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Summary

The claimants were a couple with capital (about £25,000) from the sale of their previous homes. They were refused UC because their capital was above the £16,000 capital limit. Following mandatory reconsideration, their appeal was refused by the First-tier Tribunal. The tribunal refused to apply the rule (at paragraph 13 of Schedule 10 of the Universal Credit Regulations 2013, SI No.376) that the capital could be disregarded where it is an amount ‘…received in the past six months which is to be used for the purchase of premises that the person intends to occupy as their home where that amount…is attributable to the proceeds of the sale of premises formerly occupied by the person as their home…’. The tribunal said that the words ‘which is to be used’ required more than a mere hope or wish to use the money to buy another home, but must have ‘an intent’ to buy, be ‘actively seeking’ to do so and have a ‘reasonable prospect’ of doing so. 

Judge Poynter refused the claimant’s further appeal, holding that the tribunal had not materially erred in law (although it had made errors). He considered caselaw on the meaning of the words ‘which is to be used’ (from different benefits but regarding the same wording). In particular, in R(IS) 7/01 it had been held that the essence of the test was ‘an element of certainty’ that the capital would be used to buy a home; and that it must be ‘reasonably certain’ that a home would be purchased within the relevant time. However, Judge Poynter noted that in Re B (Children) [2008] UKHL 35, the House of Lords held that ‘that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.’ Judge Poynter emphasised the distinctly different test envisaged there: ‘The civil standard of proof does not involve any form of certainty. It is about “whether a fact more probably occurred han not”. Although it is usually unhelpful to reduce the standard to percentages, it is illustrative in this case that the civil standard is satisfied if there is a 50.1 per cent chance that the money will be used to buy a new home and a 49.9 per cent chance that it will not. That is a very long way from any form of “certainty”, no matter what adjective is used to qualify that word’ (paragraph 30). To the extent that R(IS) 7/01 (and similar authority) required a test anything other than the balance of probabilities, the judge declined to follow it (paragraph 34).

Turning to what the tribunal in the present case had done, it had erred in law in holding that an ‘intention’ to use the capital to purchase a new home was the test; referring to a need for the claimant to be ‘actively seeking’ to purchase a property, and in requiring a ‘reasonable prospect’ of acquiring a property. The correct test was whether the capital ‘is to be used’ for that purpose. But it remained that the tribunal had not materially erred in law, because the decision would have been the same even applying the correct test. That was because the evidence showed that the claimants would be unable to get a mortgage (due to debt problems) and so, given that the amount of capital was not in itself enough to buy a home, the claimants could not establish that it was more probable than not that the capital would be used in that way.

Comment from CPAG

The departure from the test in R(IS) 7/01 of some ‘certainty’ and replacement with a ‘more probable than not’ test is significant. It may assist claimants who are unable to point to, for example, accepted purchase offers or written agreements, although the individual facts will be crucial.

Summary

The claimant’s landlord was her son. He had bought the property and had been renting it out to the claimant, with a formally drawn-up tenancy agreement, since 2000. Until 2013, rent was paid in full. From that point, partly due to a drop in income caused by retirement, the claimant began building up rent arrears. The son took no action to enforce the arrears or to evict the claimant. She claimed HB in 2015. That claim was refused by the local authority on the basis that tenancy was not on a commercial basis. The First-tier Tribunal allowed the claimant’s appeal. The local authority appealed to the Upper Tribunal.

Judge Poynter formally set the decision aside but substituted a decision to the same effect as that of the First-tier Tribunal – ie, that the tenancy was on a commercial basis and so the claimant was not excluded from HB. The tribunal had erred in not having regard to the rent arrears before the claim was made as a separate matter to subsequent rent arrears, but on the facts that did not change the conclusion that the tenancy was on a commercial basis.

