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Summary

The claimant had brain injury that led to problems with anosognosia (ie, lack of insight into the condition with which he presented), confabulation (false memory), fatigue and a need for support to convey and understand information. Having been refused personal independence payment, the First-tier Tribunal awarded him the standard rate of the mobility component, but not the daily living component. His grounds of appeal to the Upper Tribunal included that the tribunal had failed to take into account the level of support from to him by his representative, his lack of awareness and insight and his confabulation, all of which had been put to the tribunal by his representative, who had been present at the hearing.

Judge Ward set the decision aside and referred the case to a fresh tribunal. The tribunal had erred by failing to consider whether the claimant’s impairments triggered duties under the Practice Direction ‘First-tier and Upper Tribunal – child, vulnerable adults and sensitive witnesses’ or, if it did consider that, to say what it made of it. On the facts, the claimant was a ‘vulnerable adult’ and the tribunal was therefore required to consider how to facilitate the giving of any evidence by him. The judge accepted the Secretary of State’s concession that the tribunal had erred in this way, in particular because the very things that caused the claimant to be a ‘vulnerable adult’ (ie, memory issues and lack of insight) all went ‘to the very heart of giving evidence’ (paragraph 17).

The judge referred to the decision, regarding ‘vulnerable adults’ and the Practice Direction, of Judge Poynter in RT v SSWP (PIP) [2019] UKUT 207 (AAC). There it was observed that in fact a very large proportion of appellants would satisfy the definition of ‘vulnerable adult’, but that normal tribunal procedure would often adequately facilitate the giving of evidence. However, in those cases where special arrangements had or arguably should have been put in place, the tribunal’s statement of reasons must address that. In the present case, it seemed that the claimant’s representative had given evidence to the tribunal about the claimant’s problems in giving his own evidence, but this had not been recorded or addressed. The judge observed that one ‘learning point’ here was that, in cases such as this, representatives should tick the box on the appeal enquiry form that the appellant has ‘special needs’. A second ‘learning point’ (and one that may be relevant ‘to other not for profit organisations who provide some form of personal support for their service users’) is that it should be clear at the outset where a representative is also looking to give evidence, and not merely to provide submissions on evidence that was otherwise before the tribunal (paragraphs 18–19).

Comment from CPAG

This is an example of a case where, on the facts, the ‘vulnerable adult’ status of the appellant should have led the tribunal at least to consider whether to adjust normal procedures in the taking of evidence – ie, so as to take evidence from the appellant’s representative. Representatives are also reminded that giving evidence is a distinct role from representing, and the wish to give evidence should be stated plainly to the tribunal.

Decision in brief

It was clear that the tribunal was aware that the claimant was in pain during the hearing and may have thought that limiting their questioning was the best way to avoid making it worse – but in doing so, the tribunal did not properly exercise its inquisitorial duty and failed to resolve conflicts in the claimant’s evidence it identified.

Decision in brief

Claimant was given 579 page bundle by HMRC on day before the hearing – tribunal proceeded with a telephone hearing of the appeal – declined jurisdiction regarding 2017–18 appeal on basis that claimant had not requested mandatory reconsideration – tribunal erred in holding an unfair hearing – in light of the large volume of material sent to claimant on day before the hearing, should have considered whether to use its discretionary powers to adjourn.

Comment from CPAG

This decision makes no reference to the decision of the Court of Appeal in HMRC v Arrbab [2024] EWCA Civ 16, which held the mandatory reconsideration rule in tax credits was invalidly made and was struck down.

Decision in brief

In this case that was 13 weeks after the claimant’s operation fitting a stoma bag – Upper Tribunal observed that this is not the only case where Social Security Scotland (SSS) has challenged the start date of an award, and so it would assist tribunals if SSS provided information enabling tribunals to do that properly – SSS is reviewing appeal response templates accordingly, but in the meantime if there is a hearing, presenting officers from SSS should do this orally

Note from CPAG

For a decision similarly holding that the tribunal erred in not applying the required period condition to the start date of an award, this time in the context of an increased award following a change of circumstances, see Social Security Scotland v AM [2025] UT 28 (24 April 2025) (appeal number UTS/AS/25/0007); for a related decision, holding that the start date of an increased award of adult disability payment (ADP) for a claimant whose transfer from personal independence payment (PIP) to ADP was triggered by her notifying a change of circumstances to the DWP, so the ‘transfer’ ADP award had to be reviewed by SSS without a further application, was the date of notification of the change to the DWP, with arrears of increased ADP to be calculated, see Social Security Scotland v AM [2025] UT 29 (8 May 2025)) (appeal number UTS/AS/25/0011).

Summary

In this decision, the Court of Appeal considered appeals from the Secretary of State against two decisions of the High Court: those in TP and AR v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin) (14 June 2018) (‘TP No.1’), and in TP, AR and SXC v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin) (3 May 2019) (‘TP No.2’).

