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Decision in brief

The withdrawals were not ‘steady’ or ‘uniform’, were not repeated at fixed times or at uniform intervals and were not in respect of a period of time – although under regulation 46(3) of the Universal Credit Regulations 2013 sums (including, for example, annuities) are to be treated as income if ‘paid regularly and by reference to a period’, the withdrawals in this case did not meet that definition

Decision in brief

Claimant with back and leg pain – ability to move around or carry items in a kitchen is not relevant – ‘preparing’ and ‘cooking’ a meal not connected in the test and ‘making food ready for cooking’ does not include carrying food to where it is to be cooked

Decision in brief

Wise to consider the risks and carefully explain its decision in that regard – MM v SSWP (ESA) [2018] UKUT 446 (AAC) approved – such inferences may legitimately be made, but doing so is risky and the tribunal’s reasons do not suggest it was alive to the potential difficulties

Decision in brief

Tribunal erred in failing to consider whether the claimant’s need to use ear plugs to reduce noise when cooking, washing and bathing constituted an ‘aid’ – also erred in not awarding points for problems with engaging with others face to face and planning and following journeys on the basis that he had no diagnosed mental health condition without explaining why it did not accept that autism and schizotypal personality disorder resulted in those problems

Decision in brief

Claimant’s ability must be assessed at a time of day when it is reasonable for them to carry out an activity – TR v SSWP [2016] AACR 23 and AE v SSWP [2024] UKUT 381 (AAC) applied

Summary

The claimant suffered from a serious mental health condition. She was in receipt of benefits including HB. In early November 2022 she moved out of her home and into another property, in the same local authority, in early December 2022. She did not inform the local authority of either move. When the local authority found out, it suspended HB on 11 January 2023 and on 17 January wrote requiring her to provide information within a month (but without referring to the possibility of an extension). A reminder was sent, but the claimant did not reply. A month later, on 21 February 2023, the council wrote saying the HB had been stopped and notifying a recoverable overpayment. On appeal, it was argued for the claimant that the decision to stop the HB should be replaced by a closed-period supersession stopping the HB only for the period when the claimant was between the two tenancies. The First-tier Tribunal dismissed the appeal.

Judge Paines KC allowed the claimant’s further appeal, substituting a decision that the claimant’s entitlement to HB was superseded regarding the period 14 November 2022 to 5 December 2022, with the payments in that period only a recoverable overpayment. The tribunal had erred in not holding that the correct application of the law was that at the time of the decision of 21 February 2023 the decision required was a closed period supersession – ie, on the basis that (a) at that time the claimant still had an award that still in existence, (b) that the award required to be altered retrospectively by supersession but (c) by the time of the decision the claimant once again satisfied the conditions for entitlement to HB. The judge was ‘fortified’ in that conclusion by the decision of Judge Butler, considering close period supersessions, in SSWP v SC and MJ v LB Bromley [2025] UKUT 299 (AAC) (paragraphs 25–26). (The rules on migration of HB to universal credit (UC) did not arise on the facts of the present case, as the claimant had not claimed UC, and the award of HB had remained in existence rather than having terminated.)

The judge considered whether the claimant’s entitlement instead required to be terminated (ie, with no closed period supersession then possible) for failure to provide information, under regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, SI No.1002. It did not. Regulation 14 could come into play where a person has had their HB suspended under regulation 11, including at subparagraph (2)(a) because of a doubt about their entitlement and who subsequently fails to comply with an information requirement, or where their entitlement has been suspended under regulation 13 for failure to comply with an information requirement. The claimant clearly was a person referred to in regulation 13(2) – ie, a person whose benefit had first been suspended under regulation 11(2)(a). But regulation 13 requires a person subject to the information requirement to be informed of the possibility of explaining that the information does not exist or is unobtainable and of the possibility of an extension to the basic one month allowed for providing it – and in this case the local authority’s letter of 27 January did neither. It was well established that failure to give adequate notice under regulation 13 invalidated any subsequent termination under regulation 14. Therefore, there had been no valid termination of entitlement, the claimant’s award of HB remained current, and a closed-period supersession was the correct decision.

