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SSWP v NS

[2024] UKUT 5 (AAC)

Employment and support allowance (ESA) – overpayment of ‘old-style’ contributory ESA for failure to disclose occupational pension

Decision in brief

ESA40 booklet sent to claimants and instructions to report changes and if claimant ‘gets’ pension income – claimant reported intention to claim his occupational pension at an unspecified date, but not his later receipt of it when it commenced or subsequent increases – recovery of overpayment for failure to disclose under section 71 of the Social Security Administration Act 1992 – words in the ESA40 booklet to be given their ordinary and natural meaning – ordinary meaning of ‘get’ is clearly the language of receipt – claimant was under a clear and unambiguous obligation to report receiving the pension, which he failed to do

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2021-000249/250-ESA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

GS v SSWP

[2024] UKUT 4 (AAC)

Tribunals – First-tier Tribunal erred in failing to include in its statement of reasons for refusing the appeal reference to claimant’s wife’s oral evidence, so leaving the claimant unable to know if it had been accepted or rejected

Decision in brief

The tribunal judge, in refusing to grant permission to appeal to the Upper Tribunal, then gave reasons for rejecting the wife’s evidence – but, per the decision of the Court of Appeal in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2007] EWCA 498, the new reasons given at the permission state could form no part of the tribunal’s earlier statement of reasons – also, given that the permission was refused by the judge alone, it could not be clear that new reasons added there were the view of the tribunal panel

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2022-001714-UCW
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

Social Security Scotland v FK

[2024] UT23

Adult disability payment – First-tier Tribunal made an award of the daily living component based mainly on the effects of the claimant’s hernia

Decision in brief

Hernias ‘do not necessarily give rise to the type of substantial and sufficiently enduring type of limitation covered by the ADP [adult disability payment] regulations, particularly when potential treatments are taken into account’, and so the ‘required period condition’ for ADP entitlement was a ‘substantial question’ in this particular case – the tribunal erred by not explaining why it considered the required period condition was satisfied – decision quashed and remitted to a fresh tribunal

Jurisdiction
Upper Tribunal for Scotland
On
Appeal reference
UTS/AS/23/1024
Date of decision
Date published by CPAG
Read the judgment on the Scottish Courts and Tribunals Service website

London Borough of Waltham Forest v CA

[2024] UKUT 39 (AAC)

Housing benefit (HB) – overpayment recovery – tribunals

Decision in brief

Claimant overpaid HB due to starting work and not telling the local authority until almost three months later – as the claimant’s earnings had changed a number of times during the overpayment period, the First-tier Tribunal was required to make clear findings of fact in respect of each of those changes of circumstances, to enable it to determine whether the overpayments caused by the claimant first finding work and then receiving increases in income were the results of official error (AG v Calderdale Council (HB) [2016] UKUT 396 (AAC) cited and approved)

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2021-000675-HB
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

ZY v SSWP (PIP)

[2024] UKUT 163 (AAC)

Tribunals – composition - First-tier Tribunal hearing a personal independence payment (PIP) appeal erred in considering it could do so without a disability qualified member (and so be a two- rather than three-member panel) because the tribunal procedure rules did not prevent it

Decision in brief

Those rules do not deal with composition, and the Practice Statement on composition of tribunals in social security and child support cases does, so that a PIP appeal must be determined by a properly constituted three-member panel unless a specified exception (eg, agreement by the parties to the appeal) applied – none of those exceptions obviously applied in this case

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2023-001807-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

Social Security Scotland v AM

[2024] UT46

Adult disability payment – award made by First-tier Tribunal included points for daily living descriptors 8(c) and 10(b) and mobility 1(d) in light of claimant’s attendance at a special needs secondary school and ‘struggles with reading and writing’

Decision in brief

Social Security Scotland submitted tribunal had failed to recognise that there was a need for a link between the claimant’s difficulties and his physical or mental condition – but in SSWP v IV (PIP) [2016] UKUT 420 (AAC) the Upper Tribunal had, in the context of personal independence payment (PIP) and difficulties with reading, held that entitlement could take account of illiteracy for a person who could not learn to read, but not for a person who simply has not learned – in PW v SSWP [2023] UKUT 121 (AAC) it was noted that it was not necessary for a claimant to have a diagnosis in order to qualify for PIP – applying those as ‘useful guidance’ for adult disability payment (ADP), it was tolerably clear that the tribunal concluded that the claimant’s issues with reading were due to an inability to learn to read rather than being a matter of choice, and so were causally linked to a ‘mental condition’ – that being the case whether the effects of that were sufficient to score points were primarily issues of fact for the tribunal

