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Decision in brief

RS v SSWP [2026] UKUT 85 and the decision of a Tribunal of Commissioners in Northern Ireland in DT v Department for Communities (PIP) [2022] NICom54 (C29/21-22PIP) cited

Decision in brief

Tribunal erred in not allowing the clamant or her representative the opportunity to make submissions regarding the Google Maps evidence that the tribunal used to assess the claimant’s walking ability – that was a procedural error under Rule 2(2)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as the claimant was rendered unable to participate effectively in the proceedings.

Decision in brief

Tribunal erred in allowing appeal on basis of alleged failure of the Tell Us Once service to advise her to claim and alleged disability discrimination – the Tell Us Once service is not responsible for alerting individuals to their potential claim for benefit – neither did it owe a general duty of care to the appellant in these circumstances – no breach of requirement to make reasonable adjustments – 

‘it cannot be discriminatory not to raise an issue about the ability to claim benefit when the body concerned is not authorised to deal with the claim’ 

– nothing in the time limit for claiming to provide a breach of claimant’s human rights under the European Convention on Human Rights – even if that were not correct, any difference in treatment of the claimant would be justifiable as a measure providing a cut-off date for entitlement aimed at the immediate post-bereavement benefit is not ‘manifestly without reasonable foundation’.

Decision in brief

Claimant’s leave to remain ended on 22 May 2020, his domestic appeal rights having been exhausted and his extended leave to remain under section 3C of the Immigration Act 1971 having ended on that date – claimant’s subsequent application to the European Court of Human Rights on 18 November 2020 did not alter that – neither did his fresh application for leave on 8 March 2021 – tribunal correctly found that claimant’s entitlement to UC ended on 22 May 2020 as he had become a person subject to immigration control – but Secretary of State’s attempt to use Home Office evidence of a deportation order of 21 October 2015, not previously sought by the Secretary of State even though it could have been, as evidence of an earlier loss of entitlement did not meet Ladd v Marshall principles for post-decision consideration as new evidence.

Decision in brief

Claimant had said that he ‘would like to attend the appeal but not in person if it can be done by video conference that would be ideal’ – tribunal erred in proceeding in the claimant’s absence on (alleged) basis that he had indicated that he ‘did not wish to participate in an oral hearing’ – that was perverse on the evidence as well as being procedurally unfair – claimant was wrongly not given a chance to attend a hearing and so was unable to effectively participate in the proceedings.

Decision in brief

Seven weeks later he made an online claim – was awarded UC only from that later date, a decision upheld on appeal – tribunal erred in failing to make adequate findings to determine whether the claimant had (under provisions in regulations 8 and 10 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013) in fact made a valid earlier claim by telephone or if, for the purposes of the online claim, he had earlier notified a need for assistance.

Decision in brief

Tribunal allowed his appeal on basis that in fact he only knew the general geographical area in which the father lived but did not actually know his address – but erred in failing to consider whether the claimant also met the requirement to have made reasonable efforts to discover the father’s whereabouts – although that was not the subject of the original decision under appeal, the tribunal had to decide whether the claimant was entitled to guardian’s allowance and that involved deciding that point.

Summary

The appellant in this was part of a joint claim for UC made on 21 July 2023 (the claimant was the pension-age member of a mixed-age couple). It was decided that the appellant was to be treated as having limited capability for work and work-related activity (LCWRA) as he had reached pension age and was entitled to personal independence payment that included the enhanced rate of the daily living component. However, before the LCWRA element could be included, the three-month relevant (or ‘waiting’) period applied, and until the element was included, the joint income was such that the financial conditions for UC were not satisfied. The appellant’s mandatory reconsideration argued that he and his partner were entitled to the prescribed minimum amount of UC during the relevant period (so as, for example, they could claim housing benefit (HB) as they were living in specified accommodation).That request was ignored, and the subsequent First-tier Tribunal refused the appeal.

Judge Stout allowed the appellant’s further appeal and substituted a decision that, on the facts, he and his partner were entitled to the minimum amount of UC during the three-month relevant period before the LCWRA could be included, and so could be entitled to ‘passported’ benefits such as HB. The decision maker and tribunal had both ignored the rule which provides that, where the financial condition for UC entitlement is not met because of the application of the relevant period, the amount of the claimant’s income was to be treated as such that they were entitled to the prescribed minimum amount of UC, which is one pence. That rule is at regulation 28(7) of the Universal Credit Regulations 2013, SI No.376 (regulation 28 in general being about the relevant period for the LCWRA element).

Judge Stout commented: 

‘I agree with the parties that this is the effect of regulation 28(7), although its operation is not immediately obvious. The First-tier Tribunal appears to have proceeded on the basis that the appellant’s joint income was so high that he could not have been entitled to UC in any event until the LCWRA element came into payment. On that view, regulation 28(1) would not have been the sole reason for his lack of entitlement during the waiting period. That analysis was mistaken. As I have explained, once the LCWRA element was included, the appellant and his partner did have an award of UC which was not extinguished by their joint income, and, but for regulation 28(1), that element would have been included from 21 July 2023. Regulation 28(7) therefore applied so as to deem the appellant entitled to 1p for each assessment period during the three month waiting period’ (paragraph 26).

Comment from CPAG

As the judge says, regulation 28(7) is not immediately obvious. As this case illustrates, it is capable of being completely and erroneously ignored by both decision maker and First-tier Tribunal. Indeed, at the outset of the decision, Judge Stout also says that the reason she wished to highlight the decision was that this error ‘is a pitfall into which the unwary may readily fall’.