Summary

SC was entitled to UC. She notified her work coach that she would be going to Canada for just under seven weeks. The DWP superseded her award on the day after she left and removed entitlement, on the basis that her absence was planned to exceed one month. The First-tier Tribunal allowed her appeal on the basis that her UC should have been suspended until she had returned. MJ was entitled to housing benefit (HB). She notified the local authority of her intention to go to Brazil for just under five weeks. The local authority ended entitlement from the date of her departure. The First-tier Tribunal refused her appeal.

In the Upper Tribunal, Judge Butler allowed the Secretary of State’s further appeal in SC and dismissed the claimant’s further appeal in MJ. Both cases involved arguments for the claimants that in their cases a ‘closed-period’ supersession could have been carried out in advance – ie, a supersession to the effect that entitlement was only lost for the ‘closed period’ while abroad but was reinstated (ie, without the need for a new claim) prospectively, from the date of return. Judge Butler rejected that argument. A closed period supersession cannot be made on the grounds of a relevant change of circumstances to preserve an existing award of UC or HB where, at the date of the supersession, the claimant does not meet a condition of entitlement – eg, being in Great Britain. Neither, in these circumstances, was such a supersession possible on the ground of an anticipated change of circumstances.

The judge recognised that ‘closed period’ supersessions had been confirmed by a number of decisions initially by the Social Security and Child Support Commissioners and later by the Upper Tribunal. That authority was not disputed. But (unlike in the present cases) it concerned changes of circumstance that, at the point of the supersession, were retrospective, not prospective. The caselaw, said the judge, 

‘has confirmed it is possible to have a closed period supersession where the fixed period occurred in the past and, at the time that the SSWP makes the supersession decision changing a person’s entitlement, the person meets all the entitlement conditions for the benefit’ (paragraph 44). In the present cases, by contrast, the claimants were arguing for a ‘prospective closed period supersession’. 

The judge considered that in a retrospective closed period supersession, where past periods of non-entitlement were followed by period where the entitlement conditions were met again, the overall benefit award ‘will remain a running decision’ (paragraph 192). But if, as in the present cases, the supersession operates to disallow an existing award, the result is that there is not a ‘running decision’, which ‘explains why the supersession decision cannot be superseded for a later change of circumstances. The later change of circumstances is not relevant to the supersession decision, because that decision ceased to have effect after it changed and ended the benefit award’ (paragraph 194). So, in the present cases, the ‘outcome decision’ from the change of circumstances was simply that the claimant was no longer entitled to the benefit: ‘Once that supersession decision was made, it ended the benefit award. At this point, SC and MJ needed to make a new claim to benefit to be entitled to it once more’ (paragraph 229).

Comment from CPAG

The judge responded to observations that the outcome seemed to favour claimants who delayed reporting such changes until they satisfied the entitlement conditions again by pointing out that such claimants may have incurred overpayments and be liable to civil penalties for failure to disclose or to prosecution for fraud.

Summary

The claimant was entitled to UC. He went to India on 5 March 2023, intending to return on 1 April 2023. However while abroad, he fell ill and on 30 March was admitted for medical treatment and was medically advised to take three months’ bed rest. The DWP was informed that he had not returned to the UK yet on 26 April (he eventually returned on 23 June). In May 2023, the DWP superseded the award to end entitlement from the assessment period beginning on 24 March, on the basis of the change of circumstances on 30 March. The claimant’s appeal was dismissed by the First-tier Tribunal.

