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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

In or around May 2019, the claimant received around £27,000 under an ACAS settlement of her employment tribunal proceedings. That comprised sums for loss of employment, statutory redundancy pay and for injury to feelings arising from alleged discrimination. Her claim for UC was refused. She was later told by the DWP that the refusal was for excess capital and so ‘your claim was closed’. In November 2020, she made a new claim for UC and declared that her capital was now at £10,700. She was awarded UC but with the capital leading to assumed income of £82.65 for each monthly assessment period. Following mandatory reconsideration, the claimant appealed, with her substantive argument that, as the capital was not taxable, it should be disregarded. The First-tier Tribunal dismissed the appeal, holding that the decision on the 2020 claim not to disregard any of the capital and apply the stated assumed income from it was correct. The claimant appealed, additionally arguing that the tribunal had failed to investigate the 2019 claim. 

Judge Wikeley dismissed the claimant’s further appeal, holding that the tribunal had made no material error of law. Regarding the capital, the tribunal had agreed with the decision maker that, on the relevant law (in particular, regulations 7 and Schedule 10 of the Universal Credit Regulations 2013, SI No.376), none of the compensation awarded in the ACAS settlement fell to be disregarded. The fact that it was not taxable was irrelevant under that legislation, and none of the disregards that were provided applied. The tribunal was correct. The payment for loss of employment did not fall to be disregarded under Schedule 10, and neither did the redundancy payment. Regulation 75 provided a disregard for compensation for ‘personal injury’, but that term had to be given its ordinary meaning and, as the tribunal had held, ‘damages paid to compensate injury to feelings is distinct from an award of damages for actual injury to physical or mental health (by way of, for instance psychiatric injury)’ (paragraph 27). 

The tribunal had erred regarding its approach to the 2019 claim. The tribunal had held that it had no jurisdiction regarding that as it found that the claimant had not made a claim then. In fact (as accepted by the Secretary of State before the Upper Tribunal), there was DWP correspondence on file which confirmed that a claim had been made in 2019 (and that the claimant’s 2020 mandatory reconsideration was treated as outside the absolute time limit regarding that). So, the tribunal had made a decision not supported by the evidence on that point and was in error. The correspondence showed the claimant was told that she was not entitled to UC and so her claim was ‘closed’. That was wrong as it was not a concept that appeared in the legislation and may have effectively denied the claimant a right of appeal in 2019. However, in this case, none of that rendered the tribunal’s error material to the outcome of the appeal. The tribunal had in any case made a ‘clear and indisputable’ finding of fact that the claimant had capital in excess of the UC capital limit of £16,000 in 2019 and so even if the DWP had followed the correct notification procedure and the claimant had applied in time for a mandatory reconsideration and then appealed, the outcome would have been no different (paragraph 24). 

Comment from CPAG

Making assumptions and drawing adverse inferences about a claimant’s evidence is especially problematic in the context of a determination on the papers, where there is no opportunity for discussion. For a wider discussion, see the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).

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.

Summary

The claimant was entitled to ESA. He was required to submit to a medical examination, by telephone, as part of the work capability assessment (WCA). At the medical, he responded to all questions simply by answering that his circumstances had not changed. The conversation was ended by the healthcare professional due the claimant’s allegedly ‘aggressive’ manner. He was found (including by the First-tier Tribunal) to have failed to submit to the medical and had not shown good cause for having done so, and as a result his ESA was terminated. 

Judge Wikeley allowed the claimant’s appeal and a decision substituted setting aside the disallowance of the claimant’s ESA. The tribunal had been entitled to find that the claimant had not submitted to a medical examination, as he had not meaningfully participated. But it erred regarding whether the claimant had good cause for having done so. That is because the tribunal failed to satisfy itself that the notification letter sent to the claimant had been sufficiently clear and unambiguous about what he was required to do, and the consequences of not doing so. 

