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Summary

The claimant had been entitled to the lower rate of both the care and mobility components of disability living allowance (DLA), but on transfer to PIP was not awarded either the daily living or the mobility component. The claimant’s appeal (written by his mother as his appointee) mentioned his ‘cognitive impairment’, and the evidence before the First-tier Tribunal included medical evidence of the claimant’s ‘significant learning disability’. The tribunal awarded the claimant the standard rate of the daily living component, but did not award the mobility component. The tribunal’s reasons referred to the claimant having ‘some learning difficulties’. On the further appeal to the Upper Tribunal, the claimant’s mother pointed out that the tribunal frequently referred to ‘learning difficulties’ (which could mean any learning or emotional problem that affected ability to learn), but not to ‘learning disability’, which was a different condition and not, as the tribunal clearly considered, synonymous and should not have been applied as if were interchangeable.

Judge Jacobs allowed the further appeal and remitted the case to a fresh tribunal. He agreed that ‘the tribunal did not appreciate the importance of distinguishing between evidence of learning difficulties and learning disability’ (paragraph 14). The judge’s own internet search had shown that some sites treated ‘learning difficulty’ and ‘learning disability’ as synonymous, whereas others did not. The error of law was that: ‘The argument from the claimant’s mother relied on her son having a disability, which she saw as indicative of the nature and range of his limitations. The tribunal should have clarified what she meant in order to understand her argument. It should have kept the different in mind when taking and assessing evidence from the claimant and his mother. It should have tried to identify the way in which those terms were used in the documentary evidence’ (paragraph 15).

The judge pointed out that it is not necessary to have a formal diagnosis in order to qualify for PIP. Rather, under section 80(1) of the Welfare Reform Act 2012, it was required that the claimant’s activities were limited (to a sufficient extent) by their ‘physical or mental condition’. But a diagnosis could nevertheless be important evidence about whether that test was met: ‘A diagnosis of a particular condition is relevant evidence in deciding whether  their limitations are likely to arise from their “physical or mental condition”. It may allow  the tribunal to assess the reliability of the claimant’s evidence about the effect of their condition. It may also allow the tribunal to draw inferences about the nature and extent  of the claimant’s limitations in the absence of evidence’ (paragraph 12).

Summary

The claimant had been entitled to disability living allowance (DLA) at the highest rate for both components. On transfer to PIP, the claimant was initially awarded just the daily living component at the standard rate from 12 October 2016. The claimant applied for mandatory reconsideration and then (with the result of that being no change to the decision) appealed to the First-tier Tribunal. That appeal was rejected on 25 August 2017 (‘the 2017 tribunal’) and the claimant was refused permission to appeal further. Subsequently, on 16 January 2018, the claimant applied for a further review of his PIP (on the facts, that was in effect for a supersession for a relevant change in his circumstances). That resulted in a decision of 12 May 2018 (‘the supersession decision’) that he was still entitled only to the standard rate of the daily living component, albeit for a longer period. Following an unsuccessful mandatory reconsideration, the claimant again appealed to the First-tier Tribunal. That appeal was refused, but after a successful further appeal to the Upper Tribunal, the case was referred back to a different First-tier Tribunal. That tribunal (‘the 2021 tribunal’) allowed the appeal (ie, against the supersession decision) to award the enhanced rate of both, but did so from 26 August 2017, the day after the date of the decision of the 2017 tribunal. 

Judge Wikeley held that the 2021 tribunal had erred in law, but (contrary to the claimant’s argument that his increased entitlement should have started from his transfer to PIP in 2016) that the correct start date for the start of the claimant’s increased PIP award was 16 January 2018 – ie, the date the claimant had applied for a supersession of his then existing award. The tribunal had erred in identifying 26 August 2017 as the effective date. The tribunal also erred in having first told the claimant that the award was from 16 January 2018 as part of its orally announced decision but then changing its mind and announcing the 2017 date instead. The decision of the 2017 tribunal being unchanged had, per section 17 Social Security Act 1998, been final. Subsequently, the claimant’s request for a supersession of his then PIP award on 16 January 2018 ultimately resulted in his entitlement being changed. The effective date of change was provided for Schedule 1 to the UC (etc) Decisions and Appeals Regulations 2013, SI 2013 No.381. Applying that, the effective date for an advantageous supersession where (as here) the basis was a relevant change notified more than one month after the change was the date of change notification. The 2021 tribunal was required to apply that. So, the effective date of the claimant’s altered entitlement, following an ultimately successful challenge to the supersession decision, was the date he was taken to have notified the change of circumstances – ie, 16 January 2018. 

