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Decision in brief

Upper Tribunal says: 

‘This is yet another case concerning the failure of the Secretary of State to put before the First-tier Tribunal an accurate list showing the least and most onerous forms of work-related activity that were available for the claimant to undertake...and the failure of the First-tier Tribunal to do anything to correct that (obvious) omission. The hope I expressed in MR v SSWP (ESA) [2020] UKUT 210 (AAC) that MR would be the last word on the provision of accurate lists of work-related activities in appeals concerning regulation 35(2) of the Employment and Support Allowance Regulations 2008 or its universal credit counterpart has proven to be a forlorn one’

Secretary of State gave assurance to Upper Tribunal judge that retraining had been provided to decision makers, but 

‘ …First-tier Tribunals may need to remain vigilant on universal credit appeals especially to ensure they have been provided with an accurate list of work-related activities. One I would have thought reasonably fail safe test is if the list does not include “work placements” then it is very likely that it is not an accurate list'

Decision in brief

Claimant objected to extra requirements for evidence about his identity - his entitlement to credits was by virtue of regulation 8A of the Social Security (Credits) Regulations 1975 and he continued to satisfy the criteria in those – wrong to consider applying the Jobseeker’s Allowance Regulations 1996 – tribunal wrongly treated the claimant as if he was in receipt of JSA and failed to apply the correct law, which was the Credits Regulations – no provision for disapplying regulation 8A on the basis that the person concerned would not have been entitled to JSA because s/he had failed to attend an interview

Decision in brief

Interests of justice -

‘it is not merely enough to consider whether there is sufficient evidence to make a decision. The tribunal must also consider more generally whether it is in the interests of justice to proceed with a paper determination, particularly in circumstances where it is unclear if the appellant was consenting to have his case determined on the papers alone. The question is whether an oral hearing is required in order to ensure a fair hearing – the purpose being to assist with decision making and to allow participation.’

Decision in brief

May be such a responsibility (CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC), reported as [2019] AACR 11) - claimant with mental health problems refused personal independence payment (PIP) mobility component although had been award low rate disability living allowance (DLA) mobility component – overarching indication from CH and KN and other authority is that ‘the duty to explain divergence, where it arises, is not a demanding one and that a detailed analysis will not be called for… it does not matter that the claimant finds the explanation unpersuasive or disagrees with any reasoning or finding which underpins it. The only issue is whether the explanation is understandable’ – tribunal explained that it considered the evidence showed the claimant’s condition had improved (including becoming able to drive) and that was sufficient explanation, even though the claimant disagreed with the outcome

Decision in brief

Error of law for judge from previous tribunal to have sat on new tribunal – tribunal wrongly refused claimant ability to withdraw her appeal – claimant suspected of dishonesty should be allowed to withdraw – findings of fact (as distinct from outcome decision) of previous tribunal not binding on new tribunal – tribunal’s behaviour to claimant created an impression that it was hostile to her and that is an error to be strenuously avoided – VS v SSWP [2017] UKUT 274 (AAC) cited

Decision in brief

Enabling role of tribunal required the sending in of the letter to be an application under rule 37 – principle in AJ v Secretary of State for Work and Pensions (II) [2012] UKUT 209 (AAC) regarding being treated as having made an appeal also applies to post-hearing applications where it is not clear what, if any, application the claimant has made

Decision in brief

Common ground that, in the light of the Supreme Court’s decision in re McLaughlin [2018] UKSC 48, reported as [2018] 1 WLR 4250, the relevant law was incompatible with the European Convention on Human Rights insofar as it precluded any entitlement to widowed parent’s allowance by a surviving unmarried partner of a person who had died – but First-tier Tribunal dismissed claimant’s appeal on basis that the incompatibility did not change the law – whether tribunal should have postponed a final decision pending finalisation of the remedial order dealing with that incompatibility, per NA v Secretary of State for Work and Pensions (BB) [2019] UKUT 144 (AAC) – appeal to Upper Tribunal not to be finally determined until remedial order finalised

Decision in brief

Tribunal declined to consider lists of work-related activity to be used in assessment of ‘substantial risk’ in deciding whether claimant has limited capability for work-related activity (per regulation 35 of the Employment and Support Allowance Regulations 2008), as required by IM v SSWP (ESA) [2014] UKUT 412 (AAC) and other decisions of the Upper Tribunal, based on the tribunal’s opinion that that authority was not correct – that was an error of law by the tribunal

Decision in brief

Claimant claimed UK retirement pension in 2001 but that took account of his brief time in New Zealand – after periods living in Spain and Malta, moved to Turkey in 2007 – in 2017 the pension was increased slightly to take account of the time in New Zealand under the Social Security (New Zealand) Order 1983 including the New Zealand Convention, but the increase was limited to the period before the claimant moved to Turkey – no error in tribunal holding that to be correct – terms of the New Zealand Convention limited the pay ability of any increase under it to residence in the UK, which under European Union (EU) legislation required that to be extended to residence in the EU, but not to residence in Turkey

Decision in brief

Claimant had not worked for 26 weeks in relevant tax year and effect of that on contribution history meant fact she had received payment in lieu of notice (which, if attributed over the year, would have given her just over the required 26 weeks of earnings) did not assist her – section 2 of Jobseekers Act 1995 and regulation 34 of the Jobseeker’s Allowance Regulations 2013 applied

Decision in brief

Claimant entered into new tenancy agreement having found that the original agreement gave rise to less benefit than she expected – but in the event would not be actually entitled to more benefit even under the new agreement – it was true that the new agreement had been created to ‘abuse’ or take ‘improper advantage’ of the HB scheme (as per the test in CH/39/2007) – but as no increased benefit would have resulted, it was not right to treat the claimant as not liable

‘The point of the provision is to prevent a person from obtaining an improper advantage, rather than to prevent him or her from obtaining benefit to which he or she would have been entitled whether or not the particular liability in issue had been created.’

Decision in brief

Claimant was refused a funeral payment from the social fund on the basis that the ‘funeral’ took place outside the UK – tribunal did not err in refusing the claimant’s appeal, even though there is (since a change on 2 April 2018) no statutory definition of ‘funeral’ – ordinary and natural meaning of ‘funeral’ applies – ‘despite the revocation of the definition of “funeral”… a funeral is an event involving the final disposal of the deceased’s body and ceremonies closely related to that in nature, time and place. Given the way in which the scheme is drafted, in my opinion, it does not envisage a ceremony for the deceased taking place as one event separate from the event disposing of the deceased’s body.’