5/69CI 114/49

Hyam v. Director of Public Prosecutions [1975] AC 55 R(G) 1/88

Hyde v. Hyde and Woodmansee, LR1PD 130 R(G) 18/52R(G) 2/56R(S) 2/92R(G) 4/93R(G) 1/95

Hyman v. Hyman [1929] AC 601 R(I) 36/54

In re Cummins - see under ‘Cummins, in re’

In re Howells Application - see under ‘Howells Application, in re’

In re Lonrho Plc. [1990] 2 AC 154, 177 R(IS) 2/08

In re N (minors) (parental rights) - see under ‘N (minors) (parental rights), in re’

In re Racal Communications [1981] 2 A.C. 374 R(G) 2/93

In re Smith, Green v. Smith - see under ‘Green v. Smith, in re Smith’

Inco Europe v. First Choice Distribution [2000] 1 WLR 586 [2010]AACR 7

Indyka v. Indyka [1969] 1 AC 33 R(G) 1/85

In the Estate of Crippen, Deceased [1911] P 108 at P. 112 R(G) 1/84R(G) 2/84

Inland Revenue Commissioners v. Hambrook [1956] 2 QB 641 R(U) 8/70

Inland Revenue Commissioners v. Lysaght [1928] AC 234 R(M) 1/85

Inland Revenue v. Russell [1955] SC 237 at 240 R(F) 1/79

Inland Revenue Commissioners v. St. Luke Hostel Trustees Ltd [1930] 36 R(S) 1/66TLR 412

Insurance Officer v. McCaffrey [1985] 1 All ER 5 R(U) 1/91

APPENDIX 2

Part 2


in


APPENDIX 2

Part 3

EEC Cases


in

AA Ten Holder v. Nieuwe Algemene Bedrijfsvereniging (Case 302/84) R(U) 7/85R(U) 8/88R(U) 2/78

Angenieux v. Hakenberg [1973] ECR 935 (Case 13/73) R(F) 1/95

Assurance Vieillesse v. Duffy [1969] ECR 597 R(U) 4/84R(U) 7/85

Athanasopoulos v. Bundesanstalt für Arbeit [1991] I. EC 2797 (Case 251/89)

Aubin v. UNEDIC and ASSEDIC [1982] ECR 1991 (Case 227/81)

Balsamo v. Institute National D’Assurance Maladie-Invalidité [1976] ECR 375 R(S) 3/82(Case 108/75) R(S) 13/83

Baumbast v. Secretary of State for the Home Department (Case C-413/99 [2002] R(IS) 4/09ECR 1-7091) R(IS) 5/09

Beeck v. Bundesanstalt für arbeit [1981] ECR 503 (Case 104/80) R(F) 2/83R(F) 1/95

Bestuur der Bedrijfsvereniging Voor De Metaalnijverheid, The Hague v. R(G) 1/89M L J Mouthaan (Case 39/76) R(F) 1/95

Bestuur der Sociale Verzekeringsbank v. Smieja [1973] ECR 123 (Case 51/73) R(I) 1/75

Bestuur der Sociale Verzekeringsbank v. van der Vecht [1963] CMLR 151, R(S) 4/80[1967] ECR (Case 19/67)

Bestuur van het Algemeen Zickenfonds-Drenthe-Platteland v. Pierik [1978] R(U) 10/88ECR 825; and [1979] ECR 1977 (Case 117/77 and Case 182/78 respectively)

Bilka-Kaufhaus CMbH v. Weber von Hartz [1986] 2 CMLR 701 R(S) 2/77

Bollman v. Hauptzellamt Hamburg-Waltershof [1973] ECR 269 (Case 62/77) R(S) 1/78

† Brack v. Insurance Officer [1976] 2 CMLR 592, ECR 1429; R(S) 1/77, R(F) 1/95Appendix (the reference to European Court); R(S) 1/77 Appendix (the decision R(IS) 1/06of the European Court) (Case 17/76)

Bramhill v. Chief Adjudication Officer [1994] (Case 420/92) R(P) 2/96

Burdell v. Adjudication Officer [1987] ECR 3329 (Case 377/85) R(I) 1/75R(U) 2/78

Caisse d’Assurance Vieillesse des Travailleur’s Salaries de Paris v. Duffy R(S) 9/81[1971] CMLR 391; [1969] ECR 597 (Case 34/69) R(F) 1/95

Caisse de Compensation des Allocations Familiales des Regions de Charleroi et R(U) 2/78Namur v. Laterza [1981] 1 CMLR 188 [1980] ECR 1915 (Case 733/79) R(U) 4/86

R(U) 7/88

†Departmental case


APPENDIX 2

Part 3

EEC Cases


in

Caisse de Pension des Employés Privés v. Massonet [1975] ECR 1473 (Case 50/75) R(U) 8/88

Caisse Primaire d’Assurance Maladie d’Eure-et-Loir v. Tessler [1978] ECR 7(Case 84/77) R(IS) 1/06

Caisse Primaire d’Assurance Maladie de Rouen v. A Guyot [1984] ECR 3507 (Case R(U) 7/88128/83) R(U) 8/88

Caisse régionale d’Assurance Maladie Rhône - Alpes v. Giletti [1987] ECR 955 R(A) 2/94(Cases 379 to 381/85 and 93/86) R(IS) 8/06

Caracciolo (née Camera) v. Institut National d’Assurance Maladie - Invalidité and R(A) 2/94Union Nationale des Mutualités Socialistes [1982] ECR 2213 (Case 92/81)

Clarke v. Chief Adjudication Officer [1987] ECR 2865 (Case 384/85) R(SB) 6/91R(S) 2/88

Collins v. Secretary of State for Work and Pensions (Case C-138/02) R(IS) 1/06(CJSA/4065/1999)

† Coonan v. Insurance Officer [1980] ECR 1445 (Case 110/79) R(S) 6/81

Coppola v. Insurance Officer [1983] 3 CMLR 586; [1983] ECR 43 (Case 150/82; R(G) 1/86R(S) 13/83 Appendix) R(G) 1/89

[2010]AACR 14

Cresswell v. The Chief Adjudication Officer [1992] 3 CMLR 389 (Case 64/91) R(SB) 8/91R(IS) 10/91

D’amico v. Landesversicherungsanstalt Rheinland-Pfalz [1975] 891 (Case 20/75) R(U) 5/78R(U) 4/84R(U) 7/85R(U) 10/88

Dammer v. VZW Securex Kinderbijslagfonds [1989] ECR 4553 (Case 268/88) R(F) 1/95

Defrenne v. Belgian State [1971] ECR 445 (Case 80/70) R(U) 10/88

Di Paola v. Office National de l’Emploi [1977] ECR 315 (Case 76/76) R(U) 4/84R(U) 7/85R(U) 7/88R(U) 8/88R(IS) 6/96

Drake v. Chief Adjudication Officer [1986] 3 CMLR 43 (Case 150/85). Also reported R(G) 2/86in [1986] All ER 65 CJEC and [1986] 3 WLR 1005

Emmot v. Minister of Social Welfare [1991] ECR 4269 (Case C-208/90) R(IS) 3/06R(P) 1/09

Gaetano Bonaffini and Ors v. Instituto Nazionale della Previdenza Sociale [1975] R(U) 5/80ECR 971 Case (27/75)

† Galinsky v. The Insurance Officer [1981] 3 CMLR 361; [1981] ECR 941 R(S) 6/81(Case 99/80); R(P) 1/81 Appendix R(S) 7/81

R(SB) 2/85

Gravina v. Landesversichergungsanstalt Schwaben [1980] ECR 4553 (Case 807/79) R(F) 1/95



Estevez v. Spain, Application no. 56501/00, 10 May 2001 R(CS) 4/06

Guiliano v. Landesversicherungsanstalt Schwaben [1977] ECR 1857 (Case 32/77) R(F) 1/95R(P) 1/81R(S) 6/81R(S) 7/81R(S) 9/81

Hadjioncistassiou v. Greece [1992] A525 R(I) 4/02

Hepple and Others v. CAO (Case C-196/98) R(I) 2/00

Hoekstra (née Unger) v. Bedrijfsvereiniging Detailhandel [1964] ECR 177 R(SB) 2/85

Jackson v. The Chief Adjudication Officer [1992] 3 CMLR 389 (Case 63/91) R(SB) 8/91R(IS) 10/91

Jia v. Migrationsverket (Case C-1/05) [2007] QB 545 [2010]AACR 18

KB v. National Health Service Pensions Agency [2004] ECR 1-541 (Case c-117/01) R(P) 1/07

Kermaschek v. Bundesanstalt für Arbeit [1976] ECR 1669 (Case 40/76) R(A) 2/78R(S) 5/83R(S) 1/84

Kromhout v. Raad van Arbeid [1985] ECR 2205 (Case 104/84) R(F) 1/88R(F) 1/95

Levin v. Staatssecretaris van Justitie [1982] ECR 1035 R(SB) 2/85

McMenamin v. Adjudication Officer [1993] CMLR 509 (Case c-119/91) R(F) 1/95

Manzoni v. FNROM [1977] ECR 1647 (Case 112/76) R(S) 6/81

Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] R(SB) 8/91ECR 723 (Case 152/84) R(IS) 10/91

Martinez Sala v. Freistaat Bayern (Case C-85/96) [1998] ECR 1-2691 [2010]AACR 14

Marzari v. Italy (1999) 28 EHRR CD 175 R(IS) 7/07

Metalnijverheid v. Mouthaan [1976] ECR 1901 (Case 39/76) R(U) 4/84

Molkerei Zentrale Westfalen v. Hauptzollamt Paverborn [1968] ECR 143 R(S) 1/81(Case 28/67)

Movrin v. Landesversicherungsanstalt Westfalen (Case C-73/99) [2000] ECR 1-5625 R(IS) 8/06

Mr. and Mrs. F. v. Belgium State [1975] ECR 679 (Case 7/75) R(A) 2/78

O’Flynn v. Chief Adjudication Officer [1998] 1 CR 608 (also reported as R(IS) 4/98) R(IS) 11/06

Roger Stanton Newton v. Chief Adjudication Officer [1991] 1 CMLR (Case C356/89) R(A) 5/92

Petroni v. ONPTS [1975] ECR 1149 (Case 24/75) R(U) 2/78R(S) 9/81R(S) 3/85

Procureur do Roi v. Royer [1976] ECR 497 (Case 48/75) R(SB) 31/84R(SB) 2/85R(IS) 9/99

APPENDIX 2

Part 3

EEC Cases


in



R. v. London Borough of Galing, ex p. Bidar (Case c-209/03) R(IS) 1/06

† R. v. NI Commissioner, ex p. Insurance Officer (Warry) [1977] ECR 2085 —(Case 41/77); R(S) 1/80 Appendix

† R. v. NI Commissioner, ex p. Warry [1981] 1 All ER 229; R(S) 1/81 Appendix —

R. v. Secretary of State for Employment, ex p. Seymour-Smith R(JSA) 2/05

† R. v. Social Security Commissioner, ex p. Browning [1981] ECR 3357 (Case 22/81) —

R. v. Social Security Commissioner, ex p. Smithson [1992] ECR, Paragraph 12 R(SB) 8/91(Case 243/90) R(IS) 10/91

Reg. v. Pieck [1981] QB 571 R(SB) 33/84

Richards v. Secretary of State for Work and Pensions (Case C-423/04) R(P) 1/09R(P) 2/09[2010]AACR 13

† Robards v. Insurance Officer [1983] 2 CMLR 537; [1983] ECR 171 (Case 149/82) R(F) 2/83R(F) 1/95

Rossi v. Caisse de Compensation pour Allocations Familiales [1979] ECR 831 R(F) 2/83(Case 100/78)

Roux v. Belgian State [1991] ECR 1-273 R(IS) 9/99

Sagulo, Brenca and Bakhouche [1977] ECR 1495 (Case 8/77) R(SB) 32/84

Secretary of State v. Thomas, Cooze, Beard, Murphy and Morley (Case 328/91) R(G) 3/89

Scrivner v. Centre Publique d’Aide Sociale de Chastre (Case 122/84) R(SB) 2/85

Snoxell and Davies v. Vauxhall Motors Ltd [1977] 1 CMLR 487 R(SB) 1/78

Sociale Verzekeringsbank v. Smieja [1973] ECR 1213 (Case 51/73) R(A) 2/94

Sotgin v. Deutsche Bundespost [1974] ECR 153 (Case 152/73) R(A) 2/78

Stauder v. City of Ulm [1970] CMLR 112, [1969] ECR 419 (Case 29/69) R(I) 1/75

Strehl v. Pensioenfonds Mijnwerkers [1977] ECR 211 (Case 62/76) R(U) 2/78

Swaddling v. Adjudication Officer (Case C90/97) R(IS) 3/00R(JSA) 3/06

Tamara Vigier v. Bundesversicherungsanstalt für Angesteute [1981] ECR 229/81 R(SB) 3/91(Case 7/80)

Tenling v. Bedrijfsvereniging voor de Chemische Industrie [1987] ERC 2497 R(SB) 6/91

Trojani v. Centre Public d’aide sociale de Bruxelles (Case C-456/02 [2002] R(IS) 5/09ECR 1-7573

Twomey v. The Chief Adjudication Officer (Case 215/90) R(S) 3/92

Van Duyn v. Home Office [1974] ECR 1337 (Case 41/74) R(A) 2/78

Vyvian v. Vyvian [1861] 30 Beav 65 R(P) 5/55

W. (E.E.M.) [1971] explained in S (F.G.) (Mental Health Patient) [1973] 1 WLR 178 R(SB) 21/83

APPENDIX 2

Part 3

EEC Cases


in



Series CS1995R(CS) 1/95 17.3.8 xvi

2/95 21.11.1 i3/95 21.7.2 v

1996R(CS) 1/96 21.1.1 iii

2/96 21.5.1 i, 21.7.1 i3/96 21.7.2 i, 21.11.1 ii4/96 21.1.1 iv5/96 21.1.3 i

1997R(CS) 2/97 21.11.2 ii

3/97 21.1.1 v1998R(CS) 1/98 21.1.2 i

2/98 21.2.2 i4/98 17.3.8 xviii6/98 21.7.2 ii7/98 21.1.1 vi8/98 21.2.1 ii9/98 21.11.3 i

10/98 21.1.2 iii, 21.5.1 iii11/98 21.7.2 iii12/98 21.7.2 iv13/98 21.1.4 i14/98 21.8.3 i15/98 21.2.3 i

1999R(CS) 1/99 21.3.1 i

2/99 21.5.1 ii3/99 21.1.1 i4/99 21.1.2 ii5/99 21.4.1 i6/99 21.1.1 ii7/99 21.8.1 i8/99 21.9.1 i9/99 21.4.1 ii

10/99 21.4.2 i2000R(CS) 1/00 21.2.1 i

2/00 21.6.1 i3/00 21.5.2 i, 21.6.2 i, 21.6.3 i4/00 21.10.1 i5/00 21.8.2 i

2001R(CS) 1/01 21.1.1 vii

2/01 21.10.2 i3/01 21.10.2 ii

2002R(CS) 1/02 21.1.2 iv

2/02 21.10.3 i3/02 21.10.4 i4/02 21.4.2 ii5/02 17.3.18 i6/02 21.10.2 iii7/02 21.8.4 i8/02 21.2.3 ii9/02 21.10.5 i

10/02 21.11.4 i11/02 21.8.3 ii

2003R(CS) 1/03 17.3.2 xxx

2/03 21.8.2 ii3/03 21.10.4 ii4/03 21.8.3 iii5/03 21.10.4 iii6/03 21.4.3 i, 19.4.1 ii


Appendix 3

Series CS-contd2004R(CS) 1/04 21.8.5 i

2/04 21.8.5 ii3/04 17.11.2 i4/04 19.4.3 iii5/04 21.10.6 i

2005R(CS) 1/05 21.5.3 i

2/05 21.7.2 v3/05 21.7.2 vi4/05 21.6.4 i5/05 21.1.2 v, 21.8.1 ii6/05 17.9.2 x

2006R(CS) 1/06 21.1.5 i

2/06 21.12.1 i3/06 17.3.8 xx4/06 19.4.5 ii5/06 21.12.1 ii, 21.12.2 i6/06 21.5.4 i

2007R(CS) 1/07 21.10.5 ii

2/07 17.11.1 vii4/07 21.3.2 iii

2008R(CS) 1/08 21.12.3 i

2/08 21.6.5 i3/08 21.1.2 vi4/08 21.5.1 vi5/08 21.10.7 i6/08 21.3.2 i7/08 21.8.3 iv8/08 21.9.2 i9/08 21.5.2 ii

2009R(CS) 1/09 19.1.2 xxviii, 19.4.4 ix,

21.8.3 iv2/09 21.12.1 iii3/09 21.4.3 ii4/09 21.12.4 i5/09 21.12.5 i

2010CS AACR 1 21.12.6 i

Appendix 3

Series DLA1995R(DLA) 1/95 15.6.11 i

2/95 15.6.5 i3/95 15.6.1 i

1996R(DLA) 1/96 17.6.1 x

2/96 15.6.6 i1997R(DLA) 1/97 15.6.5 ii

2/97 15.6.12 i1998R(DLA) 1/98 15.6.4 i

2/98 17.3.9 xxv3/98 15.6.6 ii4/98 15.4.1 xii5/98 17 Annex

1999R(DLA) 1/99 15.6.2 i

2/99 19.9.1 xi3/99 17.9.5 vii4/99 17.4.6 i5/99 19.9.1 xii6/99 15.6.7 i

2000R(DLA) 1/00 15.6.8 i

2/00 15.2.9 i2001R(DLA) 2/01 17.9.2 ix

3/01 17.3.2 xxix4/01 15.6.13 i5/01 17.6.5 xi6/01 17.6.4 xviii, 18.6.2 xxv7/01 19.3.2

2002R(DLA) 1/02 15.2.1 x

2/02 15.2.1 xi3/02 15.2.1 xii4/02 19.4.2 i5/02 15.6.14 i6/02 17.11.1 i7/02 15.6.15 i8/02 15.6.16 i9/02 15.6.17 i

10/02 15.2.1 xiii, 15.2.2 ix,15.2.7 ii

11/02 15.6.18 i2003R(DLA) 1/03 17.11.1 iii

2/03 15.6.16 ii3/03 15.2.1 xv4/03 15.4.1 xv5/03 17.3.8 xix6/03 15.6.13 ii7/03 15.2.11 i, 15.6.5 iii

2004R(DLA) 1/04 18.6.1 iii

2/04 17.3.5 xxi3/04 15.6.13 iii4/04 15.4.1 xvi6/04 15.2.12 i7/04 17.3.7 xx, 19.4.3 v

2005R(DLA) 1/05 15.2.7 iii, 15.6.16 ii

2/05 15.6.5 iv3/05 17.3.17 vii4/05 13.8.3 i5/05 15.2.1 xvi, 15.2.11 ii6/05 15.6.13 iv


Series DLA-contd2006R(DLA) 1/06 17.11.1 vi

2/06 15.3.1 xi3/06 15.2.7 iv, 17.3.8 xxi4/06 15.4.1 xvii5/06 17.3.1 ix, 19.4.3 vii6/06 15.6.19 i7/06 15.6.20 i8/06 17.3.7 xxii

2007R(DLA) 1/07 15.2.6 ii

2/07 17.8.2 ii3/07 14.1.1 v

2008R(DLA) 1/08 15.6.5 v

2/08 15.6.13 v3/08 17.3.9 xxvi

2009R(DLA) 1/09 19.4.4 x

Appendix 3

Series G-contd1952-cont 5/52 3 Annex

6/52 6.3.1 i 7/52 4 Annex 8/52 12 Annex9/52 13.6.3 v, 12 Annex

10/52 6.3.3 i11/52 6.3.2 i12/52 4 Annex13/52 12 Annex14/52 3.3.3 i15/52 6.3.3 ii16/52 7.3.2 i17/52 12 Annex18/52 4.1.8 i19/52 4 Annex20/52 4 Annex, 17 Annex21/52 12 Annex22/52 4 Annex

1953R(G) 2/53 17.3.8 i, 17.5.1 i, 4 Annex

3/53 13.3.2 vi, 3 Annex5/53 19.7.4 i 6/53 4 Annex, 17 Annex 7/53 4 Annex

8/53 17.10.2 iv, 4 Annex 9/53 13.2.1 iii, 4 Annex10/53 4.1.5 i11/53 3.2.4 i12/53 7.3.1 ii, 17.10.2 v, 4 Annex

1954R(G) 1/54 19.5.4 i

2/54 4 Annex, 17 Annex 3/54 19.7.4 ii 4/54 3 Annex

6/54 4 Annex7/54 4.3.5 i 8/54 4 Annex 9/54 4 Annex, 7 Annex

1955R(G) 1/55 4.1.6 i

2/55 4.3.4 ii, 16 Annex3/55 3.2.2 i

4/55 4 Annex 5/55 13.2.1 iv, 12 Annex 6/55 12.4.2 i, 17.1.1 vi 8/55 3.4.1 i, 17.6.3 iii 9/55 4 Annex

10/55 6.3.2 ii11/55 4.2.4 i12/55 6.3.1 ii

1956R(G) 1/56 4 Annex

3/56 7.3.1 iii, 4 Annex4/56 3.4.3 i5/56 4 Annex, 17 Annex6/56 3 Annex9/56 3 Annex

10/56 3 Annex11/56 3 Annex12/56 3.2.3 i

13/56 6 Annex 14/56 4 Annex15/56 13.5.1 iii, 3 Annex

1957R(G) 1/57 4.3.1 i, 6.2.3 i

2/57 4 Annex 3/57 4 Annex4/57 17.6.3 iv

5/57 4 Annex6/57 19.7.7 iii


Series G-contd1958R(G) 1/58 4 Annex

2/58 4 Annex3/58 12 Annex, 13 Annex4/58 3 Annex

1959R(G) 1/59 3 Annex

2/59 3 Annex 3/59 6.4.2 i4/59 6.3.3 iii

5/59 6.4.2 ii 7/59 4 Annex 8/59 3 Annex 9/59 3 Annex

10/59 4 Annex11/59 4.2.3 i14/59 4.2.3 ii15/59 6.4.1 i

16/59 3 Annex 17/59 6.4.1 ii

1960R(G) 1/60 4 Annex

2/60 3 Annex, 16 Annex1961R(G) 1/61 17.1.1 ix, 17.3.3 ii, 3 Annex

2/61 17.6.3 v, 3 Annex 3/61 4.3.3 i 4/61 4 Annex

1962R(G) 1/62 4.1.4 i, 17.10.5 ii

2/62 3 Annex 3/62 4.3.4 i, 17.3.12 ii, 17.4.1 i4/62 4.3.3 ii, 6.2.3 ii5/62 13.2.2 iv, 4 Annex6/62 17.3.1 vi, 3 Annex

7/62 4 Annex8/62 17.3.4 iii, 6 Annex9/62 4 Annex, 17 Annex

1963R(G) 1/63 17.3.9 i, 4 Annex

2/63 4.1.5 ii3/63 12.4.2 iv, 4 Annex

1964R(G) 1/64 4 Annex

2/64 4.2.2 i3/64 4 Annex

1965R(G) 1/65 3.1.3 i

2/65 4 Annex3/65 12.4.1 ii4/65 6.3.4 i

1967R(G) 1/67 3.1.3 ii1968R(G) 1/68 4.1.5 iii

2/68 3.1.2 ii3/68 6.3.2 iii4/68 13.6.1 vi, 3 Annex5/68 4.2.2 ii

1970R(G) 1/70 4.1.8 ii

2/70 4.1.3 i1971R(G) 1/71 4.1.6 ii

2/71 3.2.1 ii, 3.2.5 i3/71 4.2.4 ii

1972R(G) 1/72 3.2.2 ii

2/72 4.2.4 iii, 17.7.2 iv3/72 4.1.7 i

Appendix 3Series G-contd1973R(G) 1/73 4.1.7 ii, 17.10.6 i

1974R(G) 1/74 6 Annex

2/74 13.3.1 xiii, 13.4.1 ii,4 Annex

3/74 3.2.2 iii4/74 3.2.2 iv

1975R(G) 1/75 13.3.1 xiv, 13.4.1 iii,

3 Annex, 17 Annex3/75 3.2.1 iii

1978R(G) 1/78 3.4.2 ii1979R(G) 1/79 4.2.4 iv

2/79 17.10.11 i1980R(G) 1/80 4.1.4 ii

2/80 6.3.4 ii1981R(G) 1/81 17.3.13 i

2/81 6.3.3 iv3/81 4.2.4 v

1982R(G) 1/82 3.4.2 iii, 17.1.1 xi, 17.3.2 ix,

17.4.1 vi2/82 4.1.6 iii

1983R(G) 1/83 17.10.11 ii, 17.10.12 ii

2/83 6.3.3 v3/83 13.4.1 iv, 19.2.9 i4/83 6.3.1 iii5/83 4.1.6 iv

1984R(G) 1/84 17.4.1 xvii, 17.10.11 iii

2/84 17.4.1 xviii, 17.10.11 iv3/84 17.10.11 v4/84 3.1.1 ii

1985R(G) 1/85 4.1.7 iii, 17.10.6 ii1986R(G) 1/86 19.9.2 ii

2/86 15.5.1 i, 19.1.2 i1988R(G) 1/88 17.4.1 xxv, 17.10.11 vi1989R(G) 1/89 19.1.4 viii

2/89 Annex 43/89 19.1.2 viii

1990R(G) 1/90 17.10.11 ix

2/90 17.10.11 x3/90 17.10.12 iii

1991R(G) 1/91 17.10.11 xi

2/91 19.1.2 x3/91 15.5.4 i

1992R(G) 1/92 6.2.3 iii1993R(G) 1/93 4.1.8 iii

2/93 29.17.1 iv, 17.3.13 vii4/93 4.1.8 iv

Series G-contd1994R(G) 1/94 4.1.8 v

2/94 19.1.2 xv1995R(G) 1/95 4.1.8 iv

2/95 15 Annex1997R(G) 1/97 4.1.8 viii1998R(G) 1/98 17.10.11 xii2000R(G) 1/00 4.1.2 ii

2/00 4.1.8 viii2002R(G) 1/02 15.5.5 i

2/02 15.5.62003R(G) 1/03 15.5.2 ii2004R(G) 1/04 4.1.3 ii

2/04 19.4.4 i2006R(G) 1/06 4.4.1 i

2/06 13.1.1 xx2009R(G) 1/09 15.5.7 i

2010G AACR 17 15.5.7 ii


Appendix 3Series H2002R(H) 1/02 32.1.1 i2003R(H) 1/03 32.2.1 i

2/03 32.1.2 i, 32.3.1 i3/03 32.2.2 i

2004R(H) 1/04 32.1.1 ii

2/04 32.1.1 iii3/04 17.3.2 xxxi4/04 32.4.l i5/04 18.6.2 xxviii, 17.8.3 iv6/04 32.5.1 i7/04 32.3.1 ii8/04 19.4.4 ii9/04 32.5.2 i

2005R(H) 1/05 32.1.2 ii, 32.3.2

2/05 32.2.3 i3/05 32.3.3 i, 32.6.1 i4/05 32.4.2 i5/05 32.2.4 i6/05 32.2.3 i7/05 32.2.6 i8/05 17.3.2 xxxiv9/05 32.4.2 ii

10/05 32.2.1 ii2006R(H) 1/06 32.8.1 i

2/06 13.7.2 ii3/06 32.4.2 iv4/06 32.4.2 iii5/06 19.4.4 vii, 32.2.7 i6/06 32.3.1 iii7/06 13.14.1 i

2007R(H) 2/07 32.4.4 i

3/07 32.4.5 i4/07 32.4.2 iv5/07 32.7.1 i6/07 32.2.8 i7/07 32.4.4 i8/07 32.2.6 i9/07 32.4.1 ii

10/07 32.3.1 ii2008R(H) 1/08 32.2.9 i, 32.3.4 i

2/08 32.9.1 i3/08 32.4.64/08 32.3.5 i5/08 32.7.2 i6/08 32.4.4 iii7/08 32.8.2 i8/08 32.4.4 i9/08 32.4.4 i