The relevant rule (on the facts of this case) was at regulation 23 of the Employment and Support Allowance Regulations 2008. That provides that where a claimant fails without good cause ‘to attend for or submit to’ a medical examination, they are to be treated as not having limited capability for work (and so not entitled to ESA). Judge Wikeley noted that there were similar provisions at regulation 35 of the 2013 version of the ESA regulations (ie, for ‘new-style’ ESA) and at regulation 44 of the Universal Credit Regulations 2013, SI 2013 No.376. In dismissing the appeal, the First-tier Tribunal stated that the claimant had attempted to obstruct the medical with ‘intransigence’, and that it was satisfied that the DWP had applied the principles in PPE v SSWP (ESA) [2020] UKUT 59 (AAC), specifically that the claimant had been notified of the medical and the consequences of not participating. However, Judge Wikeley did not agree. The tribunal had legitimately held that the claimant did not ‘submit’ to the examination. But (as submitted by the Secretary of State) the tribunal had erred by failing adequately to consider whether proper warning had been given for any failure to ‘submit’ to an examination. The appointment letter did not contain a statement explaining that a failure to submit could result in a disallowance of the ESA. The tribunal had erred in not properly considering this and, given that there was in fact no adequate warning, the disallowance of the claimant’s ESA was set aside. 

Comment from CPAG

It should be noted that the judge did not want to disturb the finding that, on the facts, the claimant had not submitted to the medical. The tribunal’s error lay in not properly considering the lack of an explicit warning of the consequences for not doing so in the appointment letter.

Summary

The claimant had undergone natural migration from income-related employment and support allowance (ESA) to UC. Her UC included a transitional SDP element, as well as a carer element. In 2021, having notified a change in circumstances – namely, having been diagnosed with polymyalgia – the claimant was assessed as having limited capability for work-related activity (LCWRA) and awarded the LCWRA element. Accordingly, the carer element was removed. The effect of the addition of the LCWRA element, and erosion of the transitional SDP element by the full amount of that, was immediately to erode the transitional SDP element to nil with an overall reduction in the UC (the claimant’s UC went from £975.20 to £879.98). The claimant argued that the erosion decision, removing the whole of the transitional SDP element and leaving her worse off, breached her human rights under Article 14 of the European Convention on Human Rights (prohibition of discrimination) read with Article 1 of Protocol 1 of the Convention (rights to property). On appeal, the First-tier Tribunal agreed that she had been discriminated against because that decision treated her, as a carer entitled to the carer element, differently to someone who was not a carer but who became entitled to the LCWRA element. The tribunal substituted a decision that the transitional SDP element was instead to be eroded only by the difference between the carer element and the LCWRA element.

Judge West, having allowed the Secretary of State’s appeal on the basis of an error caused by a mistake about the facts at the tribunal, nevertheless remade the decision in the claimant’s favour. The tribunal had not erred in holding that the claimant had been treated unlawfully by way of discrimination. It was a ‘stark fact’ that the claimant’s total UC award had decreased despite her needs increasing (which did not happen to other transitionally protected claimants on a change of circumstances which resulted in an increase in their needs). The judge was satisfied that ‘there is no justification for such differential treatment, indeed there is no real explanation for it’ (paragraphs 80–81). The judge made extensive reference to the decision of Judge Church in SSWP v JA [2024] UKUT 52 (AAC). Although in a different factual context (involving the replacement of an award of housing benefit with the housing element of UC), both cases concerned discrimination in regulation 55 and both concerned ‘the cliff-edge erosion at a stroke’ of the claimant’s transitional protection (paragraph 123). In providing a remedy for the discrimination, the tribunal had correctly read the provisions about erosion at regulation 55(2) and (4) of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230, as meaning that only the difference between the carer element and the LCWRA element should be taken into account.

