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Decision in brief

That is wrong as not the test set out: 

‘In other words…if the claimant needs to use an aid or appliance (such as cutlery with special qualities) in order to cut food into pieces then he…scores two points for doing so, irrespective of his ability or otherwise to convey food and drink to his mouth, to chew food, and to swallow food and drink….Some might say it is so obvious that an inability to perform one of the relevant elements of the definition without an aid or appliance leads to the scoring of two points under the relevant activity, that I should not have bothered. But it would be unfortunate if the interpretation taken by the F-tT [First-tier Tribunal] in this case were to take hold and that claimants were to lose out as a result.’

Decision in brief

Claimant’s appeal was struck out for being made outside the usual ‘absolute’ time limit of 13 months from the date of the mandatory reconsideration – but Secretary of State submitted, and Upper Tribunal accepted, that was in error as failing to consider (as per KK v Sheffield City Council (CTB) [2015] UKUT 367 (AAC)) whether discretion should be exercised so as to allow a later appeal in an exceptional case, as (said the Secretary of State): 

‘Overall, the appellant was waiting on DWP to award UC to the appellant in light of her settled status in the UK and requested updates on multiple occasions within the 13-month time limit, but DWP have seemingly failed to action this in a timely manner. As such, I submit that the FtT [First-tier Tribunal] have erred in law by failing to exercise their discretion in considering whether it was appropriate to hold an oral hearing of the application for permission to appeal in which to assess whether the circumstances are exceptional.’

Decision in brief

Claimant’s appeal to the First-tier Tribunal was made some 22 months after the end of the standard one-month time limit from the date of the mandatory reconsideration (ie, well after the overall usual ‘absolute’ time limit of 13 months from the mandatory reconsideration) – tribunal was aware of, and referred to, the possibility of the possible need, in an exceptional case, to exercise discretion to allow a later appeal in order to comply with the right to a fair trial in Article 6 of the European Convention on Human Rights (as per Pomiechowski v Poland [2012] UKSC 20, reported as [2012] 1 WLR 1604, and Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, reported as [2013] 1 WLR 3156) – but gave inadequate reasons for not accepting that applied, given that there was a ‘considerable body’ of documentary evidence supplied, including medical evidence, as to why this was such a case

Decision in brief

Remaining grounds would make no difference to the outcome of the appeal – fact that claimant not entitled to legal aid in the First-tier Tribunal not persuasive

Decision in brief

Claimant’s son lived in Slovakia with his grandparents but claimant was sole financial provider for him and responsible for all major decisions regarding his education, health, etc – but not entitled to the element by virtue of Regulation 883/04 – UC itself is ‘not a social security family benefit’ for the purposes of the Regulation – neither is the child element severable from UC for those purposes (and even if it were, would still not be a ‘family benefit) – UC elements are not entitlement, but rather amounts that form one part of a calculation – the child element cannot be severed from UC in a similar way to that in which the mobility and care components of disability living allowance could be severed – no reference to the European Court of Justice as the answer to the issue posed is sufficiently clear, and in any event a reference is only possible concerning Part Two of the Withdrawal Agreement and not, as here, with Regulation 883/04

Decision in brief

Not entitled to CA until was ‘over compulsory school age’ – this was the correct meaning to be given to the words ‘over 16’ in section 70(3) of the Social Security Contributions and Benefits Act 1992, which had not been updated to reflect extension to the compulsory school age – claimant was receiving home schooling and argued on the facts that was not receiving ‘full-time’ education – judge accepted that on the facts (which seemed contrary to what was required), but claimant was still disentitled while being under compulsory school age, and: 

‘Parliament cannot have intended that those who are educated at home should be in any different position to those at school when it comes to the receipt of carer’s allowance, and given the policy position on the need for all children to receive full-time education, I cannot envisage that Parliament should have intended that those who do not receive such education should be in a different position.’

Decision in brief

Claimant on sick leave at time when the bonus was received (2020/21 tax year) – tribunal did not err in finding that constituted employed earnings during that year even though was on sick leave, as he had a continuing contract of employment – tax refund made for the same year (and paid by the employer) and tribunal correctly treated that as a delayed payment of earnings – claimant undoubtedly an employee of a real-time information (RTI) employer and it followed that his earnings fell to be determined, under regulation 61(2) of the Universal Credit Regulations, as that reported to HM Revenue and Customs (HMRC) by the employer under the PAYE Regulations – it was immaterial that regulation 55(4A), which applies to tax refunds paid by HMRC, did not apply, as regulation 61(2) did apply and ‘that is an end of the matter'

Decision in brief

SDP was backdated in the ESA award to before the introduction of the ‘severe disability premium gateway’ in January 2019, but that did not mean the HB claim could be backdated to that date – the HB had originally been claimed and refused in July 2019, and the tribunal rightly accepted that although that refusal could now be revised, the maximum backdating was one month – ie, to June 2019

Decision in brief

Finding there of unlawfulness due to irrationality of income calculation in the Universal Credit Regulations 2013 – court’s order was dated 30 June 2020, but must be given effect retrospectively at least to the dates of 2018 decisions at issue in Johnson (and also up to date that Secretary of State remedied the defect by changing the rules from 16 November 2020) – nothing in the language of the declaration or order of the court to restrict it temporally – application of the rules held unlawful in Johnson to the present claimant’s award in February, May, August and November 2020 must be remedied by the Secretary of State in the light of Johnson – what that remedy should be is for the Secretary of State

Decision in brief

Tribunal hearing appeal against termination of tax credits only had jurisdiction to consider factual questions of whether a claim had been made and Secretary of State was ‘satisfied’ – not whether Secretary of State was ‘properly’ satisfied (eg, claimant who was subsequently refused UC on the basis of not having a qualifying right to reside) – previous decisions (eg, SK v Revenue and Customs Commissioner and another [2022] UKUT 10 (AAC), reported as [2022] PTSR 818) holding otherwise are formally obiter, but in any case SK was correct in holding that Secretary of State needed only to be ‘satisfied’ that claimant was actually in Great Britain, and the fact that the claimant was later refused UC for failing the right to reside test was not relevant here 

Note

As was noted by the Upper Tribunal, the regulation 8 requirement that the Secretary of State be ‘satisfied’ that claimant meant the basic conditions for UC was removed from 25 July 2022 (by the Universal Credit (Transitional Provisions) Amendment Regulations 2022, SI No.752) – so the present decision is of limited application. 

Decision in brief

Decision of three-judge panel in HMRC v SSWP and SA (TC) followed – withdrawal of UC claim before issue of ‘stop notice’ to HM Revenue and Customs – made no difference to operation of regulation 8, so that tax credits were correctly terminated – JL v Calderdale MBC and SSWP [2022] UKUT 9 (AAC) followed and contrary decision in HMRC v AB [2021] UKUT 209 (AAC) not followed

Decision in brief

Not in breach of human rights on ground of marital status in breach of Article 14, read with Article 8 and/or Article 1 of Protocol 1 European Convention on Human Rights – not in an analogous position to a person who had been married to, or in a civil partnership with, their deceased partner (SSWP v Akhtar [2021] EWCA Civ 135 applied – unmarried partner not in an analogous position to someone married or in civil partnership) – differential impact on women without children (compared to men) justified – clear basis needed for taking a different view to that of parliament when making the legislation – in cohabiting couples without children, nothing to establish that bereavement benefits cannot be a legitimate vehicle for promoting marriage and civil partnership, and are also issues of protecting the contributory principle and avoiding excessive administration – taken together, the Secretary of State has shown the very weighty reasons necessary for justification of the differential impact on women