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Decision in brief

Where universal credit (UC) carer element included in UC first assessment period (AP) following a post-claim change of circumstance in first AP – UC claim made before amendments in 2023 to make specific reference to UC carer element as affecting entitlement to the high rate – no entitlement to the high rate transitional SDP element – on the facts, the carer element was correctly included from date of UC claim – fact that the UC carer element was ‘backdated’ to the start of the first AP under UC supersession rules, and that specific reference to the UC carer element as affecting entitlement to the high rate was not made until 2023, immaterial

Comment from CPAG

Specific reference was made to the UC carer element as affecting entitlement to the high rate of the transitional SDP element in amendments effective from 29 June 2023. From that point, therefore, it is explicit that if someone becomes a carer for either severely disabled claimant in the first AP, the high rate will not apply.

Summary

The claimant (a housing association tenant) became entitled to HB in December 2014. His mother was his appointee. In January 2015 he was detained under the Mental Health Act and admitted to hospital. His detention in hospital continued through 2015 and 2016, although he intended to return to his rented property. Although his mother visited the council in June 2016 and told them orally that her son was in hospital, she did not say that he had been absent since January 2015. The council did not learn of the length of the absence until May 2018, when a social worker informed it that the claimant was not resident at the property. The council decided that an overpayment had occurred and (allowing on the facts for temporary absence of 52 weeks) that a recoverable overpayment had been made between June 2016 and May 2018. That decision was upheld by the First-tier Tribunal, which also found that the housing association had been unaware of the claimant’s absence from the property and that the overpayment was recoverable solely from him, as he had caused it by failing to disclose the length of his stay in hospital. 

Judge West refused the claimant’s further appeal, holding that the tribunal had not made a material error of law. The claimant argued that the overpayment was not recoverable, as it had been caused by official error and the claimant, (through his representative) could not have been expected to have realised that there was an overpayment. The official error was alleged to be that the council failed to respond properly to the visit of the claimant’s mother in June 2016, in particular by not pointing out to her that disclosure of a change of circumstances needed to be made in writing and, more generally, by failing to ask relevant questions about her son’s stay in hospital. The tribunal was then alleged to have erred by failing to consider the substantive cause of the overpayment, and failing to consider or make findings about whether there had been an official error. 

Judge West dismissed those arguments, holding that the substantial, common sense cause of the overpayment (as per the test set out in R (Sier) v Cambridge City Council Housing Benefit Review Board [2001] EWCA Civ 1523) was his failure to disclose the extent of his stay in hospital. The main relevant rule was at regulation 100 of the Housing Benefit Regulations, which provides that any overpayment of HB is recoverable, except those caused by an official error which the claimant had not caused or contributed to, and where the claimant could not reasonably have been expected to have realised there was an overpayment. 

Regarding the duty to disclose, the claimant had failed to comply with the duty under regulation 88 of the regulations to notify a relevant change of circumstance in writing. The claimant’s argument that the council had erroneously failed to advise of that need, so making the official error that had occurred in West Somerset District Council v JMA (HB) [2010] UKUT 190 (AAC), was rejected: it was accepted in this case that in fact the claimant had been clearly advised of that need when he was awarded HB. The judge did accept, however, that the council had nevertheless made an error. That was in June 2016, when it failed to ask the ‘obvious question’ arising from the mother’s partial disclosure, namely how long the claimant had been in hospital (paragraph 56). But, per the reasoning in MB v Christchurch BC (HB) [2014] UKUT 201 (AAC), the claimant still needed to show that he did not cause or materially contribute to that error – which in the present case he had. Regarding the cause of the overpayment, held the judge, ‘if a claimant (or a person acting on his behalf) has failed to disclose a material fact, the reality is that he has materially contributed to the mistake, act or omission on the part of the council’ (paragraph 70). Putting it slightly differently (with the focus more on the substantial cause of the overpayment), the judge also said: ‘... a claimant who has got benefit by not disclosing a relevant fact (as required by regulation 101(2)(b) as to the duration of his hospitalisation) is not able to turn the case into one of overpayment caused by official error by saying that, if only officialdom had been more vigilant, the problem would have been spotted’ (paragraph 71). 