10/08 32.1.1 iv2009R(H) 1/09 32.10.1 i, 17.13.1 i

2/09 32.7.3 i3/09 32.1.3 i4/09 32.4.4 v5/09 32.2.10 i6/09 32.7.2 ii7/09 19.3.3 xvi8/09 32.4.2 v9/09 32.1.4 i


Series H2010H AACR 2 32.4.4 v

AACR 4 32.4.6 ivAACR 6 13.1.1 xxiii

AACR 16 32.1.5

Appendix 3Series I-contd1991R(I) 1/91 8.5.1 xxi

2/91 14.3.2 vii3/91 14.2.2 vii4/91 14.1.2 vi5/91 14.1.2. vii6/91 8.1.1 vi, 8.6.1 xiv

1992R(I) 1/92 9.4.5 viii

2/92 9.4.7 iii3/92 14.1.3 vii

1993R(I) 1/93 8.2.7 iii

2/93 11.8.1 i3/93 11.8.2 i

1994R(I) 1/94 9.4.5 ix

2/94 17.6.4 xv3/94 Annex 94/94 14.2.3 vi5/94 14.3.4 x, 18.6.2 xix6/94 9.7.1 i7/94 17.4.1 xxix8/94 8.3.7 x, 18.6.2 xx

1995R(I) 1/95 14.2.2 viii

2/95 9.5.10 i3/95 9.5.11 i4/95 14.4.1 iv5/95 9.7.3 i, 14.3.4 xi

1996R(I) 1/96 9.1.6 i

2/96 Annex 93/96 10.2.9 i, 13.3.1 xix4/96 9.7.1 i5/96 9.4.7 iv

1997R(I) 2/97 9.4.11 i

3/97 9.5.12 i4/97 10.5.2 i

1998R(I) 2/98 9.4.5 x

3/98 13.5.5 iv4/98 9.5.13 i5/98 9.5.14 i6/98 9.5.11 ii7/98 9.1.1 v

1999R(I) 1/99 8.7.3 ix, 18.6.2 xviii

2/99 11.8.1 ii, 18.6.2 xix3/99 13.1.1 xvii4/99 9.4.7 v5/99 9.4.2 xii, 18.6.2 xx

2000R(I) 1/00 8.1.2 vii, 18.7.1 i

2/00 11.8.1 iii, 19.1.2 xxi3/00 10.2.10 i

2001R(I) 2/01 9.5.10 ii, 18.6.2 xxiv

3/01 17.6.5 x2002R(I) 1/02 9.5.10 iii

2/02 11.4.9 i, 18.6.2 xxvi3/02 9.5.10 iv4/02 17.3.17 iii5/02 17.11.1 ii6/02 9.4.5 xi7/02 9.5.9 ii8/02 9.5.15 i

Series I-contd2003R(I) 1/03 10.2.10 ii

2/03 9.7.3 ii, 11.2.4 i,18.6.2 xxvii

3/03 9.1.6 ii2004R(I) 1/04 14.2.1 vii

2/04 9.7.3 iii,11.2.4 ii3/04 9.7.10 v4/04 14.2.1 viii5/04 9.7.3 iv, 9.5.10 vi

2006R(I) 1/06 18.6.2 xxx

2/06 9.5.10 vii

2009R(I) 2/09 9.5.11 iii


Appendix 3

Series IB1998R(IB) 1/98 2.13.2 i

2/98 2.13.4 i3/98 2.13.4 ii5/98 2.13.7 i

1999R(IB) 1/99 2.13.2 ii

2/99 2.13.1 i2000R(IB) 1/00 2.13.5 i

2001R(IB) 1/01 2.13.6 i

2/01 2.13.6 ii3/01 2.14.1 i

2002R(IB) 1/02 19.1.11 iii

2/02 2.13.2 iii3/02 2.13.2 iv4/02 17.3.17 iv

2003R(IB) 1/03 2.14.2 i

2/03 2.13.2 v4/03 2.13.2 vi5/03 2.13.2 vii6/03 17.3.17 v7/03 7.5.2 i

2004R(IB) 1/04 2.15.1 i

2/04 17.3.2 xxxiii, 17.3.5 xx,17.3.8 xix, 17.6.7 iii

3/04 2.13.2 viii4/04 2.13.2 ix5/04 17.4.2 xv6/04 2.13.2 x7/04 2.11.1 v8/04 2.13.10 i

2005R(IB) 1/05 2.13.7 i, 17.11.1 iv

2/05 17.11.1 v3/05 2.15.1 ii4/05 17.8.1 xxxix5/05 17.3.5 xxii6/05 18.6.2 xxix7/05 2.13.7 ii

2006R(IB) 1/06 2.14.3 i

2/06 17.3.7 xxiii2007R(IB) 1/07 2.14.4 i

2/07 2.13.2 xi17.4.1 xxxiii

3/07 2.14.3 ii2008R(IB) 1/08 2.13.7 i

2009R(IB) 1/09 17.3.4 iv, 17.12.1 iii,

17.12.2 ii2/09 2.13.10 i3/09 17.4.1 xxxvi

2010IB AACR 14 19.1.1 xvi


Appendix 3Series IS1990R(IS) 1/90 29.10.2 i

2/90 29.10.5 i1991R(IS) 1/91 29.10.8 i, 29.10.7 i

2/91 29.4.3 i3/91 29.4.1 i4/91 29.4.1 ii5/91 13.3.1 xvii6/91 29.2.6 i7/91 17.2.1 vi9/91 29.4.1 iii

10/91 19.1.2 xiii11/91 29.17.1 ii12/91 29.4.1 iv, 17.5.4 i13/91 29.8.2 i14/91 29.17.2 ii

1992R(IS) 1/92 29.19.1 ii

2/92 29.4.3 ii3/92 17.2.1 vii4/92 29.4.1 v5/92 17.8.3 i6/92 29.7.1 i7/92 29.4.4 i8/92 29.10.2 i, 29.10.7 ii,

29.10.5 ii9/92 29.10.8 ii

10/92 17.6.5 v11/92 17.9.7 i12/92 29.9.2 i13/92 29.4.1 vi14/92 29.17.1 iii

1993R(IS) 1/93 19.8.10 i

2/93 29.10.2 ii, 29.10.9 i3/93 29.7.1 ii, 29.10.2 iii4/93 17.3.9 xxiii, 17.9.4 v 6/93 29.19.1 i7/93 29.4.1 vii8/93 29.4.2 i9/93 29.17.1 i

10/93 29.4.1 viii11/93 17.6.1 ix12/93 29.17.2 i13/93 29.10.7 iv14/93 29.10.7 iii15/93 17.3.2 xxv16/93 29.7.1 iii17/93 29.3.1 i18/93 29.4.1 ix19/93 29.4.1 x20/93 17.9.2 vii21/93 29.10.5 iii22/93 29.4.2 iv

1994R(IS) 1/94 29.4.4 ii, 29.19.2 i

2/94 29.4.1 xi3/94 29.4.1 xii4/94 29.9.1 i5/94 17.3.14 ii6/94 29.4.1 xiii7/94 17.8.1 xxvi8/94 29.4.1 xiv9/94 19.3.5 i

10/94 29.4.2 iii11/94 29.4.1 xv12/94 29.4.1 xvi13/94 29.4.1 vii14/94 17.8.1 xxvii


Series IS-contd1994-contdR(IS) 16/94 Annex 29

17/94 29.4.2 ii18/94 29.4.4 iii

1995 R(IS) 1/95 29.4.1 xviii, 29.19.2 ii

2/95 29.19.2 ii3/95 29.4.1 xix4/95 29.4.1 xx5/95 29.2.2 i, 29.12.1 ii6/95 29.10.3 i8/95 29.2.2 ii, 13.1.1 xv9/95 29.7.1 iv

10/95 29.7.1 v11/95 29.4.1 xxi12/95 29.2.2 iii, 17.9.2 viii13/95 29.10.5 iv14/95 29.4.7 i15/95 29.12.1 i, 29.12.1 iii17/95 17.8.1 xxx18/95 29.10.5 v19/95 29.4.1 xxii20/95 29.4.4 iv21/95 29.2.2 iv22/95 29.2.2 v23/95 17.3.2 xxvii24/95 29.4.1 xxiii25/95 29.12.2 i26/95 29.10.3 ii, 29.10.5 vi,

29.10.9 ii1996R(IS) 1/96 29.12.2 ii

2/96 17.3.2 xxviii, 17.6.8 i3/96 29.10.3 iii, 29.10.9 iii4/96 29.10.5 vii5/96 29.4.1 xxiv6/96 19.3.4 ii7/96 29.2.2 vi8/96 2.8.1 iv, 29.4.4 v9/96 17.8.3 ii

10/96 29.4.4 vi11/96 29.4.4 vii12/96 17.6.5 vi, 29.4.2 v13/96 29.4.4 viii14/96 17.8.1 xxxii15/96 29.10.2 iv, 29.10.3 iv,

29.10.5 viii, 29.10.7 v16/96 17.8.1 xxxiii

1997R(IS) 1/97 29.10.3 v

2/97 17.6.1 xi3/97 19.1.4 x4/97 29.10.3 vi5/97 29.12.2 iv6/97 29.12.2 v

1998R(IS) 1/98 29.4.7 ii

2/98 29.9.2 ii3/98 29.17.1 v4/98 19.1.3 iii5/98 29.10.2 v, 29.10.5 ix,

29.10.7 vi6/98 29.17.1 vi7/98 29.10.7 vii, 29.10.3 vii8/98 17.6.3 xiii

10/98 19.5.7 xii, 29.2.6 ii11/98 29.4.2 v12/98 19.1.4 xi13/98 19.3.2 vii14/98 29.10.3 viii15/98 29.12.2 v16/98 29.4.1 xxv

Appendix 3Series IS-contd1998-contdR(IS) 17/98 29.10.2 vi, 29.10.7 viii

18/98 29.17.1 vii19/98 29.12.2 vi20/98 29.4.1 xxvi21/98 17.6.5 viii22/98 29.4.1 xxvii23/98 29.4.4 ix

1999R(IS) 1/99 29.3.2

2/99 29.4.1 xxviii3/99 29.9.3 i4/99 19.5.1 vi5/99 29.9.4 i, 29.10.2 vii6/99 19.3.3 i7/99 29.12.2 vii8/99 29.9.5 i9/99 19.3.3 ii

10/99 29.10.2 viii11/99 17.3.8 xvii, 17.3.17 i,

17.4.1 xxxi12/99 29.4.1 xxix13/99 29.2.2 viii14/99 19.3.1 i15/99 19.3.1 ii

2000R(IS) 1/00 29.12.2 viii

2/00 19.1.2 xxii3/00 19.3.3 iii4/00 29.4.1 xxx5/00 17.8.1 xxxv6/00 19.3.3 iv

2001R(IS) 1/01 29.10.9 iv

2/01 29.4.1 xxxi3/01 13.6.1 viii, 13.1.3 iv4/01 29.9.1 ii5/01 29.4.1 xxxii6/01 17.8.1 xxxvi7/01 29.10.3 ix8/01 29.4.1 xxxiii9/01 19.3.1 iii

10/01 29.9.6 i11/01 29.2.12 i

19.3.3 v12/01 17.4.2 xiv13/01 29.9.1 iii, 17.4.1 xxxii14/01 29.4.1 xxxiv15/01 29.2.2 viii

2002R(IS) 1/02 29.17.1 viii

2/02 19.3.5 ii3/02 19.4.1 i4/02 29.9.1 iv7/02 29.4.2 vii8/02 29.2.1 i9/02 29.4.2 vii

2003R(IS) 1/03 29.10.7 ix

2/03 29.9.2 iii3/03 29.10.3 x4/03 29.10.9 v5/03 17.8.1 xxxvi6/03 17.8.1 xxxvii, 29.9.1 v

2004R(IS) 1/04 19.4.3 i

2/04 19.4.3 ii3/04 13.13.1 i4/04 29.4.2 i, 29.4.2 ix5/04 17.3.17 vi6/04 19.4.3 iii7/04 29.17.1 ix8/04 29.10.7 x


Series IS-contd2004-contdR(IS) 9/04 29.10.2 ix

10/04 29.17.1 x12/04 19.4.4 iii13/04 29.16.1 i14/04 17.3.2 xxxii15/04 19.4.3 vi16/04 13.1.3 v17/04 17.3.7 xxi

2005R(IS) 1/05 17.8.3 v

2/05 29.2.1 ii3/05 29.9.1-2 vi4/05 29.9.1-2 vii5/05 29.10.3 xi6/05 19.1.3 iv7/05 17.8.1 xxxviii8/05 29.2.12 ii9/05 29.4.1 xxxv

10/05 29.2.1 iii11/05 29.17.1 xi12/05 17.3.2 xxxv, 29.15.1 i13/05 17.8.1 xxxx

2006R(IS) 1/06 19.3.3 vii, 29.2.12 iii

3/06 19.1.10 iii4/06 17.8.1 xxxxi5/06 29.4.1 xxxvii6/06 19.4.4 v, 29.16.1 ii7/06 13.8.3 ii8/06 19.9.1 xiii

12/06 19.4.4 vi2007R(IS) 1/07 29.4.1 xxxix

2/07 29.4.1 xxxviii3/07 13.1.1 xxi4/07 13.1.1 xxii5/07 29.10.3 xii6/07 17.4.1 xxxiv7/07 19.4.2 iii, 18.6.1 iv,

29.10.7 xi8/07 19.1.3 vii, 19.2.3 ii,

19.3.3 ix, 29.2.12 iv,32.4.6 i

2008R(IS) 1/08 19.3.1 iv

2/08 17.3.2 xxxvi, 17.11.1 ix3/08 19.3.3 x, 29.2.12 vi4/08 17.3.10 vi5/08 29.10.3 xiii6/08 19.3.3 xi, 29.2.12 vii,

32.4.6 iii7/08 29.6.1 i8/08 19.3.3 xii, 23.3.2 i,

29.2.12 viii,9/08 17.4.1 xxxv, 29.10.2 x

10/08 17.8.4 ii, 29.10.2 xi11/08 29.2.1 iv12/08 29.4.1 x1i

2009R(IS) 1/09 17.3.7 xxiii

2/09 29.4.1 xliii3/09 19.3.3 xiii, 29.2.12 ix,

32.4.6 iv4/09 19.3.3 xiv, 29.2.12 x5/09 19.3.3 xv, 29.2.12 xi6/09 17.4.2 xvi7/09 19.4.4 xi, 29.12.2 ix

2010IS AACR 9 23.10.2

AACR 18 19.3.3 xvii

Appendix 3Series JSA2001R(JSA) 1/01 23.7.2 i

2/01 23.7.2 ii3/01 23.2.1 i

2002R(JSA) 1/02 23.13.5 i

2/02 23.16.13/02 19.1.2 xxiii4/02 19.1.2 xxiv5/02 23.3.1 i6/02 23.7.2 iii

2003R(JSA) 1/03 23.10.1 i

2/03 23.9.1 i3/03 17.8.3 iii4/03 23.3.1 ii, 19.1.2 xxv5/03 23.3.1 iii6/03 23.1.1 i7/03 23.5.9 i8/03 23.9.2 i, 29.7.2 i9/03 23.13.6 i

2004R(JSA) 1/04 23.1.1 ii

2/04 23.2.1 ii3/04 23.3.1 iv4/04 23.12.1 i, 23.16.2 i

2005R(JSA) 1/05 19.1.2 xxvi

2/05 23.6.1 i2006R(JSA) 1/06 23.3.1 v, 23.9.1 iii

2/06 23.5.10 i3/06 19.1.3 v, 19.3.3 viii9/06 17.8.1 xxxxii

10/06 13.1.3 vi11/06 19.1.3 vi

2007R(JSA) 1/07 23.3.1 vi

2/07 23.2.1 iii2008R(JSA) 1/08 23.5.3 i

2009R(JSA) 1/09 23.3.1 vii, 23.10.2 i

2010JSA AACR 3 23.13.5

AACR 10 23.2.1 iv, 23.5.4 i

Series M1978R(M) 1/78 15.4.1 i

2/78 15.4.1 ii3/78 15.4.1 iii

1979R(M) 1/79 14.1.5 v1980R(M) 1/80 15.4.2 i

2/80 14.1.5 vi1981R(M) 1/81 15.4.1 iv

2/81 15.4.1 v1982R(M) 1/82 15.4.3 i

2/82 15.4.3 ii1983R(M) 1/83 15.4.1 vi, 15.4.3 iii

2/83 15.4.4 i1984R(M) 1/84 15.4.1 viiR(M) 2/84 19.9.1 viii

1985R(M) 1/85 19.9.1 ix1986R(M) 1/86 15.4.3 v, 17.6.4 viiii

3/86 15.4.1 viii4/86 15.4.3 vi

Series M-contdR(M) 5/86 15.4.3 vii, 17.6.3 x,

17.6.4 x6/86 14.3.4 viii, 15.4.1 ix

1987R(M) 1/87 17.4.1 xii1989R(M) 1/89 14.3.3 vi

2/89 15.4.1 x3/89 15.4.3 viii

1990R(M) 1/90 14.3.4 ix, 15.4.5 i1991R(M) 1/91 15.4.1 xi1992R(M) 1/92 19.5.1 iii

2/92 15.4.1 xii1993R(M) 1/93 17.3.17 ii1995R(M) 1/95 15.4.5 i1996R(M) 1/96 15.6.9 i1998R(M) 1/98 15.4.1 xiv

Series NCIP (Northern Ireland Cases)1985R(NCIP) 1/85 2 Annex

2/85 2.10.2 ii, 18.6.2 i


Appendix 3

Series P1948CP 1/48 5.3.1 i

2/48 5.3.1 ii3/48 5.3.1 iii

1949CP 7/49 5.1.7 i, 17.5.2 i

21/49 5 Annex24/49 5 Annex33/49 5 Annex48/49 13.4.2 i49/49 5.1.2 i93/49 19.9.1 i

125/49 5 Annex127/49 17.3.7 i

CPP 127/49 5 AnnexCSP 13/49 13 Annex

15/49 5.4.4 i28/49 5 Annex

1950CP 1/50 13.4.2 ii, 5 Annex

30/50 13.2.3 i, 5 Annex39/50 5 Annex70/50 5.1.3 i77/50 5 Annex96/50 5.3.2 i, 7.2.1 i

127/50 13.5.2 i, 5 Annex129/50 5.2.4 i

CSP 11/50 17.7.1 i, 5 Annex1951R(P) 1/51 5.3.5 i

2/51 5 Annex, 17 Annex3/51 13.2.2 i, 5 Annex4/51 5 Annex, 17 Annex5/51 5.1.3 ii6/51 17.6.5 i, 5 Annex,

13 Annex7/51 5.3.1 iv8/51 5.1.1 i

1952R(P) 1/52 5.1.5 i

2/52 5 Annex, 16 Annex3/52 5.1.3 iii4/52 5.4.5 i5/52 16 Annex, 17 Annex6/52 5 Annex7/52 5.1.8 i9/52 5.1.3 iv

10/52 5.1.3 v12/52 5 Annex13/52 5.4.1 i14/52 5 Annex, 17 Annex15/52 5.1.3 vi16/52 5.4.4 ii17/52 5.4.4 iii18/52 17 Annex

1953R(P) 1/53 5.1.4 i

2/53 5.1.3 vii3/53 5.1.8 ii5/53 5 Annex6/53 5.1.8 iii7/53 7.1.2 i, 19.5.2 iii8/53 17 Annex9/53 5.1.3 viii

10/53 5.1.4 ii11/53 5 Annex, 17 Annex12/53 5.1.5 ii13/53 5 Annex, 17 Annex

Series P-contd1954R(P) 1/54 5.1.4 iii

2/54 5.2.2 i3/54 5 Annex, 17 Annex4/54 19.5.4 ii5/54 5.3.3 ii, 7.1.3 iii6/54 5.1.3 ix7/54 5.1.7 ii, 5.2.4 ii8/54 5.1.1 ii9/54 5.1.7 iii

10/54 5.4.2 i1955R(P) 1/55 5 Annex

2/55 13.2.3 iv, 5 Annex3/55 5 Annex5/55 5.4.5 ii7/55 13.2.2 ii, 5 Annex9/55 5.2.4 iii

11/55 5.1.4 iv13/55 5.1.7 iv14/55 5 Annex15/55 5.1.8 iv16/55 5.1.3 x17/55 5.4.1 ix

1956R(P) 1/56 5 Annex

2/56 5.3.1 v3/56 5.2.3 i4/56 5 Annex5/56 5 Annex6/56 5.1.5 iii7/56 5.1.3 xi8/56 5.1.8 v9/56 5 Annex

10/56 19.5.4 iii11/56 5.1.4 v12/56 5 Annex, 17 Annex13/56 5 Annex14/56 5.3.1vi15/56 5.3.3 ii, 7.1.1 v16/56 5.1.4 vi17/56 5.4.5 iii18/56 5.1.6 i19/56 5.1.8 vi

1957R(P) 1/57 19.6.1 i

2/57 5.4.2 ii4/57 5.1.5 iv6/57 5.1.3 xii

1958R(P) 1/58 5.3.5 ii

2/58 13.2.2 iii, 5 Annex3/58 5.1.3 xiii4/58 5.4.7 i5/58 13.3.2 vii, 13.4.2 iii,

5 Annex6/58 5 Annex

1959R(P) 1/59 5.3.4 i

2/59 5.1.3 xiv3/59 13.5.2 ii, 5 Annex4/59 17.1.1 vii, 5 Annex5/59 5 Annex6/59 19.9.1 iv7/59 13.2.1 v, 5 Annex8/59 5.2.1 i9/59 5.3.4 ii

10/59 13.4.2 iv, 5 Annex11/59 5.1.3 xv


Appendix 3Series P-contd1960R(P) 1/60 5.1.5 v

2/60 5.2.1 ii3/60 5.1.3 xvi

1961R(P) 3/61 5.1.3 xvii

4/61 5.1.3 xviii5/61 13.3.2 viii, 5 Annex6/61 13.2.1 vi, 5 Annex7/61 5.3.1 viii, 7.2.2 viii8/61 19.8.4 i

1962R(P) 2/62 5.4.1 iii

3/62 5.2.3 ii1964R(P) 1/64 5.2.2 ii

2/64 5 Annex1965R(P) 1/65 5.2.4 iv, 17.10.9 i

2/65 13.2.1 ix, 5 Annex1966R(P) 1/66 5.2.2 iii

2/66 5.2.3 iii1967R(P) 1/67 5.4.1 iv

2/67 5.4.6 i, 19.9.1 vR(P) 3/67 5.3.2 ii

4/67 5.2.4 v1968R(P) 1/68 5 Annex1969R(P) 1/69 5.2.4 vi1970R(P) 1/70 5.3.1 viii, 17.7.2 i1973R(P) 1/73 5.2.1 iii

2/73 5.4.4 iv3/73 19.7.6 i

1974R(P) 1/74 13.1.2 iii, 5 Annex

3/74 5 Annex1975R(P) 1/75 5.4.3 i

2/75 5.2.1 iv, 5.2.2 iv1976R(P) 1/76 5.2.1 v

2/76 5.1.6 ii, 5.2.4 vii1978R(P) 1/78 19.5.4 iv1979R(P) 1/79 13.3.2 x1980R(P) 1/80 5.4.8 i

2/80 5.4.8 ii1981R(P) 1/81 19.1.4 v1982R(P) 1/82 19.9.1 vii1984R(P) 1/84 17.10.11 iv

2/84 18.1.2 x, 19.1.11 ii3/84 5.2.1 vi, 17.6.1 iv

1985 R(P) 1/85 17.6.1 v

2/85 13.5.2 iii3/85 6.2.4 i

1987R(P) 1/87 5.1.7 v, 5.2.1 vii,

5.2.2 v


Series P-contd1988R(P) 1/88 17.10.11 vii

2/88 17.10.11 viii3/88 7.6.1 i,19.1.2 iv4/88 19.1.2 v

1989R(P) 1/89 5.2.1 viii1990R(P) 1/90 19.5.6 iii

2/90 5.3.1 ix, 19.7.5 i3/90 19.1.2 ix

1992R(P) 1/92 5 Annex

2/92 15.2.4 viii1993R(P) 2/93 Annex 5

4/93 5.3.1 xi1995R(P) 1/95 19.1.2 xvi

2/95 17.8.1 xxix1996R(P) 1/96 19.1.2 xviii

2/96 7.6.1 ii, 19.1.2 xix3/96 19.5.7 xi, 19.8.4 ii

1997R(P) 1/97 2.10.1 iii, 16.4.5 ii,

19.2.3 iii1998R(P) 1/98 5.3.4 iii

2001R(P) 1/01 19.5.4 v

2002R(P) 1/02 19.4.2

2003R(P) 1/03 5.4.10 i

2/03 13.1.1 xviii2004R(P) 1/04 17.12.1 ii

2005R(P) 1/05 13.1.1 xix

2006R(P) 1/06 19.4.5 i

2/06 4.1.8 ix, 19.4.4 iv2007R(P) 1/07 19.1.2 xxvii

2008R(P) 1/08 17.12.2 i

2/08 5.4.9 i, 19.5.7 xiii,19.8.1 ii

2009R(P) 1/09 19.1.2 xxviii

2/09 5.4.8 iii3/09 5.4.9 ii, 19.5.4 vi

2010P AACR 7 5.4.10 ii

AACR 13 5.4.8 iv, 17.11.1 x

Series PC2007R(PC) 1/07 29.4.1 xi

2/07 19.3.5 iv, 29.2.12 v,32.4.6 ii

2008R(PC) 1/08 19.4.4 viii, 19.4.5 iii

2/08 17.11.1 viii3/08 17.8.4 i, 28.8.1 i

Appendix 3

Series PC2009R(PC) 1/09 19.1.2 xxviii

2/09 5.4.8 iii3/09 5.4.9 ii, 19.5.4 vi

Series S1948CS 2/48 7.3.8 i, 2 Annex

3/48 19.5.2 i4/48 2 Annex, 7 Annex6/48 7.1.3 i, 2 Annex7/48 7.3.8 ii, 2 Annex

11/48 2 Annex, 7 Annex25/48 2 Annex, 7 Annex30/48 2 Annex, 7 Annex33/48 7.3.8 iii, 2 Annex35/48 13.3.2 i43/48 2 Annex44/48 2 Annex

CWS 3/48 13.1.3 i, 2 Annex1949CS 7/49 2 Annex, 6 Annex

11/49 2 Annex33/49 2 Annex, 13 Annex34/49 13.3.1 i41/49 2 Annex, 6 Annex,

7 Annex51/49 2 Annex, 13 Annex55/49 7.3.9 i, 2 Annex58/49 7.3.6 i, 2 Annex70/49 2 Annex 80/49 13.4.3 i, 2 Annex99/49 13.5.3 i, 2 Annex

100/49 13.4.3 ii, 2 Annex118/49 2 Annex131/49 2.8.1 i133/49 7.2.3 i, 2 Annex152/49 2 Annex156/49 13.5.3 ii, 2 Annex166/49 2.11.1 i174/49 13 Annex221/49 2.2.6 i262/49 2 Annex286/49 13.6.2 i, 2 Annex317/49 2.6.9 i343/49 7.3.4 i, 2 Annex363/49 2.1.2 ii


Series S-contd1949-contd

371/49 13.3.1 iii, 2 Annex390/49 13.5.3 iv, 2 Annex420/49 2 Annex537/49 13.3.1 iv, 13.5.3 iii,

2 Annex547/49 2 Annex, 7 Annex554/49 13.3.1 v, 2 Annex613/49 2 Annex638/49 7.3.7 ii, 2 Annex658/49 2 Annex726/49 6.2.1 i, 7.3.9 ii,

2 Annex788/49 2 Annex, 6 Annex,

7 Annex801/49 2 Annex817/49 2 Annex

CSS 87/49 2 Annex1950CS 4/50 2 Annex, 17 Annex

10/50 7 Annex 22/50 7 Annex42/50 13.3.1 vii, 13.4.3 iii,

2 Annex50/50 13.6.3 iv, 2 Annex52/50 2 Annex, 7 Annex69/50 2.2.1 ii

CS 78/50 2 Annex111/50 7 Annex151/50 7 Annex166/50 13.2.3 iii, 17 Annex185/50 19.5.2 ii243/50 2 Annex254/50 7 Annex270/50 2 Annex288/50 7.3.4 ii, 2 Annex344/50 2 Annex414/50 13.5.3 v453/50 13.3.1 viii, 2 Annex,

