CPAG search

Summary

The claimant had an award, upheld on mandatory reconsideration, of the standard rate of the daily living component of personal independence payment (PIP). Having appealed, the DWP contacted the claimant to say that it considered that his award should be altered to the enhanced rate of the daily living component and the standard rate of the mobility component, but if that were done his appeal would lapse and so his agreement was required (the DWP wrongly omitted to mention that, in that case, the claimant could renew the appeal against the decision as revised). The claimant said that he wanted a hearing of the appeal as he did not believe that full account had been taken of his condition. The DWP considered that the claimant did not agree to a revised decision being made and so did not revise the decision. The First-tier Tribunal approached the appeal as a straightforward appeal against the decision, awarding only the standard rate of the daily living component. It decided that he was entitled to the enhanced rate of that component, but not to any rate of the mobility component – ie, a less favourable decision than the one the Secretary of State believed was correct.

Judge Wright allowed the claimant’s further appeal and substituted as decision that the claimant was entitled to the enhanced rate of the daily living component and the standard rate of the mobility component – ie, as per the Secretary of State’s view. The tribunal had erred in not regarding the Secretary of State’s clearly communicated and upheld view of the correct award as its starting point for consideration, and in not giving a warning to the claimant that it was minded to make a decision that was less favourable to him than that.

The Secretary of State’s submission to the tribunal clearly showed that she no longer considered the decision under appeal to be correct, and (held Judge Wright) ‘in effect the dispute between the parties on the appeal now had as its starting point’ the decision that the Secretary of State thought was correct, even though for policy reasons associated with seeking the prior agreement of the claimant, no revision to that effect had been made (paragraph 23). The tribunal did not satisfy itself that the claimant did not ‘agree’ with the Secretary of State’s proposed revision, and (perhaps because it used the language of an ‘offer’ made by the Secretary of State) did not ‘really grapple’ with the consequences of the Secretary of State’s view – ie, that the decision under appeal was not correct (paragraphs 26– 27). It was clear to the tribunal that the claimant’s dispute was really about his entitlement to the enhanced rate of the mobility component. Once that ‘correct starting point’ was identified, the tribunal was required ‘as a matter of law and considerations of fairness underpinning that law to put the appellant on notice if an issue was, or became, clearly apparent from the evidence about the appellant’s entitlement to the standard rate of the mobility component or his entitlement to the daily living component’. Given that the claimant had autism and was unrepresented, fairness here may have required an adjournment. Certainly, the failure to provide an adequate warning of a less favourable decision was an error of law (paragraph 47).

Comment from CPAG

This decision is clear authority that in any case involving a proposed ‘offer’ to revise by the Secretary of State that is not taken up, the tribunal should ordinarily take the terms of that offer as the starting point of the appeal. The judge did not accept that the lawfulness (or otherwise) of the Secretary of State’s policy of not revising had a direct bearing on the case before him – ie, because he was concerned with error by the tribunal. That policy was the subject of a judicial review challenge before the High Court in R (K) v SSWP.

Decision in brief

Claimant turned up late but tribunal had already heard the case and decided in her absence – whether tribunal should have telephoned the appellant to ask why she was not present – PS v SSWP (ESA) [2017] UKUT 55 (AAC) correctly held that there was no requirement in law to telephone – but in present case, the appellant had a previous history of attending, the tribunal had her mobile phone number and the appeal was listed for a full day with presenting officers present, concerning overpayments of over £20,000 – on the facts tribunal were under a duty to attempt to contact claimant before proceeding in her absence.

Decision in brief

Young child with developmental delay and hypermobility – needed attention with his communication skills when parents were trying to settle him back to sleep, as much more difficult to understand what was troubling the child – tribunal wrongly focused on the bodily function of sleeping (rather than with communication) and in requiring that attention in soothing a child back to sleep had to be ‘caused’ by a disability, rather than (as per CSDLA/567/2005) ‘linked’ to a disability.

Summary

The claimant became entitled to contributory ESA (but not income-related ESA) in 2011. Following a year in the work-related activity group, entitlement to that expired after a year, although it was accepted that the claimant still had limited capability for work. In 2014, following being asked to complete an ESA3 form, the claimant began to receive income-related ESA. Subsequently, he began to be paid an occupational pension (including arrears going back to 2011) and his wife did some paid work. In 2017, the DWP realised that none of that income had been taken into account and (after subjecting the claimant to a fraud interview) held that it created an overpayment of income-related ESA which he had to repay. The First-tier Tribunal held, in substance, that none of the overpayment was recoverable as the claimant had not failed to disclose the pension or his wife’s earnings.

