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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

CF v SSWP (PIP)

[2024] UKUT 244 (AAC)

Activity 3 (managing therapy or monitoring a health condition) – prescribed compression stockings are ‘therapy’ for purposes of the activity and tribunal should have considered whether any of the descriptors in it applied as a result of the claimant’s difficulties in putting on and taking off the stockings

Decision in brief

Because the compression stockings were ‘therapy’, difficulties with them could not also lead to points under Activity 6 (dressing and undressing) as that is about the ‘more general’ activity of dressing and undressing, but the tribunal also erred in failing to consider whether the claimant qualified for points there as a result of difficulties dressing or undressing with ‘normal’ clothes

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000104-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

SE v SSWP

[2024] UKUT 405 (AAC)

EU co-ordination rules – carer’s allowance where family member in receipt of a disability pension from Switzerland

Decision in brief

Application of Court of Appeal decision in Harrington v Secretary of State for Work and Pensions [2023] 1 WLR 3477 – under Article 11(2)(e) of Regulation (EC) No.883/2004, on the facts the claimant’s competent state was her state of residence (ie, the UK) – that was not displaced by Article 29 (‘cash benefits for pensioners’) as that merely ensured that the claimant, as the family member of a pensioner, may be entitled to cash sickness benefits by the state responsible for the pension – but it did not have the effect of removing entitlement to cash benefits from the family member’s state of residence (ie, the UK, in this case) where they were otherwise entitled – claimant’s competent state was therefore the UK and she was entitled to carer’s allowance

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2022-000202-CA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

QWH v SSWP

[2024] UKUT 339 (AAC)

Tribunals – error for failing to make adequate findings of fact and give adequate reasons in refusing daily living component – also for adopting ‘flawed findings’ in healthcare professional’s report

Decision in brief

Tribunal had been sufficiently persuaded of adverse effects of claimant’s mental health problems to award 10 points in mobility descriptor, and that indicated that a mental health issued could have had more of an effect on daily living than the tribunal found – tribunal needed to explain more about that

 

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000689-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MK (by his appointee, FM) v SSWP

[2024] UKUT 378 (AAC)

PIP – young person with primary ciliary dyskinesia (PSD, a rare inherited lung disorder) previously entitled to low rate care component disability living allowance refused personal independence payment on transfer

Decision in brief

In rejecting appeal, First-tier Tribunal made insufficient finding of fact and gave inadequate reasons – tribunal wrongly excluded cleaning and sterilising therapy equipment from consideration of managing therapy – Secretary of State conceded that any essential clearing and maintenance of the therapy device should be treated as part of the therapy regime – although, on the facts, the time taken would still not have led to an increased award of points for that

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000163-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

LB v SSWP

[2024] UKUT 338 (AAC)

PIP mobility and walking in pain – tribunal needed to making finding regarding level of pain the claimant is in while walking (including in supermarket aisles, which the tribunal had referred to as evidence)

Decision in brief

Need to consider whether ability to walk is to an acceptable standard (as explained in PS v SSWP [2016] UKUT 326 (AAC)) – ‘walking despite pain is not to an acceptable standard’

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2024-000699-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website