The relevant rule in this case was at regulation 9 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, SI No.214. That includes that the claimant is not regarded as liable for rent if ‘the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis’. In this case, the local authority relied on what Judge Poynter called ‘trump-card’ facts (namely, the accrual of rent arrears before the claim, with the landlord not undertaking eviction proceedings), and the ‘notional commercial landlord’ who would not fail to act in that way. But both such approaches were wrong: the first by seizing on one particular fact to the exclusion of others, the second by positing that there is only one way for a landlord to behave in order for the tenancy to be commercial. As set out in R(H) 1/03, the commerciality of a tenancy is not a ‘primary’ fact, but rather a ‘compound’ fact – ie, a judgement that has to be reached with regard to all the relevant facts in the case. So the fact that a landlord had allowed rent arrears to accrue may be a relevant factor, but ‘it will usually be only one of many factors and must still be weighed against the others in the context of the evidence as a whole’ (paragraph 34). Regarding landlords, they were not identically motivated and were not a homogenous group: in R(H) 1/03 it had been pointed out that ‘Rachman is not the only model of a commercial landlord’. The judge held that the tribunal was right to hold that: ‘The test is whether the tenancy is not on a commercial basis. It is not whether the landlord is in business as a commercial landlord’ (paragraph 53).

The facts in this case showed, on balance, that the tenancy was commercial. The facts included that the rent had been paid without fail for many years prior to arrears starting to accrue, that the agreement remained legally enforceable, that some irregular payment had continued and that there was at least the possibility that the claimant’s ability to pay might improve, due to a possible increase in her husband’s earnings. The fact of applying for HB was in itself an attempt to improve her ability to pay the rent. The mere fact of applying for HB could not in itself be proof of non-commerciality. Although the judge accepted that a commercial tenancy could in some circumstances change to become uncommercial (and vice versa), he doubted – contrary to previous authority (R(H) 10/05) – that those circumstances included where the landlord did not take eviction action, as the correct focus had to be in the ‘agreement’ concerned. But even if landlord inaction could count as a change, on the facts of this case again that still did not mean the tenancy had become uncommercial.

Comment from CPAG

This extensively reasoned decision will be a key authority where there is a question about whether a tenancy is on a commercial basis. It is a forceful reminder that not all landlords have to be motivated by profit alone or be ruthless about enforcement for an agreement to be and remain commercial. The use of ‘trump facts’ and of the ‘notional commercial landlord’ is emphatically rejected as erroneous. As the judge indicated, there may need to be further authority on exactly when the commerciality of an agreement may be regarded as having changed.

Summary

The appellant was entitled to HB and employment and support allowance, and to tax credits with his partner. Following receipt of a notice to quit their rented accommodation, the couple moved on 24 September 2018 to a new local authority area, and later (as instructed by their new local authority) made a claim for UC. The claim was made on 22 October 2018. Their request for backdating to 24 September was refused. The First-tier Tribunal refused the subsequent appeal.

Judge Jacobs allowed the claimant’s further appeal, and substituted a decision that the UC claim should be ‘backdated’ to 24 September. That was because, under regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, a claim can be ‘backdated’ (ie, the time for claiming formally extended) where the claimant could not reasonably be expected to have claimed earlier, one or more specified circumstances applies, and the judge considered that one of those circumstances applied.

Specifically, at subparagraph (3)(aa) of regulation 26, one of those circumstances is where ‘the claimant was previously in receipt of an existing benefit (as defined in the Universal Credit (Transitional Provisions) Regulations 2014) and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant's entitlement expired’ (paragraph 4).

HB was an ‘existing benefit’. The judge accepted a submission made by the Secretary of State that notification of the expiry of ‘entitlement to housing benefit’ should be taken only to have been when the claimant’s new local authority told them that they would need to claim UC rather than HB. The date of that notification was after their actual entitlement (ie, as paid by their old local authority) had ended, following their move to the new local authority area on 24 September. Therefore the terms of regulation 26(3)(aa) were satisfied. Further (as per the Secretary of State’s submission): ‘The couple could not reasonably be expected to claim universal credit until the appellant had been made aware that he could no longer claim housing benefit, and they he [sic] did not unreasonably delay his claim for universal credit once they became aware of their position’ (paragraph 8).