17 Annex459/50 2 Annex499/50 2 Annex509/50 7.2.2 i, 2 Annex524/50 13.2.1 ii, 2 Annex537/50 2 Annex, 13 Annex541/50 2 Annex561/50 2.2.7 i

CSS 27/50 2 AnnexCWS 13/50 2 Annex

14/50 2 Annex, 13 Annex36/50 2 Annex

1951R(S) 1/51 7.2.1 ii, 2 Annex

2/51 13.3.4 i, 2 Annex3/51 7.2.2 ii, 2 Annex4/51 2 Annex, 13 Annex5/51 2.2.10 i6/51 2 Annex7/51 13.1.2 i, 2 Annex8/51 2.8.6 i9/51 2.5.3 i

10/51 19.5.3 ii11/51 2.2.1 iii, 2.2.8 i,

2.2.12 i

Adjudication (contd)review (contd)

fresh evidence (contd)need for prior disclosure R(I) 6/51, R(I) 36/56,

17.9.6 i-iinew information on pre-accident earnings

R(I) 47/52, 17.6.6 ivnew job specification R(I) 43/52, 17.6.6 iii

not freshavailable before original decision R(S) 25/51,

R(I) 16/57, R(I) 11/59, R(I) 47/59,17.6.6 ii, v-vii

conflicting High Court judgment on damagesR(I) 11/59, 17.6.6 vi

on any ground R(A) 5/89, 15.1.5 ipower to review

change of law concerningeffect on previous decisions R(P) 1/85, 17.6.1 vdecision open to review R(IS) 11/93, 17.6.1 ix

grounds R(I) 77/53, 17.6.1 ii; R(M) 5/86, 17.6.4 x;R(DLA) 1/96, 17.6.1 x, R(IS) 2/97,17.6.1 xi

reg rather than statute R(S) 3/90, 17.6.7 iignorance of or mistake as to some material fact

alleged failure of consideration not a mistakeR(SB) 4/92, 17.6.3 xii

change of medical view of evidence not groundsR(A) 2/81, R(S) 4/86, R(M) 5/86,17.6.3 vii-x

relevant ignorance or mistakeabsence of a claim R(S) 13/81, 17.7.2 viAO’s error R(S) 13/81, 17.6.3 viiearnings estimates R(I) 4/54, 17.6.3 ifact not in existence R(IS) 8/98, 17.6.3 xiiifact showing decision incorrect R(I) 77/53,

17.6.1 iiprobabilities, whether wrongly assessed

R(I) 3/87, 17.6.3 xirevealed by further evidence R(G) 4/57,

R(G) 2/61, 17.6.3 iv, vwhat must be asserted and proved R(I) 3/75,

17.6.3 viwilful misrepresentation R(I) 71/54, 17.6.3 iiwrong date on certificate R(G) 8/55, R(G) 2/61,

17.6.3 iii, vrelevant change

medical evidence may constitute R(DLA) 6/01,17.6.4 xviii

medical opinion may constitute R(S) 1/92,17.6.1 viii

relevant change of circumstancesabsence R(P) 3/96, 17.6.4 xviichange in law R(A) 4/81, 17.6.4 vi; R(SB) 4/92,

17.6.4 xiii R(I) 2/94, 17.6.4 xvmeaning of R(I) 77/53; R(I) 1/71, 17.6.1 ii-iii,

R(I) 11/59, 17.6.4 iiconflicting High Court judgment on damages

R(I) 11/59, 17.6.4 iiin suitable alternative occupation on more pay R(I)

3/87, 17.6.4 ximedical opinion of itself R(I) 3/75, 17.9.2 vi; R(S)

6/78, R(S) 4/86, R(M)5/86, 17.6.4v, ix,x; R(S) 4/94,17.6.4 xvi

onus of proof not discharged R(I) 1/71, 17.6.1 iiirequest for balance of disablement pension as

gratuity denied R(I) 77/53, 17.6.1 iishare of fisherman’s off-season work R(I) 21/55,

17.6.4 i

Adj

Adjudication (contd)renewal cases

claimant’s condition improved or not deterioratedas expected R(IS) 2/04 T, 17.6.7 iiiprohibited R(P) 1/85, R(I) 9/85, 17.6.1 v, vireg rather than statute R(S) 5/89, 17.6.1 vii,

R(S) 3/94, 17.6.7 iirelevant change

Commissioner’s decision may constitute,R(I) 25/63, 17.6.4 iii

declaration under EEC Reg R(P) 2/84, 18.1.2 xiincapacity ceasing to result from relevant

loss of faculty R(I) 1/71, 17.6.1 iiimobility allowance, change of ordinary residence

R(M) 2/84, 15.4.3 ivwhere increased entitlement enables set-off

R(SB) 24/87, 17.6.5 ivresulting in adjustment of gratuity and treating as

paid on account R(I) 15/66,R(I) 11/67, 10.2.6 iii, iv

RP awards - subject to earnings R(P) 3/84, 17.6.1 ivretrospective legislation R(A) 3/91, 17.6.9 itreatment of disallowed claim as application for

review R(I) 50/56, R(I) 19/61,17.6.2 i, ii

no accrued right to have case considered underpreviously unamended regs R(I) 3/01,17.6.5 x

where loss of faculty assessment reduced on appealR(I) 36/51, 17.6.1 i

retrospective award of another SS benefit R(FIS) 1/89,17.6.4 xii

Scotlandcognisance in death case

of decree of presumption of death R(G) 1/62,17.10.5 ii

of evidence but not jury verdict R(I) 42/56, 17.10.5 ireduction of Commissioner’s decision R(U) 6/78,

18.5.1 iScottish law, corroboration of material facts

R(U) 12/56, 17.9.3 iitribunal procedures

fair hearingsame tribunal chair decided entitlement issue and

same issue in overpayment appealR(IS) 1/09 17.3.7 xxiii

Adjudication officerdecision

anticipatory pronouncement, invalid CP 7/49, 17.5.2 ifourteen days, determination within R(SB) 29/83,

17.2.2 vino right of appeal against refusal to give a decision

R(SB) 29/83, 17.2.2 viresponsibilities of AO R(SB) 8/83, 17.2.2 ivvalid, even though claimant not notified

R(SB) 41/83, 17.5.3 iiivisiting and benefit officers distinguished

R(SB) 8/83, 17.2.2 ivjurisdiction

correction of errors in decision prior to hearingR(F) 1/72, 17.3.2 v

right to question witnesses directly at hearingR(I) 13/74, 17.3.8 vi

frustrated by claimant’s representative R(I) 13/74,17.9.4 ii

validity of regulations R(SB) 10/88, 17.2.1 vnot in jurisdiction

appeal supporting AT’s decision R(I) 68/53, 17.4.2 iiapplication for review of Commissioner’s refusal to

extend time for appeal R(U) 21/64,17.3.2 iv


Adjudication officer (contd)determine whether an award purporting to have been

properly made is valid R(SB) 11/89,17.2.2 viii

procedure on appeal/reviewadjournment sought where criminal and repayment

proceedings coincide R(S) 2/70,17.10.3 iv

correctlate appeal to rectify lengthy underpayment

R(S) 20/51, 17.3.5 iincorrect

review corrected by backdating retirement R(P)5/55,5.4.5 ii

terms of reference to tribunal on review andrepayment R(U) 5/63, 17.3.6 i;CSP 11/50, 17.7.1 i

single payment, evidence as to cost and quality of itemR(SB) 10/86, 17.2.2 vii

procedure on awardclaim (correctly disallowed) should have been treated as

application for review R(I) 50/56,R(I) 19/61, 17.6.2 i, ii

prospective claims for benefit R(S) 14/81, 13.8.1 ii;R(S) 1/83, 13.8.2 i

Adoptioneffect on blood relationship R(SB) 22/87, 30.1.1 xirelative by CS 7/48, 7.3.8 ii

Advice and information receivedfrom doctors R(S) 5/56, 13.3.1 x; CS 286/49, CI 273/50,

R(S) 29/52, R(S) 36/52, R(I) 16/53,R(S) 5/56, R(I) 40/59, 13.6.2 i-vii

from lawyers CG 1/50, CSI 10/50, CG 184/50, CS 50/50,R(G) 9/52, 13.6.3 i-v; R(A) 1/79, 17.7.3ii

from other sources R(G) 1/75, 13.4.1 iii; R(P) 5/58,13.4.2 iii; R(S) 14/54, 13.4.3 vii;R(I) 28/54, R(I) 10/74, 13.4.5. iii, viii;R(G) 15/56, 13.5.1.iii; CS 414/50,13.5.3 v; R(S) 11/59, R(U) 3/60,R(F) 3/61, R(I) 25/61, R(S) 3/63,R(G) 4/68, R(U) 3/70, 13.6.1 i-viii,R(IS) 3/01, 13.6.1 viii R(G) 1/61,17.1.1 ix; R(S) 4/74, 17.10.10 ii;R(SB) 6/86, 30.7.4 i

Air travel should, incapacity during R(S) 1/75,19.5.3 xxi; R(S) 8/59, 19.5.3 xiv

Aneurysm R(I) 21/57, R(I) 28/58, R(I) 43/59, 12.2.5 i-iiiAngina and coronary occlusion, differences R(I) 25/59,

12.2.1 viiiAppeal tribunals

constitution R(U) 8/53, 17.3.1 i; R(I) 26/54, 17.3.1 ii;R(I) 51/56, 17.3.1 iii; R(I) 31/57, 17.3.1 iv;R(I) 42/59, 17.3.1 v; R(G) 6/62, 17.3.1 vi;R(SB) 2/88, 17.3.1 vii; R(U) 3/88, 17.3.1viii; R(DLA) 5/06, 17.3.1 ix

hearingsinquisitorial duty R(IS) 11/99, 17.3.8 xviiraised by appeal R(IB) 4/07, 17.3.19 i

jurisdictionchild support R(CS) 1/03, 17.3.2 xxxmisconceived appeals R(CS) 5/02, 17.3.18 iperiod within jurisdiction R(DLA) 3/01, 17.3.2 xxixSecretary of State discretion R(IS) 12/05, 17.3.2 xxxvwhether appeal lies to Upper Tribunal against a decision

to make case management instructionwhether tribunal required to determine entitlement

R(IS) 2/08, 17.3.2 xxxvi

Adj-Att

Appeal tribunals (contd)procedure

child supportboth parents appeal R(CS) 4/98, 17.3.8 xviiimasking documents R(CS) 3/06, 17.3.8 xx

evidence of children R(DLA) 3/06, 17.3.8 xxiphysical examination and physical test R(DLA) 5/03,

17.3.7 xixphysical examination and x-rays R(IB) 2/06, 17.3.7 xxiiiobservations during hearing R(DLA) 8/06, 17.3.7 xxiitribunal to determine appeal unless decision appealed

wholly invalid or inept R(IS) 2/04T,17.3.8 xix

statement of reasonsduty to issue statement of reasons R(IS) 11/99, 17.3.17 ihow to apply for R(DLA) 3/05, 17.3.17 viimust state facts on which decision is based R(I) 4/02no set time limit for the preparation, production and

issue R(IS) 5/04, 17.3.17 vireasons for adjournment, 17.3.17 iv

Artificial appendage (of body), damage to R(I) 7/56,R(I) 8/81, 8.8.1 iv

Assessorlay CW1 5/61, 18.1.3 imedical R(I) 14/51, 17.3.11 i; CWI 5/61, 18.1.3 i

Attendance allowanceappeal to Commissioner, leave refused

Courts not to invite reasons be given CSA 8/81, 18.1.1 xivappeal to Commissioner, with leave, ‘erroneous in point of

law’decision erroneous

application for review R(A) 6/90, 15.1.3 iiconclusions of DMP not justified R(A) 1/87, 15.1.2 viifailure adequately to give reasons R(A) 1/72,

R(A) 1/83, R(A) 1/84, 15.1.2 i, iv, vR(A) 3/89, 15.1.2 x

failure to consider all evidence R(A) 3/90, 15.1.4 ivfailure to send subsequent application for review to

claimant R(A)1/90, 17.6.2 ivhelp given when going to bed and getting up

attributable to ‘day’ R(A) 4/74,15.2.3 iii 18.1.2 iii

liability to fall R(A) 3/89, 15.1.2 x‘natural justice’ infringed by presentation R(A) 2/76,

15.1.3 i; R(A) 1/81, 15.1.4 i;R(A) 2/91, 15.2.5 viii

‘normative’ not same as ‘arithmetical’ approach:‘normative’ misleading term R(A) 2/74, 15.1.2 iireasons for refusal to renew R(A) 2/89, 15.1.2 ixreasons why erroneous; guidance as to R(A) 1/72,

R(A) 3/86, 15.1.2 i, vi; R(A) 5/81,15.1.4 ii, R(A) 1/73, 17.4.1 iii

renewal claim, medical evidence from last favourableclaim in disallowances R(A) 1/89,15.1.2 viii

test for night attention applied narrowly R(A) 3/78,R(A) 3/86, 15.1.2 iii, vi

decision not erroneousattention to child by parents before retiring was by

day R(A) 1/78, 15.2.3 ivfrequency of attention/supervision insufficient to

entitle R(A) 4/78, 15.1.1 ii; R(A) 3/74,15.2.1 ii

‘natural justice’, ‘no reasonable person’ and ultravires submissions rejected R(A) 4/78,15.1.1 ii

grounds for appeal R(A) 4/78, 15.1.1 ii; R(A) 1/73,17.4.1 iii

export of benefit to another Member State R(A) 5/92,19.5.1 iv


Attendance allowance (contd)in respect of adult

entitledafter entry into hospital R(A) 4/83, 15.3.1 videspite contributions to maintenance in section 12

accommodation, 1968 Act R(A) 1/74,15.3.1 i

earlier than claim date, but not payable R(A) 1/86,15.3.1 vii

Irish widow of Irish worker (EEC Regs.)R(A) 2/78, 15.3.1 iii

not entitledattention/supervision insufficient R(A) 4/78,

15.1.1 ii; R(A) 3/74, 15.2.1 ii;R(A) 1/02, 15.3.1 x

despite payment of full cost of accommodation R(A)2/79, 15.3.1 iv

local authority liable to bear cost of accommodationR(A) 3/83, 15.3.1 v; R(A) 2/96,15.3.1 viii; R(A) 3/96, 15.3.1 ix

not in GB and not assisted by EEC Regs.R(A) 4/75, 15.3.1 ii; R(A) 2/94 19.5.1v

in respect of childnot entitled

after entry into hospital R(A) 1/79, 17.7.3 iiin foster care under s. 12. 1968 Act R(A) 2/73,

15.3.2 iin grandparents’ care under ss 1 and 13 of 1948 Act

R(A) 3/73, 15.3.2 iinot in household and not contributing R(A) 1/76,

15.3.2 iiileave to appeal to Commissioner on point of law

leave refused R(A) 5/83, 15.1.1 iiiapplication for review of Commissioner’s decision

R(A) 5/83, 17.5.1 vimeaning of

attention R(A) 2/74, R(A) 3/74, R(A) 1/80, R(A) 2/80,R(A) 1/83, R(A) 3/86, 15.2.1 i-vii;R(A) 2/98, 15.2.1 ix; R(DLA) 2/02,15.2.1 x; R(DLA) 3/02, 15.2.1 xii;R(DLA) 10/02, 15.2.1 xiii, 15.2.2 ix,15.2.7ii; R(DLA) 5/05, 15.2.1 xvi;R(A) 1/06, 15.2.1 xvii

bodily functions R(DLA) 3/03, 15.2.1 xvdialysis R(A) 2/74, 15.2.1 iinvolves active personal service R(A) 1/83, 15.2.1 vi;

R(DLA) 1/02, 15.2.1 x; R(A) 1/03,15.2.1 xiv

period throughout which R(DLA) 5/05, 15.2.11 iipersonal attention R(A) 4/94, 15.2.10 ipreparation and cooking of food R(A) 1/91, 15.2.1 viiipreparation of food/drink R(A) 3/74, R(A) 1/80,

R(A) 2/80, 15.2.1 ii, iv, vqualified by frequent, prolonged or repeated

R(A) 3/74, 15.2.1 iiwashing of clothes and bedclothes R(P) 1/91, 15.2.1 viii

attention given after completion of the bodily functionR(DLA) 2/00, 15.2.9 i

bodily functions R(A) 3/78, 15.1.2 iii; CA/89/82,15.2.6 i; R(DLA) 1/07, 15.2.6 ii

continual supervision R(A) 5/90, 15.2.5 vii; R(A) 6/89,15.2.5 vi

intermittent disability - avoiding substantial danger tohimself or others - danger not tooremote R(A) 1/83, R(A) 1/88, 15.2.2 iv;R(A) 2/89, 15.2.2 v; R(A) 3/90, 15.2.2 vii

link with attention required R(A) 1/73, 15.2.2 ipropensity to fall R(A) 1/96, 15.2.2 viiirequired not ‘provided’ R(A) 1/73, R(A) 1/75,

15.2.2 i, ii

Att-BroSupplement 72 [8/2010]

Attendance allowance (contd)so severely disabled physically or mentally

R(A) 2/92, 15.2.7 isubstantial danger R(A) 3/92, 15.2.5 ix;

R(A) 2/91, 15.2.5 viii;R(A) 3/90, 15.2.5 x; R(A) 5/90,15.2.5 vii; R(A) 6/89, 15.2.5 vi

sufficient to reduce the amount of dangerR(A) 4/92, 15.2.2 vi

‘day’ and ‘night’Board to consider flexibly R(A) 3/74, 15.2.3 ii‘during the night’ may mean ‘at night’

R(A) 2/74, 5.2.3 i‘night’ is ‘coming of night according to

domestic routine’ R(A) 4/74,R(A) 1/78, 15.2.3 iii, ivR(A) 1/04, 15.2.3 v

mental disability or conduct behavioural in originR(A) 1/98, 15.2.8 i; R(DLA) 7/03,15.2.11 i

‘person’, corporate body not included under thelegislation R(A) 3/75, 15.2.4 i

phenylketonuria and relevant dietary controlR(A) 1/87, 15.1.2 vii

substantial danger R(A) 1/73, R(A)1/81,R(A) 5/81, R(A) 1/83, CSA 8/81,15.2.5 i-v

presence conditions R(A) 1/94, 15.3.3 i; R(A) 1/99,15.3.3 ii

Attendance allowance board, or delegateacts judicially, conforming to rule of natural justice

R(A) 1/81, 15.1.4 i; R(A) 2/91,15.2.5 viii

decision on satisfaction of medical conditions final andbinding on fast and medical opinionR(A) 1/73; R(A) 4/78, 15.1.1 i, ii

facts at date of review application, not date of decisionR(A) 1/94, 19.9.2 iv

appeal against only on ground erroneous in point oflaw R(A) 4/78, 15.1.1 ii

Authoritiesattendance allowance see Attendance allowance boardmedical see Medical appeal tribunals, Medical boardsstatutory see Adjudication, AO, Commissioner,SSATs

Availability for employmentsupplementary benefit

EEC national after expiry of limited leave to remain inUK R(SB) 2/85, 19.3.2 v, 30.1.1 vi

Balance of probabilities R(I) 12/62, R(I) 2/73, 14.1.6 i, iv;CI 401/50, 17.9.1 i; R(S) 4/56, 7.9.5 iv

Bankruptcy R(H) 9/09, 17.8.5Beat elbow R(I) 60/51, 9.5.5 iBehaviour

offensive (misconduct) R(U) 12/56, 1.4.5 i; R(U) 4/78,17.10.7 ii

rules (sickness benefit) R(S) 3/57, 2.5.4 i; R(S) 6/55;R(S) 7/83, 2.5.5 i, ii

Benefit record, extraordinary R(S) 1/67, 2.2.4 i; R(I) 13/55;R(I) 8/66, 17.9.5 iii, v

Benzene derivative etc CI 195/50, 9.5.2 iBereavement benefit

spouse’s category A pension R(G) 1/06, 4.4.1 iBetter ear R(I) 3/77, 14.2.4 ivBirth see under Evidence, of age

date of not for determination by appeal tribunalR(S) 15/52, 17.3.2 i

Blameworthiness (misconduct) R(U) 8/57, 1.4.1 ivBlindness R(S) 3/57, 2.5.4 i

Broadmoor patients R(S) 11/52, 2.7.2 iByssinosis R(I) 17/56, R(I) 26/58, 9.1.5 i, ii; R(I) 12/81, 11.1.5 ixCancer R(I) 6/85, 9.1.1 iv; R(I) 5/57, 9.5.7 i; R(I) 26/57,

12.1.2i; R(I) 9/67, 12.1.3 i;R(I) 100/53, R(I) 55/54, R(I) 6/60,12.2.2 i-iii; R(I) 26/56, 12.2.6 vi;R(I) 6/74, R(I) 10/75, 12.3.2 iv, vi

Capitalassets

loan subject to repayment, R(IS) 8/92, 29.10.2 ibeneficial ownership R(IS) 1/90, 29.10.2 i

jointly heldbeneficially entitled in possession R(IS) 2/93, 29.10.9 i

presumption of advancementbetween husband and wife R(IS) 2/93, 29.10.2 ii

property purchased in France [2010] AACR 9, 23.10.2tenants in common R(IS) 4/03, 29.10.9 v

capital of children is treated as claimant’s capital R(IS) 10/08,29.10.2 x

consent order on divorceright to receive sum under R(IS) 4/96, 29.10.5 vii

deprivation ofby a person before they become the claimant’s partner

R(IS) 7/07, 29.10.7 xieffect of a deprivation under Supp B on IS R(IS)14/93,

29.10.7 iiisignificant operative purpose R(H) 1/06, 32.8.1 i

diminishing notional capital R(IS) 1/91, 29.10.8 idimishment of notional capital

making a further claim for benefit R(IS) 9/92,29.10.8 ii

when it is not necessary to diminish notional capitalR(IS) 9/92, 29.10.8 ii

when legislation supersedes a Commissioner’sdecision R(IS) 9/92, 29.10.8 ii

disregarded capitaldisregard for arrears of income-related benefit - does it

apply to refund to claimant of wronglyimposed care charges R(IS) 5/08,29.10.3 xiii

dwelling occupied as the home R(JSA) 9/03, 23.13.6 iinterest in matrimonial home occupied by former partner

R(IS) 5/05, 29.10.3 xi; R(IS) 5/05,29.10.3 xi

investment bond- whether “policy of life insurance” -disregard of capital R(IS)7/98,29.10.3 vii

meaning of “personal possession” R(H) 7/08, 32.8.2 imeaning of “premises” in para. 4 of Sch. 10 R(IS) 3/96,

29.10.3 iiiperson appealing against incapacity for work decision

R(IS) 5/05, 29.2.1 iiproceeds of sale of home; statutory tenancy

R(IS) 6/95, 29.10.3 itrust fund derived from compensation for personal

injury R(IS) 3/03, 29.10.3 xeffect of repayment of debts R(SB) 12/91, 30.2.1 xixevidence of debts R(SB) 12/91, 30.2.1 xixknowledge of capital limit R(SB) 12/91, 30.2.1 xixmetamorphosis of income into capital R(IS) 3/93, 29.10.2 iii;

R(PC) 3/08, 28.8.1 imethod of calculation of capital in the UK R(IS) 21/93,

29.20.5 iiinotional

acquisition of personal possession R(IS) 8/04, 29.10.7 xanalogous to a partner in the business of a company

R(IS) 8/92, 29.10.7 iianalogous to a sole trader or partner

calculation of capital R(IS) 13/93, 29.10.7 ivdisregard R(IS) 13/93, 29.10.7 iv

Bys-Cer

Capital (contd)can deprivation by a person before they become theclaimant’s partner be treated as the claimant’s notionalcapital R(IS) 7/07, 29.10.7 xi

investment bond whether policy of life insurance and investment

constitutes deprivation R(IS) 7/98,29.10.7 vii

rights under the Matrimonial Causes Act 1973R(IS) 1/03, 29.10.7 ix

savings made by foster carer from fostering allowanceR(IS) 9/08, 29.10.2 x

secured on meaning ofloan subject to repayment R(IS) 8/92, 29.10.5 iishares subject to repayment R(IS) 8/92, 29.10.5 iishares subject to a pre-emptive rights provision

R(IS) 8/92, 29.10.5 iishares used as security for a loan R(IS) 8/92, 29.10.5 ii

valuation R(IS) 2/90, 29.10.5 iCourt of Protection R(IS) 8/04, 29.10.2. ixof assets after bankruptcy order made [2010] AACR 3,

23.13.5 iiof deemed share under regulation 52 R(IS) 3/96, 29.10.9 iiiwhat constitutes proper valuation evidence R(JSA) 1/02,

23.13.5 iof shares registered in the name of children

R(IS) 13/95, 29.10.5 ivof shares traded on the London Stock exchange

R(IS)18/95, 29.10.5 vCare, meaning of CS 726/49, 7.3.9 iiCase notes, hospital, availability R(I) 6/67, 14.3.2 iii;

R(I) 13/74, 17.3.8 viCasual nature of employment R(U) 16/59, 1.11.9 iCausa causans and causa sine qua non R(I) 12/58,

8.1.2 iv; R(I) 18/62, 14.3.3 iCaution, treatment of statement made under R(I) 10/58,

17.3.8 iiCerebral thrombosis R(I) 53/53, R(I) 21/56, 12.2.3 i, iiCertificate

of birth R(P) 1/75, 5.4.3 i; CP 48/49, 13.4.2 i; R(P) 3/73,17.6.6 ix

of confinement CSG 3/49, CWG 1/49, 3.3.1 i, ii;CG 41/50, 3.3.2 i; R(G) 14/52, 3.3.3 i,

of expected confinement R(G) 1/65, R(G) 1/67, 3.1.3 i, ii;R(G) 14/52, 3.3.3 i; R(G) 8/55, 3.4.1 i;CG 266/49, 3.4.2 i; R(G) 4/56, 3.4.3 i

of incapacity for work CS 221/49, 2.2.6 i; R(S) 1/60,R(S) 9/60, R(I) 6/62, R(S) 1/68,13.1.1 v-vii, ix; R(S) 25/52, 13.4.3 v;CS 99/49, 13.5.3 i

of marriage CG 203/49, 4.1.1 i; R(G) 1/68, 4.1.5 iiiCertiorari, order of

application to quash decision of Commissionergranted R(I) 7/64, R(I) 2/66, R(A) 4/74, R(I) 11/75,

R(I) 16/75, R(S) 3/78, 19.9.2 i;R(S) 1/79, R(U) 1/79, R(I) 7/80, R(A)2/80, R(P) 2/84, CA/89/82, 18.1.2 i-xi

on point of law from MAT CWI 5/61, R(I) 13/65,R(I) 11/66, R(I) 14/68, 18.1.3 i-iv

refused R(S) 20/53 and R(S) 21/53, R(I) 21/58,R(I) 4/65, R(I) 1/66, CI 374/66, R(S)2/69, R(I) 4/66, R(I) 7/69, R(I) 9/74,R(I) 10/74, R(I) 11/74, R(I) 5/75, R(I)4/76, CSA 8/81, 18.1.1 i-xiv

on point of law from MAT R(I) 1/73, 18.1.3 vapplication to quash decision of MAT

granted R(I) 16/66, R(I) 10/68 and R(I) 3/69, 18.2.2 ii, iiirefused 18.2.1 i

application to quash decision of local tribunal R(F) 1/74,18.3.2 i


Child support (contd)contribution to maintenance R(CS) 7/99, 21.8.1 i; R(CS)

5/05, 21.8.1 imore than one absent parent R(CS) 5/00, 21.8.2 i,shared care R(CS) 14/98, 21.8.3 i; R(CS) 11/02, 21.8.3 ii;

R(CS) 4/03, 21.8.3 iii; R(CS) 7/08,21.8.3 iv; R(CS) 1/09, 21.8.3 iv

validity of legislation R(CS) 2/95, 21.11.1 i; R(CS) 3/96,21.11.1 ii

variationsdecision making and appeals R(CS) 5/09, 21.12.5 idividend R(CS) 4/09, 21.12.4 ievidence and admissibility of court documents