Jurisdiction
Upper Tribunal for Scotland
On
Appeal reference
UTS/AS/24/0032
Date of decision
Date published by CPAG
Read the judgment on the Scottish Courts and Tribunals Service website

ST (by his appointee TT) v SSWP

[2024] UKUT 167 (AAC)

Severe disability premium – entitlement lost as carer was in receipt of carer’s allowance (CA)

Decision in brief

This was not changed by the fact that arrears of new-style employment and support allowance (ESA) were paid to the carer in her own right, with the effect (because of overlapping benefit rules) that no CA was ‘payable’ for the relevant time – fact remains that (as per the reasoning in DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) [2018] UKUT 46) the carer was both entitled to and ‘in receipt’ of CA and so there was no entitlement to the severe disability premium (SDP)

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2023-000211-ESA and UA-2023-000212-ESA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

ES v SSWP

[2024] UKUT 97 (AAC)

European Union co-ordination rules – Withdrawal Agreement provides that Regulation (EC) 883/2004 continues to apply

Decision in brief

On the facts of the case (the claimant still came under the Regulation, was habitually resident in Great Britain and had a ‘genuine and sufficient link’ to the UK), the claimant was therefore able to satisfy regulation 22 of the Social Security (Personal Independence Payment) Regulations 2013 so that the past presence test for personal independence payment (PIP) did not apply to her – tribunal wrongly considered that Regulation 883/2004 had been ‘revoked’ by UK legislation

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2023-SCO-000146-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

Social Security Scotland v BM

[2024] UT58

Adult disability payment – points counting towards entitlement can only be scored if the claimant’s functional limitation is causally linked to a medical condition

Decision in brief

Claimant not entitled to points regarding daily living activity 10 (making budgeting decisions) merely on the basis that he was not permitted to operate a bank account because he was an undischarged bankrupt – decisions about entitlement should specify whether an award is for a fixed or a limited period

Jurisdiction
Upper Tribunal for Scotland
On
Appeal reference
UTS/AS/24/0058
Date of decision
Date published by CPAG
Read the judgment on the Scottish Courts and Tribunals Service website

SO v SSWP (UC)

[2024] UKUT 305 (AAC)

Universal credit (UC) – student income

Decision in brief

Student in Wales whose maximum student loan was reduced by a Welsh Government Learning Grant (‘WGLG’) – in legal reality, this was simply a label for what remained of her maintenance grant after the rest of it had been treated as part of her special support payment – the ‘WGLG’ did not fall to be disregarded and the claimant’s maximum student loan did not fall to be reduced by it – test regarding ability to acquire a maximum student loan in regulation 69(1) of the Universal Credit Regulations 2013 is notional and does not require analysis of the reasonableness of the steps in fact taken by a particular student – effect is that the maximum student loan was not reduced by the grant

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2022-001601-USTA
Date of decision
Date published by CPAG
Read the judgment on GOV.UK

KA v SSWP

[2024] UKUT 248 (AAC)

Tribunals – breach of natural justice

Decision in brief

Issue in claimant’s personal independence payment (PIP) appeal was whether at the time of her claim she was a person subject to immigration control – tribunal wrongly relied on evidence from Home Office that she was a person subject to immigration control without further consideration, when claimant had submitted evidence to the effect that she was not – tribunal should not have proceeded on the papers, and claimant unfairly told she did not need to attend a further hearing – claimant was unfairly not given an opportunity to respond to the Home Office evidence, which was wrongly not disclosed to the tribunal or appellant but merely read out at the reconvened hearing

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000354-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

JM v SSWP

[2024] UKUT 283 (AAC)

Tribunals and personal independence payment (PIP) – claimant diagnosed with autism spectrum disorder (ASD) and significant social anxiety

Decision in brief

In refusing a number of points under the daily living activity, the tribunal did not adequately explain why it did not accept the evidence of the claimant and her mother – the tribunal seemed to prefer other evidence and reason from claimants ability to, for example, undertake driving lessons – although entitled to weigh evidence as it sees fit, the tribunal must ‘consider it in a holistic manner, make sufficient findings of fact and provide adequate reasons explaining why it preferred the evidence that it has’ – if ‘reading across’ from ability in one activity to another, must ensure the activity is genuinely comparable to the one it is considering

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000378-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website