Comment from CPAG

Backdating of UC is on very limited grounds, but this decision contains (via the Secretary of State’s own submission) a helpful application of one of those grounds that should apply in many cases where a claimant has moved to new local authority and has lost entitlement to HB.

Summary

The local authority decided that an overpayment had occurred and it was to be recovered from the person to whom it had been paid, which in this case was the landlord. The overpayment arose because the claimant was awarded HB at the self-contained bedroom rate, when it should have been awarded at the (lower) shared accommodation rate. This was because of incorrect information given by the claimant on his claim form. The landlord appealed and his appeal was dismissed by the First-tier Tribunal, who arranged and conducted the appeal as if it were solely between the landlord and the local authority – ie, with no attempt to include the claimant as a second respondent to the appeal.

Judge Poynter (having formally joined the claimant as a second respondent) allowed the landlord’s further appeal and substituted a decision that the overpayment was not recoverable from him and was instead recoverable from the claimant (AT), as the person who had caused the overpayment by misrepresenting a material fact. The tribunal had gone wrong in not realising that the claimant should have been listed as a second respondent, and in consequently failing to consider regulation 101 of the Housing Benefit Regulations 2006, SI No.213, which makes provision as to from whom an overpayment of HB is recoverable. Subject to a rare exception regarding computer error, all HB overpayment decisions involve a decision that the claimant was not entitled in some way, decisions on entitlement must be formally notified, and once that is realised, ‘it becomes obvious that the claimant – to whom that award was, after all, made – needs to have a right of appeal against it’ (paragraph 47). Regulation 101(2) may (depending on the facts) mean that the overpayment is recoverable both from the landlord and the claimant or, in cases of failure to disclose or misrepresentation of a material fact, the person who so failed to disclose or misrepresented, and all those from whom the overpayment were recoverable must be given a decision about that (R(H) 6/06 applied and approved). The tribunal had erred in failing to apply this.

The judge set out some basic principles regarding appeals in which HB has been held to be recoverable from the landlord (paragraph 3), which (here in summary form) are:

‘(a) The claimant is always the second respondent to an appeal made by a landlord… It is not necessary for the First-tier Tribunal to give a direction…to bring it about.

(b) Although the circumstances in which a landlord can appeal against a HB decision are limited, where those circumstances exist, the landlord’s right of appeal is not limited and he is entitled to raise all relevant issues of fact and law. In particular, a landlord appealing against a decision that an overpayment is recoverable from him is not restricted to arguing that the overpayment is not recoverable, or is not recoverable from him…

(c) In an appropriate case, a landlord who brings such an appeal is entitled to a decision that a recoverable overpayment is recoverable from him and the claimant jointly rather than from him alone.

(d) If the circumstances specified in regulation 101(2)(b) or (c) of the Housing Benefit Regulations 2006 (the HB Regulations) exist, a landlord who brings such an appeal is potentially entitled to a decision that a recoverable overpayment is not recoverable from him but is solely recoverable from the claimant (or some other person).

(e) In the absence of a specific direction…the First-tier Tribunal has no power to refuse to consider relevant evidence merely because it confidential information about people who are not parties to the appeal. All relevant evidence is admissible and, in the absence of such a direction, must be taken into account… .’

Comment from CPAG

As noted by the judge, there is nothing actually novel in the legal principles and requirements identified in this decision. However, those principles and requirements are set out with great clarity in a context in which it seems that confusion can easily arise, and the decision will therefore be key in appeals concerning recovery of overpaid HB from a landlord.

Summary

The claimant had chronic fatigue syndrome and was entitled to the high rate of disability living allowance (DLA) mobility component. She lived in a privately rented studio flat. The local authority limited her HB to the one-bedroom shared accommodation rate of the local housing allowance (LHA), as mandated by regulation 13D(2) of the Housing Benefit Regulations 2006, SI No.213. She was paid discretionary housing payments (DHPs) for the shortfall in her rent. On appeal, she argued that the limitation on her HB discriminated against her on the grounds of disability, in particular as a wheelchair user with greater difficulty finding shared accommodation. That was contrary to Article 14 of the European Convention on Human Rights in conjunction with Article 1 of Protocol 1, and the principle (requirement to treat a person differently in order to avoid discrimination) in Thlimmenos v Greece [2001] 31 EHRR 411. The First-tier Tribunal dismissed her appeal, holding that her treatment was justified as ‘not manifestly without reasonable foundation’.