Judge Wikeley said: ‘The present case is yet another example of the importance of identifying the precise decision under appeal as that will then determine the potential scope of the appeal and so a claimant’s entitlement to benefit’ (paragraph 6). Also, the principle of the finality of decisions was featured in this case: by virtue of section 17 of the Social Security Act 1998, decisions were final (unless changed on revision, supersession or appeal/judicial review). The effect of that was to prevent there being two decisions about the claimant’s entitlement to the same benefit for the same period. ‘The present case’, said Judge Wikeley, ‘is an example of how the principle of finality intersects with the decision-based system of adjudication. In the Appellant’s case, this requires careful consideration of the fate of his two separate FTT appeals about his entitlement to PIP’ (paragraph 9). 

Comment from CPAG

The tribunal in this case went wrong by losing sight of the fact that ultimately it was hearing an appeal on the outcome of an application for a supersession: the tribunal was required to apply decision and appeals rules controlling the effective date of a new decision arising from that.

Summary

This decision of the Upper Tribunal for Scotland concerns ADP and the approach adopted by the First-tier Tribunal for Scotland (FTS) in considering the appeal. 

The claimant in her claim for ADP reported a number of mental health problems, including anxiety and PTSD. Her GP, having been contacted by Social Security Scotland (SSS), said that the claimant had reported such problems, that she had declined medication and had been signposted to the local Mental Health Wellbeing Hub. The initial decision scored the claimant insufficient points to qualify for any award of ADP. That decision was not changed on redetermination and the claimant appealed to the FTS. Although SSS now submitted to the tribunal that the claimant should qualify for the enhanced rates of both components of ADP, the FTT considered the case on the papers and (without calling for any further evidence) refused the appeal, actually reducing the points originally awarded. 

Lady Poole allowed the claimant’s further appeal and remitted the case to a new FTS. The tribunal had, on the facts of the case, erred ‘by acting with procedural impropriety’, by failing to consider its powers to call for further evidence (paragraph 35). At the heart of the FTS’s decision it had stated that if the claimant’s condition were as bad as she had claimed, there would have been extensive records with her GP; but that no such records, or letters from a consultant psychiatrist or clinical psychologist had been provided to indicate a severe and enduring mental health diagnosis. Lady Poole considered that, given the admitted gaps between what the claimant reported and much of the evidence before it, the FTS ‘erred by failing to consider whether it should exercise any of its procedural powers to obtain further evidence’ (paragraph 21). For example, it could have issued a direction that the claimant should be given the opportunity to mandate the obtaining of medical records from the GP, and to attend an oral hearing to give evidence in person. 

Parties should be given a proper opportunity to participate in an appeal. In this case, the claimant had said that she had not requested an oral hearing because she thought the appeal would be allowed. That was due to her misunderstanding the status of the submission to the tribunal (now supporting the appeal) by SSS, which was not binding on the tribunal. Here, it was a ‘reasonable inference’ that she would have been open to attending an oral hearing had she correctly understood the position, and the FTS erred in ‘failing to consider exercising its inquisitorial powers to recover further evidence and enable further participation’ (paragraph 23). Finally, Lady Poole pointed out that the ADP rules adopted the same framework for entitlement as did personal independence payment (PIP), and that PIP caselaw ‘may provide guidance when considering similar concepts’ in the ADP rules (paragraph 34). In this case, SSWP v GJ [2016] UKUT 8 (AAC) was likely to be of assistance in considering the ADP daily living activities 7 and 9, and MH v SSWP [2016] UKUT 531 (AAC) in considering mobility activities. 