Comment from CPAG

This decision, which applies existing authority, is a further illustration of the harsh environment for claimants where the rules do not provide an overall test of reasonableness regarding the duty to disclose. As the judge also said: 

‘I am bound to say, however, that the situation in which the appellant therefore finds himself is a very unfortunate and a very unhappy one, through no fault of his own. I am, nevertheless, satisfied that his lack of mental capacity is not a relevant factor for the purposes of the housing benefit legislation, although it may well be a relevant factor in the council’s consideration of what it should do in the light of this decision.’

Summary

The claimant had been entitled to income-related employment and support allowance (ESA). The award included the ‘severe disability premium’ (SDP). But in September 2019, the ESA award was ended as he had been remanded in custody. In December 2019, the claimant was released and (following advice from the job centre) he made a claim for UC. The claimant disputed the resulting UC award as the amount was less than his ESA had been. He eventually appealed, but the appeal was not considered by the First-tier Tribunal until March 2022. The tribunal allowed the claimant’s appeal, on the basis that at the time of the claim for UC the claimant was in fact still entitled to an award of housing benefit (HB) that included the SDP, and under the so-called ‘SDP gateway’ provision (at regulation 4A of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230) in force at that time, the claimant should therefore not have been allowed to claim UC. The tribunal further held that the Secretary of State should now treat the claim for UC as a claim for income-related ESA. 

Judge Wikeley allowed the Secretary of State’s appeal and substituted a decision that the claimant’s appeal to the First-tier Tribunal was dismissed. The tribunal had been entitled to hold that the claimant was entitled to HB that included the SDP at the time of the claim for UC, and (as the Secretary of State conceded) on that basis regulation 4A should have prevented the claim for UC. But the tribunal erred in holding that the Secretary of State was (somehow) to treat the UC claim as a claim for income-related ESA: there was simply no legal basis for that. Further, given the fact that a UC claim had been made and admitted, the error in allowing it did not render the UC award void but rather simply ‘left open the possibility of revision for official error, but no such steps have been taken in this case’ (paragraph 26). Regulation 4A (and so the ‘SDP gateway’) had been removed from 27 January 2021 and no new claim for income-related ESA could be made. If the claimant could show a loss caused by the DWP’s failure to apply the SDP gateway at the relevant time, that could amount to grounds for a claim for compensation for maladministration; but tribunals had no jurisdiction over such matters. 

Comment from CPAG

This decision illustrates the predicament a claimant can be placed in where the DWP simply ignores the rules. If the claimant had been correctly prevented from claiming UC in 2019 by the SDP gateway, he could at that point have made a new claim for income-related ESA. As at the time of the UC claim the SDP was included in only in an HB claim, the UC award would not have included a transitional SDP element, and the claimant may indeed have been considerably worse off on UC.

Summary

The claimant applied for UC on 17 August 2021. On 11 September 2021, he was remanded in custody. On 20 September 2021, it was decided the claimant was not entitled to the housing element of UC because he was in prison. On appeal, the First-tier Tribunal held that the claimant was entitled to the housing element from the start of his claim and throughout the period he was remanded in custody. 

Judge Wikeley allowed the Secretary of State’s appeal and substituted a decision that the Secretary of State’s decision on 20 September, that the claimant was not entitled to the housing element, was correct. The tribunal had erred in wrongly interpreting the relevant rule, which was at regulation 19 of the Universal Credit Regulations 2013 No.376. That provides that ‘entitlement to universal credit does not arise’ in certain situations, including where the claimant is a prisoner. There was no dispute that the claimant counted as a prisoner while being held on remand (because of the definition of ‘prisoner’ at regulation 2). But at subparagraph (2) of regulation 19, an exception applies for a prisoner, so that such a person can be entitled to the housing element for the first six months as a prisoner where ‘the person was entitled to universal credit immediately before becoming a prisoner...’. It was this wording that the tribunal had wrongly interpreted (other requirements including that the housing element was included and that the person had not been sentenced to a term expected to last longer than six months were certainly met by the claimant). 