R(CS) 5/06, 21.12.1 iijust and equitable R(CS) 5/06, 21.12.2 iprocedure R(CS) 2/06, 21.12.1 i; R(CS) 2/09, 21.12.1 iiiqualifying child [2010] AACR 1 21.12.6 irevision and supersession R(CS) 5/06, 21.12.1 ii

special expensescontact costs R(CS) 1/08, 21.12.3 i

Claims for benefitsabatement of, by virtue of subsequent award R(SB) 38/84,

13.10.1 iadvance claims

habitual residence R(IS) 7/06, 13.8.3 iigeneral

claim received when local office closed R(SB) 5/89,13.1.1 xii

in late claim case, whether he had done all hereasonably ought CG 207/49, CG 1/50,CS 42/50, 13.3.1 ii, vi, vii

date of claim R(SB) 8/89, 13.1.1 xiii; R(G) 2/06,13.1.1 xx

dependant, separate claim required CWS 36/50, 13.1.1 ifailure to claim not bar to entitlement R 2/85 (NCIP),

18.6.2 i; R(SB) 6/86, 30.7.4 iinterchange with claims for other benefits R(A) 3/81,

13.1.5 i, R(A) 1/97, 13.1.5 iiin the alternative R(I) 79/54, 13.1.1 iv; R(S) 3/93, 13.1.1 ivin unapproved form

whether acceptable, for Secretary of State to decideR(U) 9/60, 17.1.1 viii; R(SB) 6/81,R(SB) 42/83, 30.8.1 i, iv

whether constitutes a claim for statutory authorities todecide R(U) 9/60, 17.1.1 viii

made in prescribed manner and time if in accordancewith legislation of Community state ofresidence CS/102/77, R(S) 1/80,19.1.10 i & ii

not to be withdrawn once adjudicated R(U) 2/79,R(U) 7/83, 13.7.1 iii

posted, is claim made R(I) 2/71, 13.1.1 xprovision of National Insurance Number R(H) 7/06,

13.14.1 iscope of claim R(IS) 8/95, 13.1.1 xvtime limits and the European Convention on Human

Rights R(P) 1/06, 19.4.5 iwithdrawn before adjudication R(U) 11/80, 13.7.1 ii

individual benefitsattendance allowance

delay in applying for review R(A) 2/81, 13.4.6 ichild benefit

necessity of claim for each child R(F) 3/96, 6.1.9 i,13.1.1 xvi

disablement benefitno limit for gratuity R(I) 5/82, 10.2.2 ii; R(I) 27/52,

13.1.2 iitime limit for claim R(I) 2/79, 9.4.5 iv; R(I) 16/51,

13.1.3 iifamily income supplement

date of receipt in DHSS office R(FIS) 1/82, R(FIS) 3/82, 31.3.1 i, ii

Chi-Cla

Claims for benefits (contd)graduated retirement pension

time limit for claim as for basic pension R(P) 1/74,13.1.2 iii

non-contributory invalidity pensionclaim not a condition precedent to entitlement

R 2/85, (NCIP), 2.10.2 iisickness benefit

conviction for false representation ignored R(S) 10//9,17.10.3 v

deputy assumed authorised R(S) 3/53, 13.1.1 iiievidence of incapacity may follow R(S) 1/60, 13.1.1 vfirst certificate not followed by valid claim R(S) 2/65,

13.1.1 viiifrom imposter, innocent party exercised ‘due care and

diligence’ R(S) 2/70, 17.7.2 iiholidays, coinciding with R(S) 16/54, R(S) 5/60,

R(S) 1/67, 2.2.5 i-iiitime limits for claiming after

discharge from hospital R(S) 3/56, 13.1.3 iii;R(S) 12/54, 13.3.1 ix

Sunday(s) falling within period CWS 3/48,R(S) 3/56, 13.1.3 i, iii

to be made to Department of Health and SocialSecurity; Home Office not agents R(S) 9/60, 13.1.1 vi

where claim follows one failing contributionconditions R(S) 8/82, 13.1.1 ii

lategood cause

correct test R(I) 3/96, 13.3.1 xixdeliberate election not to claim CS 544/49, 13.3.1 v;

special hardship allowance (increase of dis. ben.)circumstances in which fresh claim is needed R(I) 6/62,

13.1.1 vii; R(I) 28/59 13.4.5 viState Pension Credit

granted refugee status R(PC) 1/08, 19.4.4 viiisupplementary benefit/income support

backdatingcalculating the period of extension R(IS) 3/01, 13.1.3 iv,

R(IS) 16/04, 13.1.3 v; R(IS) 10/06, 13.1.3 vigood cause for R(SB) 39/85, R(SB) 5/86, R(SB) 12/

87, 30.8.1 ix-xi; R(IS) 5/91, 13.3.1 xviiprior to 24.11.80, different tests to apply R(SB) 9/84,

30.8.4 iiresponsibilities of supplementary benefit officer

R(SB) 9/84, 30.8.4 iito a weekend (special circumstances) R(SB) 12/87,

30.8.1 xiclaimant unable to act,

appointee under SS Act not an appointee under SBR(SB) 9/84, 30.8.4 ii; R(IS) 5/91,13.3.1 xvii

failure to claim no bar to entitlement R(SB) 6/86, 30.7.4 igeneral claim for benefit, construction of R(SB) 56/83,

30.8.1 virefugee - whether notification to claimant’s solicitor is

notification to claimantwhether breach of regulation 4(5) Claims and Payments

Regulation suspends time limit for claimunemployment benefit

daily benefit, claim on specified day R(U) 6/75, 13.5.4 iidelay or failure to make or prosecute claim, bar to

entitlement R(U) 7/86, 1.1.4 iiiwidow’s pension

continuous need to be shown for the whole periodR(IS) 5/91, 13.3.1 xvii

tribunal award from ‘some future date’ R(G) 2/53, 7.5.1 igood cause

belief reasonably held R(SB) 6/83, 30.8.1 ii


Cla

Claims for benefits (contd)delay in claiming by person acting on behalf of claimant

R(P) 2/85; 13.5.2 iii; R(SB) 17/83,R(SB) 12/87, 30.8.1 iii, xi; R(SB) 9/84,30.8.4 ii; R(IS) 5/91, 13.3.1 xvii

distinction between notification and claim discussedCS 537/49, 13.3.1 iv; R(S) 19/52,13.5.3 vi

Eley v. Bedford not apposite R(S) 1/73, 13.3.1 xiifailings of an appointed person, not to be imputed to

claimant R(SB) 9/84, 30.8.4 iimeaning of CS 371/49, CS 554/49, CS 42/50, R(S)

2/63, R(G) 2/74, R(G) 1/75, 13.3.1 iii, v, vii,xi, xiii, xiv; R(P) 2/85, 13.5.2 iii;R(SB) 6/83, 30.8.1 ii

onus is on claimant to make reasonable enquiries as torights R(S) 8/81, 13.3.1 xvi; R(G) 3/53,13.3.2 vi

onus not on doctor to advise R(S) 5/56, 13.3.1 x‘reasonably practicable’, meaning of R(SB) 6/83,

R(SB) 5/86, 30.8.1 ii, xshown for

no part of delay period R(U) 35/56, 13.1.4 iiionly part of delay period R(S) 2/63, 13.1.4 iv;

R(S) 2/63, 13.3.1 xiwhole period R(S) 2/63, 13.1.4 iv; CS 34/49, 13.3.1 i;

R(SB) 12/87, 30.8.1 xi; R(IS) 5/91,13.3.1 xvii

tolerance for persons abroad R(G) 3/53, 13.3.2 vi;R(P) 5/58, 13.4.2 iii

to obtain interpretation and advice, illiteracy, ignoranceor language difficulty not enoughR(G) 1/75, 13.3.1 xiv

where claiming delegated to verify claim madeCG 207/49, 13.3.1 ii

good cause accepteddeath grant

consideration CG 1/50, 13.3.1 vineglect by claimant’s solicitors CG 1/50, 13.6.3 ireasonable delegation by beneficiary CG 1/50, 13.3.1iv

disablement benefitno loss of faculty expected CI 273/50, 13.4.5 ipneumoconiosis

confirmation awaited R(I) 40/59, 13.4.5 viinot diagnosed, found at post-mortem R(I) 24/58,

13.4.5 vnot suspected R(I) 6/54, 13.3.3 i

revival of claim previously withdrawn R(I) 69 52,13.4.5 ii

unaware disablement due to accident R(I) 51/54,13.3.3 ii

increase of benefit for adult dependantreasonable ignorance and failure to enquire R(P) 1/79,

R(S) 3/79, 13.3.2 x, xiwithin 3 weeks of claimant’s discharge from hospital

R(S) 12/54, 13.3.1 ixinjury benefit

cause of illness not apparent R(I) 43/55, 13.4.5 ivemployers said they would claim R(I) 28/54, 13.4.5 iiimarried woman misled by leaflet R(I) 25/61, 13.6.1 ivreliance on advice received CSI 10/50, 13.6.3 ii

maternity benefitinterpretation of leaflet R(G) 4/68, 13.6.1 vilanguage difficulties R(G) 1/75, 13.4.1 iii

retirement pensionentitlement subject to claim 13.1.1 xviii, xixdid not receive notice of entitlement R(P) 10/59, 13.4.2 ivfor reasonable period after coming into force of new

regulations R(P) 3/59, 13.5.2 iireasonable assumption as to age CP 48/49, CP 1/50,

13.4.2 i, ii

Claims for benefits (contd)transsexuals, entitlement considerations R(P) 1/80,

R(P) 2/80, 5.4.8 i, ii; R(P) 1/0719.1.2 xxvii

widow abroad ignorance of rights R(P) 5/58, 13.4.2 iiisickness benefit

belief employer claiming CS 80/49, 13.4.3 i;CS 99/49, 13.5.3 i

belief full wages payable and no overlap with benefitallowed R(S) 2/63, 13.3.1 xi

belief no residual title to benefit R(S) 10/59, 13.4.3 ixclaim mislaid on employer’s premises R(S) 25/52,

13.4.3 vclaim on behalf of former mental patient R(S) 3/53,

13.4.3 vicontact with infectious disease R(S) 18/52, 13.3.2 vdoctors’ omission to issue certificate R(S) 36/52,

13.6.2 ivdoctors’ opinions at variance R(S) 29/52, 13.6.2 iiiemployer’s omission to send on certificates fromforeign claimant CS 100/49, 13.4.3 iifailure to notify incapacity CS 537/49, 13.5.3 iiiillness CS 42/50, R(S) 21/54, R(S) 6/60

13.4.3 iii, viii, ximisunderstanding

of effect of election not to contribute R(S) 11/59,3.6.1 i

of information received R(S) 14/54, 13.4.3 viiof sick pay arrangements R(S) 2/60, 13.4.3 x

omissions not pointed out by officials R(S) 3/63,13.3.2ix

parents of claimant at fault R(S) 4/52, 13.4.3 ivpersons entering hospital CS 42/50, 13.3.1 viipersons leaving hospital R(S) 12/54, 13.3.1 ixphobia of medicine R(S) 7/61, 13.4.3 xiireliance on advice received

from doctor CS 286/49, 13.6.2 ifrom solicitor and insurance collector, no overlap

with damages CS 50/50, 13.6.3 ivspecial hardship allowance (increase of dis. ben.)

after extension of disablement assessment on appealR(I) 28/59, 13.4.5 vi

circumstances in which fresh claim is neededR(I) 6/62, 13.1.1.vii; R(I) 28/59, 13.4.5 vi

claims after the repeal of severe hardship allowance(preserved rights) R(I) 3/99, 13.1.1 xvii

(part period) relied on official advice R(I) 10/74,13.4.5 viii see also good cause notaccepted

supplementary benefitsevere mental handicap R(SB) 56/83, 30.8.1 viunable to act through mental disablement R(SB) 9/84,

30.8.4 ii; R(IS) 5/91, 13.3.1 xviiunemployment benefit

day spent seeking work R(U) 20/56, 13.4.4 ivdisallowance reversed on appeal R(U) 6/52, 13.4.4 iino unreasonable delay R(U) 9/74, 13.4.4 vobservance of Jewish feast-days R(U) 33/58, 13.3.4 iiofficial advice given insufficient R(U) 3 60,

R(U) 3/70, 13.6.1 ii, viireliance on union to claim CU 78/49, 13.4.4 iwages expected in lieu of notice R(U) 1/54, 13.4.4 iii

widow’s pensionadvantage not taken of legislation change R(G) 2/74,

13.4.1 iipresumption of husband’s death CG 153/149, 13.4.1 i

good cause did not ariseinjury benefit

claim posted is claim made R(I) 2/71, 13.1.1 xsickness benefit

deceased’s claim, prior to appointment ofrepresentative CS 453/50, 13.3.1 viii


Claims for benefits (contd)good cause not accepted

child benefitdespite alleged misleading advice R(F) 3/61, 13.6.1 iii

death grantignorance of entitlement CG 125/50, 13.3.2 iiisolicitor not instructed to claim R(G) 9/52, 13.6.3 v

disablement benefitcause of disease suspected by claimant R(I) 82/53,

13.5.5 iideafness, computation of 12 months limit R(I) 2/79,

9.4.5 ivfear examination would reveal disease R(I) 25/56,

13.5.5 iiiignorance, and disability thought temporary

R(I) 16/53, 13.5.5 ino automatic good cause for waiting until disablement

assessed R(I) 3/98, 13.5.5 ivreluctance to dispute prognosis R(I) 16/53, 13.6.2 v

increase of RP for adult dependantfailure to enquire about entitlement on remarrying

R(P ) 5/61, 13.3.2 viiimaternity benefit

claim form mislaid CG 15/48, 13.5.1 ifailure to make proper enquiries CWG 2/49, 13.3.2 iiunreasonably misunderstood leaflet R(G) 15/56,

13.5.1 iiiwaited too long after leaving hospital CG 207/49,

13.5.1 iiretirement pension see also increase of, above

delegation of claim R(P) 2/85, 13.5.2 iiielection not to claim (though good cause for delay in

notice of retirement) R(P) 3/59, 13.5.2 iifailure to enquire about increase R(P) 5/61, 13.3.2 viiifear of losing job CP 127/50, 13.5.2 i

sickness benefitbelief wages due and no claim altruistic

CS 54/49, 3.3.1 vdoctor’s advice misinterpreted R(S) 5/56, 13.6.2 vifailure

to claim after notice CS 537/49, 13.3.1 ivto heed guidance from employer CS 156/49, 13.3.3 iito heed official advice CS 414/50, 13.5.3 vto make sure sent on by employer R(S) 5/79,

13.3.1 xvignorance

of rights and duties CS 35/48, 13.3.2 iof self-employed rights R(S) 1/73, 13.3.1 xiiof sick-pay arrangements R(S) 19/52, 13.5.3 vi

prioress for convent member R(S) 2/51, 13.3.4 i;R(IS) 5/91, 13.3.1 xvii

short illness expected CS 537/49, CS 596/49,13.5.3 ii, iv

three claims submitted together R(S) 1/68, 13.1.1 ixspecial hardship allowance (increase of dis. ben.)

(part period) failure to seek advice R(I) 10/74, 13.4.5 viiisupplementary benefit/income support

additional requirement request not a fresh claimR(SB) 48/83, 30.8.1 v

backdating, good cause for R(IS) 5/91, 13.3.1 xviichange of claimant not a claim R(SB) 1/93, 30.7.4 iii

unemployment benefitfailure to claim on specified day R(U) 6/75, 13.5.4 iiignorance and doubt about claiming R(U) 5/52,

13.3.2 iv; R(I) 16/53, 13.5.5 iirregular reduction by tribunal of disqualification

period R(U) 35/36, 13.1.4 iii

Cla-Com

Claims for benefits (contd)prospective

Secretary of State’s powers R(S) 5/80 (T),R(S) 14/81, 13.8.1 i, ii

effect of decisions on R(S) 1/83 (T), R(DLA) 4/05,13.8.3 i

statute-barreddeath grant

neglect by claimant’s solicitors CG 76/50, 13.2.3 iiinjury benefit

despite good cause R(I) 9/68, 13.2.3 viiretirement pension

despite good cause CP 30/50, 13.2.3 isix years after entitlement began R(P) 2/55, 13.2.3 iv

sickness benefitemployer’s omission, good cause R(S) 9/60, 13.2.3 vmeaning of ‘month’ and ‘6 months’ R(S) 5/63,

13.2.3 viperson abroad, claim by solicitor CS 166/50, 13.2.3 iiitwelve month rule, effect of R(S) 11/83, 13.1.1 xi

withdrawal of R(U) 2/79, R(U) 11/80, R(U) 7/83,13.7.1 i-iii; R(H) 2/06, 13.7.2 i

persons unable to actappointment to exercise rights R(A) 2/92, 13.9.1 ii

posthumous claimsvalidity of posthumous claim R(IS) 3/04, 13.13.1 i

written communication sufficient to constitute a claim forbenefit [2010] AACR 4 (LBHillingdon v MJ), 32.4.6 iv

Commissionerappellant out of country R(SB) 16/84, R(S) 5/85,

17.4.1 xix, xxiby adjudication officer against apparently erroneous

tribunal decision R(U) 6/88, 17.4.2 xiiinot direct from decision of adjudication officer

R(I) 6/73, 17.5.1 iiinot from refusal by tribunal chairman to extend time

for appeal R(I) 6/73, 17.5.1 iiipending, decision not normally to be reviewed

R(SB) 1/82, R(SB) 41/83,17.4.1 viii, xvi

appeal, withdrawal ofonly with good reason and by leave R(I) 41/61,

R(I) 3/64, 17.4.3 i, iirefused and appeal allowed to rectify tribunal’s

irregularity R(I) 3/64, 14.1.5 iidecisions by Commissioners

authority of Introduction, R(I) 12/75, 17.3.12 iiiearlier followed unless distinguishable R(U) 23/59,

R(G) 3/62, R(I) 12/75, 17.3.12 i-iiiconflicting decisions R(IS) 13/01, 17.4.1 xxxiisingle Commissioner to follow tribunal of, on points

of legal principleR(U) 4/88, 17.4.1 xxii

effect on decision appealed from R(I) 9/63, 14.1.2 ivon evidence, criminal conviction ignored R(S) 10/79,

17.10.3 vprecedent R(IS) 9/08, 17.4.1 xxxvprinting and publication Foreword, R(U) 23/59,

R(G) 3/62, 17.3.12 i, ii, Appendix 1refusal of grant of leave to appeal

courts not to invite reasons be given CSA 8/81,17.4.2 xii

not appealable R(A) 5/83, R(SB) 12/83, 17.5.1 vi, viiout of time R(S) 8/85, 17.10.1 v

extension refused not a decision and notappealable R(S) 8/85, 18.6.1 ii


Commissioner (contd)hearings

full re-hearing, claimant allowed meet fresh pointsR(F) 1/72, 17.4.2 v

oral right to R(S) 6/83, 17.4.1 xii; R(I) 2/82, R(I) 3/85,17.4.2 xvi, xi; R(I) 4/75, 17.4.5 i

public unless confidential or security R(I) 4/75, 17.4.5 ievidence not in private after oral hearing CW1 5/61,

18.1.3 ioral, in private, refused as claimant’s personal

circumstances irrelevant R(I) 4/75, 17.4.5 iunsubstantiated allegations by claimant’s representative

R(I) 13/74, 17.9.4 iiwitnesses, no power to require attendance R(F) 1/83,

17.4.1 xiset aside only by

certiorari, order of R(U) 14/64, 17.10.1 iideclaration of entitlement refused by High Court,‘no

power to quash’ Introduction R(U) 14/64, 17.10.1 ii

inappropriate from decision of AT direct R(F) 1/74,18.3.2 i

position in relation to Community law R(S) 4/74,19.1.1 i

Commissioner himselffailure to consider oral hearing request R(S) 6/83,

17.4.1 xiino power to set aside part only of a decision R(SB) 14/

82, 17.3.2 xiinot bound by Secretary of State administrative

recognition R(FC) 2/90, 17.4.1 xxviion receipt of further information R(A) 2/76, 15.1.3 i;

R(I) 4/75, 17.4.1 iv; CU 248/49,17.4.4 i

on ultra vires decision by AT R(U) 3/63, 17.4.1 ii;R(SB) 23/82, 17.4.1 x

reduction, action for (Scotland) RU 6/78, 18.5.1 ijurisdiction

able to deal with initial AO’s decision R(FC) 1/92,17.4.1 xviii

appeal or claim at death disposed ofby appointing relative R(I) 7/62, R(SB) 25/84, 17.4.2 iv, xby successful application to dismiss R(S) 7/56,

R(SB) 25/84, 17.4.2 iii, xapplication for leave to appeal R(M) 1/87, 17.4.1 xii;

R(IS) 11/99, 17.4.1 xxxiaward of interim payments pending reference to ECJ

R(DLA) 4/99, 17.4.6 ichairman can't revoke grant of leave R(IS) 12/01, 17.4.2 xivdealing with serious irregularities by tribunals R(U) 3/63,

R(SB) 23/83, 17.6.1 ii, xivexecutors R(SB) 1/96, 17.4.1 xxx; 17.8.1 xxxiForfeiture Act, under R(G)1/84, R(G) 2/84, R(G) 1/88

17.4.1 xvii, xviii, xxv; R(G) 1/90, 17.10.11 ix;R(G) 2/90, 17.10.11 x; R(G) 3/90,17.10.12 iii; R(G) 1/91, 17.10.11 xi

grounds for appeal from decision of AA BoardR(A) 1/73, R(A) 4/78, 15.1.1 i, ii

grounds for appeal not given R(SB) 16/84, 17.4.1 xixinquisitorial not adversarial R(S) 6/83, 17.4.1 xii;

R(SB) 2/83, 30.2.2 vliability or entitlement to pay NI contributions lies with

Inland Revenue, not CommissionerR(IB) 5/04, 17.4.2 xv

misconceived appeal, tribunal decision to strike out asR(CS) 5/02, 17.3.18 i

no statutory power to award costs R(FC) 2/90, 17.4.1 xxvinot bound by decisions of courts under Workmen’s

Compensation Acts, but guidance fromCourt of Appeal R(I) 34/57, 17.10.1 i

of courts intended to be excluded R(U) 14/64, 17.10.1 ii

ComCommissioner (contd)

on facts as found by tribunal R(SB) 10/82,R(SB) 23/82, 17.4.1 ix, x

exceptions to general rule R(I) 4/75, R(SB) 36/84,17.4.1 iv, xx

procedural decision made by legally qualified panelmember - is there a right of appeal to aCommissioner R(IS) 6/07, 17.4.1 xxxiv

references to ECJ R(I) 1/75, 19.1.1 iii; R(S) 1/77,19.1.1 vi; R(S) 1/80, 19.1.1 viii

regulations conflicting, interpretation of R(SB) 16/83,17.4.1 xiii

restricted rights of appeal on a point of law R(A) 5/83,17.5.1 vi

right of appealis there a right of appeal from a procedural decision

made by a legally qualified panelmember R(IS) 6/09, 17.4.2 xvi

right of appeal does not lie fromAO to Commissioner in support of tribunal decision

R(I) 68/53, 17.4.2 iiCommissioner’s dismissal of application for more

time to appeal R(U) 21/64, 17.3.2 ivdecision of AO direct to Commissioner R(I) 6/73,

17.5.1 iiidecision of Supp. Ben. officer direct R(SB) 24/82,

17.5.1 vruling by MAT R(I) 6/81, 17.5.1 ivsupplementary benefit

only under s. 15A of the Supp. Ben. Act 1976R(SB) 24/82, 17.5.1 v

tribunal chairman’s refusal to extend time for appealR(I) 6/73, R(SB) 24/82, 17.5.1 iii, v

single Commissioner to follow tribunal of on points oflegal principle R(U) 4/88, 17.4.1 xxiii

statutory, but includes all matters before SSATsR(SB) 29/83, 17.4.1 xv

tribunal’s refusal to set aside R(SB) 23/83, 17.4.1 xivvalidity of decision of a prior tribunal R(I) 7/94,

17.4.1 xxixvalidity of regulations R(SB) 10/88, 17.4.1 xxiv

procedureapplication for leave to appeal, oral hearing R(I) 2/82,

17.4.2 viin granting leave to appeal from decision of MAT may

go on to determine question subject toconsent R(I) 5/65, 14.1.5 iii

refusal to grant of leave to appealsetting aside of R(SB) 3/89, 17.4.4 ix

CommissionersTribunal of, observance of Practice Statement of House of

Lords R(U) 4/88, 17.4.1 xxiiiCommon law R(U) 7/73, 1.10.5 i; R(U) 5/74, 1.10.8 i;

R(I) 37/60, 7.4.2 iii; CSI 10/50CS 50/50, 13.6.3 ii, iv; R(I) 28/61,14.1.1 ii; R(I) 11/59, 17.6.4 ii

on computing age, differences between English andScottish R(G) 3/65, 12.4.1 ii

Community law see European Community lawCompany

Limited R(SB) 9/89, 30.1.1 xixCompensation

damages R(I) 37/60, 7.4.2 iii; CSI 10/50, CS 50/50,13.6.3 ii, iv; R(I) 28/61, 14.1.1 ii;R(I) 11/59, 17.6.4 ii

Workmen’s CI 4/48, 7.4.1 i; R(I) 37/60, 7.4.2 iii;R(I) 18/60, 11.1.1 xi; R(I) 34/57,17.10.1 i; R(I)10/51, 17.10.2 ii;CI/374/66, 18.1.1 v

Competent authority (Community law) CS 1/75, 19.1.1 iiCompetent Institution (Community law) R(U) 4/84,

19.1.1 xii; CS 1/75, 19.1.1 ii


Competent state (Community law) R(U) 4/84, 19.1.1 xiiConcessionary coal

cash in lieu of R(SB) 2/86, 30.2.3 xxvalue of included in earnings R(I) 3/58, 11.4.6 iii

Confinementabroad

disqualified for maternity benefitBelgian woman, normally resident in GB, visiting

grandmother R(G) 5/53, 3.4.4 iiGerman wife of British subject resident in Germany

CG 32/49, 3.4.4 inot disqualified

disabled wife went to mother in Ireland after start ofincapacity R(G) 3/54, 19.7.4 ii

certificate of confinementnot available after miscarriage R(G) 14/52, 3.3.3 inot given in statutory form CSG 3/49, CWG 1/49,

3.3.1 i, iinot signed by doctor or midwife CG 41/50, 3.3.2 i

certificate of expected confinementdate of divorce in relation to R(G) 1/65, R(G) 1/67,

3.1.3 i, iigiven after miscarriage R(G) 14/52, 3.3.3 imaternity allowance period affected

by confinement earlier than expected CG 266/49, 3.4.2 iby error of date on certificate R(G) 8/55, 3.4.1 ipregnancy terminated otherwise than by confinement

R(G) 4/56, 3.4.3 idate of in relation to date of marriage R(G) 1/52,

R(G) 2/68, 3.1.2 i, iimeaning of CSG 3/49, CWG 1/49, 3.3.1 i, ii

Consent (of appellant) to change in tribunal’s constitutionR(I) 31/57, 17.3.1 iv;R(I) 3/51, 17.3.10 i

Consent order on divorcetreatment of right to receive sum under R(IS) 4/96, 29.10.5 iv

Consolidating regulationssubstantive change of law ultra vires R(SB) 26/84, 30.3.4 ix

Constructionstatutes and statutory instruments R(SB) 1/83, 30.5.2 i;

R(SB) 28.84, 30.7.3 irelevance of dictionary aid, and Department’s explanatory

notes R(SB) 28/84, 30.7.3 iContract

for services 18.4.1 iii, 18.4.2 iv, v, 18.4.3 iiof service 18.4.1 iii, 18.4.2 i-v, 18.4.3 ii, 18.4.4 ii, iii