The Secretary of State argued that there had been no discrimination. Rather, the claimant’s real complaint was that when the LCWRA element was included, she lost the carer element. But under regulation 29 of the Transitional Provisions Regulations, a person simply could not be entitled to the LCWRA element and the carer element at the same time. The Secretary of State also argued that, regarding the alleged discrimination, there was no real comparator for how the claimant had been treated. Judge West disagreed with both those arguments. The Secretary of State’s reliance on regulation 29 was not an answer to the claimant’s case ‘that she has been treated differently, and less favourably, than other transitionally protected claimants, none of whom suffer a loss of benefit on a change of circumstances which result in their needs increasing’ (paragraph 84). On comparators, before the Upper Tribunal the claimant argued that the valid comparators were a transitionally protected non-carer who becomes entitled to the LCWRA element, or any other person with a transitional element who then has a change regarding a UC element – for example, where they also already have LCWRA and become a carer). The judge agreed that her proffered comparators were ‘plainly in an analogous situation’ to her. ‘All,’ said the judge, ‘are persons who were recognised as severely disabled through an award of the SDP [severe disability premium] and are persons whom the Secretary of State accepted as a matter of policy ought to be awarded transitional protection to protect them from a cliff-edge’ (paragraph 91).

Comment from CPAG

The outcome is that someone entitled to the carer element who then becomes entitled to the LCWRA element should only have their transitional protection eroded by the difference between the elements. See our article, Erosion – where are we now?

Summary

The appellant’s child was deaf. On application for CDP, Social Security Scotland awarded the care component at the low rate. On appeal to the First-tier Tribunal for Scotland, she argued that it should have been awarded at the middle rate. The tribunal rejected the appeal on the basis that, although the child required attention for a ‘significant portion’ of the day (thus qualifying for the low rate) and also ‘frequently throughout the day’ (as required for the middle rate), the total amount of time involved in providing the attention still did not amount to more than a ‘significant portion’ of the day; also that the concepts of attention for a ‘significant portion’ of the day and ‘frequent attention throughout the day’ were ‘mutually exclusive’, and so only the low rate could apply.

In the Upper Tribunal for Scotland, Lord Fairley allowed the appellant’s further appeal. Judgment as to whether to remit the case to a fresh tribunal or substitute a new decision was withheld, pending a further hearing. The relevant rule was regulation 11 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, SSI No.174. The tribunal’s written reasons were ‘in places, difficult to understand. They frequently depart from accepted conventions of grammar and syntax’ (paragraph 6). However, they seemed essentially to be that attention provided ‘frequently throughout the day’ (per regulation 11(1)(c)) would not give rise to an award of the middle rate of the care component of CDP if the attention provided on that basis was only for ‘small things’ and (per regulation 11(1)(a)) amounted only to a ‘significant portion of the day’.

That was wrong. Attention that only amounted to a significant portion of the day could still be provided frequently throughout the day and so qualify the claimant for the middle rate. The conditions in regulation 11(1)(a) and (c) were not necessarily mutually exclusive. Lord Fairley held that the tribunal ‘erred in concluding that the conditions in regulations 11(1)(a) and (c) are always mutually exclusive. Whilst there may be cases in which only one or other condition is satisfied, there may also be circumstances where both are met. That would be the case where a child required frequent attention throughout the day in connection with their bodily functions such that the aggregate period of attention amounted to a significant portion of the day’ (paragraph 10). Further, it was ‘difficult to understand’ how the provision of ‘small things’, such as attention, ‘could cumulatively account for a significant proportion of each day unless as a product of frequent attention’ (paragraph 11).

Summary

The claimant made a claim for new-style JSA on 8 August 2022. In the claim, she asked for backdating to 18 May 2022 as at that time she thought she would be starting a new job, but that had not transpired. The decision maker refused to backdate the claim. When requesting mandatory reconsideration, the claimant told the DWP that her mother had died at the beginning of May; however, the DWP refused to change its decision. The First-tier Tribunal dismissed the claimant’s appeal without holding a hearing (ie, on the papers), holding that none of the statutory grounds for backdating applied, specifically that the death of her mother did not constitute a ‘domestic emergency’ under those rules, and that even though her mother had died she could still reasonably have been expected to have claimed earlier than she did.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had not adequately explained why it had dealt with the case on the papers. Also, however, the tribunal had erred in the way it interpreted regulation 29 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380. That provided (via regulation 29(2) and (3)(e)) for backdating of up to three months where the claimant had been required to deal with a ‘domestic emergency’ and as a result ‘could not reasonably have been expected to make the claim earlier’. The tribunal seemed to have believed that because there was a separate backdating ground at regulation 29(5) which referred specifically to where ‘during the month before the claim was made a close relative of the claimant has died’, there could be no three-month backdating under regulation 29(3)(e) for a domestic emergency in the form of the death of the claimant’s mother. As the Secretary of State conceded, the fact that regulation 29(5) contained a separate and specific provision regarding the death of close relative ‘does not...require that regulation 29(3)(e) must be construed as not including the death of a close relative’ (paragraph 14). Judge Butler agreed with that.