The First-tier Tribunal held that the claimant ‘had entitlement to universal credit from the date of his claim on 17 August 2021 onwards...’, and that was ‘in place immediately before he became a prisoner...’ (quoted at paragraph 19). But, held Judge Wikeley, that was wrong: 

‘The fundamental difficulty with the tribunal’s approach in this case was that it sought to interpret regulation 19 of the UC Regulations 2013, and in particular the concept of entitlement to benefit, in isolation from the overall architecture of the universal credit scheme’ (paragraph 23). 

In particular, section 7 of the Welfare Reform Act 2012 provides that UC is ‘payable in respect of each complete assessment period within a period of entitlement’, and that a ‘period of entitlement’ means ‘a period during which entitlement to universal credit subsists’. Given that an assessment period is (per regulation 21 of the regulations) a period of one month starting with the first date of entitlement, it followed that ‘... in order to be paid UC in respect of an assessment period, a claimant needs to be entitled to the benefit throughout that assessment period. Entitlement must subsist throughout, or the period in question is not an assessment period as so defined’ (paragraph 27). In the present case, the claimant had not been entitled to UC throughout his first assessment period (ie, his entitlement did not ‘subsist’ for that period), as he had become a prisoner before that period had ended. The claimant therefore failed to meet the requirement in regulation 19(2)(a) that he was ‘entitled to universal credit immediately before becoming a prisoner’, as that must refer to entitlement in the immediately preceding assessment period. 

Comment from CPAG

Put shortly, the problem for the claimant in this case was that he became a prisoner during his first UC assessment period. In this case, the result did not strike the judge as unlawful. The Secretary of State’s representative confirmed that things would have been different (ie, such that the claimant would have had entitlement to the housing element) had he become a prisoner in his second assessment period. The differential treatment of those who become prisoners in their first assessment period was explained by the overall structure of UC, which involved payment in arrears and complete assessment periods. That had an ‘inherent logic and is administratively efficient’. That harsh outcomes in individual cases did not automatically render benefit rules unlawful had been recognised by the Court of Appeal – for example, in the decisions in Pantellerisco and Johnson. The judge observed that, had a UC assessment period been set as one week rather than one month, then the claimant would have been entitled: ‘However, that was not the legislative choice adopted by parliament. I simply add that it will be no consolation to the claimant that the court recognises the risk of harsh outcomes when operating a complex welfare system’ (paragraph 34).

Summary

The claimant was entitled to income-related employment support allowance (ESA) that included the severe disability premium (SDP) and enhanced disability premium (EDP). In July 2018, she moved address and – having lost entitlement to housing benefit as a consequence – claimed universal credit (UC), thus undergoing ‘natural’ migration to UC and so ending her income-related ESA award. Her UC award was eventually corrected to award a transitional SDP amount (now known as a transitional SDP element). The claimant appealed as her UC still fell short of her income-related ESA, particularly because the transitional SDP element did not compensate her for the absence of an EDP in her UC. The First-tier Tribunal dismissed her appeal, holding that the UC correctly included the transitional SDP element at the prescribed amount. 

Judge Wikeley allowed the claimant’s further appeal. The tribunal had erred in failing to find, as it was bound to do, that in the light of the High Court’s decision in R (on the application of) TP and AR (TP and AR No.3) [2022] EWHC 123 (Admin) (‘TP (No.3)’), the failure of the transitional SDP element to compensate the claimant for the loss of the EDP as well as the SDP was in breach of her human rights. It was accepted (including by the Secretary of State) that the effect of the High Court’s declaration in TP (No.3) was that regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014 (‘the Transitional Provisions Regulations’) were unlawfully discriminatory. That was due to a breach of Article 14 on Human Rights read with Article 1 of Protocol 1 of the European Convention on Human Rights (‘the ECHR’). The breach was by failing to provide any transitional relief for the loss of the EDP on the claimants’ natural migration from legacy benefits to UC. Judge Wikeley observed that it was a basic starting point that the tribunal ‘is not, and should not be, in the business of applying unlawful regulations’ (paragraph 39). That applied (unless the tribunal was prevented by acting by statute) regardless of the public law error that the regulations contain, whether that is because they are ultra vires or irrational or (as here) because they breach rights in the ECHR (JN v SSWP (UC) [2023] UKUT 49 (AAC); [2023] AACR 7 cited). 