Contributioncontribution issues post DMA decisions for the Inland

Revenue R(JSA) 8/02, 17.12.1 i;R(IB) 1/09, 17.12.1 iii

contribution issues for Secretary of State R(P) 1/08,17.12.2 i; R(IB) 1/09, 17.12.2 ii

questions see under S of S for Social Servicesto maintenance see Children, benefits for; Death,

benefits on; Increase for adultdependants;RP; WB

Correction and setting-aside of decisions see under ATs& SSATs

Cottages let, rents not business profit R(U) 3/77, 1.12.1 xiCouncil Tax Benefit

meaning of “resident” for council tax benefit purposesR(H) 3/08, 32.4.7 i

occupying a dwelling as the homewhether regulation linking entitlement to the concept of

occupying a dwelling as the home wasauthorised by primary legislationR(H) 4/05 32.4.2 i

Court of Appealapplication for declaration as to entitlement see underapplication for order of certiorri Certiorari

order of

Com-Cou

}


Court of Appeal (contd) community programme, employed to full extent normal

R(U) 9/88, 18.6.2 xidistinction between physical and functional disablement

R(M) 1/88, 18.6.2 ix“finality of decisions, date of onset of prescribed disease”guidance given by in decisions under the Workmen’s

Compensation Acts R(I) 34/57, 17.10.1 i“in forestry” meaning of R(I) 2/01, 18.6.2 xxivjudicial review see under Certiorari, order ofleave to appeal to

Court declines to hear appeal on isues not canvassedbefore the CommissionerR(DLA) 1/04, 18.6.l iii

criterion for granting leave R(DLA) 6/01, 18.6.2 xxv;R(IB) 6/05, 18.6.2 xxix

meaning of “tool” for occupational deafness R(I) 5/99,18.6.2 xxiii

refused by Commissionerno general principle that reasons be given CSA 8/81,

18.1.1 xivnot appealable R(SB) 12/83, 18.6.1 i

time limits for, to be decided by CommissionerR(S) 8/85, 18.6.1 ii

Northern Irelandeffect of decision in GB R(SB) 1/90, 17.10.1 vi

oral hearing refused by Commissioner R(I) 3/85, 18.6.2 iioverpayment, calculation of resources R(SB) 6/85,

18.6.2 iiipayable, meaning of R(U) 1/88, 18.6.2 xipayments by liable relatives R(SB) 1/88, 18.6.2 xii

REA, number of awards R(I) 2/02, 18.6.2 xxviprescribed disease A11 - whether percussive tool in

bedding industry is a metal-workingtool R(I) 1/06, 18.6.2 xxx

reasons for tribunal decision R(I) 5/94, 18.6.2 xixrelevant past year for contribution conditions R(S) 5/93,

18.6.2 xviiireview

of medical board decision by MAT R(I) 2/88, 18.6.2 xiiispecial diet, need for R(SB) 4/88, 18.6.2 viisupervision (of epileptic), meaning of R(A) 1/88, 18.6.2 visupplementary benefit, actual cost (of attendance)

R(SB) 20/87, 18.6.2 viiiwhether industrial accident (cases distinguished)

R(I) 14/81, 18.6.2 iv, R(I) 1/99,18.6.2 xxi

Court of Session, Scotlanddecisions of High Scottish Courts to be followed

R(U) 8/80, 17.10.12 ireduction of Commissioner’s decision only if ultra vires or

erroneous in law R(U) 6/78, 18.5.1 iCourts

acquittal is not held to establish use of due care anddiligence R(U) 7/75, 17.7.2 v

appellate, practice of R(G) 3/62, 17.3.12 iicriminal conviction in, ignored R(S) 10/79, 17.10.3 vcriminal conviction in, not ignored R(S) 2/80, 17.10.3 videcision of

Court of Appeal (see underCourt of Session (Inner House), these

Scotland paragraphs)European Court of Justice see under European

Community lawHigh Court, Divisional Court, (see underHouse of Lords these paragraphs)

Magistrates’ R(S) 8/79, 2.7.9 i; R(U) 10/54,R(U) 24/55, R(U) 24/64, R(S) 2/70,R(S) 10/79, R(S) 2/80, 17.10.3 i-vi

reasons given for when not obiter R(I) 8/85, 9.4.3 iiijurisdiction of, intended to be largely excluded

Introduction vii, R(U) 14/64, 17.10.1 ii

}

}

Cov-DeaSupplement 72 [8/2010]

Covenant, Deed of R(SB) 25/86, 30.2.3 xxiiiCustomary (or recognised) holidays, meaning of

R(U) 11/53, 1.14.1 iiDamages R(I) 37/60, 7.4.2 iii; CS 50/50, 13.6.3 iv;

R(I) 11/59, 17.6.4 iiDay

individual benefitsattendance allowance

meaning of R(A) 3/74, 15.2.3 iichild benefit

meaning of R(F) 3/85, 6.1.6 iisickness benefit

of incapacity for workmeaning of ‘day’ CSI 49/49, CS 363/49,

R(S) 7/52, R(I) 31/55, 2.1.2 i-iv;R(S) 18/53, 2.3.3 i; R(S) 2/65, 2.4.1 i;R(S) 3/52, 2.4.2 i; R(S) 10/60, 2.4.3 i

of leaving or return to Great Britain R(S) 1/66, 2.6.11 iUB see under Unemployment benefit, days of

unemploymentspecified for claiming R(U) 6/75, 13.5.4 ii

Deathaccidental, inquests into

appeal tribunal chairman also coroner R(I) 42/59, 17.3.1 vrelevance of jury verdicts R(I) 25/60, 17.10.4 i;

R(I) 42/56, 17.10.5 iappeal or claim not terminated by death

appeals R(S) 7/56, R(I) 7/62, R(G) 3/63, R(I) 2/83,12.4.2 ii-v; R(SB) 8/88, 17.3.2 xxi

claim, good cause for delay not needed beforerepresentative appointed CS 453/50,13.3.1 viii

gratuity due had pensioner lived not payable to widowR(I) 23/52, 10.2.3 ii

meaning of ‘at the death’ R(G) 10/52, 6.3.3 ifrom industrial accident or disease, for statutory authorities

R(I) 11/61, 12.2.9 v; R(I) 4/57,12.3.2 iii

pension orders uncashed at, time-barred R(P) 6/61 13.2.1 vipresumption of R(G) 1/62, R(G) 1/80, 4.1.4 i, ii,

CG 153/49, 13.4.1 i; R(G) 4/57, 17.6.3 ivretrospective appointment to act R(SB) 5/90, 17.3.5 xviii

Death, benefits ondeath grant

generalentitled

priority given by S of S to deceased’s friend overhis widow R(G) 6/55, 12.4.2 i

reduced rate, despite age of claimant under commonlaw of Scotland R(G) 3/65, 12.4.1 ii

meaning of ‘personal representative’ R(G) 3/63,12.4.2 iv

not entitledfor still-birth R(G) 3/51, 12.4.1 ihospital almoner not ‘specified person’ able to

claim R(G) 3/63, 12.4.2 ivlate claim

good cause acceptedconsiderations CB 1/50, 13.3.1 vi

neglect by claimant’s solicitors CB 76/50, 13.2.3 ii;CG 1/50, 13.6.3 i

reasonable delegation by beneficiary CG 1/50,13.3.1 vi

good cause not acceptedignorance of entitlement CG 125/50, 13.3.2 iiisolicitor not instructed to claim CG 184/50,

R(G) 9/52, 13.6.3 iii, v

Death, benefits on (contd)industrial death benefit

death fromaneurysm

not ‘industrial’not an accident R(I) 21/57, 12.2.5 iunconnected with earlier accident R(I) 25/58,

R(I) 43/59, 12.2.5 ii, iiicancer

‘industrial’shoulder injury; effect of blow discussed

R(I) 26/57, 12.1.2 inot ‘industrial’

not an accident R(I) 100/53, 12.2.2 iunconnected with earlier accident R(I) 55/54,

R(I) 6 /60, 12.2.2 ii, iiiwhether connection with asbestos exposure

R(I) 6/85, 12.2.2 ivcerebral thrombosis

‘not industrial’unconnected with earlier accident R(I) 53/53,

R(I) 21/56, 12.2.3 i, iicoronary

industrialaccelerated by accident R(I) 14/51, 12.1.1 iiafter fright from crash-stop R(I) 42/53, 12.1.1 iiimonth after accident R(I) 6/51, 12.1.1 isoon after chasing vehicle R(I) 13/54, 12.1.1 ivstrain from heavy work R(I) 42/54, 12.1.1 v

not industrialbelated thrombosis R(I) 43/53, R(I) 49/56,

12.2.1 ii, iiheavy work not to blame R(I) 99/53,

R(I) 34/55, R(I) 29/56, R(I) 25/59,12.2.1 iii, v, vi, viii

not accident but natural causes R(I) 20/51,12.2.2 i; R(I) 19/53, R(I) 10/67,12.2.6 ii, viii; R(I) 38/54, 12.2.7 i

pathology of angina and coronary R(I) 25/59,12.2.1 viii

unconnected with earlier industrial accidentR(I) 62/54, 12.2.1 iv

leukaemianot ‘industrial’

unconnected with earlier accident R(I) 83/53,12.2.4 i

malaria, due to mosquito bites‘industrial’

seafarer, in foreign port CWI 6/49, 19.7.7 iocclusion and angina, differences R(I) 25/59, 12.2.1 viiiprescribed disease

dermatitis‘industrial’

resulting suicide R(I) 2/57, 12.1.5 iiithough only contributory CI 142/49 12.1.4 i

not ‘industrial’suicide CI 256/49, 12.2.8 i

lead poisoningnot industrial

relevant degree not proved R(I) 40/54, 12.2.7 iileptospira infection

‘industrial’labourer at rat-infested place R(I) 20/52, 12 1.4 i

though only contributory R(I) 9/67, 12.1.3 inot industrial

despite disablement from it CWI 52/50,R(I) 19/53, R(I) 39/54, R(I) 6/85,12.2.6, i, ii, iv, xi

Death, benefits on (contd)not confirmed R(I) 79/53, R(I) 9/56, 12.2.6 iii, v;

R(I) 4/57, R(I) 6/74, 12.3.2 iii, ivnot contributory R(I) 1/60, R(I) 10/67, R(I) 5/74,

R(I) 8/75, 12.2.6 vii-x; R(I) 10/75, 12.3.2vi

medical factors R(I) 10/67, 12.2.6 viii;R(I) 10/75, 12.3.2 vi

prevented cancer treatment R(I) 26/56, 12.2.6 vituberculosis

not industrialconnection with not proved R(I) 38/56, 12.2.7 iii

Weil’s diseasenot industrial

unconnected coronary thrombosisR(I) 38/54, 12.2.7 i

suicideindustrial

derangement/melancholia CI 172/50, R(I) 2/57,R(I) 36/60, 12.1.5 i, iii, iv

industrial death benefit (contd)drowning at sea presumed accidental CSI 23/50,

12.1.5 iiprinciple in determining benefit claims

CI 172/50, 12.1.5 inot industrial

no evidence of industrial cause CI 256/49,R(I) 38/51, R(I) 19/52, 12.2.8 i-iii

hypertension, anxiety, kidney failure R(I) 45/60,12.2.9 iv

various other causesindustrial

heart disease, after contact with gas CI 39/49,12.1.6 i

not industrialcontinuous process, not accident R(I) 7/66,

12.2.9 vimedical accident during repair of injury R(I) 11/61,

12.2.9 vnatural causes, not earlier accident R(I) 19/54,

R(I) 19/59, R(I) 45/60, 12.2.9 i, iii, ivstoker, gassed, asleep on duty R(I) 68/54,

12.2.9 iipoints discussed

aetiology of hiatus hernia of diaphragmR(I) 11/61, 12.2.9 v

entitledrelative, incapable of self-support (not entitled as

adoptive mother) CI 266/50, 12.3.2 iiwidow, late husband contributed to maintenance

maintained free in home but receiving extras from himR(I) 10/51, 12.3.1 i

retirement pension R(I) 7/74, 12.3.1 iinot entitled

claimant, death not due, nor positively due topneumoconiosis R(I) 4/57, R(I) 6/74,12.3.2 iii, iv

mother (adoptive) as ‘parent’, but as ‘relative’CI 266/50, 12.3.2 ii

parent, on basis of prospective maintenance by sonCI 38/50, 12.3.2 i

Death grant see under Death, benefits onDeclaration of entitlement R(U) 14/64, 17.10.1 ii; R(S) 3/86,

18.6.2 vDe minimis non curat lex R(F) 1/82, 6.1.6 iDependants see Death, benefits on; Increases of benefitsDeputy, signature of on claim R(S) 3/53, 13.1.1 iii

Dermatitis R(I) 30/51, R(I) 10/53, R(I) 17/53, 9.3.1 i-iii;R(I) 87/53, R(I) 98/53, 9.3.2 i, ii;R(I) 4/69, 11.1.1 xiii; CI 142/49, 12.1.4i; R(I) 2/57, 12.1.5 iii

Detention in legal custody/imprisonmentfirst day or later than first day of incapacity R(S) 7/59,

2.7.7 ilast day of, resumption of retirement pension R(P) 16/52,

5.4.4 iimeaning of

detention in legal custody R(S) 20/53, 2.7.1 iimprisonment R(S) 8/79, 2.7.9 ipenalty R(S) 1/71, 2.7.8 i

not detained/imprisoned and not disqualifiedboy mental defective in industrial school R(S) 3/55,

2.7.6 iin mental hospital as

Health Service patient R(P) 2/57, 5.4.2 iivoluntary patient on probation R(S) 16/53, 2.7.4 i

suspended sentence a ‘penalty’ R(S) 1/71, 2.7.8 i‘temporary absence’, 1 year of 3 year sentence remitted

CS 185/50, 7.1.2 iiwhether detained/imprisoned and disqualified

detained/imprisonedBroadmoor patients R(S) 11/52, 2.7.2 i; R(P) 2/57,

5.4.2 iiin hospital under court order R(S) 20/53, 2.7.1 i;

R(P) 10/54, 5.4.2 imental defectives under order in institutions R(S) 4/55,

R(S) 5/55, 2.7.3 i, iiremanded in custody of NHS mental hospital

R(S) 16/53, 2.7.4 ithough allowed out on daily licence R(S) 23/54, 2.7.5 i

when residing out and in hospital on licence R(S)10/56,2.7.5 ii

while imprisoned for non-maintenance R(S) 8/79, 2.7.9 iDirect interest (trade dispute) R(U) 18/58, R(U) 13/71,

R(U) 8/72, 1.3.7 i, iv, v; R(U) 3/56,R(U)1/60, R(U) 3/62, R(U) 14/64,R(U) 8/80, R(U) 1/84, R(U) 2/85,1.3.8 ii, iii, v-ix

meaning of R(U) 1/84, 1.3.8 viii‘Disability’ and ‘loss of faculty’ distinguished R(I) 7/67, 14.2.4 iiDisability living allowance

arrested development or incomplete physical developmentof the brain R(DLA) 2/96, 15.6.2 i;R(DLA) 3/98, 15.6.6 ii, R(DLA) 5/02,15.6.14 i

certain accommodation:enactments relating to disability R(DLA) 6/04, 15.2.12 isimilar institution to hospital R(DLA) 2/06 15.3.1 xicost of accommodation R(A) 1/07, 15.3.4 i; R(A) 2/07,

15.3.4 iichild undergoing renal dialysis; deeming provision

R(A) 1/93, 15.6.4 ichild terminally ill, care and mobility needs substantially in

excess R(DLA) 1/99, 15.6.2 ichild with diabetes mellitus; definition of bodily function/

attention needs R(DLA) 1/98, 15.6.6 i;R(DLA) 11/02, 15.6.18 i

child - whether late development amounts to mentaldisablement R(DLA) 1/05, 15.2.7 iii

inability to prepare a cooked main meal R(DLA) 2/95,15.6.5 i; R(DLA) 1/97, 15.6.5 ii;R(DLA) 7/03, 15.6.5 iii; R(DLA) 2/05,15.6.5 iv; R(DLA) 1/08, 15.6.5 v

Dea-DisSupplement 72 [8/2010]

Disability living allowance (contd)lower rate mobility component - guidance or supervision

R(DLA) 4/01, 15.6.13 i; R(DLA) 6/03,15.6.13 ii; R(DLA) 3/04, 15.6.13 iii;R(DLA) 6/05, 15.6.13 iv; R(DLA) 2/08,15.6.13 v

residence and presence R(DLA) 2/99, 19.9.1 xi;R(DLA) 5/99, 19.9.1 xii

restriction on leave to remain, transitional protection;R(DLA) 7/01, 19.3.2 ix

severe discomfort to arise from the actual physical act ofwalking R(DLA) 6/99, 15.6.7 i;R(DLA) 4/04, 15.4.1 xvi

severe mental impairment; relevance of IQ test resultsR(DLA) 1/00, 15.6.8 i

severe behavioural problems; whether conditions relating todisruptive behaviour satisfiedR(DLA) 7/02, 15.6.15 i; R(DLA) 9/02,15.6.17 i

significant portion of the day; meaning of dayR(DLA) 8/02, 15.6.16 i

significant portion of the day; attention required after thecompletion of a bodily functionR(DLA) 2/03, 15.6.16 ii; R(A) 1/04,15.2.3 v

so severely disabled physically or mentally meaning ofR(DLA) 3/06, 15.2.7 iv

terminally ill - higher rate mobility component - whetherdeemed entitlement R(DLA) 7/06,15.6.20 i

transient effects of alcohol (attention) R(DLA) 6/06, 15.6.19 itribunal to determine both components, if appropriate

R(DLA) 1/95, 15.6.11 itribunal to give reasons for rejecting renewal claim

R(M) 1/96, 15.6.3 itribunal - whether obliged to consider both components

R(DLA) 2/97, 15.6.12 iDisablement benefit

aggregation of assessmentsdeduction for gratuities already paid R(I) 3/00, 10.2.10 irelevant determination R(I) 1/03, 10.2.10 ii

arrears of, appropriate rate(s) payable R(I) 1/86, 10.2.8 idisablement pension in lieu of gratuity

successive accidentsentitlement to pension in lieu of gratuity after subsequent

accident R(I) 2/84, 10.2.5 iiievidence of incapacity see also Evidence

all considered; medical board’s opinion not acceptedR(I) 58/52, 10.2.1 i

gratuitycalculation of CSI 74/50, R(I) 5/82, 10.2.2 i, iidue if beneficiary had lived but not payable to widow

R(I) 23/52, 10.2.3 iino time limit for claiming R(I) 27/52, 10.2.4 ino title to unemployability supplement R(I) 48/59, 10.3.2 iireduced assessment to satisfy preference for R(I) 6/65,

14.2.2 iiititle to continue till assessment below 1% CI 54/60, 10.2.3 itreatment, on reassessment, of gratuity already paid as paid

on account R(I) 15/66, 10.2.6 iiinot entitled

claim finally determined before withdrawal; effect onclaim for IB R(I) 14/63, 10.2.7 i

pensionentitlement for period before 1.10.96 when claim made

on or after that date R(I) 3/96, 10.2.9 ismoking

industrial accident caused by inhalation R(I) 6/91, 8.1.2 visuccessive accidents

disablement benefit coming into payment with injurybenefit R(I) 13/57, 10.2.5 ii

Dis-EarDisablement benefit (contd)

one benefit payable for one loss of faculty R(I) 22/55,10.2.5 i

Disappointment money R(U) 11/64, 1.13.3 viiidisclosure of instructions to expert

Disclosure of harmful information R(M) 1/79, 14.1.5 vDisc protusion, discussion of R(I) 33/60, 10.1.6 xivDisease

infectious, contact with R(S) 18/52, 13.3.2 vspecific, incapacity from CSI 221/49, R(S) 2/86, 2.2.6 i, ii;

CS 561/50, R(S) 8/53, R(S) 13/54, R(S)6/59, 2.2.7 i-iv

Dishonesty CU 190/50, R(U) 10/53, 1.4.3 i, ii; R(U) 26/56,1.4.8 i

Dismissal, unfair/wrongful R(U) 5/74, R(U) 4/82,R(U) 6/85, 1.10.8 i-iii

Disobedience R(U) 41/53, R(U) 14/56, R(U) 35/58, 1.4.4 i-iiiDisqualification for benefit

behaviour retarding recovery see under Sickness benefit,disqualification

disqualification not breach of Human Rights, R(P) 1/02,19.4.2. See under Retirement pension

doing work other than ... see under Sickness benefit,disqualification

failure to attend medical examination see under Sicknessbenefit, disqualification

late claim see under Claim for benefit, lateneglect of reasonable opportunity suitable employment;

refusal of suitable employment; tradedispute; voluntarily leaving employmentsee under Unemployment benefit,disqualification

Divisional Court see High CourtDivorce

date of, in relation toconfinement R(G) 1/65, R(G) 1/67, 3.1.3 i, iinotice of retirement R(P) 14/56, 5.3.1 vi

decree of nullitygranted after remarriage of widow beneficiary, effect of

R(G) 3/72, R(G) 1/73, R(G) 1/85,4.1.7 i-iii

marriage void, so not terminable by R(G) 3/59, 6.4.2 inot verified R(G) 1/55, 4.1.6 iunder foreign law or custom R(G) 2/71, 3.2.1 ii; R(G) 1/72,

3.2.2 ii; R(G) 2/71, 3.2.5 i; R(G) 1/70,R(P) 1/98, 5.3.4 iii, 4.1.8 ii;R(P) 1/57, 5.3.1 vii; R(P) 2/90, 7.1.5 i

undisclosed R(G) 1/68, 4.1.5 iiiDraft, postal, validity R(S) 7/51, 13.1.2 iDriving, disqualified for R(U) 7/57, 1.4.1 iii; R(U) 24/64,

1.4.8 iiiDrugs, taken to EEC country for self-administration not

treatment R(S) 4/74, 19.1.1 iDupuytren’s contracture CI 125/50, 8.7.1 iiiEarnings

computation of R(U) 3/88, 1.12.3 ix; R(P) 1/87, 5.2.1 vii;R(FIS) 4/85, R(FIS) 1/88, 31.2.1 v, x;R(P) 1/89, 5.2.1 viii; R(G) 1/09, 15.5.7 i

from providing board and lodging R(IB) 3/07, 2.14.3 iiexclusion from, reimbursed expenses R(P) 1/87, 5.2.2 vfamily income supplement

business profits R(FIS) 1/88, 31.2.1 xgross, meaning of R(FIS) 4/85, 31.2.1 v

holiday pay [2010] AACR 17 15.5.7 iiincapacity benefit

councillor's allowance - treatment of tax andNI R(IB) 3/01, 2.14.1 i

jobseekers allowanceearnings - whether engaged in employment; attribution of

R(JSA) 2/03, 23.9.1 imaternity allowance, earnings related supplement

relevant income tax year R(G), 1/78, 3.4.2 ii


Earnings (contd)retirement pension (for increase of see below)

business profitscalculation and estimation; review, repayment

R(P) 1/73, R(P) 3/84, 5.2.1 iii, vi;R(P) 1/89, 5.2.1 viii

ordinarily computed yearly R(P) 8/59, 5.2.1 ishared, husband/wife partnership R(P) 1/76, 5.2.1 v

gainful occupationdeductions from earnings allowable

expenses not reimbursed R(P) 1/87, 5.2.2 vfood and expense of caring for invalid wife

R(P) 2/54, 5.2.2 iPAYE income tax actually deducted R(P) 3/56,

R(P) 3/62, 5.2.3 i, iireasonable cost of travel home for meal R(P) 1/66,

5.2.2 iiideductions from earnings, not allowable

civil service superannuationabatement of R(P) 1/64, 5.2.2 iicontributions to R(P) 2/75, 5.2.1 iv

tax on earnings deducted from other incomeR(P) 2/66, 5.2.3 iii

engaged in, on free-paid basiscity councillor R(P) 2/76, 5.1.6 iicompany director R(P) 9/55, 5.2.4 iiimember of court of city livery company, fees not

eligible for earned income reliefR(P)1/65, 5.2.4 v

retired accountant/advisor; fees eligible for earnedincome relief R(P) 1/69, 5.2.4 vi

meaning ofearnings R(P) 7/61, 5.3.1 viii; R(P) 1/87,

5.2.1 vii; 7.2.2gainful occupation CP 129/50, 5.2.4 i

not engaged inmember of religious order R(P) 7/54, 5.1.7 iiowner of buildings let CP 129/50, 5.2.4 irecipient of pre-retirement wages paid after

R(P) 17/52, 5.4.4 iiiretired accountant/adviser R(P) 4/67, 5.2.4 v

losses offset against gains R(P) 2/60, 5.2.1 iinet remuneration before tax R(P) 2/66, 5.2.3 iii

retirement pension, sickness, invalidity and unemploymentbenefits, increase of

computation of earningsnot immediately ascertainable R(S) 1/82, R(S) 3/83,

7.5.1 i, iiearnings of wife

ceased one day, increase payable next R(P) 2/56, 5.3.1 vcommission, averaging of CP 3/48, 5.3.1 iiideductible, fares and national insurance CP 2/48, 5.3.1 iiduring receipt of

employer’s sick pay R(S) 8/58, R/P 7/61, 7.2.2 vi, viiiholiday pay R(S) 2/55, 7.2.2 iv

help given from home to husband’s professionR(S)17/52, 7.2.2 iii

keeping boarding house, depending on number ofboarders R(S) 3/51, 7.2.2 ii

protracted running of sick husband’s businessCS 509/50, R(S) 11/56, 7.2.2 i, v

self-employed earnings - partnerships R(P) 2/92, 5.2.4 viiitapered earnings rule ceases to apply R(P) 4/93, 5.3.1 xi

to be includedbusiness profits overseas R(P) 1/70, 5.3.1 ixbusiness profits, where wife takes over R(P) 7/5,

5.3.1 ivemployer’s sick pay; whether ex gratia not

decisive R(P) 7/61, 5.3.1 viii

Ear-Eng

Earnings (contd)insurance premiums, rent, cost of food CP 2/48,

5.3.1 iivalue of free accommodation CP 1/48, 5.3.1 i

weeks in that assessment period meaning ofR(P) 3/84, 5.2.1 vi

wife in gainful occupation as husband’s businesspartner R(S) 3/61, 7.2.2 vii

wife not engaged in gainful occupationbrief or limited running of sick husband’s business

CSS 133/39, R(S) 8/56, 7.2.3 i, iisickness benefit

deeming of incapacityearnings entitled to not received, reference period

R(S) 6/86, 2.3.5 iiiunemployment benefit

not entitled, because of earnings in relevant income taxyear (defined) R(U) 4/68, 1.17.1 ii

equivalent standard, meaning of R(I) 42/61, 11.3.5 viii;R(I) 1/72, 11.4.1 ii

seasonal andshare fishermen }see under Unemployment benefit

subsidiary see under Special hardship allowance andUnemployment benefit

suspended R(U) 28/52, 1.1.1 v; R(U) 1/76, 1.1.2 xi;R(U) 3/65, 1.2.2 iii, R(U) 20/57,R(U) 21/57, 1.3.4 i, ii; R(U) 10/71,1.4.2 v; R(U) 16/59, R(U) 4/67,R(U) 11/72, R(U) 2/75, R(U) 10/80,R(U) 14/80, R(U) 4/81, R(U) 6/81,1.11.9 i-viii; R(U) 1/76, 1.13.3 x;CWU 7/48, 1.14.5 i; R(U) 19/59,1.14.9 iii; R(U) 1/62, R(U) 7/63,R(U) 7/68, R(U) 8/68, 1.14.10 i-iv;R(I) 34/54, 7.4.2 ii; R(I) 18/60, 11.1.1 xi

suspension and termination distinguished R(U) 16/59,1.11 9 i

termination of see under Unemployment benefittrade dispute see under Unemployment benefit and

Unemployment benefit,disqualification

voluntarily leaving see under Unemployment benefit,disqualification

Emergencies, accidental injury from see underAccidental injury

Employment‘casual nature’ meaning of R(U) 16/59, 1.11.9 idays of, estimated R(U) 7/72, 1.12.1 xdistant R(U) 14/52, R(U) 31/59, 1.5.5 i, iv; R(U) 41/52,

1.6.3 i; R(U) 20/55, R(U) 34/58,1.6.4 vii, ix; R(U) 14/58, 7.1.2 v;R(I) 24/57, 11.3.8 i

‘employed’, meaning of CI 60/49, 9.1.1 iemployment and wages discussed CU 137/49,