In the Upper Tribunal, Judge West substantively dismissed the claimant’s further appeal, except for re-inserting the termination of entitlement from 24 March 2023 (the First-tier Tribunal having erroneously substituted termination from the assessment period beginning on 24 February). The judge dismissed two arguments made by the claimant: (1) that the rules on temporary absence (at regulation 11 of the Universal Credit Regulations 2013, SI No.376) could be split or phased, so as to allow an initial basic one-month temporary absence to be changed to award the provision allowing up to six months such absence to apply following the need for medical treatment to have arisen while abroad; (2) if that was not what the rules provided, that they needed to be read in such a way in order to avoid a breach of the claimant’s human rights under Article 14 (prohibition of discrimination) when read with Article 1 of Protocol 1 (right to property).
The temporary absence rule could not be split (or phased) in the way the claimant argued. The provision regarding temporary absence for medical treatment (at subparagraph (3)(a) of regulation 11) related to a claimant travelling abroad in order to receive medical treatment, not (as in the present case) to a claimant already abroad and whose need for medical treatment arose while away. Regulation 11(3) is ‘not intended to extend the period for which UC is available to persons temporarily absent from Great Britain if they experience medical emergencies within one month of travelling abroad’, but rather to ensure ‘that people who need to leave Great Britain to obtain treatment or for convalescence are not penalised by having their benefit withdrawn’ (paragraph 135). Regarding the discrimination argument, the alleged discrimination was against the claimant on grounds of disability. The judge considered that failed at the outset as there was no evidence in this case to establish prima facie indirect discrimination on such grounds – ie, that the claimant was indeed disabled. In these circumstances, it would be ‘wholly impermissible’ to find that the legislation was in breach of the European Convention on Human Rights (ECHR) (paragraph 160). In any case, the judge thought the Secretary of State was right to argue that any difference in treatment was capable of justification. Further, even if regulation 11 was discriminatory in the way the claimant argued, this was not a case where the remedy of disapplying something in the rules was available (without the exceptions in regulation 11 the claimant would not be entitled by virtue of not being in Great Britain), and the proffered solutions of recasting the terms of regulation 11 to make it compliant with the ECHR would be ‘attempts at judicial legislation rather than interpretation of the regulation in a Convention-compliant fashion’, and therefore to be rejected (paragraph 168).

Summary

The claimant attempted to challenge six decisions made in 2007 notifying her of an intention to recover overpayments of IS. However, the First-tier Tribunal declined jurisdiction on the grounds that the DWP had failed (before issuing the recoverability decisions) first to notify the claimant that her IS was revised. The claimant’s challenge was made in 2020 (ie, a very long time after the expiry of the absolute 13-month time limit for an appeal), in the form first of a request for an ‘any time’ revision of the six recoverability decisions on the grounds of official error. The DWP’s subsequent refusal to revise was then appealed against. The tribunal declined jurisdiction as notification of a revised decision is a necessary precondition before a decision is appealable, and no such notification was made.

Judge Brewer refused the claimant’s further appeal. The tribunal had not erred. It was true, on the balance of probabilities, that the revised entitlement decision had not been notified to the claimant. By contrast, it was more likely than not that the claimant had been sent the six recoverability decisions; importantly, it was the case that those decisions all confirmed that the claimant had a right of appeal, which she did not exercise timeously following notification. The DWP’s failure to make and notify the claimant of a valid revised decision meant that the preconditions for recovery of an overpayment of IS, in section 71(5A) of the Social Security Administration Act 1992 ‘were simply not met’, and the DWP’s subsequent recovery of overpayment was ‘without lawful authority’ and an ‘official error’ as defined in regulation 1(3) of the Social Security (Decisions and Appeals) Regulations 1999 (paragraph 55).

But it did not follow that the tribunal had jurisdiction to consider the claimant’s much later attempt to appeal the refusal to revise. The absence of notification of the revised entitlement ‘offends against the basic tenets of legality and access to justice’ so that it is of no legal effect; the original IS decision therefore remains in full force; consequently ‘unless and until’ notification takes place there can be no appeal against it, with the result that the tribunal had no jurisdiction (paragraphs 62–66). Neither was there a right of appeal against the refusal to revise the IS recoverability decisions for official error. That there was no such right had been established by R(IS) 15/04. The claimant was not assisted by the comments of Judge Poole in PH and SM v SSWP [2018] UKUT 404 (AAC) to the effect that, in the mandatory reconsideration regime (introduced after the date of the decisions under consideration in this case), a refusal to revise for official error may give rise to appeal. Under the law in force at the time of the decisions in this case (2007), no such mechanism existed and R(IS) 15/04 was a complete answer to the question about right of appeal against a refusal to revise. But the claimant had been given a right of appeal. The judge noted that the recoverability decisions which were notified to the claimant in 2007 all carried the right of appeal. The claimant had not exercised that right within available time frames. Had such an appeal been made, ‘the absence of notification would rightly have been an issue for the tribunal to determine’ (paragraph 77).