Judge Najib rejected the claimant’s further appeal, holding that the tribunal had not erred in law. Following the decision in R (DA) and R (DS) v Secretary of State for Work and Pensions [2019] UKSC 21, the ‘manifestly without reasonable foundation’ test remained the correct test of justification in alleged discrimination cases, and not the ‘objective and reasonable justification test’ identified by the European Court of Human Rights in JD and A v the United Kingdom [2020] HLR 5. A number of subsequent decisions had reaffirmed that. However, subsequent authorities (eg, R (TD, AD and Reynolds) v Secretary of State for Work and Pensions [2020] EWCA Civ 618) had identified the relevance of proportionality to the test. The judge considered that, in the light of these authorities, ‘… whilst the sole legal question is whether the difference in treatment is “manifestly without reasonable foundation”, the answer to that question is to be found by considering whether the difference in treatment arising from the relevant measure is “manifestly disproportionate to its legitimate aim”. If it is manifestly disproportionate, it is manifestly without reasonable foundation, and vice versa’ (paragraph 75).

The official aims for introducing the shared accommodation rate were legitimate. Applying the approach taken by the Supreme Court to justification issues regarding the ‘bedroom tax’ in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the judge considered that: ‘the key issue is whether the need of a disabled person in the Appellant’s position (ie, a wheelchair user) to remain in an existing property is connected to (i) a transparent medical need for single-occupancy one-bedroom accommodation (ie, a transparent medical need which prevents them from sharing a bedroom); or (ii) some other reason which requires “individual evaluation” on a case-by-case basis. In the Appellant’s case, I am satisfied that it is the latter’ (paragraph 83). That indicated the suitability of DHPs as a solution, rather than unlawfulness. The judge was therefore satisfied that ‘…in the context of the scheme as a whole and, in particular, in light of the availability of DHPs on case-by-case basis, the adverse impact of regulation 13D(2) on the Appellant and those in her position is not “manifestly disproportionate to its legitimate aim”. It is therefore not “manifestly without reasonable foundation”’ (paragraph 85).

Summary

The claimant was found to have failed the work capability assessment and so considered not to have limited capability for work. She had scored some points for being unable to get to an unfamiliar place without being accompanied by another person. On appeal, the First-tier Tribunal found that the ‘substantial risk’ exceptional circumstance (located, in the UC context, at paragraph 4(1) of Schedule 8 to the Universal Credit Regulations 2013, SI No.376) did not apply to the claimant. That was because the tribunal considered that the risk to the claimant’s health of travelling on an initially unfamiliar journey to a new job could be negated by the claimant’s being accompanied by a friend or family member. The tribunal did not consider whether there might be a substantial risk to the claimant (having been found fit for work) having to travel to and from the job centre.

Judge Wright allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in assuming, rather than actually establishing on the evidence, that the claimant could in practice actually be accompanied by a friend or family member on an initially unfamiliar journey to a new job (so that the risk to her health would be negated). As had been held (regarding a similar question in the context of limited capability for work-related activity) in MP v SSWP (ESA) [2016] UKUT 502 (AAC), the tribunal must enquire into the actual availability of the third-party support, and not simply assume that it will be available.