R(U) 21/56, 1.13.1 i, ii; CSU 49/50,R(U) 30/56, 1.13.4 i, ii

engaged in anyfull extent normal see under Unemployment benefitguaranteed weekinterruption of,

period oflength to include all days of incapacity for work

R(S) 1/56, 2.1.3 ilink with workmen’s compensation R(I) 34/57, 17.10.1 i;

CI/374/66, 18.1.1 vEnglish language

meaning of ordinary word not a question of lawR(SB) 1/83, 30.5.2 i


}

Erroneous in point of law see under Attendance allowance,Medical appeal tribunals and Socialsecurity appeal tribunals

Estoppel R(F) 3/61, 13.6.1 iii; R(A) 2/86, 17.7.1 ii;R(SB) 12/84, 17.8.1 vii; R(S) 4/74,R(SB) 8/83, R(SB) 54/83, R(SB) 12/84,17.10.10 ii, iv-vi;R(SB) 7/87, 30.2.2 xxxii

European Community lawAct 1972 R(S) 4/74, 19.1.1 iclaim

made in one EEC country acceptable in anotherR(S) 3/82, 19.5.7 iv

made for Italian invalidity benefit, treated as for Britishbenefits CS/102/77, 19.1.10 i

made in prescribed manner and time if made inaccordance with legislation of EECcountry of residence R(S) 1/80,19.1.10 i

time limits R(IS) 3/06, 19.1.10 iii; R(P) 1/09,19.1.2 xxviii

competent authority, meaning of CS 1/75, 19.1.1 ii; [2010]AACR 14, 19.1.1 xvi

competent institution, meaning of R(U) 4/84, 19.1.1 xiicompetent state, meaning of R(U) 4/84, 19.1.1 xiicompetent institution R(S) 3/92, 19.1.4 ix; R(G) 1/89,

19.1.4 viiicontributions

bearing on satisfaction of contribution conditions for Sof S subject to appeal on point of law, orreference, to High Court; decisionbinding on statutory authorities CS 8/76,19.1.1 iv

conventionsAustria Order, UK invalidity benefit R(S) 1/89, 19.8.6 i

Directive 79/7 on equal treatment R(G) 2/86, 19.1.2 i;R(P) 3/88, R(P) 4/88, 19.1.2 iv & vR(FIS) 2/88, 19.1.2 ii; R(U) 10/88,19.1.2 vi; R(S) 2/89, 19.1.2 vii;R(P) 3/90, 19.1.2ix; R(G) 3/89,19.1.2 viii; R(P) 1/96, 19.1.2 xviii;R(I) 2/00, 19.1.2 xxi; R(JSA) 1/05,19.1.2 xxvi; R(P) 1/07, 19.1.2 xxvii ;R(P) 1/09; R(CS) 1/09, 19.1.2 xxviii;R(P) 2/09, 5.4.8iii

claims R(P) 4/88, 19.1.2 vgeneral principles R(P) 1/95, 19.1.2 xvi; R(S) 2/88,

19.1.2 iii; R(S) 2/89, 19.1.2 vii;R(P) 1/96, 19.1.2 xviii

EEC law, in relation to R(U) 4/84, 19.1.1 xiiICA R(G) 2/86, 19.1.2 i; R(S) 2/89, 19.1.2 viiincome support R(IS) 10/91, 19.1.2 xii; R(IS) 4/99,

19.5.1 viincrease for dependants R(P) 3/88, 19.1.2 iv; R(P) 1/96,

19.1.2 xviiiindirect discrimination R(S) 2/93, 19.1.3ii; R(U) 3/92,

19.1.2 xivhabitual residence test R(IS) 6/96, 19.3.4 ii; R(IS) 2/00,

19.1.2 xxii; R(IS) 6/99, 19.3.3 i;R(IS) 9/99, 19.3.3 ii; R(IS) 3/00,19.3.3 iii; R(IS) 12/98, 19.1.4 xi;R(IS) 6/00, 19.3.3 iv; R(IS) 11/01,19.3.3 v; R(IS) 5/02, 19.3.3 vi;R(IS) 1/06, 19.3.3 vii; R(JSA) 3/06,19.3.3 viii

EC nationals R(IS) 3/97, 19.1.4 xpersons from abroad R(IS) 13/98, 19.3.2 viirecovery for foreign benefit R(IS) 6/02, 19.1.8 iv

right to reside R(IS) 8/07, 19.3.3 ix; R(IS) 3/08, 19.3.3 x;R(IS) 6/08, 19.3.3 xi; R(IS) 8/08,19.3.3 xii; R(IS) 3/09, 19.3.3 xiii; R(IS)4/09, 19.3.3 xiv, R(IS) 5/09, 19.3.3 xvR(H) 7/09, 19.3.3 xvi; [2010] AACR18, xvii

Err-Eur

European Community law (contd)general matters

agreement with third party R(P) 3/96, 19.5.7 xinationality

dependent child resident in another EU state R(IS) 6/05,19.1.3 iv

indirect discrimination R(S) 2/93, 19.1.3 iiinterpretation by statutory authorities subject to appeal to

High Court on point of law R(S) 4/74,19.1.1 i; R(S) 1/78, 19.1.4 iv

reference to ECJat stage decided by national court

by Commissioner R(S) 1/81 and R(S) 2/81, 19.1.1ix & x; R(S) 1/77, 19.1.4 ii

by High Court R(S) 1/80, 19.1.1 viiiby tribunal of Commissioners R(S) 1/99, 19.1.1 xvno reference where

national law already favours claimant R(S) 1/77,19.1.1 vi

remedy under British law R(S) 5/83, 19.1.1 xismall amount involved CU 13/77, 19.1.1 vii

opinions of Advocates General, authority of R(A) 2/78,19.1.3 i

text in other EEC languages R(I) 1/75, 19.1.1 iiijobseekers allowance

asylum seeker ECSMA R(JSA) 7/02, 19.2.3 iequal treatment R(JSA) 1/05, 19.1.2 xxvistudent R(JSA) 3/02, 19.1.2 xxiiiavailabilty, hours R(JSA) 4/02, 19.1.2 xxivreduced earnings allowance R(I) 2/00, 19.1.2 xxi,supplementary benefit R(SB) 8/91, 19.1.2 xii;

R(SB) 6/91, 19.1.2 xiterm time workers R(JSA) 4/03, 19.1.2 xxvunemployment benefit R(U) 10/88, 19.1.2 vi;

R(U) 3/92, 19.1.2 xivjurisdiction

Northern Ireland R(U) 9/61, 19.8.12 i; R(SB) 1/90,19.8.12 iii

Northern Irish v. GB in GB case R(S) 5/85, 19.1.1 xiii,19.8.12 ii

particular benefitsattendance allowance (non-contributory)

entitledwidow of Irish worker treated as British subject

UK born R(A) 2/78, 19.1.3 inot entitled

meaning ofinsured in one or more member states R(S) 3/92,

19.1.4 ixnot ordinarily resident and present in R(A) 2/94,

19.5.1 v; R(A) 4/75, 19.9.1 viresidence and presence conditions to be satisfied once

medical conditions are R(A) 4/75,19.9.1 vi

child benefit/family allowancesemployed person with family in another Member

State R(F) 1/94, 19.5.7 viiione parent employed by UK company and other parent

employed in Ireland payment of asupplement R(F) 1/95, 19.5.7 x

one parent in GB, other in Netherlands R(F) 2/88, 19.1.9 ivCHB payable, husband in receipt of war pension

R(F) 1/98, 19.1.9 vsuspension of benefit R(F) 2/88, 19.1.9 iv

one parent in UK, other in Irish Republic R(F) 1/76,19.5.1 i; R(F) 2/83, 19.1.9 ii;R(F) 1/88, 19.5.7 vi

suspension of benefit R(F) 2/83, 19.1.9 ii;R(F) 1/88, 19.5.7 vi

payable with a pension R(F) 1/94, 19.5.7 viiiprofessional or trade activity R(F) 1/88, 19.5.7 vi



Faculty, loss ofdistinguished from disability R(I) 66/52, R(I) 45/54,

R(I) 8/56, R(I) 7/67, 14.2.4 iipsychological effect of R(I) 32./59, R(I) 12/80, R(I) 5/84,

11.2.3 i-virespective responsibilities of medical and statutory

authorities R(I) 2/65, 11.2.1 iiFamily credit

earningschild minding fees, deduction from earnings not

discriminatory R(FC) 2/98, 19.1.2 xxfree accommodation

community charge not allowable deduction R(FC) 1/94,20.2.1 iii

one amount of £12 assumed as earnings R(FC) 2/90,20.2.1 ii

employed earnersparticular types of employment

sub-postmaster/postmistress, R(FC) 1/93, 20.2.2 iexpenses/pensions contributions, treatment of, R(FC)1 90,

20.2.1 inotional income

payments to, or for, a third party R(FC) 4/98, 20.4.1 iresidence and presence in GB

no limitation on right to reside in GB R(FC) 1/01,19.2.1 i

remunerative work outside the UK R(FC) 2/93, 19.9.2 iiiremunerative work

activities in the course of the work R(FC) 1/92, 20.1.1 iiicalculation of hours R(FC) 2/91, 20.1.1 iiengaged in R(FC) 2/90, 20.1.1 i

self-employed,what constitutes a business, R(FC) 2/92, 20.3.2 i

self-employed earnercalculation of net profitcost of sales, R(FC) 1/96, 20.3.1 iigross receipts of the employment R(FC) 1/97, 20.3.1 iiiother earnings not to be offset against loss in self-

employment, R(FC) 1/93, 20.3.1 iitreatment of expenses and drawings R(FC) 1/91, 20.3.1 i

Family income supplementdetermination of questions

appointment of tribunal of Commissioners R(FIS) 1/82,17.4.1 v

by AO R(FIS) 1/82, 17.2.2 iiduration of award R(FIS) 1/81, R(FIS) 1/82,

R(FIS) 3/83, 31.4.1 i-iii; R(FIS) 2/83,31.1.2 v

engaged and normally engaged in remunerative full-timework

attending training workshop R(FIS) 1/83, 31.1.2 ivremunerative work, meaning of R(FIS) 1/83,

R(FIS) 1/86, 31.1.2 iv, xrequirement to be both engaged and normally engaged

R(FIS) 3/82, R(FIS) 1/85, 31.1.2 iii, viiinormally not same as on average R(FIS) 3/87,

31.1.2 xishort-time working R(FIS) 2/81, R(FIS) 2/82,

R(FIS) 2/83, 31.1.2 i, ii, vyouth opportunities programme R(FIS) 1/83, 31.1.2 iv

self-employmentconstituting remunerative work R(FIS) 6/85, 31.1.2 ix

student engaging in temporary employmentR(FIS) 6/83, R(FIS) 1/84, 31.1.2 vi, viistudent, mature, university R(FIS) 1/86, 31.1.2 x

family, receipt of prescribed benefit which precludes frombeing treated as, R(FIS) 1/89, 31.1.3 i

Family income supplement (contd)inclusion of person in more than one family

requirement to repaymaterial fact not disclosed R(FIS) 3/85, 17.8.1 xiv

membership of the householdchildren living elsewhere R(FIS) 4/83, 31.1.1 iihusband in prison R(FIS) 3/83, R(FIS) 5/85,

31.1.1 i, iiresources/normal gross income

h.p. and depreciation, treatment of as businessexpenses R(FIS) 1/88, 31.2.1 x

newly gainfully employed R(FIS) 1/82, 31.2.1 iinormal gross income meaning of R(FIS) 2/85,

R(FIS) 1/87, R(FIS) 1/88,31.2.1 iv, iii, x

not earned on maternity leave R(FIS) 1/87,R(FIS) 2/87, 31.2.1 viii, ix

not salary, wages or fees for fixed periodchild minder R(FIS) 5/83, 31.2.1 iiiEnterprise allowance, treatment of R(FIS) 7/85,

31.2.1 virepayments of loan capital not allowable expense

R(FIS) 8/85, 31.2.1 viiisalary, wages or fees for fixed period

expenses, treatment of R(FIS) 4/85, 31.2.1 vright to rent-free house not included R(FIS) 4/85,

31.2.1 vuse of discretionary period R(FIS) 2/83, 31.1.2 v;

R(FIS) 1/81, R(FIS) 2/87, 31.2.1 i, ixtrade dispute

claimant on strike at date of claim R(FIS) 2/85,31.2.1 iv

Family funds test R(S) 12/83, R(S) 7/89, 6.2.1 vii, ixFear

of disclosure of age CP 127/50, 13.5.2 iof further injury R(I) 66/52, R(I) 45/54, R(I) 8/56,

R(I) 32/59, 11.2.3 i-ivForces, H.M.

allocation to wife of marriage allowance and allotment toshow maintaining mother R(S) 7/58,7.3.5 ii

National service, not ceased to reside with wife duringR(U) 6/54, 7.1.1 ii

Forfeiture Act see under Public Policy, claimant forwidow’s benefit and Commissioner,jurisdiction R(G) 1/90, 17.10.11 ix

application in relation to conviction for manslaughterR(G) 1/91, 17.10.11 xi; R(FP) 1/05,17.10.11 xiv

claimant not precluded from receiving widow’s benefitR(G) 3/84, 17.10.11 v; R(G) 2/90,17.10.11 x

modification of forfeiture rule R(G) 1/98, 17.10.11 xiiFor the purpose of and in connection with employer’s

trade or business CI/374/66, 18.1.1vFranks Committee Introduction viiFree in-patient treatment in hospital see under Hospital

Friend, nomination of to claim deathgrant R(G) 6/55, 12.4.2 i

Fright, followed by death from coronary R(I) 42/53, 12.1.1 iiiFuneral expenses

assets, availability R(IS) 14/91, 29.17.2 iimeaning of deceased’s home R(IS) 11/91, 29.17.1 ii

Funeral payment see under Social FundFurriers lung R(I) 4/80, 9.6.1 i

Fa-Fz

Holidays (contd)guaranteed week

paid public holidays not days of unemploymentR(U) 5/58, 1.13.5 i

proportionate reduction of guarantee period forholidays R(U) 17/58, R(U) 1/59,1.13.5 ii, iii

holidays demanded as condition of engagementR(U) 23/51, 1.6.4 iii

misconduct, employment lost throughoverstaying holiday R(U) 2/74, 1.4.2 viunexplained sickness after end of holiday

R(U) 11/59, 1.4.2 iiion holiday

held to be on on holidaycasual worker

for 2 days during indefinite suspension lastingless than 12 days R(U) 19/59, 1.14.9 ii

when his employer was R(U) 18/54,R(U) 31/56, 1.14.9 i, ii

during period agreed by body of employeesR(U) 3/53, 1.14.1 i

factory closed on Saturday before R(U) 2/64,1.14.4 v

meaning of CU 427/50, 1.14.1 i; R(U) 1/62,R(U) 7/63, 1.14.2 i, ii

temporarily stood-off during closure R(U) 12/54,R(U) 16/54, 1.14.4 ii, iii

while not yet disqualified for holiday payR(U) 7/56, 1.14.4 iv

not on holidaymariner on compensatory leave R(U) 8/64,

1.14.5 von days not recognised in agreement R(U) 11/53,

1.14.5 iion public holiday, another day in lieu R(U) 16/55,

1.14.5 iiipay, holiday

attribution of R(U) 42/52, 1.14.7 ieffect of receiving R(U) 42/52, R(U) 21/53,

1.14.7, i, iinot yet disqualified for R(U) 7/56, 1.14.4 iv

previously taken, effect ofafter moving from one job to another R(U) 27/57,

R(U) 9/63, 1.14.8 i, iirecognised or customary

held to be on holidayduring factory closure on days before R(U) 10/62,

R(U) 2/64, 1.14.3 ix, xnew employee ‘handed cards’ but not terminated

R(U) 2/51, 1.14.3 iinight shift, one day longer than day shift

R(U) 20/52, 1.14.3 ivon Jewish holidays R(U) 4/52, 1.14.3 iiithough no written agreement R(U) 39/53,

R(U) 27/58, R(U) 24/59, 1.14.3 vi-viiitwo weeks, but wages paid for only one

CSU 29/49, 1.14.3 imeaning of ‘recognised or customary’

R(U) 11/53, 1.14.1 iinot on holiday

on day not recognised under agreementR(U) 11/53, 1.14.3 v

supply teacher, contract terminated at half-termR(U) 2/87, 1.14.3 xi

school/college/universitynon-teaching staff

held to be on holidaytoken wages for each week R(U) 38/52, 1.1.2 ii


Gainful occupation see under Earnings, Increases ofbenefit for adult dependants,Retirement pension,Unemployment benefit also 18.4.2

German measles R(S) 24/54, R(S) 1/72, 2.3.1 i, iiGood cause

for failure to attend medical examination see underSickness benefit, disqualification

for late claim see under Claim for benefitfor late encashment see under Payment of benefitfor working despite certified incapacity R(S) 10/60, 2.4.3 i

Guaranteed minimum pension R(P) 1/03, 5.4.10 i; [2010]AACR 7 5.4.10 ii

Habit and repute, marriage by R(G) 1/71, R(G) 2/82,R(G) 5/83, 4.1.6 ii-iv; R(P) 1/51,R(P) 1/85, 5.3.5 i, ii

Health Services and Public Health Act 1968 R(A) 1/74,15.3.1 i, R(A) 2/73, 15.3.2 i

Heat cataract CI 388/50, 9.5.4 iHerring Industry Scheme CSU 94/50, 1.16.7 iHigh Court (Divisional Court)

appeals from decisions of S of Sclassification/insurability 18.4.1 i, 18.4.1 iii, 18.4.2 i-v,

18.4.4 i-iiicontributions, payment of 18.4.1 ii, 18.4.3 i, iijurisdiction 18.4.1 i-iii

application fordeclaration of entitlement } see under Certiorari,order of certiorari } order of

award of damages Commissioner’s decision not personalinjury by accident R(I) 11/59, 17.6.4 ii

decisions of, bindingdependent upon Court’s appellate jurisdiction

R(S) 52/83, 17.10.1 iiieffect of R(S) 6/85, 17.10.1 iv

Holidaysinjury benefit

injured returning from 1 day’s work abroad at end ofholiday R(I) 70/51, 8.3.10 iii

retirement pensionnot reduced by pay holidays taken on retirement

R(P) 17/52, 5.4.4 iiisickness benefit

abroadentitled to benefit

due to worsening, absence regarded as for beingtreated R(S) 1/57, 2.6.5 i

for day of return to GB R(S) 1/66, 2.6.11 inot entitled

incapacity developed after leaving GB R(S) 1/75,19.5.3 xxi

recuperating R(S) 16/51, 2.6.7 i; R(S) 10/52, 2.6.8 i;R(S) 3/68, 2.6.12 i

claims coinciding with holiday periodsincapacity

established R(S) 5/60, R(S) 1/67, 2.2.5 ii, iiinot established R(S) 16/54, 2.2.5 i

holiday paywife’s properly attributable to holiday weeks

R(S) 2/55, 7.2.2 ivsupplementary benefit

recognised or customary holidays R(SB) 7/84, 30.4.2 iiunemployment benefit

availability for employmentcasual docker, not during holidays R(U) 1/55,

1.2.3 iiion public holiday, payment dependent on R(U) 5/58,

1.13.5 i

Ga-Hol

Holidays (contd)not on holiday

seasonal worker R(U) 22/53, R(U) 23/53,R(U) 27/53, R(U) 19/54, R(U) 6/55,1.15.2 iv-vii; R(U) 19/62, 1.15.4 iv

while stood offpaid retaining fee only R(U) 6/68, 1.1.1 xiwith 7 days holiday pay R(U) 17/62, 1.14.6 viwithout pay CWU 7/48, 1.14.5 i

teaching staffheld to be on holiday

customary unpaid R(U) 7/54, 1.1.2 iiinot terminated CU 21/48, R(U) 1/62,

R(U) 18/64, 1.14.6 ii , v, viii;R(U) 8/68, 1.14.10 iv

part-timer on paid customary holiday R(U) 4/88,1.14.6 xii

not on holidaymusic teacher

hourly-paid in term only R(U) 20/51, 1.1.1 iii;R(U) 7/63, 1.14.5 iv

intermittent second occupation R(U) 7/63,1.14.5 iv

seasonal worker R(U) 9/71, 1.15.2 xvsupply teacher, contract terminated at half-term

R(U) 2/87, 1.14.6 xitemporary before, permanent after R(U) 2/66,

1.14.6 xterminated and resumed elsewhere R(U) 1/66,

1.14.5 viHome

meaning of deceased’s home R(IS) 11/92, 29.17.1 iivalue of in maintenance R(U) 3/66, 7.2.1 vi; R(S) 6/52,

7.3.6 iiHospital

case notes available to medical authorities R(I) 6/67,14.3.2 iii, R(I) 13/74, 17.3.8 vi

discharge from, whether authorised R(S) 1/54,R(S) 12/56, 2.8.8 i, ii

free in-patient treatment in CSI 31/49, R(S) 9/52,R(S) 4/84, 2.8.1 i-iii;R(S) 2/52, 2.8.2 i; R(S) 28/52,R(S) 4/53, 2.8.3 i, ii;R(S)16/53, 2.8.4 i; R(S) 2/54, 2.8.5 i;R(S) 8/51, R(S) 25/54, R(S) 4/84,2.8.6 i-iii, R(S) 4/54, R(S) 26/54,R(S) 6/58, 2.8.7 i-iii; R(P) 13/52,R(P) 17/55, R(P) 2/62, R(P) 1/67,5.4.1 i-iv,

free of charge, meaning of R(S) 2/54, 2.8.5 iin-patient, meaning of R(S) 1/58, 2.2.2 v; R(IS) 8/96,

2.8.l iv; R(P) 1/67, 5.4.1 iv;R(I) 27/59, 7.4.3 i

late claim due to treatment in R(S) 3/56, 13.1.3 iii;CS 42/50, R(S) 12/54, 13.3.1 vii, ix;CG 207/49, 13.5.1 ii

Sundays, in calculating weeks out of R(S) 3/56,13.1.3 iii

mental patient in R(S) 4/56, 2.2.14 i; R(S) 16/53, 2.7.4 i;R(S) 12/56, 2.8.8 ii, R(P) 10/54,5.4.2 i; R(S) 31/52, R(S) 25/54,R(S) 14/55, R(S) 8/60, 7.1.1 i, iii,iv, vi; R(S) 7/55, 7.1.2 iv; R(S) 15/51,R(P) 5/54, R(S) 2/57, 7.1.3 ii-iv;R(S) 6/52, 7.3.6 ii; CS 638/49, 7.3.7 ii;R(S) 10/51, 12.3.1 i; R(S) 3/53,13.4.3 vi

outpatient CWI 20/49, CS 69/50, 2.2.1 i, ii; R(S) 1/67,2.2.5 iii; CI 142/49, 12.1.4 i

Hospital (contd)reduction of benefit after 52 weeks in R(P) 2/62, 5.4.1 iiireports not used because detrimental R(S) 1/58, 17.9.5 vivoluntary patient R(S) 16/53, 2.7.4 i

Hospital treatment allowance (increase of dis. ben.)entitled

from date of entry into hospital (2 days before pensionstarted) CI 14/50, 10.4.2 i

not entitledcondition treated not relevant R(I) 1/67, 7.4.3 iinot an in-patient; meaning of ‘in-patient’ R(I) 27/59,

7.4.3 itreatment

approval of, for S of S R(I) 68/53, 17.1.1 vwhether treatment for relevant loss of faculty, and

whether received, for statutoryauthorities R(I) 68/53, 17.1.1 v

House of Lordsclaim in relation to entitlement R 2/85 (NCIP), 18.6.2 icommunity programme, employed to full extent normal

R(U) 9/88, 1.11.5 viiPractice Statement (Judicial Precedent) R(U) 4/88, 7.4.1 xxii

Housing Benefitappeals

choice from whom to recover overpayment fromR(H) 2/03, 32.3.1 i; R(H) 7/04,32.3.1 ii, R(H) 6/06, 32.3.1 iii,R(H) 10/07, 32.3.1

responsibilities of LA as respondent R(H) 1/05, 32.3.2 i,R(H) 3/05, 32.3.2 i

right of appeal - refusal to give decision on claimR(H) 3/05 32.3.3 i

right of appeal - termination R(H) 4/08, 32.3.5 iconditions of entitlement

incapacity for work under a savings provisionmeaning of “exempt accommodation” under a savings

provisions (R(H) 2/07, 32.4.4 i,R(H) 7/07, 32.4.4 i; R(H) 6/08,32.4.4 iii; R(H) 4/09, 32.4.4 iv; [2010]AACR 2, 32.4.4 v

meaning of “houseboat” R(H) 9/08, 32.4.4 i“meaning of “long tenancy”” R(H) 3/07, 32.4.5 ioccupying a dwelling as the home - the date a person

moves in R(H) 9/05, 32.4.2 iiR(H) 4/06, 32.4.2 iii; R(H) 4/07,32.4.2 iv

occupying a dwelling as the home - non-dependentsR(H) 8/09 32.4.2 v

new tenancy - whether benefit to be paid from secondor third week of tenancy R(H) 4/03,32.4.1 i

right to reside; R(PC) 2/07, 32.4.6 ii; R(IS) 8/07,32.4.6 i; R(IS) 6/08, 32.4.6 iii;R(IS) 3/09, 19.3.3 xiii; [2010] AACR4 (LB Hillingdon v MJ), 32.4.6 iv

start date of payment R(H) 9/07, 32.4.1eligible and ineligible payments - availability of suitable

cheaper accommodation R(H) 2/05,32.2.3 i

expenses of self-employed earners R(H) 5/07, 32.7.1 iincome treated as capital R(H) 5/05, 32.2.4 iliability to make payments in respect of a dwelling

claimant and landlord in the dwelling R(H) 5/06, 32.2.7 irelinquishment of ownership - whether test subjective or

objective R(H) 6/07, 32.2.8 i

Supplement 72 [8/2010]Hol-Hou

Housing Benefit (contd)whether tenancy agreement is a sham R(H) 3/03, 32.2.2 iwhether tenancy on a commercial basis - tenancy

created by law R(H) 10/05, 32.2.1 ii;R(H) 5/09, 32.2.10 i

capital and income - generalexpenses of self-employed earners R(H) 5/07, 32.7.1 iself-employed earners calculation of income R(H) 5/08,

32.7.2 imembership of family

meaning of “partner” R(H) 6/04, 32.5.1 ilocal authority not bound by DWP decision maker

R(H) 9/04, 32.5.2 i; R(H) 6/09,32.7.2 ii

overpaymentsamendments to legislation on recoverability-

whether retrospective R(H) 3/09, 32.1.3 ifailure of housing officer to pass information to benefit

office R(H) 10/08, 32.1.1 ivofficial error

making a new award on the best information currentlyavailable R(H) 2/04, 32.1.1 iii

notice of payment R(H) 1/02, 32.1.1 iBankruptcy R(H) 9/09, 17.8.5requirement to check correctness of IS award

R(H) 1/04, 32.1.1 iipaid direct to landlord’s agent - whether recoverable

from landlord as well as from agent[2010] AACR 32.1.5

offsettingbenefit period ended R(H) 2/03, 32.1.2 i,

R(H) 1/05, 32.1.2 iiPayments

benefit paid to tenant where duty to pay to landlordR(H) 1/08, 32.9.1 i

payments by an owner R(H) 7/05, 32.2.5 i; R(H) 8/07,32.2.6 i

rent to former partner for home previously shared -possible discrimination R(H) 6/05,32.2.5 i

whether gross income means Incapacity Benefit actuallyreceived or the notional rate R(H) 2/09,32.7.3 i

whether tenancy on a commercial basis R(H) 1/03, 32.2.1 ipayment to tenant or landlord R(H) 1/08, 32.2.9 i

Human rightsArticle 1, Protocol 1 Protection of property R(P) 1/06,

19.4.5 i; R(CS) 4/06, 19.4.5 ii;R(PC) 1/08, 19.4.5 iii

Article 6, right to a fair trial R(IS) 1/04, 19.4.3 i; R(IS)2/04, 19.4.3 ii; R(CS) 4/04, 19.4.3 iii;R(IS) 6/04, 19.4.3 iv; R(DLA) 7/04,19.4.3 v; R(IS) 15/04, 19.4.3 vi;R(DLA) 5/06, 19.4.3 vii, R(IS) 4/08,17.3.10 vi

