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Summary

The claimant had severe anxiety, depression, panic attacks and cognitive impairment. He was awarded the standard rate of the daily living component of adult disability payment (ADP) but was refused the mobility component, having been awarded just 4 points regarding that. He appealed to the First-tier Tribunal for Scotland (FTS) but did not attend the telephone hearing of the appeal. The tribunal continued in his absence and removed the award of the daily living component and reduced the points regarding the mobility component to zero, resulting in no award of ADP at all.

In the Upper Tribunal for Scotland, Lord Duthie allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to issue a specific warning to the claimant that his existing award was at risk, so depriving him of the chance to prepare a response or consider withdrawing his appeal. A related error concerned the tribunal’s decision to proceed with the hearing in the claimant’s absence. As submitted by Social Security Scotland, given the tribunal’s own findings about the claimant’s difficulties, fairness required adjournment when he failed to attend the hearing. The overall result was a breach of the rules of fairness.

Lord Duthie agreed with the concession of Social Security Scotland. Ordinarily, proceeding in the claimant’s absence where the tribunal is satisfied that proper notice of the hearing has been given is ‘unremarkable’; however, in this case the tribunal was aware of the claimant’s mental health problems and was considering making a less favourable decision. ‘In those circumstances,’ said Lord Duthie, ‘fairness required the FTS to give a clear warning before removing entitlement. Where a tribunal is considering a less favourable outcome, it must give sufficient notice to enable the claimant to prepare, in accordance with Article 6 ECHR and the principles of natural justice (NK v Secretary of State for Work and Pensions [2025] UKUT 363 (AAC)). That duty includes giving a specific warning identifying the descriptors or components at risk and allowing the claimant an opportunity to address them (LJ v SSWP [2017] UKUT 455 (AAC); TS v SSWP [2012] UKUT 182 (AAC)). The failure to do so constitutes an error of law’ (paragraph 6).

Comment from CPAG

The decision is notable for the application of existing authority on the need for a specific warning of a possible less favourable decision to the context of the First-tier Tribunal for Scotland. There is a body of uncontested authority from the Upper Tribunal regarding UK benefits (in particular, personal independence payment) on the subject. Apart from the decisions cited by Lord Duthie in the present decision there is also, for example, SR v SSWP [2024] UKUT 198 (AAC) and RC v SSWP [2017] UKUT 139. 

Summary

The claimant had a UC monthly assessment period (AP) running from the first day of each calendar month until the end of the month. On 20 November 2023, the claimant reported having paid £1,750 (‘the first payment’) on 1 November, regarding childcare from 30 September to 31 October. On 7 December she reported having paid a further £1,350 on 3 November (‘the second payment’) on 3 November, regarding childcare from 1 November to 30 November. She was awarded the childcare costs element for the November AP of £1,630.15 – ie, the maximum then available for one AP. The claimant challenged why she had not also been awarded the element in respect of any charges regarding the October AP – ie, paid for by the first payment. The First-tier Tribunal allowed her appeal, holding that the Secretary of State had been able to award the element for the October AP under the rule (at regulation 33(2) of the Universal Credit Regulations 2013, SI No.376, allowing for ‘late reporting’ of charges.

Judge Wikeley allowed the further appeal of the Secretary of State and substituted a decision that the original decision awarding the element for the maximum permitted amount for the November AP was reinstated. The tribunal had erred. Although it had in fact acknowledged that the Secretary of State had been ‘legally entitled’ to make the decision that it did, it had nevertheless applied a different approach, and that approach was incorrect. The essential point was that the claimant had made two payments of childcare costs charges in the same AP (ie, the November one), including the first payment. That was because regulation 34A provides that charges are attributable to the AP in which they are paid, including (per subparagraph (1)(b)) where those charges are paid ‘in respect of a previous assessment period’. The second payment was also attributable to the AP in which it was paid (ie, November) by virtue of regulation 34A(1)(a) – ie, because they were ‘charges paid in that assessment period for relevant childcare in respect of that assessment period’. Under regulation 33, the childcare charges paid, per regulation 34A, attributable to the November AP in fact been reported timeously – ie, ‘before the end of the assessment period that follows the assessment period in which they were paid’. Judge Wikeley said that ‘the problem’ with the tribunal’s approach was that in fact regulation 33 ‘cannot assist in the circumstances of this case’ (paragraph 29) – ie, they had not been reported ‘late’.