Also, the tribunal had erred in failing to consider the risk to the claimant’s health from travelling to and from the job centre. Such a risk could be relevant to whether the claimant is held to have limited capability for work by virtue of the ‘substantial risk’ rule. In so holding, he addressed a split in the caselaw authority. In NS v SSWP (ESA) [2014] UKUT 115 (AAC), reported as [2014] AACR 33, Judge White had endorsed the finding of Judge Mark in IJ v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC) that the relevance of considering whether substantial risk arises (as per the rule) from the claimant being found not to have limited capability for work meant that health problems of having to take part in interviews at the job centre could be relevant. That approach had been rejected by Judge Lane in MW v SSWP (ESA) [2015] UKUT 665 (AAC), who held that as a matter of law the only relevant risks were those associated with finding work, travel to and from that work and (in rare cases) the reaction to the ‘fit for work’ finding. That was based on Judge Lane’s reading of the Court of Appeal’s decision in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. However, in the present decision Judge Wright held that MW was wrongly decided and declined to follow it. Apart from the fact that NS was reported authority and that other authorities (eg, JT v SSWP (ESA) [2018] UKUT 124 (AAC)) had followed that rather than the approach in MW, the approach in NS and in IJ was correct as a matter of statutory construction. The judge held: ‘The test is not a narrower one of “were the claimant found work or a job”. It is a wider test founded on a forward-looking exercise of considering the rational evidential consequences that may arise if the claimant is found not to have limited capability for work and the risks to health that may arise from those consequences because of the claimant’s ill health’ (paragraph 28). The test did not exclude taking into account travelling to and from the job centre and ‘engaging with others in so doing and at the job centre or job interview’ (paragraph 29).

Comment from CPAG

This decision should settle any remaining doubts as to the balance of authority on whether ‘substantial risk’ from travelling to the job centre and taking part in relevant interviews may be relevant. The balance of that authority is clearly that such matters can be relevant, in the context both of UC and employment and support allowance and the tests of limited capability for work and limited capability for work-related activity.

Summary

The claimant became entitled to UC in September 2017. In his October and November 2017 and January and February 2018 assessment periods, he received late payments of wages from his employer, representing unpaid wages and holiday pay, and also the return of a deposit he had paid on his uniform at the start of his employment. His employer was a ‘real time information’ employer. The treatment of late paid wages and whether the return of the deposit constituted earnings were the subject of dispute at the First-tier Tribunal.

Judge Jacobs held that the original decisions of the Secretary of State, treating the late paid wages as earned income in the assessment periods in which they were received (and reported under the real time information requirements), was correct. In particular, the wages were not to be attributed to the earlier assessment period in which they were due.

The relevant regulation was regulation 61 of the Universal Credit Regulations 2013, SI No.376. The claimant’s representative argued that the default position, at regulation 61(2)(a), that employed earnings for an assessment period are based on the information reported by the employer to HM Revenue and Customs (HMRC) and passed on to the Secretary of State in that assessment period, should not apply. That was on the basis that the payments were not timely and so, as per the exception in subparagraph (3)(a), the information from the employer was ‘unlikely to be sufficiently accurate or timely’. But Judge Jacobs rejected that, holding that: ‘It is not the payment that has to be timely. It is the information from the employer that must be “unlikely to be … timely”. The information is the amount of the employed earnings for each assessment period. That does not mean that the earnings had to be earned in the period. As the claimant’s representative accepted, earnings almost always relate to past periods…The employer correctly reported the amount that was paid. The information reported to HMRC and passed to the Secretary of State was correct. This was done timeously. Regulation 61(3)(a)) does not apply’ (paragraph 13). Similarly, there was no basis for the exception in subparagraph (3)(b)(ii), which applies where the information received (ie, regarding the earnings) is ‘incorrect’. The judge held: ‘The information was correct… Again, the important word is information. The information is the amount that the claimant was paid and it was correctly reported. Matters relating to the timing of the payment, and the willingness or lack of it with which it was paid, are irrelevant to this provision’ (paragraph 14). There was no unlawful irrationality about the rules in this context: ‘The claimant received a late payment of wages in two assessment periods and had that money available to meet that need. When he received no wages, he was paid universal credit. That shows a system that is flexible in responding to changing circumstances and paying out public money when it is needed, but only then’ (paragraph 16).