Article 8, respect for life R(DLA) 4/02, 19.4.2 i; R(P)1/02, 19.4.2 ii; R(IS) 7/07, 19.4.2 iii

Article 14 Discrimination R(G) 2/04, 19.4.4 i; R(H) 8/04,19.4.4 ii; R(IS) 12/04, 19.4.4 iii; R(P)2/06, 19.4.4 iv; R(IS) 6/06, 19.4.4 v;R(IS) 12/06, 19.4.4 vi; R(H) 5/06,19.4.4 vii; R(PC) 1/08, 19.4.4 viii;R(CS) 1/09, 19.4.4 ix; R(DLA) 1/09,19.4.4 x

Retrospection R(IS) 3/02, 19.4.1 i; R(CS) 6/03, 19.4.1 iiHusband, meaning of CG 3/49, 3.1.1 i; R(G) 1/52, 3.1.2 i;

R(G) 11/53, 3.2.4 iIdle day see Unemployment benefit, full extent normal

Ignorance of entitlement, rights and duties R(S) 2/65,13.1.1 viii, R(S) 2/63, R(G) 1/75,13.3.1 xi, xiv; CS 35/48, CWG 2/49,CG 125/50, R(U) 5/52, R(S) 18/52,R(G) 3/53, R(P) 5/58, R(P) 5/61,R(S) 3/63, R(P) 1/79, R(S) 3/79,R(I) 8/81, 13.3.2 i-xii; R(I) 6/54,R(I) 51/54, 13.3.3 i, ii; R(P) 10/59,13.4.2 iv; CS 80/49, CS 100/49,R(S) 4/52, R(S) 14/54, R(S) 10/59,R(S) 2/60, 13.4.3 i, ii, iv, vii, ix, x;R(G) 15/56, 13.5.1 iii; CS 156/49,R(S) 19/52, R(S), 1/73, 13.5.3 ii, vi,vii; R(S) 11/59, 13.6.1 i

Incapacity benefitcouncillor's allowance - treatment of tax and NI

R(IB) 3/01, 2.14.1 ireduction of incapacity benefit for occupational pension

payments R(IB) 1/04, 2.15.1 iwhether amount of pension gross or net of income tax to

be used in calculation R(IB) 3/05, 2.15.1 iiIncapacity for following regular occupation or

suitable employment of equivalentstandard see under Special hardshipallowance

Incapacity for self-support see under Increases of benefitfor dependants, also CI 266/50, 12.3.2 ii

Incapacity for work see under Absence from GB,Evidence, Holidays, Hospital, Hospitaltreatment allowance, IB, Invaliditybenefit and pension, Sickness benefit,Unemployability supplement for pre13.4.95 decisions

Incapacity for work from 13.4.95activities and Descriptors

general R(IB) 2/99, 2.13.1 i 2(e), 5(b) and (c),R(IB) 1/99, 2.13.2 ii

4 R(IB) 6/04, 2.13.2 x4 and 8 R(IB) 5/03, 2.13.2 vii6(b) & (c) R(IB) 2/02, 2.13.2 iii; R(IB) 3/02, 2.13.2 iv7(b) R(IB) 1/98, 2.13.2 i8 R(IB) 4/03, 2.13.2 vi13 R(IB) 4/04, 2.13.2 ix14 R(IB) 3/04, 2.13.2 viii

deemed incapacityregulation 28 R(IB) 8/04, 2.13.10 i

failure to attend medical examination R(IB) 1/01, 2.13.6 i,R(IB) 2/01, 2.13.6 ii

personal capability assessment - generaleffect on earlier days R(IB) 1/05, 2.13.7 iielectronic medical report R(IB) 7/05, 2.13.7 iiMed 4 R(IB) 5/98, 2.13.7 i

personal capability assessment exemptions - reg. 10R(IB) 1/08, 2.13.8 i

regulation 27, R(IB) 1/08, 2.13.8 iscoring the AWT/personal capability assessment

evidence to support award of points R(IB) 2/98, 2.13.4 iunder more than one activity R(IB) 3/98, 2.13.4 ii

treating as incapablefailure to satisfy reg. 28 conditions - effect on

entitlement R(IB) 1/05, 2.13.7 iiregulation 27, R(IB) 1/08, 2.13.8 i; R(IB) 2/09, 2.13.10 iworking and Incapable for Work

councillor’s allowance R(IB) 3/01, 2.14.1 idomestic tasks R(IB) 2/03, 2.14.2 iearnings R(IB) 1/06, 2.14.3 i; R(IB) 3/07, 2.14.3 iitreated as capable R(IB) 1/07, 2.14.4 i

Hou-IncSupplement 72 [8/2010]

Income supportapplicable amounts

habitual residence test R(IS) 6/96, 19.3.4 ii; R(IS) 2/00,19.1.2 xxii; R(IS) 6/99, 19.3.3 i;R(IS) 9/99, 19.3.3 ii; R(IS) 3/00, 19.3.3iii; R(IS) 12/98, 19.1.4 xi; R(IS) 6/00,19.3.3 iv; R(IS) 11/01, 12.2.12 i; 19.3.3v; R(IS) 1/06, 29.2.12 iii

EC nationals R(IS) 3/97, 19.1.4 xright to reside, R(IS) 8/07, 29.2.12 iv; R(IS) 3/08,

29.2.12 vi; R(IS) 6/08, 29.2.12 vii;R(IS) 8/08, 29.2.12 viii; R(IS) 3/09,29.2.12 ix; R(IS) 4/09, 29.2.12 x;R(IS) 5/09, 29.2.12 x

housing costsabandonment R(IS) 12/99, 29.4.1 xxix; R(IS) 2/01,

29.4.1 xxxi; R(IS) 9/05, 29.4.1 xxxvacquiring an interest in the home R(IS) 18/93,

29.4.1 ix; R(IS) 7/93, 29.4.1 vii;R(IS) 4/95, 29.4.1 xx; R(IS) 24/95,29.4.1 xxiiiv; R(IS) 1/95, 29.4.1 xviii;R(IS) 8/01, 29.4.1 xxxiii

back erosion R(IS) 14/05, 29.4.1 xxxvibankruptcy R(IS) 6/94, 29.4.1 xiiiconstruction of Sch. 3, R(IS) 3/94, 29.4.1 xiieligible costs R(IS) 11/94, 29.4.1 xv;

R(IS) 2/99, 29.4.1 viiijointly and severally liable for loan R(IS) 4/00,

29.4.1 xxx; R(IS) 19/95, 29.4.1 xxiiloans taken out/increased whilst in receipt R(IS) 20/98,

29.4.1 xxvi; R(IS) 12/08, 29.4.1 xli;R(IS) 2/09, 29.4.1 xlii

move to more expensive property R(IS) 5/01,29.4.1 xxxii

purchase of formerly rented accommodationR(IS) 8/94, 29.4.1 xiv, R(IS) 13/94

qualifying loan R(IS)14/01, 29.4.1 xxxivrepairs and improvements R(IS) 5/96, 29.4.1 xxiv

R(IS) 3/95, 29.4.1 xix; R(IS) 16/98,29.4.1 xxv; R(IS) 22/98, 29.4.1 xxvii;R(IS) 5/06, 29.4.1 xxxvii

replacement loans R(IS) 11/95, 29.4.1 xxiresponsible for R(IS) 12/94, 29.4.1 xvirestricted

ability to meet costs R(IS) 13/92, 29.4.1 viamount of restricted costs R(IS) 9/91, 29.4.1 iii;

R(IS) 1/07, 29.4.1 xxxixrelevant factors R(IS) 10/93, 29.4.1 viiisuitable alternative accommodation R(IS) 12/91,

29.4.1 ivservice charges R(IS) 19/93, 29.4.1 xi; R(IS) 3/91,

9.4.1 i; R(IS) 4/91, 29.4.1 ii; R(IS) 4/92,29.4.1.v; R(IS) 2/07,29.4.1 xxxviii; R(PC) 1/07, 29.4.1 xi

16 week period linking periods R(IS) 2/94, 29.4.1 xipremiums

disability premium R(IS) 8/93, 29.4.2 i; R(IS) 4/0429.4.2 ix

higher pensioner premium R(IS) 7/02, 29.4.2 viisevere disability premium R(IS) 10/94, 29.4.2 iii;

R(IS) 17/94, 29.4.2 iv; R(IS) 22/93,29.4.2 ii; R(IS) 12/96, 29.4.2 v;R(IS) 11/98, 29.4.2 v; R(IS) 9/02,29.4.2 vii

reduction because of direct payments of rent to landlord,whether there were arrears R(IS) 14/95,29.4.7 i

reduction because of community charge, whether tribunalhas jurisdiction to require evidence ofliability R(IS) 1/98, 29.4.7 ii

reduction because of UB disqualification R(IS) 16/94,29.4.6 i


Income support (contd)residential care and nursing homes

close relative, accommodation and meals provided byR(IS) 2/91, 29.4.3 i

core and cluster homes R(IS) 2/92, 29.4.3 iispecial cases

hospital in-patients R(IS) 8/96, 29.4.4 vLA accommodation leased to voluntary

organisations, whether residential“accommodation” or “residential carehomes” R(IS) 13/96, 29.4.4. viii

persons from abroad R(IS) 13/98, 19.3.2 vii;R(IS) 8/07, 29.2.12 iv; R(IS) 6/08,29.2.12 vii

prisoners R(IS) 1/94, 29.4.4 ii; R(IS) 20/95, 29.4.4 ivwhether claimant living in car “without

accommodation” R(IS) 23/98, 29.4.4 ixwhether child maintained by LA at residential school

was “resident” and to be treated aspossessing income R(IS)11/96,29.4.4 vii

whether “patient” on move to nursing home fromhospital R(IS) 7/92, 29.4.4 i; R(IS) 18/94,29.4.4 iii

whether severely mentally handicapped claimantresident in a nursing home is an in-patient R(IS) 10/96, 29.4.4 vi

Capitalactual capital R(IS) 15/96, 29.10.2 iv

attorneys R(IS) 17/98, 29.10.2 viconditional gift R(IS) 5/98, 29.10.2 v

assetsloan subject to repayment R(IS) 8/92, 29.10.2 i

beneficial ownership R(IS) 1/90, 29.10.2 iconditional gift R(IS) 5/98, 29.10.2 vjointly held

beneficially entitled in possession R(IS) 2/93,29.10.9 i

obtaining order for sale to meet purpose of willR(IS) 1/01, 29.10.9 iv

validity of law R(IS) 26/95, 29.10.9 iivaluing a deemed share R(IS) 26/95, 29.10.5 vi

R(IS) 3/96, 29.10.9 iv; 29.10.3 iiipresumption of advancement between husband and

wife R(IS) 2/93, 29.10.2 iitrusts R(IS) 10/99, 29.10.2 viii

consent order on divorce right to receive sum underR(IS) 4/96, 29.10.5 vii

diminishing notional capital R(IS) 1/91, 29.10.8 inot necessary to diminish notional capital R(IS) 9/92,

29.10.8 iideprivation of R(IS) 1/91, 29.10.7 i

attorneys R(IS) 17/98, 29.10.7 viiiconditional gift R(IS) 5/98, 29.10.2 veffect of a deprivation under Supp B on IS

R(IS) 14/93, 29.10.7 iiieffect of repayment of debts R(SB) 12/91, 30.2.1;

R(IS) 15/96, 29.10.7 vevidence of debts R(SB) 12/91, 30.2.1 xixknowledge of capital limit R(SB) 12/91, 30.2.1 xixmaking a further claim for benefit R(IS) 9/92,

29.10.8 iipurpose R(SB) 38/85, 30.2.1 x; R(SB) 40/85,

30.2.1 xi; R(IS) 15/96, 29.10.7 vrule to be considered if resource acquired of lesser

value R(IS) 15/96, 29.10.7 vwhen legislation supersedes a Commissioner’s

decision R(IS) 9/92, 29.10.8 iidisregarded capital

business assets - engaged as s/e earnerR(IS) 14/98, 29.10.3 viii

Inc

Income support (contd)enterprise allowance, whether constituted payment for

work R(IS) 21/95, 29.2.2 ivmini cab driver R(IS) 13/99, 29.2.2 viischool ancillary worker R(IS) 7/96, 29.2.2 vi

Employed earnersapplication of disregard for part-time earning of casual

supply teacher R(JSA) 8/03, 29.7.2 icalculation of net weekly earnings R(IS) 3/93, 29.7.1 ii;

R(IS) 8/95, 29.2.2 iicalculation of earnings of supply teacher employed

on day to day basis R(IS) 10/95,29.7.1 v

expenses R(IS) 16/93, 29.7.1 iiiL.A. Councillors R(IS) 6/92, 29.7.1 iperiod over which earnings taken into account

employed on daily basis and earnings paid monthlyR(IS) 10/95, 29.7.1 v

the period R(IS) 10/95, 29.7.1 vshare fisherman R(IS) 12/95, 29.2.2 iiistatutory guarantee payment R(IS) 9/95, 29.7.1 iv

Incometreatment of sums paid to claimant by spouse for car

services R(IS) 7/08, 29.6.1 iMembership of the family

married couplemembership of the same household

couple living in a residential care home R(IS) 1/99,29.3.2 i

husband living in a bail hostel R(IS)17/93, 29.3.1 iOther income

income; whether a loan is income R(IS) 6/03, 29.9.1 vincome protection policies; payments R(IS)13/01,

29.9.1 iiinotional income

notional earningsactual earnings paid R(IS) 2/98, 29.9.2 iimeaning of earnings R(IS) 2/98, 29.9.2 iimeaning of volunteer R(IS) 12/92, 29.9.2 ipayments in kind R(IS) 2/98, 29.9.2 ii

overpaid student grant R(IS) 5/99, 29.9.4 i; 29.10.2 viitreatment of CTC income during transitional period

R(IS) 3/05, 29.9.1-2 vitreatment of payments from structured settlement

annuities R(IS) 10/01, 29.9.6 itreatment of sick pay on termination of employment

R(IS) 8/99, 29.9.5 ivoluntary payment R(IS) 4/94, 29.9.1 iwar disablement pension

treatment of service invaliding pension R(IS) 3/99,29.9.3 i

whether income should be calculated net of tax R(IS) 4/05,29.9.1-2 vii

whether occupational pension paid to former wifeincome of claimant R(IS) 4/01, 29.9.1 ii

whether pension vested in trustee in bankrupcy is actualincome R(IS) 4/02, 29.9.1 iv

Self-employed earnersexpenses R(IS) 13/91, 29.8.2 i; R(FC) 1/91, 20.3.1 i

Self-employed earnersseasonal workers

earnings R(JSA) 1/03, 23.10.1 i, 29.8.3 iSocial fund

funeral expensesassets, availability R(IS) 14/91, 29.17.2 iientitlement R(IS) 9/93, 29.17.1 ifuneral payments R(IS) 14/92, 29.17.1 iiiresponsibility for funeral expenses R(IS) 6/98, 29.17.1 vmeaning of deceased’s home R(IS) 11/91, 29.17.1 iinature and extent of contact with deceased question of

fact R(IS) 3/98, 29.17.1 v

Income support (contd)capital received from house sale, no immediate

intention to buy another homeR(IS) 7/01, 29.10.3 ix

disposal of premises, meaning of premisesR(IS) 4/97, 29.10.3 vi

house occupied by estranged wife R(IS) 1/97,29.10.3 v

payment in consequence of any personal injuryaward by Criminal InjuriesCompensation Board R(IS) 15/96, 9.10.3 iv

revisionary interest R(IS) 26/95, 29.10.3 ii;R(IS) 1/97, 29.10.3 iv; R(IS) 14/98,29.10.3 viii

value of right to receive rent R(IS) 26/95, 29.10.3 iimetamorphosis of income into capital R(IS) 3/93,

29.10.2 iiimethod of calculation of capital in the UK R(IS) 21/93,

29.10.5 iii; R(IS) 15/96, 29.10.5 viiinotional

analogous to a partner in the business of a companyR(IS) 8/92, 29.10.7 ii

analogous to a sole trader or partner calculation of capital R(IS) 13/93, 29.10.7 iv

disregard R(IS) 13/93, 29.10.7 ivsecured on, meaning of

loan subject to repayment R(IS) 8/92, 29.10.5 iishares used as security for a loan R(IS) 8/92, 29.10.5 ii

valuation R(IS) 2/90, 29.10.5 ibuilding society account R(IS) 15/96, 29.10.5 viiconditional gift R(IS) 5/98, 29.10.5 ixdeemed share R(IS) 26/95, 29.10.5 vi; R(IS) 3/96,

29.10.3 iii, 29.10.9 iiishares subject to a pre-emptive rights provision R(IS)

8/92, 29.10.5 iishares subject to the terms of a resignation agreement

R(IS) 8/92, 29.10.5 iiConditions of entitlement

prescribed category of person substantially engaged incaring R(IS) 8/02, 29.2.1 i

claimant found capable of work - duty of theSecretary of State to consider all

prescribed categories R(IS) 10/05, 29.2.1 iiiabsence from GB, R(IS) 10/98, 19.5.7 xiiavailability for employmentassuming adverse decision R(IS) 6/91, 29.2.6 iperson appealing against incapacity for work decision

R(IS) 2/05, 29.2.1 iiwork experience in Europe R(IS) 10/98, 29.2.6 ii

persons from abroadasylum seekers R(IS) 14/99, 19.3.1 i; R(IS) 15/99,

19.3.1 ii; R(IS) 9/01, 19.3.1 iii;R(IS) 8/08, 29.2.12 viii

right to reside R(IS) 8/07, 29.2.12 iv; R(IS) 6/08,29.2.12 vii; R(IS) 3/09, 29.2.12 ix;[2010] AACR 18, 19.3.3 xvii

sponsored immigrants undertaking continuousthrough periods of absence from UKR(IS) 2/02, 9.3.5 ii

sponsored immigrant valid undertakingR(IS) 11/04, 19.3.5 iii

invalid maintenance undertaking R(IS) 8/05, 29.2.12 iirelevant education

parents prohibited from entering GB R(IS) 9/94,29.2.11 i

physical or moral danger R(IS) 9/94, 29.2.11 isponsor, duties of R(IS) 9/94, 19.3.5 i

remunerative workexpectation of payment R(IS) 1/93, 19.8.10 i;

R(IS) 5/95, 29.2.2 i; R(IS) 22/95,29.2.2 v


Inc

Increase of benefits (contd)tapered earnings rule ceases to apply R(P) 4/93, 5.3.1 x

transitional protection of ADI to IVBmeaning of “payable”, R(IB) 7/04, 2.11.1 v

wife was not engaged in gainful occupationlimited running of sick husband’s business CS 133/49,

R(S) 8/56, 7.2.3 i, iiIndustrial Court R(U) 5/74, R(U) 4/82, R(U) 6/85, 1.10.8 i-iiiIndustrial injuries

guidance on assessments R(I) 34/61, R(I) 39/61, 14.2.1 ii, iiiIndustrial tribunal R(U) 2/74, R(U) 4/78, 17.10.7 i, ii;

R(SB) 21/86, 30.2.3 xxiiInjury benefit

incapac-/ity for workbenefit record, extraordinary R(I) 8/66, 17.9.5 v

days of incapacitydays of outpatient treatment after resuming work

CWI 20/49, 10.1.2 iidays not days of incapacity

day containing bulk of night shift worked R(I) 31/55,10.1.1 ii

day on which worked for one hour CSI 49/49, 10.1.1 iincapacity but no industrial accident; no benefit

ailment commonly contracted CI 18/49, CI 36/50,10.1.5 i, iii

burns at home connected with incident at workR(I) 4/58, 10.1.5 vi

fungus infection not proved due to rubber bootsR(I) 43/60, 10.1.5 viii

idiopathic disease CWI 3/50, 10.1.5 iireaction from vaccination against infection risk at work

R(I) 12/58, 10.1.5 viiunhealthy working conditions CI 325/50, R(I) 25/52,

10.1.5 iv, vincapacity following an industrial accident but not resulting

from it; benefit not payablebronchitis after cut fingers (history of emphysema)

CI 413/50, 10.1.4 iibuttock injured after back injury R(I) 27/58, 10.1.4 vicardiac dyspneao after pain while lifting R(I) 18/51,

10.1.4 iiicolitis after strain of abdomen CI 168/49, 10.1.4 ifracture after injury to foot R(I) 16/55, 10.1.4 vshoulder injured after back injury R(I) 33/53, 10.1.4 iv

incapacity from relevant injury; benefit payableabscess of hand (china-maker) CI 12/49, 10.1.3 ivacute asthma from fumes (existing sufferer) CSI 1/48,

10.1.3 ifibrositis from soakings (no protection) R(I) 3/51, 10.1.3 vihernia, despite concurrent jaundice CI 50/50, 10.1.3 vmyocardial infarction from lifting R(I) 12/68, 10.1.3 ixneurasthenia after cuts, despite history CI 4/49, 10.1.3 iineurosis and dermatitis from noisy machine (RI) 43/55,

10.1.3 viistrain despite earlier strain of same limb CI 5/49,

10.1.3 iiistrain repeated while on way back to work R(I) 3/56,

10.1.3 viiiincapacity not from relevant injury, no benefit

arthritis R(I) 60/53, 10.1.6 iiicoronary thrombosis R(I) 5/61, 10.1.6 xvihaemorrhage R(I) 43/59, 10.1.6 xvihemiplegia R(I) 15/59, 10.1.6 xosteomyelitis R(I) 2/61, 10.1.6 xvotitis media R(I) 35/54, 10.1.6 viiphlebitis R(I) 101/53, 10.1.6 viprolapsed disc R(I) 33/60, 10.1.6 xivsarcoma R(I) 91/53, R(I) 67/54, 10.1.6 v, viii

Injury benefit (contd)sclerosis R(I) 33/51, 10.1.6 iseminoma R(I) 14/59, 10.1.6 ixteratoma R(I) 37/53, 10.1.6 iithrombo-angitis obliterans R(I) 70/53, 10.1.6 ivtrigger finger R(I) 10/60, 10.1.6 xiituberculosis R(I) 11/60, 10.1.6 xiii

incapacity pending appeal against nil assessment ofdisablement; no benefit R(I) 14/63,10.2.7 i

meaning of ‘incapable of work’ CI 8/49, 10.1.2 i, 18.4.3 ioverlap with widow’s pension, amount payable

R(G) 7/54, 4.3.5 isuccessive accidents, adjustment for R(I) 3/73, 10.1.1 iii

Instalments, repayment by of benefit overpaid R(G) 7/51,17.1.1 ii

Instrument of paymentmislaid and time-barred CWG 6/50, CS 524/50, 13.2.1 i, iipresented late and honoured

illness after holiday ‘good cause’ R(P) 3/51, 13.2.2 imental incapacity ‘unable to act’ R(G) 5/62, 13.2.2 ivorder book lying at Post Office R(P) 7/55, R(P) 2/58,

13.2.2 ii, iiiInstrument of payment

presented late and time-barred R(G) 5/55, R(P) 7/59,R(F) 5/63, R(P) 2/65,13.2.1 iv, v, vii, ix

uncashed at death, time-barred R(P) 6/61, 13.2.1 viuncollected, time-barred R(F) 1/64, R(U) 5/65, 13.2.1 viii, x

Insurable employment, whether in, R(I) 13/53, 17.1.1 iv;CI 20/49, CU 74/49, R(G) 8/62,17.3.4 i-iii

Intentionto engage in gainful occupation after retirement

R(P) 8/54, 5.1.1 iito retire R(P) 8/51, 5.1.1 i

Interruption of employmentperiod of

length to include all days of incapacity for workR(S) 1/56, 2.1.3 i

link with maternity allowance R(G) 1/78, 3.4.2 iiInvalid care allowance

the caring conditionhours engaged in caring R(G) 3/91, 15.5.4 i; R(G) 2/02

entitlement because severely disabled person admitted tohospital; AA not payable R(G) 1/02,15.5.5 i

overlapping benefitsICA adjustment against personal contributory benefit

R(S) 2/89, 15.5.2 irestoring payability when overlap ceases. R(G) 1/03,

15.5.2 iiwhether payable to married woman residing with husband

R(G) 2/86, 15.5.1 iInvalidity benefit (contributory) see Sickness and

Invalidity benefitInvalidity pension (non-contributory) (replaced by SDA)

acceptance of claim as for claim for SDA R(S) 1/86,2.10.3 i

delayed claim R(S) 6/83, 13.2.3 viiientitlement

immediately before attaining pensionable age R(S) 6/83, R 2/85 (NCIP), 2.10.2 i, ii; R(G)3/89, 15.5.3 i, 19.4.2 i

not conditional on main claim (McCaffrey’ decision)R 2/85 (NCIP), 2.10.2 ii; R(S) 2/91,2.10.2 iv

open-ended claim R(S) 1/83, 17.10.10 iii

Inc-InvSupplement 72 [8/2010]

Jewish Passover R(U) 33/58; 13.3.4 iiJobseeker's allowance

Amountspayments by way of pensions

annual payments under contractual redundancyarrangement R(JSA) 1/01, 23.7.2 i

civil service compensation scheme R(JSA) 2/01, 23.7.2 iimonthly contractual compensation payments for

redundancy R(JSA) 6/02, 23.7.2 iiiAvailability

restricted availability and variation of jobseeker’sagreement R(JSA) 2/07, 23.2.1 iii

whether claimant detained in police custody wasavailable for work R(JSA) 3/01, 23.2.1 i

whether type of work looked for recorded on ajobseeker’s agreement is a restrictionon availability [2010] AACR 10,23.2.1 iv

Attendance R(JSA) 6/03, 23.1.1 idate entitlement ends R(JSA) 2/04, 23.2.1 iinon-receipt of notification R(JSA) 1/04, 23.1.1 ii

Calculation of capital in the UKvaluation

of deemed sharewhat constitutes proper valuation evidence

R(JSA) 1/02, 23.13.5 iattribution of holiday pay R(JSA) 1/06, 23.9.1 iii

Employed earnersapplication of disregard for part-time earnings of casual

supply teacher R(JSA) 8/03, 23.9.2 iattribution of earnings of term-time worker

R(JSA) 2/03, 23.9.1 iattribution of holiday pay R(JSA) 1/06, 23.9.1 iii

Incomestudent loan to part-time student R(JSA) 4/04, 23.12.1 i

Membership of the familyShared care R(JSA) 2/05, 23.6.1 i

Remunerative workcycle of work

Right to reside R(IS) 8/08, 23.3.2 iSanctions

failure to apply for a vacancy not described on ajobseeker’s agreement [2010] AACR10, 23.5.4 i

failure to attend training course R(JSA) 2/06, 23.5.10 iLeaving voluntarily R(JSA) 1/08, 23.5.3 i

refusal of employment programme/training schemeconseientious objection and good causeR/JSA 7/03, 23.5.9 i

indefinite contract R(JSA) 5/02, 23.3.1 iSelf-employed earners

seasonal workersearnings R(JSA) 1/03, 23.10.1 i, 29.8.3 iearnings if engaged in remunerative or part-time work

R(JSA) 1/09, 23.10.2 iStudent

meaning of studentcourse and exams not sat or marked by university

where course being takenstudent loan to part-time student R(JSA) 4/04, 23.16.2 i

Jurisdictionof courts see under Courtsof medical authorities see under Medical Appeal

tribunals and Medical boardsof Secretary of State for Social Services see under

Secretary of State, alsoR(S) 3/68, 2.6.12 i


Jurisdictionof statutory authorities see under Adjudication,

Adjudication officer, Commissioner,Social security appeal tribunals

Khalpa caste R(G) 4/74, 3.2.2 ivKind, remuneration in CW 42/50, 1.12.1 ivLanguage difficulties R(G) 1/75, 13.3.1 xiv; CS 100/49,

3.4.3 ii; R(I) 11/63, 14.3.33 iiLead poisoning R(I) 7/61, 9.5.1 iLeft employment voluntarily

just cause not acceptedtrial period R(U) 1/92, 1.5.10 i

Leptospira infection R(I) 20.52, 9.5.3 iLeukaemia R(I) 83/53, 12.2.4 iLinking through disability working allowance