In ‘final observations’, Judge Wikeley acknowledged that the ‘net result’ was that the claimant was denied the childcare costs element in respect of most of her childcare charges for the October. That is simply because, as the tribunal had observed, the claimant had claimed two months’ worth of childcare costs in the same AP. For Judge Wikeley, that was however the correct result under the rules. The judge noted that the policy objective behind the 2019 amendments to regulation 33, officially described as intended to help households with children, giving people more confidence that they will receive the support they need in work, ‘is hardly well served by the outcome of the present appeal’ (paragraph 37). His decision was therefore reached ‘with some regret’ (paragraph 38).

Comment from CPAG

The outcome is a clear warning about potential outcomes of paying two lots of childcare charges in the same AP, even where one of the payments is regarding childcare actually provided in a previous AP. In addition to the judge’s observations about how regulation 33 defines what is ‘late reporting’ of charges, it should be borne in mind that even if they are indeed reported late, attribution of them to a particular AP is still subject to the provisions of regulation 34A.

Summary

The claimants had a joint claim for UC, made in June 2023. One claimant (A), who eventually became the appellant, was in full-time work; his partner (P) had limited capability for work-related activity (LCWRA). They had joint caring responsibilities for their severely disabled child. On the claim form, however, they declared that P alone was the child’s carer for more than 35 hours a week (even though that was not actually the case). The UC was awarded but included only the LCWRA element (in respect of P), and not the carer element, as P could not also be entitled to that. In November 2023, claimant A notified that in fact he was also a carer for 35 hours a week and was elected as the main carer but had not previously understood that was possible under the rules. The DWP treated that as a late notified change of circumstances and the element for him was only awarded from November. Although A explicitly referred to a late revision in his mandatory reconsideration request, both the DWP and the First-tier Tribunal continued to apply supersession rules for a late notified change of circumstance. As, under those rules, ignorance or misunderstanding of the law could not be taken into account, the carer element could not be backdated to the start of the award.

Judge Markus KC allowed A’s further appeal and substituted a decision that the carer element should be included from the start of the award. On the facts, a late revision of the failure to include the carer element in respect of A was the correct decision, with the effect that the element was to be included from that point, rather than a later date. The tribunal had wrongly focused on regulation 36 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (‘the D&A Regulations’). That provides for the effective dates of supersessions for changes of circumstance, where the change has been notified late. It was true that subparagraph (7)(b) of regulation 36 provides that, in considering whether in effect to backdate the effective date, no account must be taken of ignorance or confusion regarding the law.

But, as Judge Markus QC said, applying regulation 36 of the D&A Regulations had been part of ‘a great deal of muddle’ by the DWP and tribunal (paragraph 27). The decision before the tribunal called, on the facts, for consideration of a revision rather than a supersession. A decision that could be revised could not, per regulation 32, be superseded instead. Claimant A’s case had (with the aid of his representative) consistently been that the original UC award should, on the actual facts, always have included the carer element for him. As, said the judge, A ‘had advanced a factual case indicating that the initial award was incorrect from the outset’, that called for consideration of whether the award should be revised under regulation 5 of the D&A Regulations, and (per the Court of Appeal decision in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186 (reported as [2024] 1 WLR 3012), revision on that ground was possible simply on the basis that it was wrong when it was made. The tribunal had apparently thought at some point that revision was in play, but when considering an extension of time, wrongly applied regulation 36, rather than regulation 6 which is the provision regarding late applications for revision. Judge Markus said: ‘This was fundamentally in error. As I have explained, this was a case in which the appellant had notified the respondent that the facts as reported in the UC claim were incorrect and was seeking a decision based on the correct facts from the outset. This was an application for a revision’ (paragraph 37). It was true that regulation 6 required the Secretary of State to be satisfied that it was reasonable to allow the late application – but there was no bar to taking ignorance or misunderstanding of the law into account. On the facts, which included the lack of information in the online UC claim form, claimant A’s misunderstanding of the law regarding the carer element, the stress involved in caring for the child and P’s own health problems, and adopting the ‘common sense’ approach in the official guidance for decision makers (ADM, paragraph A3055), the judge substituted a decision that an extension of time to allow a late revision was appropriate. Consequently, the carer element was to be included from the outset of the award (paragraphs 48–66).