The judge agreed with the concession of the Secretary of State that the First-tier Tribunal made an error of law by treating the amount of deposit as earned income. ‘As the representative succinctly submitted,’ said the judge, ‘a refund of money previously paid by an employee to their employer does not, I submit, fall within that section and is not employed earnings. I accept that’ (paragraph 9).

Comment from CPAG

Although the decision was held up to await the decision of the Court of Appeal in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778 (Bulletin 277, p10), the judge did not think that decision could assist the claimant. The Johnson decision concerned an irrational lack of flexibility in the context of a ‘double payment’ of monthly salary; the judge did not think that arose in the present (different) context of late paid wages where he considered the rules were appropriately flexible.

Summary

The claimant was paid earnings on a four-weekly basis. She received 13 payments of wages in a 12-month calendar period. In one UC assessment period, she received two payments of her four-weekly wages. The DWP took both those payments into account as earnings during the single assessment period in which they were received. The claimant appealed, arguing that was wrong given the decisions in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778 (regarding two lots of calendar-monthly paid wages received in a single assessment period) and in R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) (regarding benefit cap exemption and two lots of four-weekly paid wages in a single assessment period). The First-tier Tribunal rejected her appeal, holding that on the facts neither Johnson nor Pantellerisco applied.

Judge May rejected the claimant’s further appeal. The tribunal had been right to hold that on the facts neither Johnson nor Pantellerisco applied in this case, as the circumstances in those cases were ‘substantially different’ (paragraph 9). The relevant rule, at regulation 54(1) of the Universal Credit Regulations 2013, No.376, expressly provided that (subject to specified exemptions) earned income was to be taken into account in the assessment period in which it was received. The claimant had asserted that, although based on different facts, the Johnson and Pantellerisco decisions meant that the treatment of her wages was wrong, but had made no specific submission on what should then happen. It appeared to the judge that the claimant was in effect seeking to have one of the payments received excluded. ‘That,’ said the judge, ‘I am not prepared to do as it flies in the face of what the regulation actually says’ (paragraph 13).

The judge agreed with the Secretary of State’s submission that Johnson did not apply, as in that case the claimant was paid calendar-monthly, had received two payments of wages in the one assessment period due to a ‘non-banking day salary shift’ and had lost out on the work allowance, none of which applied here. He also agreed that in Pantellerisco the issue was that the claimant, because of a pattern of receiving two lots of four-weekly wages in one assessment period, lost out on the benefit cap exemption at regulation 82 of the Universal Credit Regulations 2013, and again that did not apply in this case. Although the judge was aware that the decision in Pantellerisco was currently under appeal to the Court of Appeal, given these findings he saw no point in delaying making a decision in this case.

Comment from CPAG

The judge made no attempt to criticise the decisions in Johnson or in Pantellerisco. Rather, as was also the case in NM v SSWP [2021] UKUT 46 (AAC), the particular facts of the case meant that they did not apply, and instead the default position of taking earned income into account in the assessment period in which it is received did. The Court of Appeal has now heard submissions in Pantellerisco, and a decision is awaited.

Summary

The claimant was 82 years old. He and his wife had been required to leave their accommodation at their daughter’s house and had recently moved into rented accommodation and claimed HB. In his claim, the claimant correctly disclosed his teacher’s monthly occupational pension. The local authority erroneously treated the monthly figure as an annual figure, leading to an overpayment. Although wholly caused by official error, the local authority decided that the overpayment was recoverable. It claimed that the claimant could reasonably have been expected to identify the error in the calculation sent to him allegedly explaining how his HB had been calculated and realise he was being overpaid. That decision was upheld by the First-tier Tribunal.

Judge Perez allowed the claimant’s appeal and substituted a decision that the overpayment was not recoverable from him. The tribunal had erred in giving inadequate reasons, making inadequate enquiry and findings about the question of whether the claimant could reasonably have been expected to have realised he was being overpaid. The overpayment had been caused by official error to which the claimant had not contributed. On the facts (including the claimant’s age and personal circumstances, as well as the unclear notification of his entitlement), he could not reasonably be expected to have realised he was being overpaid. Under the relevant rule at regulation 81 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 No.214, the overpayment was not recoverable.

