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SM v SSWP (UHC)

[2023] UKUT 176 (AAC)

Universal credit – ‘bedroom tax’ – additional room for an overnight carer

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

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2022-000261-UHC
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

AT v LB Hillingdon and SSWP (HB)

[2023] UKUT 149 (AAC)

Right to reside – family member and retention of (European free movement) right to reside

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

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2020-000117-HB
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

London Borough of Hammersmith & Fulham v FJ

[2023] UKUT 203 (AAC)

Housing benefit (HB) – whether liability created ‘to be a means of taking advantage of the housing benefit scheme’

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

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2022-001625-HB
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KR v SSWP (CA)

[2023] UKUT 202 (AAC)

Earnings – zero hours contract and fluctuating earnings

Decision in brief

Calculation under Social Security Benefit (Computation of Earnings) Regulations 1996 – averaging under regulation 8(3)(b) where has been more than one change and there is no recognisable cycle of work – tribunal wrongly failed to apply that on the facts – the period taken into account in the averaging exercise under 8(3)(b) could include earnings before the second change – not restricted to period beginning after the second change – but nothing in that obviously requires changes to decisions on past period of entitlement

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2021-001544-CA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KI v SSWP

[2023] UKUT 212 (AAC)

Child tax credit – HMRC unaware of disability living allowance award to child

Decision in brief

Backdating of disabled child element for previous tax years for ‘official error’ – failure of information sharing system between DWP and HMRC not an ‘official error’ for purposes of the Tax Credits (Official Error) Regulations 2003 (AG v HMRC [2013] UKUT 530 (AAC) cited) – claimant was under a duty to report changes and to correct notifications sent to her by HMRC – failure by claimant to notify a change of circumstances was the cause of the underpayment (AM v HMRC (TC) [2015] UKUT 345 (AAC) and JP v HMRC (TC) [2013] UKUT 519 (AAC) cited)

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2018-000285-TC
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

SSWP v GK (ESA)

[2023] UKUT 273 (AAC)

Carer’s allowance (CA) – no requirement for the agreement or consent by the cared-for person to a claim being made

Decision in brief

Appellant was a severely disabled person on income-related employment and support allowance (ESA) and entitled to a severe disability premium – that was stopped when his mother claimed CA in respect of caring for him – claimant argued that he had not countersigned the CA claim form and did not consent to the claim being made and that therefore he should remain entitled to the premium – held that the claimant’s consent to the CA claim was not legally relevant to that claim and the absence of his countersignature on the claim form did not render the claim invalid

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2023-SCO-000065-ESA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

SSWP v AD (UC)

[2023] UKUT 272 (AAC)

Universal credit (UC) and student loan income

Decision in brief

Claimant accepted that she had a student loan (ie, for maintenance) – needed to use large part of it for paying tuition fees – but (contrary to argument of the claimant) this did not change the correct treatment of it as student loan income under regulation 68 of the Universal Credit Regulations 2013 – ‘the characterisation of the nature and amount of the financial payment made to a student is based on objective criteria relating to the source of the funds and their characterisation under the Student Support Regulations, rather than how each applicant intends to apply or actually uses the funds granted’

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2023-000542-USTA and UA-2023-000543-USTA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

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