Comment from CPAG

Despite the citation, this is a decision about IS rather than universal credit. The findings regarding the necessity for notification of a decision for it to have legal effect and for there to be a subsequent jurisdiction for a tribunal, though not new, are of general relevance. But the findings regarding right of appeal against a refusal to revise for official error must be read in the context of the pre-mandatory reconsideration scheme rules that were under consideration in PH, and so of more limited applicability.

Summary

The appellant was the mother of two children in respect of whom she had been awarded child benefit. The (separated) father of the children made a competing claim, and HMRC awarded the child benefit for the children to him instead. The First-tier Tribunal allowed the mother’s appeal and reinstated the child benefit for the children to her.

Judge Markus KC allowed the father’s further appeal and held that the tribunal had breached the rules of natural justice by failing to join the father in the appeal. Further, the tribunal failed to apply the correct legal test of the priority rules for child benefit in Schedule 10 of the Social Security Contributions and Benefits Act 1992. The tribunal had made a decision based on its views about the best interests of the children’s welfare and had applied Schedule 10 at all times. Remaking the decision, Judge Markus KC held that for the purposes of section 143(1)(a) of the Act, in all the circumstances the children lived with both parents. The existence of a shared care order by a court regarding the children was relative evidence but was not in itself determinative. Under Schedule 10, none of the priority provisions applied so as to give entitlement to the mother or the father, so in the absence of a joint election by them it fell to HMRC to decide which of them was to be awarded child benefit for the children.

The relevant facts included that the mother had stated that the children could spend as much time as they wished with either parent and they spent at least every other weekend with her. The father had stated that the children stayed with him except on alternate weekends, and that the children’s school and medical records were kept with him and that the children stayed with him when ill, facts disputed by the mother. Reviewing authority on the meaning of when a child is ‘living with’ a person, the judge held that:

‘...the question of with whom a child is living at any time for the purpose of section 143(1)(a) is a question of fact to be decided on all the available relevant evidence. It is not a question of where the child spends the majority of their time. The existence of a court order or agreement between the parents as to joint living or caring arrangements is not decisive of where the children live. Such matters are relevant evidence, but they must be weighed along with all the evidence’ (paragraph 53). 

It was clear that the children spent significant amounts of time at the mother’s house. It was unlikely that the children kept no possessions at her house, and instead likely that they kept possessions with both their mother and their father. In the light of all this, the judge concluded that the children lived with both the mother and the father. Therefore, none of the specific priority provisions in Schedule 10 applied. Accordingly, in the absence of a joint election by the parents it was for HMRC to decide entitlement (under paragraph 5 of the Schedule), a decision that was not within the tribunal’s jurisdiction.

Decision in brief

Under section 71ZB of the Social Security Administration Act 1992, overpayments of new-style ESA (as well as UC and new-style ESA) are always recoverable and paragraph 6B of Schedule 3 to the Social Security Act 1998 provides there a right of appeal only about the amount of the overpayment – LP v SSWP [2018] UKUT 332 (AAC) applied and approved – tribunal erred in holding that it had jurisdiction to decide on whether the overpayment is recoverable and to consider the applicability of R (K) v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) – challenges to recovery in such cases are instead possible on judicial review, where R (K) may be considered by the court – similarly the decision of the European Court of Human Rights in Cakarevic v Croatia (Application 48921/13) (in the context of human rights challenge to recover an overpayment) was potentially relevant in a judicial review, but not on appeal to a tribunal Comment: R (K) held there was a defence against overpayment recovery based on ‘legitimate expectation’ (see ‘Overpayments and legitimate expectation’, Bulletin 293, April 2023), a concept applied in a human rights context in Cakarevic v Croatia (see ‘Overpayments: legitimate expectation, human rights style’, Bulletin 294, June 2023).

Decision in brief

In January 2025, tribunal awarded ADP to 25 December 2025, but prior to the tribunal decision, Social Security Scotland did a supersession of the decision under appeal, making an award starting on 7 November 2024 – under section 27 of the Social Security (Scotland) Act 2018 tribunal was only able to award ADP to 6 November 2024, as the period from 7 November 2024 was covered by a different determination (subject to its own appeal rights, so the claimant was not without a remedy regarding that), even though it was actually unaware of the supersession decision