However, that left the question of remedy of the unlawfulness. It was argued for the claimant that the correct approach was to disapply the part of the Transitional Provisions Regulations (at regulation 48) that required ‘managed migration’ to have taken place before the claimant was entitled to full transitional protection to the amount of legacy benefit, so that that protection applied in natural migration cases too. Judge Wikeley disagreed. The relevant principles were those set out by the Supreme Court in RR v Secretary of State for Work and Pensions [2019] UKSC 52. That included that there was nothing to prevent a tribunal disapplying subordinate (not primary) legislation where that was necessary to comply with the Human Rights Act 1998 (which applied the ECHR). But in the present case, it was not regulation 48 requiring managed migration to apply before the transitional element could be awarded that resulted in the breach of the claimant’s human rights, but rather regulation 63 and Schedule 2 providing for the transitional SDP element. The judge also considered that the proposed disapplication of regulation 48 was not possible to do without undermining the statutory scheme by collapsing the distinction between natural and managed migration. ‘Collapsing the distinction between natural migration and managed migration,’ said the judge, ‘would be to stretch the art of the possible beyond breaking point, and would involve social engineering on a massive scale. Such decisions are for parliament and not judges’ (paragraph 54). However, the judge did agree with the claimant’s secondary argument, that it remained that the tribunal had been in error and that (in the absence of an obvious way of remedying the error) the appropriate remedy was (as in JN) to allow the appeal and remit the decision to the Secretary of State with a direction to remake the decision. The judge directed the Secretary of State to ‘redecide on a lawful basis the claimant’s entitlement to universal credit...’ (paragraph 60). 

Note from CPAG

The Universal Credit (Transitional Provisions) (Amendment) Regulations 2023, SI No.1238 (see Bulletin 298, p11) makes additions to the SDP transitional element so as also to compensate for loss of the EDP, but only takes effect from 14 February 2024.

Summary

The claimant was refused adult disability payment (ADP), a decision that was upheld on appeal by the First-tier Tribunal for Scotland (FTS). The claimant argued that the tribunal had erred in law by failing to use its powers to call for further evidence, particularly further medical evidence. He cited Lady Poole’s own comment in NB v Social Security Scotland [2023] UT 35, that in some cases it may be necessary for the FTS to consider exercising procedural powers (ie, to call for further evidence) in the First-tier Tribunal for Scotland Social Security Chamber Rules of Procedure 2018 (the ‘FTS Rules’) before determining the appeal. 

Lady Poole refused permission to appeal, holding that the FTS in the present decision had not erred. NB v SSS was decided on its own facts, which included that the appeal to the FTS in that case was decided on the papers without an oral hearing, the claimant’s account changed considerably over time, and GP records were not obtained. In the present case, by contrast, there had been an oral hearing at which the claimant gave evidence, and the information in the appeal bundle included information obtained by Social Security Scotland from the claimant’s medical practical and other sources. This was a common set of circumstances and is why, held Lady Poole: 

‘...in many cases, documents already lodged before the FTS will be sufficient to enable it to determine the case fairly and justly. This is particularly so in cases where written evidence is supplemented by additional oral evidence at a hearing, and the expertise of the FTS is used effectively (rule 2(2)(d) FTS Rules)’ (paragraph 5). 

Lady Poole also rejected a further argument by the claimant that the tribunal had given inadequate reasons for its decision. She held: 

‘The classic test for adequacy of reasons in Scotland is found in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The tribunal must “give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader ... in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”’ (paragraph 8). 

She also referred to DS v SSWP (ESA) [2019] UKUT 347 (also a decision of hers, which in turn had included reference to Wordie Property Co Ltd). Adopting that approach, the tribunal expressly addressed the substantial questions in its decision, setting out its findings on the relevant facts and giving adequate reasons for those findings. 

Comment from CPAG

The approach taken to evidence and the adequacy of reasoning required in a First-tier Tribunal decision is very similar to that taken in extant caselaw from the UK Upper Tribunal. The reference to DS v SSWP (ESA) in this context further indicates, in relevant cases, the likely persuasive status of such authority before the Upper Tribunal for Scotland.