Comment from CPAG

It is inherent, even though not explicitly stated, in this decision that for ADP (as for PIP) it is not required have a formal diagnosis in order to be regarded as having a disability. It would seem as if the First- tierTribunal also neglected that point.

Summary

The claimant lived in specified accommodation and was entitled to housing benefit (HB) and universal credit (UC). The UC therefore did not include the housing element. But it did include a transitional severe disability premium (SDP) element (the claimant having been entitled to the SDP when she underwent natural migration from legacy benefits to UC). In May 2021, she moved out of her specified accommodation and into mainstream rented accommodation, in which the rent was lower. Due to the move, she lost entitlement to HB and instead became entitled to the housing element of UC. It was decided that her transitional SDP element was immediately reduced (or ‘eroded’) to nil, because the housing element, although lower than the HB, exceeded the amount of the transitional SDP element. On appeal, the First- tier Tribunal held that the erosion to nil in this case was unlawful discrimination and that the rule applying the erosion (at regulation 55(2) of the Universal Credit (Transitional Provisions) Regulations 2014, SI No.1230) should be disapplied in her case. The Secretary of State appealed to the Upper Tribunal. 

Judge Church upheld the tribunal’s decision, holding that it did not involve any material error of law. The erosion of the claimant’s transitional SDP element had involved discrimination (and therefore a breach of her human rights under Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1). He also agreed that, in the light of the breach, the correct remedy was to disapply regulation 55 in her case, so that her transitional SDP element was not eroded at all. The Secretary of State argued that the claimant’s argument was an attack on the ‘erosion principle’ in regulation 55 that transitional protection would erode over time in line with ‘relevant increases’ in UC amounts, and (in summary) that the arguments for discrimination under Article 14 were not made out. 

The judge disagreed. There was no attack on the erosion principle; rather, what had happened here was not ‘erosion’, as properly understood. The tribunal had correctly identified, for the purpose of Article 14 discrimination, an ‘other status’ for the claimant, namely that of a person with a transitional SDP element who has moved from specified accommodation to mainstream rented accommodation. That was not so very different from the claimants in the TP litigation that had led to the creation of the transitional SDP element (see FL v SSWP), who were SDP-entitled claimants who moved home, albeit in those cases from one local authority area to another. The tribunal had also correctly identified a comparator for the discrimination, namely a claimant who instead moved from mainstream rented accommodation to another cheaper such property – ie, who would not have experienced erosion of the element, because they would not have had a relevant increase in their UC as a result. Similarly, someone who moved from one specified accommodation to another would not get more UC and not experience erosion. Given that she had lost her HB, and the UC housing element was for a lower amount than that, the immediate elimination of the transitional SDP element had occurred where in fact there had been no benefit increase on moving, but rather a ‘significant reduction in her benefit...’ (paragraphs 106– 107). The judge considered that the claimant’s loss of her transitional protection ‘could not properly be characterised as erosion’, but rather was the sort of ‘cliff-edge’ income loss found to be unlawful in the TP litigation, and which the transitional SDP element was supposed to protect against (paragraphs 108–109). On whether the difference in treatment could be justified, the Secretary of State had made no argument to the First-tier Tribunal, and at the Upper Tribunal relied on the clarity of parliament’s decision to provide for a UC system including erosion of transitional protection with increases in benefits. But it was the difference in treatment that had to be justified, not merely the underlying policy, and the Secretary of State still had not explained that. 

Comment from CPAG

Thanks to Elliot Kent of Shelter, who brought the case, for sending us this decision. Note that by no means all erosion of the transitional SDP element will be unlawful. But it would seem very likely where the claimant has moved from specified accommodation to mainstream rented accommodation – ie, and undergone ‘cliff-edge’ loss of benefit as a result.