Judge Mitchell held that the tribunal had not erred in law in holding that the overpayment was not recoverable from the claimant, with the exception of the arrears of the occupational pension, which was recoverable under section 74 of the Social Security Administration Act 1992. On the ‘principal issue’ of whether the overpayment had been caused by the claimant’s failure to disclose the income, the judge accepted the claimant’s evidence that he had telephoned the DWP to report the pension when it commenced in 2014, and had similarly done so regarding the earnings from his wife’s employment (paragraph 53). Consequently, the overpayment resulting from the DWP’s failure to adjust the income-related ESA entitlement had not been caused by the claimant’s failure to disclose and so (apart from the arrears of pension) was not recoverable from him. The tribunal had erred in not requiring the DWP to explain the various codes in screenprint evidence given to the tribunal, or to produce the ESA3 form completed by the claimant, and in not considering whether to adjourn to require the Department to fill in numerous gaps in the documentary evidence presented (EN v SSWP [2015] UKUT 670 (AAC)).

In so holding, the judge rejected the argument of the Secretary of State that the claimant had made a new claim for income-related ESA in 2014. The ESA3 form, on the evidence of the DWP, could be used for a new claim or for awarding income-related ESA in cases where there was a decision awarding contributory ESA that had not been formally terminated. In order to terminate an award of ESA where entitlement to the contributory form has expired, there must be a separate and formal decision doing so, made on revision or supersession (MC v SSWP [2014] AACR 35). That had not been done in this case. Further, where a decision awarding contributory ESA was still extant, that could be changed on revision or supersession so as to award income-related ESA without the need for a new claim (LH v SSWP [2015] AACR 14).

Comment from CPAG

This decision is a useful restatement of the principle that entitlement to ESA (as with any other benefit) can only be terminated on a formal revision or supersession, and that where contributory ESA has not been formally terminated, income-related ESA may be awarded without the need for a new claim. So it is relevant in confirming that an ‘old-style’ contributory ESA award can be altered so as to award income-related ESA.

Decision in brief

Protective essays have no place in any statement of reasons – do not always automatically result in a material error of law, but statements containing such essays are ‘often so manifestly inadequate that the underlying decision is doomed’ from the moment it is challenged – protective essays are an invitation to appellate judges to scrutinise the statement in greater depth.

Decision in brief

Not necessary for a tenant with a leasehold interest in only part of the dwelling (25 per cent, 50 per cent, 75 per cent or otherwise) to be obliged to pay rent on the remainder in order to count as a shared ownership tenancy (claimant was obliged to pay service charges) – gloss put on the meaning of shared ownership tenancy in Blackburn with Darwen Borough Council v DA (HB) [2014] UKUT 431, to effect that it is required that the tenant must be obliged to pay rent, was not correct.

Summary

This judicial review decision of the Outer House of the Scottish Court of Session holds that it is still possible for claimants awarded refugee status to take advantage of rules allowing tax credit claims to be backdated to the date of their claim for asylum – ie, where that was made before the introduction of universal credit (UC) in their area and, in any case, before the abolition of new claims for tax credits from 1 February 2019.

The claimants claimed asylum in the UK in 2013 but were not granted refugee status until December 2019. They claimed UC, but in January 2020 also submitted a claim for tax credits backdated to the date of their asylum claim in 2013. They relied on the rule treating a tax credits claim as made on the date of the asylum claim (where relevant time limits have been observed) at regulation 3(6) of the Tax Credits (Immigration) Regulations 2003, No.653. HM Revenue and Customs (HMRC) refused to accept that claim, on the basis that it was not possible to make a claim for tax credits (even in these circumstances), following the abolition of new claims for tax credits in cases where it was possible to claim UC, as provided for by Article 7 of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order 2015, SI No.634 (‘the No.23 Order’). The claimants applied for judicial review of that refusal.

Lord Tyre held that the claimants’ request for judicial review should be granted. The key provision at issue was Article 7 of the No.23 Order. In particular did it, as HMRC contended, prevent not only new claims for tax credits where UC could be claimed but also historical claims (ie, those backdated, as here, to a period before UC was introduced). The judge thought not. Article 7 did not expressly exclude a backdated claim as provided for by regulation 3(6) of the Tax Credits (Immigration) Regulations. That treated the tax credit claim as having been made on the date of claim for asylum, and there was ‘no reason’ to regard that as overridden by Article 7 (paragraph 19). It was significant, held the judge, that Article 7 did not expressly exclude a claim under regulation 3(6).

Comment from CPAG

The main findings have been applied on judicial review in the English and Welsh context in DK v HM Revenue and Customs and Secretary of State for Work and Pensions [2021] EWHC 1845 (Admin) (5 July 2021). In that case, the claimant’s eventually successful asylum claim was made on 5 April 2016, before his area became a UC full service area. He received notification of his refugee status on 3 January 2020 and claimed tax credits on 28 January 2020. Mr Justice Bourne accepted (notwithstanding a few doubts) that his tax credits claim could be backdated under regulation 3(6) of the Tax Credits (Immigration) Regulations, and that this was not prevented by the subsequent prevention of new claims by Article 7 of the No.23 Order. That was on the same statutory construction grounds as in Adnan and Adnan. The judge rejected alternative arguments put by the claimant, that prevention of the tax credits claim by Article 7 would have constituted a breach of his human rights, and that the introduction of Article 7 was in breach of the public sector equality duty.

It should be noted, however, that HMRC is appealing against both decisions (in the case of Adnan and Adnan to the Inner House of the Court of Session, and in the case of DK to the Court of Appeal).

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.