The judge held that the specific rule at regulation 29(5) ‘does not prevent the death of a close relative also being considered under regulation 29(3)(e) in terms of whether it constitutes a domestic emergency. The concept of domestic emergency is not defined in the regulations and is to be given its ordinary meaning when considered by a tribunal’ (paragraph 16). The new tribunal would need to consider that and decide whether or not the claimant was entitled to backdating.

Summary

The claimant had ADHD (attention deficit/hyperactivity disorder), and although awarded the high rate of the care component was not awarded the high rate of the mobility component. The First-tier Tribunal held that the claimant was not entitled to the high rate of that component of DLA via the ‘severe mental impairment’ route. That was because the tribunal considered, on the basis of ‘current medical opinion’, that ADHD did not arise (as required by the statutory definition at regulation 12(5) of the Social Security (Disability Living Allowance Regulations) 1991, SI No.2890) from ‘a state of arrested development or incomplete physical development of the brain’).

Judge Wright allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to the high rate of both the mobility and care components. In so deciding, the judge held (with the agreement of the Secretary of State and based on medical evidence provided by the Secretary of State) that in general terms ADHD is caused by arrested development or incomplete physical development of the brain. In the claimant’s case, the Secretary of State submitted in the claimant’s particular case that this was the case, with reference to evidence of the claimant’s ‘intellectual disability’, which was ‘possibly the strongest marker of arrested or incomplete brain development’ (the Secretary of State’s submission, quoted at paragraph 13). Both at time of the decision under appeal and at the time of the First-tier Tribunal’s decision, there was in fact a body of medical opinion to support the finding that ADHD resulted from arrested development or incomplete physical development of the brain, and the tribunal had erred in not explaining the evidential basis for the ‘current’ medical opinion which it considered supported its contrary view. Alternatively, the tribunal had erred in failing to adjourn to obtain expert evidence on this matter. That was indicated by other statements in the tribunal’s reasons referring to an alleged absence of ‘specialist and technical medical evidence’ to support ADHD coming within regulation 12(5) (paragraphs 18–19).

The judge pointed out that satisfying the requirement to have arrested development or incomplete physical development of the brain does not fully satisfy regulation 12(5), which also requires that this state results in ‘severe impairment of intelligence and social functioning’. Further, the severe mental impairment route was set out at section 73(3) of the Social Security Contributions and Benefits Act 1992, and that requires that the claimant must also meet the condition, defined in regulation 12(6), to have ‘severe behavioural problems’. The judge said: ‘While individuals with ADHD may meet these criteria in certain cases, each case will need to be considered on its individual merits; a claim must, of course, be considered on the basis of the facts and the relevant evidence. It is anticipated that cases in which a person with ADHD alone meets the conditions in reg. 12(5) and (6) are likely to be relatively rare’ (paragraph 14). But on the specific facts of the present case, where the claimant also had low IQ, speech and language difficulties, behavioural issues, anxiety, low self-esteem and autism spectrum disorder (ASD) traits, it was accepted that all these additional requirements were also met. (The judge did not need to make further findings regarding the other condition in section 73(3), namely that the claimant was also entitled to the high rate of the care component, as that had already been awarded.)

Comment from CPAG

This decision is authority that, at least in general terms, someone with ADHD has ‘arrested development or incomplete physical development of the brain’ for the purposes of the severe mental impairment route; but it should be noted that the other conditions in that route must also be satisfied. Judge Wright also repeated his approval of the approach to the legal meaning of that wording, set out in NMcM v SSWP (DLA) [2014] UKUT 312 (AAC). However, in this case nothing turned on that decision, which holds that both those phrases refer to ‘the brain’ (ie, not to arrested emotional or functional development) as suggested in SC v SSWP [2010] UKUT 76 (AAC).