Summary

The claimant was in receipt of UC. His assessment period began on the 29th of each month. On 17 June 2021 he left Great Britain, travelling to Ethiopia to be with his wife and young son, who was unwell. He intended to return after three weeks. However, he was (as a matter of law) prevented from returning due to travel restrictions imposed during the coronavirus pandemic, and he contacted the UC team to advise them of that on 26 July. On 30 July, his UC was superseded on the basis that he had been absent for over a month, so that his entitlement was removed from 29 May – ie, the start of the assessment period in which his absence began. An overpayment was raised from that date. His eventual appeal was dismissed by the First-tier Tribunal. 

Judge Church allowed the claimant’s further appeal and substituted a decision that his UC award was superseded from 29 June 2021 on the basis that he had (by 18 June) been absent from Great Britain for month, with his last assessment period of entitlement starting on 29 May and ending on 28 June. In effect therefore, the overpayment period began on 29 June and not 29 May. The tribunal had erred in failing to hold that the claimant’s absence in the assessment period beginning on 29 May was to be disregarded. 

The relevant rule was at regulation 11 of the Universal Credit Regulations 2013, on temporary absence from Great Britain. That provides that a temporary absence is disregarded (and entitlement can continue) in certain circumstances, including as a default that ‘the absence is not expected to exceed, and does not exceed, one month’. It was clear from the agreed facts that the claimant’s temporary absence had not exceeded a month as at 28 June 2021. The judge agreed with the submission of the Secretary of State that: ‘In the absence of a finding of fact that the claimant’s intentions had changed in the period up to 28 June 2021, or any finding that his absence was otherwise “expected” to exceed one month (and the date on which that “expectation” arose), the First-tier Tribunal was bound to find that the claimant’s absence from Great Britain in the assessment period beginning on 29 May 2021 was to be disregarded under regulation 11(1) of the Universal Credit Regulations 2013.’ (paragraph 25). 

Comment from CPAG

The decision is authority that the default one-month temporary absence period does not end (if it remains temporary) until that month is up. So, termination of entitlement is not in effect backdated to the start of the absence, but rather to the assessment period in which the month’s absence is actually exceeded. See the Q&A in Bulletin 301, p9.

Summary

The claimant was found to have been overpaid HB while in temporary homeless accommodation. Her award had been based on ‘passporting’ to maximum HB on the basis that she (and her partner) had been entitled to UC. But it emerged that in the relevant period in January to May 2020, she only had a ‘nil award’ of UC due to excess income, and so the local authority terminated entitlement and raised an overpayment. The First-tier Tribunal allowed the claimant’s appeal on the basis that the ‘nil award’ of UC meant that she was still on UC and so retained entitlement to maximum HB. 

Judge Wright allowed the further appeal of the local authority. In law there cannot be a nil award of, or nil entitlement to, UC, and therefore the tribunal had erred in holding that the claimant was ‘on’ UC at the relevant time, and so she had indeed been overpaid HB. Whether that overpayment was recoverable from her (ie, under regulations 100 and 101 of the Housing Benefit Regulations 2006 (SI No.213) – the ‘HB Regs’) was remitted to a fresh tribunal for consideration. 

On the facts, it was indeed the case that the claimant had been described as having, due to excess income, a ‘nil award’ (or a ‘current award’ of ‘£.0.00’) of UC in screen prints from the DWP. That had been taken by the tribunal as evidence that the claimant was ‘on’ UC for the purposes of regulation 2(3B) of the HB Regs, and so entitled to be ‘passported’ to maximum. That requires entitlement to UC, but the tribunal was persuaded by the reference to any day of UC entitlement ‘whether it is in payment or not’. But Judge Wright held that, despite the language used in the DWP screen prints, a claimant cannot in law be entitled to a ‘nil award’ of UC. It was a condition of entitlement to UC that a claimant meet the financial conditions (sections 3 and 5 of the Welfare Reform Act 2012). Without the requisite entitlement to an award of at least one penny, there could be no entitlement to UC. As the nil payments showed that in law the claimant was not entitled to UC, it followed that the tribunal was wrong in law to decide that the claimant was ‘on’ UC, and therefore was also wrong to decide she had not been overpaid HB. The use of language such as ‘current award’ in the screen print was ‘confusing and potentially misleading’, and DWP notifications to the claimant referring to ‘what you’re entitled to’ were ‘entirely inapposite in circumstances where the true legal position is that the claimant was not entitled to universal credit’ (paragraphs 39 and 43). 