In TP No.1, the lack of transitional protection for severely disabled claimants who moved house (to a new local authority area) and so had to make a new claim for universal credit (UC), losing their severe disability premiums (SDPs), was held to be unlawful (as unjustified difference in treatment compared to those who did not move house). In TP No.2, rules then in draft form providing for generic fixed-rate ‘transitional SDP amounts’ for severely disabled claimants who naturally migrated to UC were also held to be unlawful (as unjustified difference in treatment compared to those who, later, will get full transitional protection under the managed migration arrangements).

The court unanimously rejected both of the Secretary of State’s appeals, in effect upholding the decisions in TP No.1 and TP No.2. In particular, regarding TP No.1, the court held that Lewis J in the High Court had not erred holding that there was no objective justification for the difference in treatment. The relevant test was whether the difference in treatment was ‘manifestly without reasonable foundation’. The ‘fundamental difficulty’ for the Secretary of State was that she had supplied no evidence to explain the difference in treatment, and indeed it had subsequently emerged that in fact as early as February 2018 (ie, before the hearing in TP No.1), DWP ministers had already decided to legislate to prevent natural migration in cases such as those in TP and AR (paragraphs 115– 129). (The court noted that the failure to inform the High Court of this change was a failure, albeit by omission and in good faith, by the Secretary of State regarding the duty of candour and co-operation in judicial review proceedings (paragraphs 136–141)). Similarly, in TP No.2, Swift J, in the High Court, had not erred, in considering objective justification, in applying the test of whether the difference in treatment was ‘manifestly without reasonable foundation’. On the evidence before him, he had been entitled to hold that the different treatment was not justified, including by rejecting cost as a reason sufficient in itself (paragraphs 154–189).

Comment from CPAG

Re TP No.1, the court did not refer to the fact that the legislation preventing natural migration in cases such as TP and AR (the ‘SDP gateway’) is now to be removed from 27 January 2021. Re TP No.2, the court did not consider (as not considered in the decision under appeal) the legitimacy of the finalised rules on transitional SDP amounts in UC.

Decision in brief

Test is as in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 (applied in AK v Social Security Scotland [2024] UT 5) – must leave reader in ‘no real and substantial doubt’ but do not require consideration of every issue raised and decision has to be read ‘as a whole’ – tribunal refused care component, including regarding managing toilet needs – did not need to explain this despite claimant at the hearing referring to use of bath and toilet  door for support – no inference this was due  to a medical condition, and information available to tribunal included that claimant had not reported problems using the toilet in his application or on redetermination or in appeal application 

Summary

The claimant was a 46-year-old national of the Philippines. Her mother came to the UK in 1990 (and subsequently became a British citizen) and began to live with a partner who was an Irish national. The mother and her partner were not married to, or civil partners of, each other. The claimant argued, for immigration purposes, that she had a right to reside as the family member of the Irish citizen. That was on the basis that she was his ‘stepdaughter’ and was financially dependent upon him. The claimant relied principally on Article 2(2)(c) of the so-called ‘Citizens Directive’, 2004/38/EC, which provides for the right to reside of ‘direct descendants’ of the European Union (EU) citizen, or of her/his spouse or registered partner, who are either aged under 21 or are dependent on that citizen.

The Court of Appeal unanimously rejected that argument. Giving the lead decision, Lord Justice Peter Jackson held that ‘a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations that give effect to the Citizens Directive’ (paragraph 20).

Drawing on the decision of the Court of Justice of the European Union in SM v Entry Clearance Officer, UK Visa Section (C-129/18) (24 April 2019), the court accepted that on a natural reading of the rules, a person who is not a biological descendant or an adopted child is not a direct descendant. SM placed ‘beyond doubt’ that the words ‘direct descendant’ were to be given their natural meaning. Although that could also include the legal relationship of adoption, it did not include a child (as in the case of the claimant in SM) subject to legal guardianship. Given that, it would be anomalous to consider the claimant, who had ‘no legal relationship of any kind’ with the person she described as her stepfather, a direct descendant of him (paragraph 19). Article 2(2)(c) of the Directive did provide that a person could be a direct descendant of the ‘spouse or partner’ of an EU citizen – ie, so that in cases of marriage or civil partnership of the EU citizen to the claimant’s parent, there could be a ‘family member’ relationship to the EU citizen. But that did not apply on the facts of this case.

Summary

In this judicial review decision, the High Court held that rules restricting payment of the higher rate of BSP to cases where the claimant had been married to, or the civil partner of, her/his late partner was incompatible with provisions in the European Convention on Human Rights (ECHR).

The claimants were surviving parents with children from a relationship in which the partner had died. The claimants had been ‘cohabiting’ with their partners – ie, were unmarried and were not their civil partners. Under section 30 of the Pensions Act 2014 read with the Bereavement Support Payment Regulations 2017 (SI No.410), the higher rate of BSP, for surviving parents with children, is limited to cases where the claimant had been married to, or the civil partner of, her/his late partner. The claimants were therefore refused entitlement to higher rate BSP. They sought, on judicial review, a declaration of incompatibility of that restriction with Article 14 of the ECHR (prohibition of discrimination).