The First-tier Tribunal had held that the claimant should have spotted the local authority’s error in treating the monthly pension as an annual one in the entitlement letter sent by the local authority. The claimant had argued that he could not reasonably have done that, as he was 82 years old, was ‘drowning in paperwork’ having had to move home and register changes of address multiple times, and that the letter about his entitlement had ‘bundles of figures’ which did not make the error clear. Judge Perez agreed with the claimant. The length, layout and font of the letter, the fact that the instruction to check the figures used was not clearly shown, with many figures being broken down by the local authority and used in ways in which the claimant had not used them, all meant that the tribunal had erred in not explaining why it considered that the error was clearly displayed in the entitlement letter. Further, the tribunal seemed to have placed reliance on the claimant having been a lecturer, without actually considering what the claimant was lecturing in, which was bricklaying. The tribunal had also failed to enquire into, and make findings of fact about, other relevant issues, including his age, his state of health, his feelings about being drowned in paperwork and the possible confusion from how what he had called his ‘teacher’s pension’ was categorised as an occupational pension. These, and other factors including that he and his wife had just been obliged to move house and claim HB for the first time, meant that the claimant could not have been expected to have realised he was being overpaid. The overpayment was therefore not recoverable from him.

Comment from CPAG

Advisers may find the local authority’s argument that the claimant should have spotted the local authority’s error a very familiar one. It should be surprising that tribunal should agree where the facts, as here, very clearly indicate otherwise. The decision is rooted in the particular facts, but some of those, including the complexity of the local authority entitlement letter and the claimant’s difficulty in comprehending it, are common.

Summary

The claimant was entitled to both components of personal independence payment (PIP) at the standard rate. On 7 November 2020, due to the Covid-19 pandemic, the duration of those awards was extended to 16 July 2022 (‘the extension decision’). On 18 May 2022, following a DWP ‘planned review’, the awards were superseded to award the claimant both components at the enhanced rate for the period 16 July 2021 to 17 May 2025 (‘the enhanced rate decision’). However, on 22 July 2021, the claimant had also been sent a letter from the DWP (‘the 22 July letter’) thanking the claimant for being asked to look at her award again and saying it had been decided to award her the standard rate of both components for the period 18 July 2018 to 16 June 2022. The claimant appealed against the 22 July letter, but the tribunal struck it out. It held there was no jurisdiction to consider the appeal as, on the facts (which included that the clamant had not requested a review and the DWP could find no record of a decision or of a mandatory reconsideration concerning it), the 22 July letter was not a decision.

Judge Church upheld the decision of the tribunal. The tribunal had been entitled to find that the 22 July letter was not itself a decision and did not establish that the decision it purported to describe had been made. The tribunal was therefore entitled to conclude that there was no decision for the claimant to have appealed against and was accordingly bound to strike out the proceedings for lack of jurisdiction.

In the Upper Tribunal, after considering evidence from the claimant and the DWP, the judge remarked that ‘the genesis of the 22 July letter remains something of a mystery’ (paragraph 21). There was no evidence that the claimant had requested a review (ie, by revision or supersession) of her PIP award, and there was no record or obvious reason why the Secretary of State would have done so on her own initiative. The tribunal had therefore been entitled to find that the letter was issued in error and was not a decision. It followed inexorably from that that the tribunal was bound to conclude that it had no jurisdiction and so to strike out the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. Further, even if the 22 July letter could somehow be considered a decision, it was not a decision either to revise or to supersede the extension decision, but rather ‘...to leave the extension decision exactly in place as it was. As such, the only decision against which a right of appeal lay was the extension decision, and that was not the decision under appeal in the proceedings before the tribunal.’