R(S) 1/01, 2.1.5 iLiving together as husband and wife

maternity benefitmarriage not to be presumed on basis of R(G) 3/74, 3.2.2 iiiunissued divorcee CG 3/49, 3.1.1 i

Living together as husband and wife (contd)supplementary benefit

absence of partner for temporary but indefinite periodnot living together as husband and wife R(SB) 19/85,

30.7.2 ivcriteria R(SB) 17/81, R(SB) 35/85, 30.7.2 i, vmarriage, lack of intention towards R(SB) 17/81, 30.7.2 imarried and unmarried couple, concepts mutually

exclusive R(SB) 8/85, 30.7.2 iiimeaning R(G) 3/81, 4.2.4 vtemporary absences of partner in higher education

R(SB) 30/83, 30.7.2 iiwidow’s benefit

evidence of R(G) 2/64, R(G) 5/68, 4.2.2 i, iicriteria R(G) 11/55, R(G) 3/71. R(G) 2/72,

R(G) 1/79, R(G) 3/81, 4.2.4 i-vmeaning of CG 214/50, 4.2.1 i

temporary absence of one party R(G) 11/59,R(G) 14/59, 4.2.3 i, ii

Living withchild R(G) 4/62, 4.3.3 ii; R(F) 3/63, R(F) 1/71, R(F) 1/74,

R(F) 2/79, R(F) 1/81, R(F) 2/81,R(F) 1/84, R(F) 1/85, 6.1.2 i-viii

Jew-Liv

Redundancy fund R(U) 6/80, 1.1.3 i; R(U) 6/73, R(U)7/81,1.10.6 i, ii

Refusalof suitable employment see under Unemployment benefitto see doctor R(S) 7/61, 13.4.3 xii

Regulation making powers of Secretary of State for SocialServices R(G) 1/78, 3.4.2 ii; R(S) 3/78,18.1.2 vi

Regulations, interpretation of R(M) 1/83, 15.4.3 iiiRehabilitation R(U) 4/64, 1.12.1 vii; R(I) 27/59, 7.4.3 i;

R(I) 35/55, 11.5.1 ivRelative

by adoption CS 7/48, 7.3.87 iiclose R(SB) 22/87, R(SB) 9/89, 30.1.1 xi, 30.1.1 xixprescribed CS 2/48, CS 33/48, 7.3.8 i, iii

Relevant educationentitlement - refugee R(IS) 9/94, 29.2.2.i

Religiousbelief R(S) 9/51, 2.5.3 i; R(U) 33/58, 13.3.4 iiorders CP 7/49, R(P) 7/54, R(P) 9/54, R(P) 13/55,

5.1.7 i-iv; R(S) 2/51, R(U) 33/58,13.3.4 i, ii

recluse R(S) 2/51, 13.3.4 iRemuneration see Earnings

attribution of holiday pay R(JSA) 1/06 23.3.1 vin kind CWU 42/50, 1.12.1 iv

Remunerative workattribution of holiday pay 1/06, 23.3.1 vcycle of work

company director of limited company R(IS) 5/95, 29.2.22 iiexpectation of payment R(IS) 1/93, 29.2.2 iindefinite contract R(JSA) 5/02, 23.3.1 iterm-time workers - averaging of hours worked during a

recognisable cycle of work - how publicholidays are to be taken into account inthe calculation R(JSA) 3/04,23.3.1 iv

term-time workers - calculation of hours of work -seasonal casual employees - whetherengaged in a cycle of work for thewhole calendar year R(JSA) 1/07,23.3.1 vi

term-time workers - calculation of hours of workR(JSA) 4/03, 23.3.1 ii

term-time workers - whether engaged in remunerativework during school holidays or similarvacations R(JSA) 5/03, 23.3.1 iii

rest periods, R(IS) 12/95, 29.2.2 ivhours engaged in work R(IS) 8/95, 29.2.2 iii;

R(IS) 15/01, 29.2.2 viiiself-employed claimant - whether engaged in remunerative

work R(JSA) 1/09, 23.3.1 viiRepayment of benefit overpaid

calculation of overpaymentappliction of reg 104(a) HB(Gen) Regs 1987, prior to

2.10.00 R(H) 5/04, 18.6.2 xxviiidue care and diligence to avoid overpayment

beneficiary used, and repayment not requiredclaim made and benefit drawn by imposter R(S) 2/70,

17.7.2 iifailure to use: and repayment required

failure by beneficiarybenefit paid for a period not in claim R(S) 13/81,

17.6.3 viifull increase for child’s maintenance not paid over

R(U) 1/70, 17.7.2 inon-disclosure of wife’s overseas business profits

R(P) 1/70, 17.7.2 iwidow cohabiting R(G) 2/72, 17.7.2 ivwife’s earnings over the limit R(U) 7/75, 17.7.2 v

Repayment of benefit overpaid (contd)failure by person acting for beneficiary

solicitor husband, without enquiry R(A) 1/79,17.7.3 ii

wife (with excess earnings) acting for illiterateclaimant R(U) 7/64, 17.7.3 i

proceedings for repayment coinciding with criminal;adjournment of former R(S) 2/70,17.10.3 iv

proof, onus of, in Sheriff’s court and to statutoryauthorities R(U) 7/75, 17.7.2 v

test, nature of R(P) 1/70, 17.7.2 iinstalments, repayments by, for Secretary of State

R(G) 7/51, 17.1.1 iiLimitation Act R(SB) 5/91, 17.7.1 iiimisrepresentation and failure to disclose R(IS) 7/94, xxvi‘recovered’ meaning of R(U) 6/80, 1.1.3 i; R(U) 3/85,

17.3.15 irequirement for valid revision or supersession essential to

found recovery of overpaymentdecision R(IS) 13/05, 17.8.1 xxxx

requirement to repayeffect of Scottish law on R(A) 2/86, 17.7.1 iifailure to disclose material fact R(SB) 10/85,

R(FIS) 3/85, 17.8.1 xii, xiv; R(F)2/99,17.8.1 xxxiv

increase for wife not seen for years R(I) 95/53,17.3.7 iii

‘mora, taciturnity and acquiescence’ not personal bar onSecretary of State R(A) 2/86, 17.7.1 ii

not enforced on beneficiary’s death R(S) 7/56, 12.4.2 iiordinary rule of law, not penalty R(A) 1/79, 17.7.3 iiprobate not granted R(IS) 6/01, 17.8.1 xxxvito be included in review decision CSP 11/50, 17.7.1 ii

failure by statutory authorities to do so R(U) 5/63,17.3.6 i

treatment as benefit paid on account R(I) 15/66,10.2.6 ii

Resettlement benefit R(S) 1/54, 2.8.8 iResidence condition R(A) 4/75, 19.9.1 vi; R(A) 2/78,

19.1.3 i; R(P) 1/82, 19.9.1 vii;R(P) 2/67, 5.4.6 i

Residence, no place of R(S) 7/83, 2.5.5 iiRes judica R(I) 9/63, 14.1.2 iv; R(S) 1/83, 17.10.10 iiiRetirement

early R(U) 26/51, R(U) 20/64, R(U) 4/70, R(U) 1/81,R(U) 1/83, 1.5.8 i-v

pneumoconiosis sufferers R(I) 33/54, R(I) 44/54, 11.6.3 ii, ivspecial hardship allowance paid after CI 258/49,

R(I) 14/62, 11.1.4 i, iiRetirement pension

absence from GB R(P) 3/09, 5.4.9 iiadditional pension

effect of Gender Recognition Act 2004 R(P) 2/09,5.4.8 iii; [2010] AACR 13 5.4.8 iv

age, evidence ofdocumentary (and possibly medical) R(P) 1/75, 5.4.3 i;

R(P) 3/73, 19.7.6 icontribution to wife’s maintenance

wife’s pension on husband’s insurance regarded asCP 96/50, 5.3.2 i; R(I) 7/74, 12.3.1 ii

free in-patient treatment in hospitalreceived for over 52 weeks R(P) 1/67, 5.4.1 ivreduction of benefit after 52 weeks applies to whole

including increment R(P) 2/62, 5.4.1 iiithough making nominal contributions R(P) 13/52, 5.4.1 i

legal custody, detention indetained

under court order in mental hospital R(P) 10/54,5.4.2 i


Red-Ret

Retirement pension (contd)disqualifications not breach of Human Rights,

R(P) 1/02, 19.4.2not detained

after prison sentence, in mental hospital as ‘HealthService patient’ R(P) 2/57, 5.4.2 ii

marriageentitled on husband’s insurance

by habit and repute, law of Scotland as to R(P) 1/58,5.3.5 ii

not entitled‘by habit and repute’ not established R(P) 1/51, 5.3.5 ifalse names used and marriage void R(P) 9/59, 5.3.4 iilawful wife long disappeared and still alive

R(P) 1/59, 5.3.4 ifalse names used and marriage void R(P) 1/59, 5.3.4 i

on husband’s insuranceclaimant guilty of husband’s manslaughter, no title

R(G) 2/84 and R(P) 1/84, 17.10.11 ivdivorced and no title R(P) 14/56, R(P) 1/57, 19.6.1 iwidow not entitled to increments earned on own

insurance R(P) 3/67, 5.3.2 iioverlap

permissible, personal pension with dependant’s warpension R(P) 4/58, 5.4.7 i

requiring adjustment, sickness (dependant’s) benefitwith dependant’s pension R(S) 9/58,2.11.1 iii

prescribed accommodation, residence inhusband and wife sleeping apart R(P) 15/56, 5.3.3 iione night is not counted as R(P) 17/55, 5.4.1 ii

whether included in period of ‘free in-patienttreatment’ R(P) 1/67, 5.4.1 iv

residing together during period of absencehusband and wife residing together

though sleeping apart in prescribed accommodationR(P) 15/56, 5.3.3 iii

wife died in hospital R(P) 7/53, 7.1.2 inot residing together

a year after leaving home R(P) 7/53, 7.1.2 i;19.5.2 iii

in hospital 2 years and discharge impracticableR(P) 5/54, 5.3.3 i

notice of retirementdate may not be amended to earlier R(P) 4/52, 5.4.5 ide-retirement R(P) 4/52, 5.4.5 idivorced before giving, no title on former husband’s

insurance R(P) 14/56, 5.3.1 viearlier notice accepted following erroneous review

decision R(P) 5/55, 5.4.5 iion husbands insurance

divorced and no title R(P) 2/90, 5.3.1 ix; 19.7.5 ivalidity, R(P) 1/98, 5.3.4 iii

pre-retirement intention R(P) 8/51, 5.1.1 i; CP 49/49,5.1.2 i

treated as having retiredclergy

on light pastoral work R(P) 9/54, R(P) 3/55,5.1.7 iii, iv

rector, full-time, low earnings R(P) 1/87, 5.1.7 vcriteria R(P) 8/54, 5.1.1 ii, R(P) 6/54, R(P) 16/55,

R(P) 6/57, 5.1.3 ix, x, xiidespite payment for pre-retirement work R(P) 17/52,

5.4.4 iiidomestic work for board and lodging R(P) 5/51,

R(P) 3/52, 5.1.3 ii, iii

Retirement pension (contd)ex-farmer on unprofitable small holding R(P) 6/53,

5.1.8 iiihelping in wife’s business R(P) 6/57, 5.1.3 xiilight duties, reduced hours R(P) 9/53, R(P) 6/54,

R(P) 11/59, R(P) 3/60, R(P) 3/61,5.1.3 viii, ix, xv-xvii

limited participation in own business CP 70/50,R(P) 10/52, R(P) 2/53, R(P) 2/59,R(P) 4/61, 5.1.3 i, v, vii, xvii, xviii

religious community, light work CP 7/49, 5.1.7 isame work, hours much reduced R(P) 9/52,

R(P) 16/55, R(P) 7/56, 5.1.3 iv, x, xischool meals, 12½ hours a week R(P) 8/54, 5.1.1 ii;

R(P) 15/52, 5.1.3 vitwo regular part-time jobs R(P) 3/58, 5.1.3 xiiinot gainfully occupiedinvalid, hoping return to work CP 49/49, 5.1.2 imember of closed religious order R(P) 7/54, 5.1.7 iitreated as not having retired

earner not only occasionally or to an inconsiderable extentagricultural

continuing farming small holding or croftingR(P) 7/52, R(P) 15/55, R(P) 8/56,R(P) 19/56, 5.1.8 i, iv-vi

labourer for board/lodging R(P) 3/53, 5.1.8 iion similar work to substantial extent R(P) 1/52,

R(P) 4/57, 5.1.5 i, ivregular authorship R(P) 1/60, 5.1.5 vseasonal work R(P) 6/56, 5.1.5 vvillage sub-postmistress R(P) 12/53, 5.1.5 ii

earner otherwise in circumstances inconsistent withretirement

criteria R(P) 8/54, 5.1.1 ii; R(P) 6/54, R(P) 16/55,R(P) 6/57, 5.1.3 ix, x, xii

fee-paid city councillor R(P) 2/76, 5.1.6 iischool meals 17 hours a week R(P) 18/56, 5.1.6 ifrom regular employmenthalf-time in same job R(P) 1/54, 5.1.4 iiiover half-time in fresh job R(P) 11/55, 5.1.4 ivregular caretaking duties R(P) 16/56, 5.1.4 vi

retirementkind of work reasonable to do in retirement R(P) 8/54,

5.1.1 ii; R(P) 15/52, R(P) 3/60,R(P) 3/61, 5.1.3 vi, xvi, xvii; R(P) 4/57,5.1.5 iv

treated as not having retiredfrom regular employmentsame business, reduced profits R(P) 1/53, 5.1.4 iseasonal worker R(P) 6/56, 5.1.5 iiishopwork, regular peak periods R(P) 11/56, 5.1.4 vwilling for all available work R(P) 10/53, 5.1.4 ii

Retirement pension, graduated pensiontime limit for claiming same as for basic pension and

increase R(P) 1/74, 13.1.2 iiiRevision

Meaning of “official error” R(CS) 3/04, 17.11.2 iNo right of appeal from refusal to revise for official error

R(H) 8/05, 17.3.2 xxxivRevision of disallowance due to failure to “sign-on”

R(JSA) 2/04, 17.11.2 ii


Ret-Rev

Social security and child support appeal tribunals,adjudication

concurrent appeals R(SB) 4/85, 17.3.8 xiiperiod of, in open-ended claim R(SB) 4/85, 17.3.8 xii

anticipatory appeal R(U) 3/85, 17.3.15 iattendance of an official R(SB) 18/84, 17.3.7 xiclaimant’s entitled to privilege against self-incrimination

R(IS) 4/08, 17.3.10 viclaimant’s right to demand R(SB) 1/81, 17.3.7 viiclerk, analogy with magistrates’ clerk’s functions

R(SB) 13/83, 17.3.7 xconsiderations on appeal to a Social Security appeal tribunal

effect of Howker R(IB) 5/05, 17.3.5 xxiiconstitution

chairman also coroner R(S) 42/59, 17.3.1 vchanges made in after adjournment

case part-heard, membership R(U) 3/88, 17.3.1 viiiconsent of claimant R(S) 31/57, 17.3.1 iv; R(I) 3/51,

R(I) 31/57, R(I) 29/59, R(S) 3/64,17.3.10 i-iv

record of procedure followed R(S) 3/64, 17.3.10 ivemployer’s labour officer a member

involved in case R(I) 26/54, 17.3.1 iinot involved R(I) 51/56, 17.3.1 iii

medical assessor not includible R(I) 14/51, 17.3.11 imember of same sex as claimant R(G) 6/62, R(SB) 2/88,

17.3.1 vi, viimembers and others objected to R(U) 8/53, 17.3.1 i

deceased claimantretrospective appointment to act R(SB) 5/90, 17.3.5 xviiiwho may act for R(SB) 8/88, 17.3.2 xxi

decision ofaward from some future date invalid R(G) 2/53, 17.5.1 i;

CP 7/49, 17.5.2 ipower to correct and set aside R(SB) 4/90, 17.3.13 vii;

R(G) 2/93, 29.17.1 ivcorrection and setting aside of R(SB) 6/88, 17.6.5 xvii;

R(G) 1/81, R(S) 12/81, R(SB) 19/83,R(S) 2/84, R(SB) 31/85, 17.3.13 i-v;R(SB) 1/92, 17.3.13 viii

discretion, exercise of re notional earnings R(SB) 13/86,17.3.5 xiii

supersession issue following decision to not/supersedeor not/revise R(IS) 2/04T, 17.3.5 xx

erroneous in point of lawapplication of disregard, property for sale R(SB) 14/86,

17.3.5 xivfailure by official to submit relevant evidence

R(SB) 18/83, 17.3.5 viiifailure to find facts and state reasons for decision

R(SB) 39/85, 30.8.1 ixfailure to refer availability question to insurance officer

R(SB) 22/83, 17.2.1 iiilegal point (identified by official) in decision R(U) 6/88,

17.4.2 xiiinot where vital medical evidence not produced R(S) 1/88,

17.3.5 xvireasons, failure to give R(SB) 1/83, 17.3.9 xiv;

R(SB) 15/85, 30.2.2 xxiv; R(SB) 39/85,30.8.1 ix; R(FIS) 2/87, 31.2.1 ix

treating child beneficiaries of trust fund as havingnotional resources R(SB) 26/86,30.2.1 xiv

unjustifiable denial of special heating allowanceR(SB) 1/87, 17.3.5 xv

evidenceacceptance or rejection of R(SB) 9/81, 17.3.2 vii;

R(SB) 10/86, 17.3.5 xii; R(SB) 8/84,17.3.9 xix

Social security and appeal tribunals, (contd)chairman’s notes

availability of, on rehearing R(S) 1/87, 17.3.16 idocuments, failure to admit all R(SB) 18/83, 17.3.5 viiihearsay, value to be given to R(SB) 5/82, 17.3.9 x;

R(IS) 5/93, 17.3.7 xiiiinference to be drawn from lack of evidence R(IS) 4/

08. 17.3.10 vimedical, claimant’s last chance to produce R(S) 1/88,

17.3.5 xvimember's knowledge, must be given at hearing

R(S) 1/94, 17.3.5 xixsubmissions not R(SB) 8/84, 17.3.9 xixwitnesses, admission of R(SB) 6/82, 17.3.9 xi

hearingsadjournmentdiscretion whether to adjourn not affected by Human

Rights Act R(IS) 4/08, 17.3.10 vidiscretion whether to adjourn applied correctly R(IS) 5/

08, 17.3.10 vifinal decision of tribunal can’t be re-opened

following R(IS) 12/01, 17.4.2 xivquestions considered de novo after R(I) 29/59, 17.3.10 iiiwhere criminal proceedings coincide with repayment

proceedings R(S) 2/70, 17.10.3 ivat re-hearing

claimant may meet fresh points R(F) 1/72, 17.3.5 iiiof part-heard case, rules R(U) 3/88, 17.3.10 vof remitted case, documentation R(S) 1/87, 17.3.16 i

change of circumstances following supplementarybenefit officer’s decision R(SB) 1/82,17.3.2 x

claimant has primary duty for making out his caseR(SB) 2/83, 17.3.8 vii

discretion of chairman toexclude witnesses, subject to warning as to possible

need to disclose evidence taken inprivate R(U) 2/56, 17.3.7 iv

explanations given and recorded where newdisqualification R(U) 2/72, 17.3.8 v

extension of time for appealing R(S) 2/84, 17.3.8 xi;R(I) 6/73, 17.5.1 iii

out of time, chairman’s refusal not appealableR(SB) 22/86, 17.3.8 xiv; R(SB) 24/82,17.5.1 v

extent of tribunal’s enquiries R(SB) 2/83, 17.3.8 viifailure to attend R(U) 5/70, R(S) 12/81, 17.3.7 vi, viii,

R(CS) 1/95, 17.3.8 xviFIS a re-hearing R(FIS) 1/82, 17.3.7 ixinquisitorial not adversarial R(S) 4/82, R(S) 1/87,

17.3.2 xi, xix; R(SB) 2/83, 17.3.37 vii;R(IS) 5/93, 17.3.7 xiii

irregularities duringAO present at deliberations CP 127/49, 17.3.7 icase put before claimant called CP 127/49, 17.3.7 iintention to allow manifest R(S) 5/78, 17.3.9 iimention of previous accident R(I) 22/58, 17.3.7 vopen discussion of dismissal CSI 37/50, 17.3.7 iioral reference by AO R(S) 5/86, 17.3.6 iiiremittal by Commissioner for fresh hearing unless he

disposes of appeal R(U) 3/63, 17.4.1 iilapsed appeal, considerations R(SB) 15/87, 17.3.2 xxmatters within the scope of the tribunal R(SB) 9/81,

R(SB) 14/82, 17.3.2 vii, xii;R(IS) 15/93, 17.3.2 xxv

non-attendance by claimant, duties of tribunal and clerkR(SB) 19/83, R(SB) 23/83, 17.3.8 viii, ix


Soc

Social security and appeal tribunals, (contd)notice of receipt of immaterial R(SB) 55/83, 17.3.8 xnot irregularity

conduct of hearing R(S) 4/82, 17.3.2 xievidence in one appeal taken as repeated in another

R(I) 95/53, R(I) 22/58, 17.3.7 iii, vpresenting officer not present R(IS) 17/04, 17.3.7 xxirecord of proceedings

duty to comply with legislation, R(DLA) 3/0817.3.9 xxvi

record of proceedings to includeappropriate notes of evidence, findings of fact,

decisions and grounds R(U) 3/80,R(U) 2/81, R(SB) 5/81, R(SB) 6/82,R(SB) 44/84, 17.3.9 iii-v, xi, xxi

chairman’s signature R(DLA) 2/98, 17.3.9 xxvgrouped accident cases R(I) 22/58, 17.3.7 v

explanation where disqualified R(U) 2/72, 17.3.8 vprocedure where constitution changed R(S) 3/64,

17.3.10 ivrights not to be denied through informality R(I) 13/74,

17.3.8 vijurisdiction R(U) 21/64, R(SB) 14/82, R(S) 1/87,

17.3.2 iv, xii, xix, R(IS) 7/91, 17.2.1 vi,R(SB) 1/95, 17.3.2 xxvi

contribution conditions R(U) 6/89, 17.3.3 iiilapsed appeal, considerations R(SB) 15/87, 17.3.2 xx

matters first arising R(IS) 15/93, 17.3.2 xxv;R(IS) 2/96, 17.3.2 xxviii

power to decideappeals on grounds different from those of adjudication

decision R(SB) 40/84, 17.3.5 xipatriality R(SB) 11/88, 17.3.2 xxiiireferred question R(SB) 22/85, 17.3.2 xviiitribunal decision can be less favourable than on appealed

R(IS) 2/04T, 17.3.2 xxxiiivalidity of Statutory Instrument R(F) 3/89, 17.3.2 xxiv

single payments R(SB) 9/81, R(SB) 14/82, R(SB) 42/83,17.3.2 vii, xii, xv

supplementary pension or allowance R(SB) 42/83,30.3.1 xi

validity of regulations R(SB) 10/88, 17.3.2 xxiinatural justice, rules of

avoidance, in relation to dismissal, of terms ‘proper’ and‘unfair’ R(U) 3/79, 1.4.7 vii

biasEMP regularly sat as medical member of tribunal

R(DLA) 7/04, 17.3.7 xxerroneous

conditional award from some future date R(G) 2/53,17.3.8 ii; CP 7/49, 17.5.2 i

reconditioned, meaning of R(SB) 22/86, 30.3.4 xvterms of reference; failure to require repayment

R(U) 5/63, 17.3.6 i see alsoCSP 11/50, 17.7.1 i

grouping and recording of accident cases; commonevidence R(I) 22/58, 17.3.8 iii

overpaymentrecoverable and how calculated R(SB) 11/86,

17.3.8 xiii; R(SB) 9/85, 17.8.1 xirequirement to state amount R(SB) 9/85, 17.8.1 xisection 74 Social Security Administration Act 1992R(IS) 14/04, 17.3.2 xxxii

refusal of extension of time R(SB) 22/86, 17.3.8 xivstatement under caution R(I) 10/58, 17.3.8 iiwithdrawal of appeal R(I) 6/81, 17.3.14 i; R(IS) 5/94,

17.3.14 ii

Social security and appeal tribunals, (contd)record of decision

adequate findings of fact R(SB) 13/86, 17.3.5 xiii;R(SB) 19/81, R(SB) 1/82, R(SB) 2/82,R(SB) 5/82, R(SB) 11/82,

R(SB) 23/82, R(S) 2/83, R(SB) 2/83,R(SB) 18/83, R(SB) 42/84, 17.3.9 vii-x, xii, xiii, xv- xvii, xx; R(SB) 39/85,30.8.1 ix; R(IS) 4/93, 17.3.9 xxiii;R(SB) 13/86, 17.3.5 xiii;R(U) 5/89, 17.3.9 xxii

adequate statement of reasons R(SB) 13/86, 17.3.5 xiii;R(SB) 5/81, R(SB) 26/83,R(SB) 44/84, 17.3.9 v, xviii, xxi;R(M) 1/93, 17.3.17 ii

amendments of R(S) 2/84, 17.3.13 ivto be placed before fresh tribunal to which case

remitted R(S) 1/87, 17.3.16 iapplying for statement of reasons R(IB) 4/02, 17.3.17 ivreference of questions

AO or tribunal to refer question, which ever is quickerR(SB) 22/82, 17.3.2 xiii

assumption of adverse decision R(SB) 18/81, 17.3.2 viiiquestion of disqualification not for tribunal to predict

R(SB) 18/81, 17.3.2 viiireasonable notice in writing R(S) 5/86, 17.3.6 iiinecessary where public interest involved R(S) 5/86,

17.3.6 iiiSolicitors acting for claimants CG 76/50, CS 166/50,

13.2.3 ii, iii; CG 1/50, CSI 10/50,CG 184/50, CS 50/50, R(G) 9/52,13.6.3 i-v

Spectacles, as aid to visual acuity R(I) 7/63, R(I) 7/67,14.2.4 i, ii

Standardof living CWI 17/49, R(I) 1/72, R(I) 9/80, 11.4.1 ii, iv;of remuneration rate of pay CI 330/50, R(I) 56/53,

R(I) 14/62, R(I) 6/68, R(I) 7/68,R(I) 7/69, R(I) 2/70, R(I) 3/83,1.4.8 i, iii, v-x

State Pension Creditconditions o f entitlement

habitual residence R(PC) 1/09, 28.2.1 i; [2010] AACR18, 19.3.3 xvii

granted refugee status R(PC) 1/08, 19.4.4 viiiStatutory sick pay

establishing the relevant period R(SSP) 1/89, 2.12.3 iperiod of entitlement,deemed incapacity R(S) 4/93, 2.12.2iieffect of trade dispute on R(SSP) 1/86, 2.12.2 iqualifying days R(SSP) 1/85, 2.12.2 i

Step-parent, meaning of R(F) 1/79, R(F) 4/81, R(SB) 9/83,6.1.4 i-iii

Stillborn child R(G) 3/51, 12.4.1 iStrain, in relation to injury R(I) 19/60, 8.1.1 iiiSubsistence allowance R(U) 4/59, 1.1.2 v; R(U) 20/55,

1.6.4 viiSubstantial danger R(A) 1/73, R(A) 1/81, R(A) 5/81,

R(A) 1/83, CSA 8/81, 15.2.5 i-vSubstantial employment during off-season, meaning of

R(U) 6/60, 1.15.6 iiSuicide CI 172/50, CSI 23/50, R(I) 2/57, R(I) 36/60, 12.1.5 i-iv

legal presumption against CSI 23/50, 12.1.5 iiSummons to High Court 18.4.1 iSuperannuation R(U) 17/61, 1.3.8 iv; R(U) 9/59, 1.5.2 iii;

R(U) 26/51, 1.5.8 i; R(P) 2/75, 5.2.1 iv;R(P) 1/64, 5.2.2 ii

Supersessionanti-test case rule doesn’t apply [2010] AACR 13 17.11.1 xat the same rate R(DLA) 6/02, 17.11.1 i; R(I) 5/02,

17.11.1 ii

Soc-SupSupplement 72 [8/2010]

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