Mr Justice Holman granted the claimants’ applications, declaring that section 30(4)(a) of the Act, read with section 30(1), is incompatible with Article 14 of the ECHR, read with Article 8 (right to family life), ‘in so far as it empowers the Secretary of State to order by regulations that bereavement support payment be paid at a higher rate in the case of a person who is pregnant or entitled to child benefit, only if they are a spouse or civil partner of the deceased’ (paragraph 66).

Although there were differences between the higher rate of BSP and widowed parent’s allowance, which had already been the subject of a similar declaration (this time by the Supreme Court) in Re: McLaughlin [2018] UKSC 48 (30 August 2018), it was intended to benefit the relevant children, and so could not be distinguished from the reasoning in McLaughlin. Regarding whether the discrimination against the parents could be justified, the test was whether it was ‘manifestly without reasonable foundation’. But there was no more justification for the discrimination here than there was in McLaughlin – ie, where there was none. ‘In my view, said the judge, ‘there is manifestly no reasonable justification whatsoever’ in providing the higher rate BSP to families based on marriage or civil partnership, yet denying it to those based on cohabitation; ‘the impact of the death upon the child or children, and the financial and other needs of the children, are precisely the same’ (paragraph 58).

Comment from CPAG

The Secretary of State’s initial application for leave to appeal was refused; however, she may renew the application directly to the Court of Appeal. That aside, the relevant rule, being in primary legislation, was declared to be incompatible with human rights law, rather than struck down or otherwise remedied. That means that the offending law stands, and (unless the decision is reversed) it is up to the government to provide a remedy. For further information and updates, see the test cases pages of our welfare rights section.

Summary

The claimant applied for new-style employment and support allowance (ESA) – ie, contributory ESA under the universal credit system. He was refused after failing the work capability assessment. The First-tier Tribunal refused his appeal. The claimant’s application for permission to appeal was eventually granted by the Upper Tribunal on a number of grounds. A ground identified by the Upper Tribunal was that, in the tribunal’s decision notices and statement of reasons, the tribunal had referred to the Employment and Support Allowance Regulations 2008, SI No.794 (ie, relating to old-style ESA), when in fact the regulations relevant to new-style ESA are the ESA Regulations 2013, SI No.379. That was primarily due to use of the judicial case manager (JCM) software to generate decision notices, and which (at least at the time of the appeal in July 2023) automatically generated references to the 2008 regulations in all ESA appeals and could not be removed by the tribunal. The tribunal had repeated that in its statement of reasons.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by not explaining its approach to the ‘substantial risk’ provisions, by not ensuring that the claimant had been given an adequate opportunity to refer to its questions at the hearing, and by not explaining why it did not investigate the claimant’s argument that he was due to have an operation. The judge also considered that the use of references to the 2008 ESA regulations rather than the 2013 ESA regulations (which were the ones that were about new-style ESA) was indeed wrong. However, on the facts of this case that was not of itself a material misdirection of law. Given the way the JCM worked, that was certainly the case regarding the decision notice. The judge was more troubled by the tribunal’s own replication of that error in the statement of reasons, but accepted that although the tribunal had misdirected itself in law, that was not material given that the differences in the wording in the relevant parts of the regulations (ie, regarding the work capability assessment) were slight.

However, the judge was at pains to clarify that this finding did not mean that other tribunals were immune from material error. ‘It should not be assumed,’ said that judge, ‘that my decision on this issue represents a statement of position generally for FTTs that fail to correctly identify whether they are deciding a new-style ESA appeal or an “old-style” ESA appeal. Any FTT that does not check whether it has applied the correct legislation in deciding an appeal puts its decision at clear risk of being set aside for material misdirection in law’ (paragraph 57). The judge encouraged tribunals using the JCM decision notice tool to make clear in their statement of reasons that they have correctly identified the correct ESA legislation; the DWP was strongly encouraged to indicate in its response to ESA appeals whether the benefit in question is new-style ESA, and refer to the relevant (ie, correct) regulations.

Comment from CPAG

The judge would seem to accept that, due to the JCM, the tribunal could do nothing about adoption of the wrong regulations in decision notices and therefore had not made a material error of law there. But the decision is not authority that repetition of that error by the tribunal in a statement of reasons will never be material.

Summary

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

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

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

Comment from CPAG

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

Decision in brief

Claimant’s HB suspended in August 2017 following termination of income support – but subsequent decision removed entitlement (and raised an overpayment) from April 2017 – regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 only provides for termination from the date of suspension (CH/2995/2006 cited) – termination from an earlier date requires alternative grounds and tribunal was required to investigate that.

Decision in brief

Claimant refused care component of disability living allowance as a family member of someone working in another member state, and so UK was not the competent authority for payment of sickness benefits – Belgium was the competent state, under Article 11 of EC Regulation 833/04 as claimant’s father was working there – Article 21 applies competence to ‘insured persons’ and their family members – ‘insured person’, ‘seems to be a convenient term to cover the full range of potential social security claimants under the new Regulation’ – Article 21 overrides the claimant’s entitlement in her own right and as a family member of her mother as an insured person.