Comment from CPAG

This decision does not break new legal ground, but it is a helpful corrective to the ‘muddle’ that still seems to afflict decision making regarding late revisions. The claimant was well represented in this case, and it is disappointing that the First-tier Tribunal was unmoved. Put shortly, where a revision is possible (ie, for incorrectness), including as here where a claimant is within the 13-month time limit for a late application on any grounds, a revision must be carried out and not a supersession.

Summary

The claimants were separated parents. Both were potentially entitled to child benefit for the child. The mother had been the initial claimant and recipient, but the father later made a claim. Under the priority rules in Schedule 10 of the Social Security Benefits Act 1992, HMRC decided that as on the facts neither claimant (ie, neither parent) had priority and that no valid joint election by them had been made, HMRC had to use its discretion to decide who was entitled, and superseded the award to award it to the father. The First-tier Tribunal allowed the mother’s appeal, holding that a joint election had been made, as the claimants had previously reached an agreement that the mother would receive all the benefits to which she was entitled, with that agreement subsequently documented in a letter from the father’s solicitors and in a consent order made by the Family Court.

Judge Citron allowed the father’s further appeal and substituted a decision that, under paragraph 5 of Schedule 10, no valid joint election had been made by the claimants and it had therefore fallen to HMRC to use its discretion to award the benefit to one of the claimants (and so the award to the father had been correctly made). The tribunal had erred in holding that the agreement between the parents, even though subsequently documented in a consent order by the Family Court, constituted a valid joint election for the purposes of paragraph 5 of Schedule 10. Such a joint election required to be notified to HMRC, and in this case even if the documents had been given to HMRC, they would still not have constituted a valid joint election. The tribunal had further erred in holding that HMRC’s decision to award the benefit to the father instead was not a valid ground for superseding the award to the mother.

On the facts, neither the letter from the father’s solicitors nor the Family Court order had been sent to HMRC by the time of its decision to award the benefit to the father. But even if they had, they did not either separately or together form a joint election that the mother was to be entitled. That was because: (1) the letter from the father’s solicitors was clearly not ‘joint’, coming as it did from representatives of only one of the parties; and (2) the Family Court order contained ‘no clear statement that both parents had agreed’ to the mother’s entitlement to the child benefit – rather it was an undertaking by the mother to apply for whichever benefits she was entitled to, and that ‘falls short’ of such a clear statement (paragraph 19). Regarding supersession grounds, the judge was referred to the decision of Judge Hemingway in CF/2853/2017, in which it was held that HMRC’s exercise of its discretion under paragraph 5 of Schedule 10 was of itself a change of circumstances that provided the ground for superseding the existing award. In the present case, Judge Citron approved that, holding that:

'HMRC’s exercise of their discretion, in default of a joint election, in favour of Father, was itself a change in circumstances justifying supersession of the prior award’ (paragraph 22). 

The First-tier Tribunal’s decision to the contrary was in error.

Comment from CPAG

This is another recent decision in which the terms of a court order were not determinative for the purpose of the priority rules in Schedule 10. For a similar finding, albeit one in which the terms of a court order were not determinative in showing that the children lived with one parent rather than showing there had been a joint election, see HRMC v (1) AV (2) IV [2025] UKUT 286 (AAC).