Summary

In this decision, the Court of Appeal unanimously dismissed the Secretary of State’s appeal against the decision of the Upper Tribunal in this case (AM v SSWP (UC) [2022] UKUT 242 (AAC)). As a result, the Upper Tribunal’s decision was upheld, and it remains that a claimant may request ‘backdating’ of their claim for universal credit (UC) on revision of the initial decision on entitlement, even if they did not request backdating when making the claim. 

Giving the lead decision, Lord Justice Underhill said: 

‘If the Secretary of State decides that the specified conditions are not satisfied, the claimant will not be entitled to the benefit for the past period; but there is no reason why that decision should not be treated simply as part of the determination of the claim, and subject, like the determination itself, to the procedures for revision and appeal’ (paragraph 51). 

The court also criticised the absence of a question about backdating on the online UC claim form (although formally that was not taken into account in the court’s decision): 

‘It is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated’ (paragraph 35). 

Comment from CPAG

The Secretary of State’s representative told the court that the issue of the absence of a question or prompt about backdating in the UC claim process was ‘under review within the DWP’. The case was brought by CPAG: for more details, see our test case No requirement to request backdating before a claim to universal credit determined

Summary

The claimant had been late requesting a review of his tax credits decision and HMRC had refused to carry out a late appeal. The First-tier Tribunal had struck out his appeal for not complying with the mandatory reconsideration requirement. In the Upper Tribunal decision in this case (CTC/886/2021), Judge Scolding QC had held that the ‘mandatory reconsideration’ requirement at section 38(1A) of the Tax Credits Act 2002 was satisfied, as in line with the position in benefits (established by R (CJ) and SG v Secretary of State for Work and Pensions (ESA) [2017] UKUT 324 (AAC), reported as [2018] AACR 5 – ‘CJ’) and so as not to deprive the claimant of his right of appeal, the rule had to be construed as meaning that a review had been ‘carried out’ even where, following a late application, HMRC had in fact refused to review the decision. HMRC appealed. 

Giving the lead decision in the Court of Appeal, Lady Justice Falk agreed that the Upper Tribunal decision was in error. CJ was based on legislation that was materially different to section 38(1A) of the Tax Credits Act 2002, which was clear in requiring that a review has been carried out, and ‘left no scope’ for the sort of approach adopted for benefits in CJ (paragraph 36). On a correct construction of section 38(1A), no review was done in this case, so the mandatory reconsideration requirement was not met. 

However, the court held that it remained that the claimant did have the right of appeal. That was because section 38(1A) was itself unlawful. That had been introduced under a so-called ‘Henry VIII’ power, in which an Act (ie, in this case, the Tax Credits Act 2002) had been amended not by another Act, but by a regulation (by contrast, in benefits, the mandatory reconsideration requirement had been created by provisions in the Welfare Reform Act 2012). Although amendment by a Henry VIII power was not in itself unlawful, the court considered that in this case the relevant amending regulation (the Tax Credits, Child Benefit and Guardian’s Allowance Reviews and Appeals Order 2014, SI No.886 – the ‘2014 Order’) had gone beyond the powers (ie, was ultra vires) of the relevant primary legislation that applied to it, which was section 124 of the Finance Act 2008. Reviewing various authorities on restricting the right of access to tribunals and courts, noting that section 38(1A) ‘entirely excludes’ the right of appeal contemplated by parliament before the 2014 Order took effect (paragraph 66) and the relevance of ‘the reality that many tax credit claimants will be vulnerable in some respect’ (paragraph 70), the court considered that in this case parliament had not passed the necessary enabling legislation for the Order. The amendment introducing the mandatory reconsideration requirement was unlawful as ultra vires and struck out. 

Comment from CPAG

HMRC is not appealing further. This decision removes the mandatory reconsideration requirement from the tax credits regime (but not the benefits regime). Rules providing for reviews are left intact, so that claimants may still request a review before going on to appeal, but the requirement to have done so is gone. See the article on p9 of Bulletin 299.