CPAG search

Summary

The claimant had been entitled to income-related employment and support allowance (ESA) (she was not entitled to contributory ESA because she did not satisfy the contribution conditions). She was assessed as having limited capability for work-related activity (LCWRA) – ie, she was in the support group. The income-related ESA award came to an end because her partner began full-time work. A claim for UC was made six months later. Although she was assessed as having LCWRA, it was decided that the standard three-month waiting period would apply before the LCWRA element could be included in the award. The claimant disputed that, on the basis that she had been assessed as having LCWRA in her ESA award, and that had only ended because her partner started work. The First-tier Tribunal dismissed the appeal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the LCWRA was to be included in the UC award from the start of the claim – ie, the standard three-month waiting period did not apply. That was because the exception to the waiting period in regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230) applied. That regulation was concerned with transition to UC from legacy benefits in ‘credits only’ cases such as the claimant’s – ie, where an award of UC was made to a claimant entitled to national insurance (NI) credits for limited capability for work (LCW) on the date of the claim for UC, but not to an award of ESA. Under subparagraphs (4) and (5) of the regulation, where the claimant had been determined to have LCWRA then on transfer to UC, she was treated as having LCWRA and the three-month waiting period was not to apply.

The tribunal had refused the appeal because it considered that the claimant was not entitled to credits following the termination of the award of ESA. But Judge Wikeley agreed (as did the Secretary of State) that in fact the claimant had remained entitled to credits for LCW, under regulation 8B(2)(a)(iv) of the Social Security (Credits) Regulations 1975 (SI No.556). This provides that if the only reason a claimant is not entitled to ESA is because she did not satisfy the contribution conditions, she can nonetheless receive NI credits equivalent to the lower earnings limit for the relevant period. The Secretary of State’s representative explained that in these circumstances there had been no need for a subsequent claim for credits, as, ‘any decision awarding ESA automatically awards credits, and if entitlement to ESA ends for a reason other than the basic condition of having LCW, as in the present case, the disallowance decision also automatically continues the award of credits’ (quoted in paragraph 20). Judge Wikeley held that the decision maker’s submission to the tribunal had failed to take account of regulation 21 of the Transitional Provisions Regulations: ‘In doing so, the original written response failed to address a key relevant statutory provision and set the tribunal on the wrong path’ (paragraph 28).

Comment from CPAG

The Universal Credit (Transitional Provisions) Regulations are a vital part of the arrangements for transition from legacy benefits to UC, and it is concerning that the decision maker was apparently ignorant of them. The explanation from the Secretary of State of how credits for limited capability for work may continue (ie, where ESA was not ended due to a finding of not having LCW) is helpful.

Summary

The claimant’s 2008 claim for HB was refused on the basis that she did not have a right to reside that was effective for entitlement to that benefit. There was no dispute that the claimant had a ‘derivative’ right to reside as the primary carer of a child of a European Economic Area (EEA) national who had been employed in the UK. But the local authority considered that right was negated by the fact that she had ‘unexhausted’ right to reside as a jobseeker (which in itself is not effective for HB entitlement). The argument was that, because she was a jobseeker, the claimant was an ‘exempt person’ under regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), with the effect that derivative rights under that regulation could not apply. The First-tier Tribunal allowed the claimant’s appeal, although mainly on the alternative basis that she had a permanent right to reside.

Judge Wright allowed the further appeal of the local authority in so far as the tribunal had erred in not providing adequate opportunity for them to respond regarding the question of permanent right to reside. But that was not material in that he nevertheless also held that the claimant did indeed have a derivative right to reside that was not diminished or removed by the fact that she also had a right to reside as a jobseeker. In so holding, he agreed with, and applied a concession by, the Secretary of State that to hold otherwise was contrary to European law and so unlawful.

It was true that, straightforwardly, the wording of regulation 16 classified the claimant (as someone with a jobseeker right to reside) as an ‘exempt person’, and so apparently incapable of having a concurrent derivative right to reside. But that would not be a lawful result. In the decision of the Court of Justice of the European Union in Jobcenter Krefeld-Widerspruchsstelle v JD (Case C-181/19) [2020], it had been clearly held that a derivative right to reside, based as it was in rights under European rights in Article 10 of Regulation 492/2011, could not be diminished by the fact that a claimant also had a specific right to reside as a jobseeker. That was rightly accepted by the Secretary of State. The effect of that, as Judge Wright clarified, was that the EEA Regulations ‘could not, as a matter of then directly applicable EU law, have had the effect of excluding the claimant from relying on her derivative right to reside as a primary carer of a child in education on her June 2018 claim for housing benefit’ (paragraph 29).