Comment from CPAG

The decision is authority that (1) a claimant with a ‘nil award’ of UC does not have entitlement to UC and (2) in law there is no such thing as ‘nil award’ of UC – even though such language is routinely used by the DWP.

Summary

The claimant had drug and alcohol addiction and long-term depression. While entitled to income-related ESA, he funded his addictions by knowingly handling and selling stolen bikes as part of a criminal conspiracy. In a period of just over a year, he deposited almost £30,000 into his bank accounts. When the DWP became aware of this, decisions were made terminating his ESA entitlement and raising a recoverable overpayment, on the basis that he had been engaged in self-employed work which had not been declared to the DWP, the earnings from which were above the permitted work limit. The claimant’s appeals against both decisions were allowed by the First-tier Tribunal, which held that the claimant had not been engaged in work ‘in any accepted sense of the word’, and therefore did not have any ‘income’ from it. 

Judge Wikeley allowed the further appeal of the Secretary of State and remitted the case to a fresh tribunal to make new determinations about the claimant’s work and income. The tribunal had erred in holding that the claimant’s activity could not be ‘work’ for the purpose of the ESA rules and that he could not be considered to have ‘income’ from it. The judge accepted the Secretary of State’s submissions, that the tribunal erred in law in its interpretation of the term ‘work’ in regulation 40 of the Employment and Support Allowance Regulations 2008 (SI No.794), such that the claimant had been engaged in ‘work’, and that the tribunal had also erred in its definition of ‘income’ in the regulations, such that the money the claimant made from buying and selling the bikes should be counted as income for the claimant’s ESA. 

Regulation 40(7) provides that ‘work’ means ‘any work which a claimant does, whether or not the claimant undertakes it in expectation of payment’. The judge agreed that the question of whether the claimant was ‘doing work’ for these purposes when buying and selling bikes admitted only one answer: ‘yes’ (paragraph 29). The judge concluded: ‘There is, accordingly, no suggestion in the legislation that the term “work” necessarily excludes any work that involves criminal activity. On the contrary, all the indications are that “work” carries a broad meaning’ (paragraph 30). Regarding ‘income’, the regulations referred to income from employment either as an employed earner or self-employed earner, and there was no disregard for monies received as a result of criminal activity. Again, the judge agreed with the Secretary of State that there was nothing to suggest a presupposition of a lawful source for any ‘income’. And there was no reason why criminal activity should provide an exemption from the means test (paragraphs 48–50). He also agreed that there was in principle no difficulty with calculating the claimant’s income from the criminal activity as being ‘self-employed earner’ income – although if there were it could alternatively be treated as ‘income other than earnings’. 

Comment from CPAG

Universal credit (UC) does not contain an equivalent to regulation 40 or to the ESA ‘permitted work’ rules, as UC can be claimed both in and out of work. Even so, it is possible that the broad approach taken to the admissibility of some criminal activity as work in this case could be applied to UC, with the ‘earned income’ being ‘self-employed earnings’ under regulations 52 and 57 of the Universal Credit Regulations 2013. However, the conclusion will inevitably much depend on the individual facts.

Summary

The claimant had obsessive compulsive disorder (OCD). She was temporarily absent from Great Britain for a number of periods in excess of the default four weeks (during which entitlement to ESA may always continue), but within the 26 weeks in which entitlement may be retained where the absence is ‘solely’ in connection with ‘treatment’ of the claimant. The absences were at a property in Spain which she owned with her husband, a former army and NHS surgeon. The stated reason for the absences was to increase the claimant’s exposure to sunlight, which had been observed to markedly improve her condition. The decision maker held that entitlement was lost during these absences. The First-tier Tribunal allowed the claimant’s appeal, having found that while in Spain the claimant maximised her opportunity to be in the sunlight, and that although while there she met up with friends once a week, she remained under the supervision of her husband and the reason for the extended absence was solely in connection with treatment for her OCD. 

