CP CIS 108 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 07 April 2011 |
| Neutral Citation | 2011 UKUT 157 AAC |
| Subject Matter | Capital |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 108 2010 |
| Appellant | CP |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal.
The decision of the Sheffield First-tier Tribunal dated 26 June 2009 under file reference 138/08/03205 does not involve any error of law.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The issues in this appeal
1. The claimant (C) is a young woman with Down’s Syndrome. She received a substantial payment of compensation, now held on her behalf by the Court of Protection, after her mother (and primary carer) was killed in a road traffic accident (RTA) when C was a child. Later, at the age of 22, C claimed income support. The principal legal issues in this appeal concern the proper interpretation of the capital disregards in paragraphs 12 and 44 of Schedule 10 to the Income Support (General) Regulations 1987 (SI 1987/1967; “the 1987 Regulations”) and a related human rights argument.
The facts of the case
2. The essential facts of the case were set out with admirable brevity and clarity by Tribunal Judge (now District Tribunal Judge) Ennals in his statement of reasons for the tribunal’s decision. I simply record them here in their entirety to set the context:
- C was born on 17 June 1985, with significant learning disabilities and sight problems.
- There is no specific diagnosis available as to the causes of this condition.
- She has not received any injury since birth.
- Her mother was her carer, who was killed in an RTA when C was 14.
- In 2004 C was awarded compensation for loss of her mother’s care of over £237,000.
- C is now 24 years old.
- She is a patient of the Court of Protection, and her compensation funds are held by the Court on her behalf.
- The compensation payment did not derive from any personal injury to C.
3. There was ample evidence to support those findings of fact. The First-tier Tribunal had before it copies of: (i) the Court of Protection medical certificate for C; (ii) her local authority Statement of Special Educational Needs; (iii) the High Court consent order settling the claim against the driver concerned, recording that the sum of £335,000 was apportioned as to £97,793 to C’s father and £237,207 to C herself; (iv) the Loss of Dependency Report, which detailed the significant contribution made by C’s late mother both to C’s care and the general running of the family household.
The claim for income support
4. On 25 April 2008 a partner at Irwin Mitchell (C’s solicitors), who had been appointed her receiver by the Court of Protection, made a claim for income support on behalf of C, then aged 22. Total capital of £243,781.68, held by the Court of Protection for C, was disclosed. In correspondence with the DWP, Irwin Mitchell summarised C’s case as follows:
“It is submitted that the compensation she has received for lost care services can be ignored under Schedule 10 paragraphs 12, 44 and 45 of the Income Support Regulations 1987. The compensation held by the Court of Protection is for lost care services for the claimant who suffers from Down’s Syndrome. The care services that have been lost are directly due to the death of the parent who was the main carer.”
5. On 11 June 2008 one of the Secretary of State’s decision makers concluded that C was not entitled to income support. The DWP’s letter to Irwin Mitchell explained that decision as follows:
“The payment held in trust has been made to ensure that the customer can pay for the care that she needs to support her independent living following the death of a parent and not to her for personal injury to herself.
The customer is over the age of 18 years and therefore there is no provision in Schedule 10 for disregarding the capital.
As the customer has capital held in trust in excess of £16,000 there is no entitlement to income support.”
6. C’s solicitors appealed on her behalf against that decision to the First-tier Tribunal. The grounds of appeal were essentially an elaboration of the points made in the extract quoted in paragraph 4 above. At this point the terms of the two capital disregards in issue should be noted.
The statutory provisions in issue
7. Paragraph 12 of Schedule 10 to the Income Support (General) Regulations 1987 (as amended in square brackets) reads as follows:
“12. Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant [or the claimant’s partner], the value of the trust fund and the value of the right to receive any payment under that trust.”
8. Paragraph 44 of Schedule 10 to the Income Support (General) Regulations 1987 (as amended) provides a disregard where:
“44.—(1) Any sum of capital to which sub-paragraph (2) applies and—
(a) which is administered on behalf of a person by the High Court or the County Court under Rule 21.11(1) of the Civil Procedure Rules 1998 or by the Court of Protection;
(b) which can only be disposed of by order or direction of any such court; or
(c) where the person concerned is under the age of 18, which can only be disposed of by order or direction prior to that person attaining age 18.
(2) This sub-paragraph applies to a sum of capital which is derived from—
(a) an award of damages for a personal injury to that person; or
(b) compensation for the death of one or both parents where the person concerned is under the age of 18.”
9. It is agreed that paragraph 45 of Schedule 10 was not in issue, as that disregard relates solely to Scotland and is essentially an equivalent provision to paragraph 44 but modified for that jurisdiction.
The First-tier Tribunal’s decision and reasons
10. The First-tier Tribunal heard C’s appeal on 26 June 2009. Tribunal Judge Ennals dismissed the appeal. On the Decision Notice he recorded that two arguments had been put to him, relating to paragraphs 12 and 44 respectively of Schedule 10 to the 1987 Regulations.
11. On the argument that the disregard in paragraph 12 applied, the tribunal judge held as follows:
“I accept that the reason for the compensation is her high care needs, which were no longer being met by her mother, who had sadly died. However, I have no evidence before me that C’s disabilities are the result of personal injury. It was put to me that learning disabilities may result from a genetic abnormality that should be regarded as a personal injury. There is actually no specific evidence before me to clarify precisely the cause of C’s disabilities. Even if there was, I am not satisfied that that would properly mean that her disabilities could be said to result from a personal injury.”
12. On the argument that the disregard in paragraph 44 applied, the tribunal judge ruled in these terms:
“For this to succeed I would have to find that C was under 18. I do not consider that the regulation applies to someone who was under 18 when she lost her parent, but is now over 18. Nor do I think it applies to someone who may have a mental age of under 18. Incidentally, there is no reliable evidence before me as to C’s mental age at present. While I can see the possible desirability of reading the above meanings into the wording of para. 44, I cannot see that either of those meanings can actually be found within the wording as it is.”
13. Irwin Mitchell, on behalf of C, lodged an application for permission to appeal to the Upper Tribunal, raising in addition a human rights argument based on Article 1 of Protocol 1 to the European Convention that does not appear to have been advanced before the First-tier Tribunal hearing. A District Tribunal Judge gave permission to appeal for the following reasons:
“It is not clear whether paragraph 44(2)(b) applies an age limit of 18 for entitlement to the disregard, or whether it describes the nature of the compensation – payments to under 18 year olds for the death of a parent.
There is no age limit for compensation for personal injury under paragraph 44(2)(a). In C’s case and where paragraph 44(1) is satisfied, could the interpretation of paragraph (b) as applying an age limit be unjustifiable discriminatory deprivation of a possession?”
The proceedings before the Upper Tribunal
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