Comment by CPAG

This very clear decision should be authoritative domestic authority that a jobseeker right to reside cannot diminish or otherwise negate a derivative right to reside. Its effect is not limited to HB (eg, it should also apply in universal credit). Concerned as it is with rights to reside under the EEA Regulations, it is of course limited to cases in which those rights may still apply.

Summary

The claimant had been entitled to the high rate of both the care and the mobility components of DLA. On 17 February 2010, that was removed (with retrospective effect) by the Secretary of State, on the basis that her parttime work and appearance in a television programme (Come Dine with Me) showed that she was not sufficiently disabled. The claimant’s appeal against that was upheld by a First-tier Tribunal on 31 August 2011. In March 2018, the Secretary of State superseded the decision of the tribunal, apparently on the basis that it had been made on the basis of a mistake about or ignorance of a material fact – namely that the claimant was still doing some work on the date of the tribunal decision – ie, 31 August 2011. A second First-tier Tribunal upheld that decision. The claimant was therefore held to be not entitled to DLA from 31 August 2011 and liable to repay a substantial overpayment.

Judge Wright allowed the claimant’s further appeal and held that the claimant had remained entitled to DLA and had not been overpaid. The second First-tier Tribunal had erred in not properly investigating the alleged basis for the Secretary of State’s March 2018 supersession of the decision of the first tribunal. Moreover, there was no evidence that the ground of alleged error/mistake regarding a material fact by that tribunal was made out. That was because the 31 August 2011 tribunal was not considering the facts as at the date of the hearing. Rather, it was (and could be) only concerned with the facts at the date of the decision under appeal in that tribunal – ie, the decision of 17 February 2010.

Regarding the failure of the second tribunal to investigate the alleged grounds for a supersession, Judge Wright said: ‘The first two issues that therefore ought to have arisen on this appeal was, first, to identify the status of the decision that the Secretary of State had purported to supersede and, second, establish whether the Secretary of State’s basis for her supersession decision was one which was available to her under the law enacted under the Social Security Act 1998. It is matter of regret that the tribunal failed in any proper sense to confront and determine either of these key issues’ (paragraph 12). Regarding the irrelevance of the alleged work being done by the claimant on 31 August 2011, he said: ‘The first fundamental difficulty here is that the entitlement decision under appeal to the 31 August 2011 First-tier Tribunal was dated 17 February 2010. It is an axiomatic principle of social security law that the 31 August 2011 First-tier Tribunal could not take into account circumstances obtaining after 17 February 2010: see section 12(8)(b) of the Social Security Act 1998. For the purposes of these appeals that meant that the 31 August 2011 First-tier Tribunal was not interested in how the appellant was or what she may have been doing in August 2011, save where those August 2011 circumstances usefully and properly informed how the appellant was (in terms of her functioning relevant to DLA) on and before 17 February 2010’ (paragraph 24).

Comment from CPAG

The decision is a pertinent reminder to tribunals that where supersession is involved, the alleged grounds must be evaluated. That a tribunal is restricted to considering the facts as at the date of decision under appeal is not new but, alongside the reminder about evaluating supersession grounds, is clearly very important in cases such as this where the Secretary of State is purporting to revisit a decision of a tribunal.

Summary

The claimant was entitled to childcare costs (ie, a £175 a week earnings disregard) as part of her HB. During the COVID ‘lockdown’, the actual provision of childcare ceased from 23 March 2020; however, the claimant’s contractual liability to pay the childcare provider continued. The local authority stopped including the childcare costs disregard from 1 April 2020, on the basis that the childcare was no longer being provided. As a result, the claimant had to terminate the childcare arrangement. The First-tier Tribunal allowed the claimant’s appeal, holding that given that the contractual arrangement with the childcare provider continued to subsist, and liability incurred, it was incorrect to stop childcare costs.

Judge Hemingway allowed the local authority’s further appeal. The tribunal had erred in not investigating and making findings as to whether, given the facts of the case and the context of ‘lockdown’, it could correctly be said that the relevant childcare arrangements had continued. However, the local authority’s argument that the mere fact of an interruption of the childcare meant that entitlement to costs was lost was incorrect, and the judge did not go so far as to substitute a decision that the claimant had indeed lost her entitlement. Instead, the case was remitted to a new tribunal to decide whether on the facts the childcare arrangements could be said to have continued.