Judge Stout dismissed the further appeal of the Secretary of State, holding that the tribunal had not erred in law. The relevant rule was regulation 153 of the Employment and Support Allowance Regulations 2008, SI No.794. The relevant part of that rule in this case was the provision that a claimant may remain entitled during the first 26 weeks of a temporary absence from Great Britain where the absence is unlikely to exceed 52 weeks and the claimant is absent ‘solely in connection with arrangements made for the treatment of the claimant...’. The tribunal correctly held that in regulation 153 ‘solely’ did not mean that the only thing the claimant did while absent was to receive medical treatment, but rather that the medical treatment must be the sole reason for the absence. The tribunal legitimately held that test was met in the light of the evidence, which included the testimony of the claimant and her husband, research papers submitted by the claimant’s husband and a supportive letter from her GP saying that it was ‘scientifically plausible’ that sunlight would improve the claimant’s mental health. There was therefore a sufficiently objective basis for the tribunal’s conclusions on this question. Although, said the judge, ‘many tribunals would not have reached the same conclusion’, the decision was not ‘perverse’, particularly given the severity of the claimant’s OCD and the credibility of the evidence regarding the ‘positive impact’ of spending time in Spain (paragraph 37). 

The tribunal also legitimately held that the requirement for the absence to be in connection with ‘treatment’ and for that to be provided ‘by, or under the supervision of, a person appropriately qualified to carry out that treatment’ was met. Under regulation 153(2), ‘appropriately qualified’ meant qualified to provide medical treatment, physiotherapy or a form of treatment similar to, or related to, either of those forms of treatment’. The Secretary of State’s argument that sitting in sunlight could not be ‘treatment’ was rejected. Regulation 153 did not require the treatment to be ‘medical treatment’ and even the definition of ‘medical treatment’ in regulation 2 included a reference to ‘any course or diet or other regimen’ which made it clear that it ‘can be something that one does to oneself without any direct third party treatment’ (paragraph 43). Although (per the finding in R(S)2/69) mere rest could not be treatment, in this case there was an ‘agency’ of actual treatment in the form of the sun, so that the treatment was ‘exposure to sunlight’ (paragraph 50). There was nothing to require that the person providing or supervising the treatment be registered or a specialist, or that such a person could not also be a family member. Treatment for OCD was not limited to a particular category of medical professional. What was required under regulation 153(2) was that the qualification had to be appropriate to the particular treatment: ‘Evidently, there are no restrictions on who can supervise a regimen of exposure to sunlight’ (paragraph 60).

Summary

The claimant was a single parent with two daughters. One was a full-time student on a degree course in Manchester. The DWP decided that the claimant was no longer entitled to an additional bedroom for that daughter for the purposes of the size criteria in the housing element and had been overpaid for the period in which the housing element had continued to include a bedroom for her. The First-tier Tribunal refused the claimant’s appeal, on the basis that the daughter only returned to the claimant’s home during the Christmas, Easter and summer holidays and so was only there for 13–14 weeks a year. She did not therefore ‘normally live’ with the claimant in her home, and so could not be a non-dependant member of the claimant’s ‘extended benefit unit’ in order to allow the claimant an extra bedroom for her.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in deciding whether the claimant was a ‘non-dependant’ exclusively with reference to the time spent living at her address compared with that in her student accommodation in Manchester. ‘The test for determining where a person is a non- dependant,’ said Judge Wikely, ‘is not determined by a crude measure of the time spent living at any one address. Rather, decision makers and tribunals must make a holistic assessment of all relevant factors in deciding whether the person in question “normally lives in the accommodation with the renter” (paragraph 9(2) of Schedule 4 to the Universal Credit Regulations 2013 (SI 2013/376)’ (paragraph 32). How that applies in the case of a young person who goes away to university will depend on the facts. A good starting point was whether they were a tenant in rented accommodation in the private sector (which could be evidence of no longer normally living with the claimant), or instead in a university hall of residence (which suggests they are still normally living with the claimant). Other relevant evidence included where the young person stays during the vacations, where they are registered with health services and to vote, which addresses their bank uses for correspondence, where they keep clothes, belongings and pets: ‘This list should not be regarded in any way as exhaustive. A holistic assessment requires consideration of all such relevant factors’ (paragraph 33). The tribunal had failed to explore any of them. 

