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Decision in brief

Also, Upper Tribunal exercising appellate jurisdiction cannot deal with argument based on alleged breach of Equality Act 201 O (although can in exercising judicial review function) - regarding high rate for severe visual impairment, the relevant part of the Equality Act was not in force when the regulations were made - in any case, 'due regard' was had to age issues' - even in the event of all that being wrong, the suggested remedy of disapplying the regulations would bring no benefit to the claimant or anyone else

Decision in brief

Court of Justice of the European Union (CJEU) decision in Brey requires a personalised assessment of whether claimant would be a burden on the social assistance system - subsequent decisions of CJEU in Dano, Alimanovic, Garcia-Neto and Mirga do not alter that, as they are about different rights to reside, and in particular do not concern claimants with comprehensive sickness insurance and a previous record of self-sufficiency

Decision in brief

It is now a special non-contributory cash benefit, and before that it did not qualify as a cash sickness benefit - therefore, did not provide basis for entitlement to UK long-term incapacity benefit

Decision in brief

Tribunal did not err in failing to treat them as a single 12-month period and in not considering the claimant's entitlement in that period as a whole - the 50 per cent of the time rule, by contrast, applies to descriptors rather than component or rate, and applies to the 12-month 'required period' as a whole

Decision in brief

Claimant awarded personal independence payment (PIP) but appealed in order to argue for more points – First-tier Tribunal treated the appeal as raising the question of her entitlement to the points she had already been awarded as a matter of course – error of law – section 12(8)(a) of the Social Security Act 1998 provides that tribunal ‘need not’ consider matters not raised by the appeal (such as points already awarded by the Secretary of State) – although there is discretion to consider matters not raised by the appeal, that discretion must be exercised consciously and judiciously – LH v SSWP (PIP) [2022] UKUT 32 (AAC) and EG v SSWP (PIP) [2015] UKUT 275 (AAC) cited and followed – tribunal also erred in not giving claimant a warning that it was minded to remove points already awarded – general warning of tribunal’s powers was not sufficient to ensure fairness – BTC v SSWP [2015] UKUT 155 cited and followed

Decision in brief

First-tier Tribunal refused to allow the claimant or her representative to give evidence or make submissions and went on to dismiss the appeal – error of law in not providing a fair hearing – the First-tier Tribunal referred to Chamber President’s Guidance Note No.7, Taking Evidence from Overseas, which referred to a need to satisfy the tribunal that there was no legal or diplomatic barrier to their giving evidence – but that was guidance and did not override the duty to provide a fair hearing – social security tribunals are required by the overriding objective in their own procedure rules to be flexible and fair – subsequently, the Court of Appeal in Raza v Secretary of State for the Home Department [2023] EWCA Civ 29 has decided that it is lawful to hear evidence from abroad, and although taking of evidence from abroad without the permission of the state concerned might be contrary to the public interest, the sanctions for that were diplomatic not legal

Decision in brief

Tribunal therefore erred in taking into account the claimant’s circumstances subsequent to the date of the decision (and which on the facts were not capable of being referred back to the date of the decision) and limiting the period of the award on the basis of those circumstances

Decision in brief

First-tier Tribunal refused entitlement on basis of its finding that claimant did not have, as required, ‘severe behavioural problems’ – given extensive findings of significant difficulties with behaviour, tribunal erred in not giving adequate reasons for concluding that the claimant did not have severe behavioural problems – decision substituted awarding the high rate of the mobility component via the severe mental impairment route – MG v SSWP (DLA) [2012] UKUT 429 (AAC) and XTC v SSWP (DLA) [2020] UKUT 342 (AAC) cited as considering proper application of the relevant statutory tests

Comment from CPAG

For a wider discussion, see our article DLA mobility and the severe mental impairment route.