The judge considered the application of the HB childcare costs rule, at regulation 26 of the Housing Benefit Regulations 2006. That begins (at subparagraph (1)) with the wording, ‘This regulation applies where a claimant is incurring relevant child care charges…’, and (at subparagraph (6)) refers to where ‘charges are paid by the claimant for care which is provided…’. The local authority argument was that childcare costs can only ever be applied in circumstances where actual physical childcare is being provided, and that the subparagraph (6) wording was relevant to that argument. But the judge rejected that. The reference to ‘incurring relevant childcare charges’ in the rule was: ‘simply used as a prelude to the specification of the relevant period in the child’s life when the childcare charges must be incurred in order to be relevant charges and in order for the disregard to potentially apply. So, regulation 28(6) is not to be interpreted as supporting the proposition that actual physical childcare must always be provided on any given day or week for the disregard to apply’ (paragraph 15). There was in fact nothing in regulation 26 which required such continual provision. If it were to be interpreted in the way the local authority wanted, then even clearly routine interruptions, such as holidays and illness, would have to be reported and adjustment made, leading to ‘substantial’ and unintended administrative burdens. Rather, ‘…what is required when deciding whether charges amount to relevant childcare charges is an overall assessment as to the circumstances as a whole and the purpose for which payments are being made rather than an unduly restrictive one based solely upon whether there has been provision of actual care on each and every day in respect of which a payment has been made’ (paragraphs 19–20).

However, the First-tier Tribunal had erred in not undertaking a properly overall assessment. Contractual obligations were relevant in that, but not determinative. It could not be assumed that the ‘lockdown’ restrictions were necessarily the same as temporary interruptions in childcare caused by holidays or illness. The judge held: ‘The position regarding lockdown and its prospective lifting was uncertain. There was arguably no immediate expectation of a speedy return to normality.

That being so there was a requirement upon the [First-tier Tribunal], in my view, to consider whether the payments which were being made and had been made by the claimant since the imposition of the restrictions had taken on a different nature and could no longer be regarded, when taking an overall view, as relevant childcare costs’ (paragraph 22). The judge thought it viable for him to substitute a decision, but that fairness at least required giving the claimant a chance to argue why the payments she continued to make after lockdown were relevant childcare charge.

Comment from CPAG

The absence of clear provision regarding childcare costs during lockdown inevitably gives rise to disputes. This decision is authority that the mere interruption of childcare did not (and does not) mean that relevant childcare arrangements ceased. However, there is a clear implication that cessation in the context of lockdown arrangements may have brought that about in an individual case; nevertheless, the particular facts will be crucial.

Summary

The claimant claimed asylum in the UK in February 2016. On 18 May 2019, she was told that her claim for asylum was successful. The letter notifying her of that also said: ‘This letter does not confirm you have leave, give you the right to work or allow you access to benefits. To do this you have to enrol for a biometric resident permit…’. A second Home Office letter with the same date said the claimant must supply her biometrics and: ‘If you do not, we will be unable to issue you with this proof of your immigration status in the United Kingdom. This means that your asylum support (if you are in receipt of it) will end and you will not be able to claim benefits or start work…’. The claimant’s biometric residence permit (BRP) was not issued until 29 August 2019. On 12 September 2019, the Home Office wrote to the claimant to say that her asylum support was to end, and: ‘You may now take employment or claim benefits to support yourself and your dependants.’ The claimant then submitted her claim for child benefit to HM Revenue and Customs (HMRC), which was received on 16 September. However, HMRC refused to backdate entitlement more than three months, despite the rules providing for backdating to the date of the claim for asylum in February. That was on the grounds that her claim for child benefit was allegedly not made within three months of the date of the letter allowing her claim for asylum (which HMRC alleged was 18 May), as the rules require. On appeal, the First-tier Tribunal accepted the claimant’s argument that on the facts she should have been taken to have been notified of her refugee status on 29 August, the date that she was given her refugee’s BRP, and that therefore her claim was made within the specified three months and could be backdated in full.

In the Upper Tribunal, Judge Gullick KC rejected HMRC’s further appeal. The tribunal had reached the correct conclusion on the facts. In so doing, he considered the relevant rule, at regulation 6(2)(d) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, SI No.492. That provides that backdating to the date of the asylum claim is possible where a person who has claimed asylum claims child benefit and ’satisfies the following conditions— (i) the person is notified that he has been recorded as a refugee by the Secretary of State; and (ii) he claims that benefit or allowance within three months of receiving that notification’. In this case, the Home Office correspondence was so misleading that the claimant reasonably believed that should could not be entitled to benefit until she had been issued with a BRP. The tribunal had wrongly held that the reference to being ‘recorded as a refugee’ necessarily referred to the issue of the BRP. That was not correct, and it was not the case that the three-month period could never begin with receipt of the notice of refugee status. Rather, on the facts of this case, the Home Office letters ‘incorrectly stated that a claim for child benefit could not be made until receipt of the BRP’, and so were ‘not valid’ as notifications of refugee status for the purpose of the backdating rule at regulation 6(2)(d). The arguments of HMRC that the letters did not refer to child benefit and that other publicly available information referred to the date of the notification letter were dismissed. The judge said:

‘In my judgment, adopting the approach to statutory construction which I have set out above, the notification of refugee status of the type sent to the respondent on 18 May 2019 was not valid notification of the recording of refugee status for the purpose of regulation 6(2)(d) of the 2003 Regulations. That is because the notification incorrectly stated that a claim for child benefit could not be made until receipt of the BRP. In my judgment, a notification of this sort which contains a statement denying the existence of the very right to claim an entitlement which it would otherwise confer cannot, in this context, be a valid notification’ (paragraph 56).

Comment fom CPAG

The judge’s concentration on the content of the Home Office letters in this case is important: it was accepted by all parties that had the Home Office merely stated that the claimant had been recognised as a refugee, the time limit would have started to run.

Summary

The claimant began to be overpaid income- related ESA in 2014, when his daughter moved into his home, meaning that he lost entitlement to the severe disability premium, but the premium continued to be included in his award. The claimant did not report the fact of his daughter moving in to the DWP. His daughter, who was entitled to ESA in her own right, did report the move in the context of her own claim. When the DWP eventually realised the overpayment, in 2019, it held that it was recoverable from the claimant on the basis that it had been caused by his failure to report a relevant fact – ie, his daughter moving in. The claimant’s appeal about the recoverability was dismissed by the First-tier Tribunal. 

Judge West dismissed the claimant’s further appeal (although did allow a related appeal regarding the imposition of a penalty against the claimant). The claimant had been under a duty to report the change, under regulations 32(1A) and (1B) of the Social Security (Claims and Payments) Regulations 1987. He had never denied that he knew the change needed to be reported. The claimant argued that since his daughter reported the change in the context of her own claim, the Secretary of State would have known that she was in his home, and since there was no duty to disclose to a person something that they already knew, therefore there could have been no failure on his part. But the tribunal had correctly rejected that on the basis that in the lead case on the issue, Hinchy v SSWP [2015] 1 WLR 967, it had been held that the onus was on the claimant to report a relevant change to the relevant office (not the Secretary of State as an abstract entity). Further, there was no evidence that there was any electronic communication under which the daughter’s disclosure would have been passed to the claimant’s ESA team. The tribunal therefore did not err in holding that the claimant had been under a duty (specifically, under regulation 32(1B)) to disclose the fact of his daughter moving in with him. Per the decision in Hinchy, held Judge West: ‘It is not for the claimant to form views about what may go on behind the scenes in the social security or other benefit offices. His duty is to comply with his obligations as to disclosure, whether under regulation 32(1A) or 32(1B). The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department’ (paragraph 26). 

The claimant had also cited the decision of the Northern Ireland Commissioner in SK v Department for Communities (ESA) [2020] NICom 73 (decision number C9/20-21(ESA)). In that case, it had been accepted that the award of disability living allowance (DLA) to the claimant had been notified to the section dealing with his ESA, and also that when the DLA award stopped that would also have been notified to the ESA section. The Commissioner had held that such communication had indeed occurred and that the claimant had been entitled to assume, in the post-Hinchy context of a modern computerised system, that it would, so relieving him of the duty to disclose the ending of his DLA. But the facts in SK were different from that in the present case, where no such electronic communication had occurred, and so SK fell to be distinguished on the facts. However, said Judge West: ‘At some point the Upper Tribunal will have to grapple with the decision in Hinchy in the light of 21st century developments in computer technology. That was very much an analogue decision relating to a paper-based system and the question which will fall for decision is how it now translates into the computerised and digital age’ (paragraph 35). Further, there was ‘force ‘in the comment in SK that the paper- based system contemplated in Hinchy had been consigned to the past. ‘It is plainly time,’ said Judge West, ‘that the factual circumstances underpinning the decision in Hinchy are considered afresh in order to reflect the reasonably expected standards of 21st century benefits administration. In that context in the appropriate case it will have to be determined, on the appropriate facts, whether and to what extent a social entitlement claimant in 2023 is, or is not, entitled to make any assumptions about the internal administrative arrangements of the Department…’ (paragraph 37).

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.