In so holding, the judge applied extant caselaw on the meaning of ‘non-dependant’, in particular on when a person ‘normally lives’ with the claimant. Much of that was caselaw on housing benefit, but the underlying concept was still what it meant to ‘normally live’ with the claimant. In CH/4004/2004 it had been held that that was a question of act and degree, and a holistic assessment was required. In Stroud DC v JG (HB) [2009] UKUT 67 (AAC), reported as R(H) 8/09, which concerned a claimant with a son who was a full-time student in another town, that was confirmed as the correct approach. In SK v South Hams DC (HB) [2010] UKUT 129 (AAC), reported as [2010] AACR 40, it was held that where the young person was living in a university hall of residence during term time, they could in law remain normally living with the claimant in their home. In the present decision, Judge Wikely also noted the DWP’s own guidance in Advice for Decision Making (ADM) Chapter F3, paragraph F3034. That gives an example where the young person retains clothes and belongings in their parents’ home, gets mail there and lives there for 18 full weeks and most weekends, in which case they continue to normally live with the parents. In contrast, an example in which the student has a tenancy agreement elsewhere with belongings there, lives there for 32 weeks a year and is liable there for fuel bills and a TV licence there results in a conclusion that the young person does not normally live with their parents.

Summary

The claimant was a third-country national (the spouse of an EU citizen) with pre-settled status. She had suffered domestic abuse. She claimed UC in August 2022. She was refused on the basis that she did not have a qualifying right to reside, a decision upheld by the First-tier Tribunal.

Judge Wright allowed the claimant’s further appeal and substituted a decision that she was entitled to UC. This was on the sole basis that, as conceded by the Secretary of State, the tribunal had been wrong to reject the claimant’s argument that there had been a breach of her human rights. In being refused UC (via the application of regulation 9(1)(c) of the Universal Credit Regulations 2013, which excludes pre-settled status as a qualifying right to reside), she had been unlawfully discriminated against, in breach of Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1. That was because she had been treated differently than someone in the same circumstances who would have benefited from the destitution domestic violence concession (‘DDVC’), under which certain victims of domestic abuse were eligible for leave and to access public funds including benefits. 

The DDVC did not apply to those (like the claimant) whose leave had been granted under the EU Settlement Scheme under Appendix EU to the Immigration Rules. That was rectified in changes to the Immigration Rules which took effect on 4 April 2024 (by which time the DDVC was replaced by the migrant victims of domestic abuse concession, or MVDAC). However, that was before the refusal of the claimant’s UC. The Secretary of State conceded that the refusal was in breach of her human rights, by unlawful discrimination as someone in an analagous position to someone who would have benefited from the DDVC and been eligible for UC. Judge Wright considered the Secretary of State’s concession on this point was properly and well made. 

Comment from CPAG

Because of the changes made on 4 April 2024, breaches of the kind identified in this decision should not have occurred from that point.

Summary

The claimant claimed UC for herself and her four children. She indicated that there had been changes in her name (and also that of her children). When she attended an identity appointment she failed, according to the DWP, to provide the required identification, and was unable to provide the documentary evidence regarding the children’s identity that she had subsequently been asked to provide. The DWP ‘closed’ the claim on the ground that ‘the claimant failed to provide evidence’. In essence, that reason was repeated to the First-tier Tribunal in the claimant’s subsequent appeal. The tribunal confirmed the DWP’s decision, explaining that the DWP was entitled to request evidence and in the light of the claimant’s failure to provide it were entitled to ‘terminate the claim’. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Claim ‘closure’ was (as already established in previous authority) in law a decision that the claimant is not entitled to UC. The tribunal erred by in effect, treating the claimant’s failure to provide evidence as sufficient reason in and of itself to disallow the claim. Although the DWP was indeed entitled to ask for evidence, a failure to provide it does not directly lead to a refusal of a claim or entitlement. A disallowance for the claimant’s failure to prove her identity on making her claim might have correctly been based on a failure to satisfy sections 1(1A) and 1(1B) of the Social Security Act 1998 – ie, on the basis that the claimant was not who she said she was. But there was no actual evidence for such a conclusion. 

