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Decision in brief

Audio file recording of the telephone hearing showed (found the Upper Tribunal judge) that, throughout the medical, member spoke politely to the appellant, albeit she was ‘brisk and businesslike’ – was not (as alleged) sarcastic and did not use a sarcastic tone – the medical member conducted questioning in ‘an entirely appropriate inquisitorial style’ which could not fairly be described as cross-examination or oppressive – BK v SSWP (DLA) [2009] UKUT 258 (AAC), re questioning at disability living allowance appeals, quoted and applied to personal independence payment appeals: ‘While tribunals try to minimise distress by being tactful, they cannot always be successful. Questions cannot always be perfectly phrased in the pressured environment of a hearing…’

Decision in brief

No right in 2021 to appeal again against the preceding decision of the First-tier Tribunal, even though the emergence of subsequent facts supported the claimant’s case – tribunal correctly held it had no jurisdiction – section 17(1) of the Social Security Act provides for finality of decisions, subject to revision, supersession or appeal – no right to revise a decision of a First-tier Tribunal – although there is a right to supersede a tribunal decision (for example, for error of fact), that could only have been effective from the date of the request, which meant a date after the end of the sanction the claimant was challenging and so could not avail him – never had been an onward appeal to the Court of Appeal

Decision in brief

Counting two (or more) payments of wages in the same assessment period as received in that assessment period not irrational and unlawful – Court of Appeal decision in Pantellerisco (regarding four- weekly wage cycle) applied – the court’s earlier decision in Johnson (regarding irrationality and unlawfulness) applied only in respect of monthly wage cycles and so this case fell to be distinguished from it.

Decision in brief

Need for help in controlling diet and eating habits – accepted (including by Secretary of State and in official guidance) that a problem with overeating as well as undereating could (if sufficiently linked to physical or mental condition) be capable of scoring points for a need for ‘prompting’ regarding taking nutrition – this was not in conflict with the decision in MM and BJ v SSWP [2016] UKUT 490 (AAC), which was instead concerned with holding that the quality of what was being eaten or with personal choices about diet was not relevant for Activity 2.

Decision in brief

This was not ‘incurring relevant childcare charges’ for the purpose of regulation 28 of the Housing Benefit Regulations 2006, as childcare was not being provided – the claimant was therefore not entitled to the income disregard for childcare costs in HB

Comment from CPAG

This very short decision makes no reference to the decision in Carmarthenshire County Council v LT [2022] UKUT 224 (AAC), in which it was held that the mere fact of cessation of childcare provision on each and every day (which had also happened during lockdown in that case) was not necessarily fatal to entitlement to childcare costs under regulation 28. It is not necessarily in conflict with it, but very arguably that decision is to be preferred as a fuller treatment of the issue.

Decision in brief

‘It is not intrinsically an error of law for one judge to ask another judge “for a view” in the process of deciding a case’ (Midland Container Logistics Ltd [2020] UKUT 5 (AAC) and PD v Secretary of State for Work and Pensions (PIP) [2021] UKUT 172 (AAC) cited) – but in this case the terms of the tribunal’s statement of reasons ‘gives the clear impression that the First-tier Tribunal was in effect abdicating responsibility for deciding a key issue in the case and contracting out the determination of that issue to the duty district judge’, with the implication that the decision was in effect made by someone not on the tribunal – so although there was no breach of the practice statement on the composition of tribunals, there was a breach of natural justice

Decision in brief

Claimant claimed universal credit (UC) 17 days into the tax year 2019/20 – relevant law is at regulation 12A and Schedule 1 of the Universal Credit (Transitional Provisions) Regulations 2014 – that provides for use of ‘notional current year income’ in calculation of income for in-year finalisation of the award – that requires use of earned income ‘received’ in the tax year – in claimant’s case that meant use of all the wages received on 15 April 2019, even though some of those earnings were in respect of the previous March – tribunal erred in instead taking the wages received on 15 April and then apportioning those to the 17- day period of the 2019/20 tax year in which the claimant had been entitled to tax credits (ie, so as to use only the earnings directly attributable to 2019/20) – HM Revenue and Customs correctly used all of the wages received on 15 April in arriving (via the formula in the rules) at a ‘notional’ yearly income in order to finalise the award.

Decision in brief

Claimant was originally refused PIP in June 2017 – following LEAP exercise, a decision was made not to change that – claimant then telephoned to say he wanted the 2017 decision reconsidered in light of the MH and RP decisions mentioned in the LEAP decision; that was treated as an application for mandatory reconsideration of the 2017 decision, and refused – tribunal erred in holding claimant had no right of appeal as no official error had been identified – although refusal to carry out an any time revision does not generally carry the right of appeal, it does if it is a refusal of an application for mandatory reconsideration made on the basis of (arguable) official error (PH and SM v SSWP [2018] UKUT 404 (AAC) – although the June 2017 refusal was after the decisions in MH and RP, it was taken while the Secretary of State was seeking to challenge them and change the law and before the official guidance applying them was issued (in November 2017 and June 2018) – clearly, therefore, there was an arguable official referred to by the claimant.

Decision in brief

At age 71, applied for a supersession on basis that he was now terminally ill – the daily living component was increased to the enhanced rate, but not the mobility component, per section 83(1) Welfare Reform Act 2012 and regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013 on post-pension age entitlement to PIP, which forbid that – claimant’s argument that this was unlawful discrimination of his rights as a terminally person, in breach of Article 14 of the European Convention on Human Rights, dismissed – primary reason for this is that there could be no effective remedy to such a breach, as the default position established by section 83(1) (which cannot be disapplied by a court in Great Britain) is that there is no entitlement to PIP after pension age at all – regulation 27, which permits by beneficial exception certain entitlements on revision or supersession after pension age, could be disapplied but that would not actually assist the claimant

Decision in brief

Claimants were entitled to the housing cost element for just two bedrooms – argued that spare room exception applied regarding care for their adult daughter as her mother sometimes required a break from providing care for her in the night and family or friends therefore sometimes needed to use the allegedly ‘spare’ third bedroom – dismissed – no medical professional had recommended treatment during the night and no evidence that supervision was required – it is not the case that because there is no definition of ‘care’ there should be no assessment of the nature of care provided – as Secretary of State submitted, ‘care’ was to be given its ordinary and natural meaning and on facts of the case there was no need for overnight care in this

Decision in brief

Domestic rule at regulation 10 of the Immigration (European Economic Area) Regulations 2016 does not accurately reflect European Directive 2004/38, in that it restricts potential retention of family member right to reside after a divorce to a party to the dissolved marriage – claimant in present case was the (third-country) mother-in-law of a European national seeking to retain family member right to reside after the divorce of her (third-country) son from the European national – inaccuracy in the regulation conceded by Secretary of State

Decision in brief

Claimant had been a non-dependant of her adult son, but when he stopped being entitled to HB she became the tenant and claimed – tribunal erred (given the facts of the case) in finding that the claimant had always been a tenant – but did not err in following the approach to the meaning of ‘take advantage of the housing benefit scheme’ in CH/39/2007 and not instead following MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC) – the CH/39/2007 approach (which involves considering whether there has been something close to ‘abuse’ or ‘taking improper advantage’) is not changed by MP, and was approved by it – it is true that MP had facts closer to those in the present case but the proposition of law contained in it is the same