Comment from CPAG

It is disappointing that the Secretary of State seems to have been at a loss to explain her own letter to the claimant. The judge is correct in holding that, even if the letter could have been considered to be a decision, a decision refusing to revise means that it is the original decision that must be appealed against. But it should be remembered that (although this did not arise from the unusual facts of the present case) a refusal to revise that follows a mandatory reconsideration will make such an appeal possible. Under rule 22(2)(d)(i) of the Tribunal Rules, a refusal to revise following a mandatory reconsideration means that the time limit for making the appeal does not start until the date the claimant was sent the mandatory reconsideration notice. Also, a refusal to revise a decision on the ground of official error could, depending on the case, still constitute a mandatory reconsideration even outside the usual absolute time limit for mandatory reconsideration (PH v SSWP (DLA) [2018] UKUT 404 (AAC), reported as 2019 AACR 14).

Summary

The claimant reached pensionable age on 20 August 2021. He did not claim state pension at that point and carried on working. He made an online claim for state pension on 17 August 2022. In that claim, he clearly indicated that he wished to claim from his 67th birthday, which was on 20 August 2022. He was awarded state pension, including an increase for deferring entitlement, from that date. However, the claimant had made a mistake and had intended to ask for backdating to 20 August 2021. Having been refused that, the First-tier Tribunal (FTT) allowed his subsequent appeal on the basis that the decision starting entitlement from August 2022 was capable of revision on any ground to correct that mistake.

Judge Wright allowed the further appeal of the Secretary of State and substituted a decision that the First-tier Tribunal had erred in law and that the claimant’s appeal to it was dismissed – ie, with the effect that the date of claim was 20 August 2022. The tribunal had erred in considering that the Secretary of State’s decision could have been revised so as to backdate the claim for a year. Even though the claimant had indeed made a mistake in asking for his claim to start in August 2022, he had clearly indicated that date on his claim and the structure of the state pension rules did not permit that to be changed once the claim had been decided upon. There was no parallel with the rules on extending the time to claim (in effect, backdating) universal credit (UC), as adjudicated on by the Court of Appeal in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186, reported as [2024] 1 WLR 3012, which were quite different.

The claim was decided on 17 August 2022. Judge Wright agreed with the Secretary of State that after the claimant’s having chosen his date of claim and the claim having been decided on that basis, there was ‘no proper basis’ for the Secretary of State, or the tribunal, to have then decided differently (paragraph 33). Although under regulation 5(1) of the Social Security (Claims and Payments) Regulations 1987 the claimant had been able to amend his claim (ie, to ask for backdating) at any time before it was decided, he had not done so. The claim form had been very clear, and there was no dispute that the claim had been correctly decided. Having been decided, the claim no longer existed and could no longer be amended. ‘Given all this,’ said the judge, ‘I can identify no lawful basis for the Secretary of State or the FTT on appeal changing the start date of entitlement to the state pension, as to do so would be to amend the claim after it had been decided and after it had ceased to exist’ (paragraph 37). It was important to note that the rules on the state pension placed in the hands of the claimant the choice between claiming on reaching pensionable age or deferring until a later date. The tribunal was not permitted to act on the wish of the claimant, subsequent to the decision adopting that choice, to change it. Nor did anything in Miah alter that. The issue in Miah was whether a UC claim had been made within the time and (in the judge’s words) ‘where there was an absence of evidence about the date from when Mr Miah wished to claim his universal credit.’ The ‘essence’ of the court’s decision was the conclusion that whether UC had been claimed in time ‘could be determined (on revision or on appeal) like any other issue going to entitlement’. That was different to the present case, which was about state pension where the claimant had clearly indicated he wanted to defer his claim and his entitlement until his 67th birthday (paragraph 48).

Comment from CPAG

This decision, as the judge makes clear, is predicated on the very particular arrangements regarding date of claim and deferral on entitlement in the state pension rules. As the judge (and the Secretary of State in her submission) also makes clear, that is very different from the UC context and Miah, where there is no requirement on claimants to indicate a wish for backdating and it is for the Secretary of State to consider that when making the decision.

Summary

In this decision the High Court held that the two years’ residence requirement that was part of Sandwell’s council tax reduction scheme was unlawful, on numerous grounds. See the article in Bulletin 242, p4.