Summary

This decision is by a three-judge panel of the Upper Tribunal. The panel was convened because the appeals were considered to raise questions of special difficulty or important points of principle or practice. In particular, they concerned the way that the rule requiring a claimant’s ability to carry out an activity ‘safely, to an acceptable standard repeatedly and within a reasonable time period’ (regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 – ‘the regulation 4(2A) standard’) applied to the descriptors, and how the ‘required period’ rule (regulation 7) applied to them.

The claimant in AH declared conditions of anxiety and depression, panic attacks, back problems and fainting. The claimant in AK declared conditions including anxiety, depression, severe eczema and loss of sight. Both had been refused the high rate of the mobility component, having been awarded 8 points under descriptor 1(e) rather than 12 points under descriptor 1(f). In both cases, the First-tier Tribunal had considered descriptor (e) first and held that, because the claimants could not undertake any journey without experiencing (per the wording of the descriptor) ‘overwhelming psychological distress’ even when assisted, that descriptor applied, and descriptor (f) therefore did not fall to be considered at all. That was so even though the claimants contended that in fact under the terms of descriptor 1(f) they were able to undertake familiar journeys to an acceptable standard when assisted, and so should instead score 12 points under descriptor 1(f).

Mrs Justice Heather Williams DBE, Judge Stout and Judge Butler allowed the further appeals of the claimants and remitted the cases to a fresh tribunal for further fact finding in relation to the applicability (or otherwise) of mobility descriptor 1(f). Both tribunals had erred in applying descriptor 1(e) before (as the three-judge panel holds to be correct) descriptor 1(f). The tribunal in AH had been ‘unduly expansive’ in concluding that the claimant suffered ‘overwhelming’ distress whenever she went out given the evidence that she went out regularly (paragraph 123). Both tribunals had also erred in considering, regarding the relevant period test, only when the claimants actually went out rather than (per regulation 7(2)) what they would have been able to do if support had been available on the majority of the days considered (paragraphs 123 and 129).

The Upper Tribunal noted that the mobility activity 1 descriptors were unique in that the descriptor reflecting a claimant’s greatest level of restriction (ie, 1(e)) is not the highest scoring descriptor (which is 1(f)). That position (purposely created in the legislation) meant that merely considering the descriptors in alphabetical order risked giving insufficient attention to the circumstances in which 1(f) should apply. Accordingly, ‘in any given case’ consideration of the mobility 1 descriptors should conclude with considering 1(f) before 1(e) (paragraph 71) – the judges therefore disagreed with the assumption in MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR, that 1(e) should be considered before 1(f). Further, the regulation 4(2A) standard was to be applied to all the descriptors, including those (like both 1(e) and 1(f)) that refer to what a claimant ‘cannot’ do. In the present context, regarding 1(f), the decision maker must first consider whether the claimant ‘cannot follow the route of a familiar journey safely, to an acceptable standard, repeatedly and within a reasonable time period, if unaided’. If the answer to that was no (ie, they can follow such a journey to that standard even if unaided), then the descriptor will not apply; but if the answer is yes (ie, they cannot follow such a journey to that standard if unaided), then the decision maker should then assess whether the claimant can do so if aided. If the answer to that is yes, then descriptor 1(f) applies; ‘if not, it does not’ (paragraph 81). In considering 1(f), ‘the entirety of the claimant’s conditions, including psychological and physical conditions, should be taken into account’ (paragraph 119(j) – the judges disagreed with the implication in MH that psychological conditions were relevant to 1(f) only if they were overwhelming. Consideration of 1(e) ‘only arises if descriptor 1(f) has been addressed and the conclusion reached that the claimant cannot follow the route of a familiar journey to a regulation 4(2A) standard even when in receipt of the assistance referred to in the descriptor’ (paragraph 119e). It is ‘not possible for a claimant to satisfy both descriptors 1(e) and 1(f)’ (paragraph 119i).

Comment from CPAG

This decision holds that (1) in mobility activity 1, in all cases descriptor (e) must be considered last (ie, after consideration), with reference to both mental and physical health problems, of descriptor (f), and (2) the regulation 4(2A) standard must be read into all the descriptors, including those that are about what the claimant ‘cannot’ do. At time of writing, the Secretary of State’s response was unknown.