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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

The claimant was a member of a couple. On 22 August 2019, she went abroad to attend her father-in-law’s funeral. At that time the absence was expected to last for 40 days – ie, less than two months. Her return was delayed until July 2020 (firstly by her brother-in-law confiscating her passport, then by the Covid-19 pandemic). On 24 September 2019, it was decided that she and her husband were no longer entitled to UC – ie, due to absence abroad. The First-tier Tribunal allowed the claimant’s appeal regarding the termination date, holding that (1) the DWP had wrongly relied on regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (‘Decisions and Appeals Regulations’) to terminate the award, as entitlement had not – as required for a regulation 47 termination – first been suspended under regulation 45; and (2) given that the claimant had left Great Britain on 22 August 2019 in connection with the death of a close relative, it was reasonable to allow two months’ temporary absence so that entitlement to UC for absence abroad was only lost from 21 October 2019. The claimant appealed as the tribunal refused the couple’s claim for backdating a new claim made on 8 July 2020.

Judge Jacobs held that the tribunal had not erred in law. The tribunal was correct to hold that regulation 47 of the Decisions and Appeals Regulations did not apply, because there had not been a previous suspension of entitlement. Regarding temporary absence, the relevant rule was at regulation 11 of the Universal Credit Regulations 2013, SI No.376. That provides at subparagraph (1) for entitlement to continue during a temporary absence of up to one month, and at subparagraph (2) for that period to be up to two months in certain circumstances, including in connection with the death of a close relative, where expectation of return to Great Britain within one month is considered unreasonable. The tribunal was correct to decide that two months was the appropriate disregard of temporary absence, given that the claimant was absent in connection with the death of her husband’s father and, given the length of the funeral process, was entitled to allow the maximum extension. Regarding the application of regulation 11, the tribunal was correct to hold (as submitted to the Upper Tribunal by the Secretary of State) that the permitted temporary absence continues until the earlier of (a) the day the absence was expected to exceed one month, or (b) the absence does in fact exceed one month. Entitlement was not to be removed from the moment the absence began – ie, from the moment the claimants left Great Britain. That was consistent with the approach taken by Judge Church in AM v SSWP [2024] UKUT 137 (AAC) (which held that, on supersession, entitlement was only to be removed from the start of the assessment period in which the absence was no longer to be disregarded).

The tribunal was also correct to refuse the claim for backdating. The claimant returned to Great Britain on 7 July 2020 and made a new claim on 8 July. But she (and her husband) could not be entitled on an earlier date than 7 July as she did not satisfy the condition of entitlement of being in Great Britain on an earlier date. Regulation 26 of the Universal Credit Regulations, which provides the grounds on which backdating might be possible, ‘is not a means of bypassing the conditions of entitlement’ (paragraph 27). Backdating of one day to 7 July was not possible as the reason the claim was not made on that day was because the claimant was travelling back to the UK (not because of disability or any other ground on which backdating is possible).

Comment from CPAG

This decision is further authority (with AM v SSWP) that termination for absence abroad only applies from the point in time that disregarded absence under the temporary absence rule no longer applies (ie, where that has applied up until that point), not retrospectively from the point of departure from Great Britain. It is also clear that this is the position of Secretary of State.

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.

Decision in brief

First-tier Tribunal, in refusing the appeal, erred by considering only the 10 documented accidents in the claim forms, and should have considered whether other undocumented incidents were accidents – also erred in failing to give adequate reasons for concluding that the undocumented incidents and routine heading of the ball were effective causes of the claimant’s condition but that the more significant documented head impacts were not effective causes, and perversely concluding that the claimant’s family history of dementia was an effective cause where the evidence for that was limited and the family members concerned were also former professional footballers – remitted to a fresh tribunal

Decision in brief

Claimant’s appeal was struck out by the First-tier Tribunal for lack of jurisdiction as it did not consider there had been a refusal to carry out an MR – that was an error – the MR requirement is that that the Secretary of State has ‘considered whether to revise’ following an application – the Secretary of State clearly had ‘considered’ that and it was beyond doubt that the Secretary of State had refused the application for revision – tribunal should have used its powers to waive the absence of a mandatory reconsideration notice