Judge Wikeley began his decision by remarking: ‘This appeal is a further example of the occasional gap (some might say the occasional chasm) between what the law says on the one hand about the adjudication of claims for benefit and how the Department for Work and Pensions (DWP) actually operates its decision-making arrangements on the other’ (paragraph 2). Regarding the law, regulation 37 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, did indeed enable the Secretary of State to request evidence and information in connection with a claim. But there was nothing there, or anywhere else, to provide that a failure to comply leads automatically to a disallowance. Instead, the judge agreed that a correct approach leading to a refusal would be to find that under sections 1(1A) and 1(1B) the claimant had not provided a national insurance number or shown that one could be properly allocated to her, because she had not shown who she really is. Although those sections did not apply regarding the claimant’s children, it remained that entitlement to the child element will depend on the Secretary of State being satisfied as to the existence and identity of the children. The new tribunal would have to consider whether the claimant satisfied sections 1(1A) and 1(1B) including – as indicated by the Secretary of State’s representative – ‘in the light of the evidence that is now available to it, which could in principle include any evidence of identity that was brought to light by the claimant or the Secretary of State after the date of the decision under appeal’ (cited at paragraph 55). 

Comment from CPAG

The assumption made by both decision maker and tribunal in this case that failure to provide evidence in itself leads directly to disallowance of UC was simply, and comprehensively, wrong. For a similar Upper Tribunal decision lamenting a similarly inaccurate approach to the law, see RA v SSWP [2024] UKUT 207 (AAC).

Summary

The claimant had been in receipt of working tax credit (WTC). Her entitlement was ended by HMRC on 3 March 2023, but she was not informed of that by HMRC until 14 March 2023. She made enquiries about why the WTC had been stopped, claimed UC on 30 March 2023 and got an explanatory email from HMRC about the WTC termination on the next day – ie, 31 March. The claimant requested that her UC be ‘backdated’ to 3 March. On appeal, the First-tier Tribunal accepted that the UC should be backdated to 14 March, but not to 3 March. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred by not adequately explaining why, although it thought backdating grounds were made out to 14 March, they were not made out to 3 March. However, care needed to be exercised as to exactly what the tribunal needed to decide, with reference to the relevant rule regarding backdating. 

The relevant rule was at 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. That provides for so-called ‘backdating’ of UC by up to a month. In effect, there were two requirements: firstly (by regulation 26(2)(a)) that one or more of the specified circumstances for backdating ‘applies or has applied’, and secondly (by 26(2)(b)) that as a result of those circumstances the claimant could not reasonably have been expected to have claimed earlier. In this case, the tribunal had legitimately identified that one of the circumstances (ie, late notification of the cessation of an ‘existing benefit’) had applied; but it had not explained why it concluded that the claimant’s further delay after getting the late notification (ie, after 14 March) was apparently both a result of the late notification and reasonable. Although the rule did require that the claimant could not reasonably have claimed earlier throughout all the backdating period contended for, the rule did not require that one or more of the specified circumstances also applied continuously – the use of the past tense in ‘or has applied’ showed that. 

Comment from CPAG

As the judge points out, the fundamental reason why the tribunal went wrong was that it seemingly focused entirely on whether and when a ground for backdating was made out. Although that is required, it is also required that there is a causal link between that ground and the reasonableness of the claimant not claiming earlier than they did. In this case, that meant that the claimant’s delay might reasonably have continued for a period even after she received the late notification about her WTC.