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CK v SSWP (PIP); JM v SSWP (PIP)

[2022] UKUT 122 (AAC)

Amendments made by the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 (SI No.194) regarding Activity 3 (Managing therapy or monitoring a health condition), in an attempt to reverse effect of the decision of the Upper Tribunal in SSWP v LB (PIP) [2016] UKUT 0530 (AAC) – not unlawful

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2018-002190-PIP and UA-2020-000227-PIP
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

WH v Powys CC and SSWP

[2022] UKUT 203 (AAC)

Right to reside – self-sufficient with comprehensive sickness insurance

Decision in brief

Claimant had lived in Wales since 1986 – would have been considered ordinarily resident in Wales for healthcare purposes and indeed had been an NHS patient between 1986 and 2016 – given decision of the Court of Justice of the European Union in VI v HMRC, Case C247/20, his access to free NHS treatment constituted ‘comprehensive sickness insurance’ for the purposes of his claim to housing benefit in December 2016, and as there was no question about his self-sufficiency until 2014, he had already acquired a permanent right to reside

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2019-001384-HB
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

NP v SSWP (II)

[2022] UKUT 279 (AAC)

Industrial injuries disablement benefit – prescribed disease PD D7 Occupational asthma

Decision in brief

Tribunal in refusing the appeal provided an adequately reasoned conclusion for its finding that the claimant experienced work-aggravated asthma rather than work-caused occupational asthma - reference to ‘any other sensitising agent’ – any inadequacy in the tribunal’s explanation as to why coal dust was not a relevant ‘sensitising agent’ for the purposes of a PD D7 claim was not material to the outcome in this case

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2019-002304-II
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KL v SSWP (JSA)

[2022] UKUT 270 (AAC)

National insurance credits for unemployment – late claim by claimant not entitled to jobseeker’s allowance (JSA) – claim for 2017/18 tax year made in 2021

Decision in brief

Not required to be a claimant of JSA by relevant rule in regulation 8A of Social Security (Credits) Regulations 1987 – late claims possible by virtue of regulation 8A(3) where lateness is ‘reasonable in the circumstances of the case’ – that is a question of fact not law – tribunal made adequate findings of fact before finding that was not a satisfied and made no error of law

Jurisdiction
Upper Tribunal
On
Appeal reference
UA-2021-000720-JSA
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MZ v HMRC

[2020] UKUT 65 (AAC)

Child benefit – claimant not entitled under domestic law or European Union (EU) law

Decision in brief

Claimant lives in Poland with her daughter and neither have ever lived in UK – former husband lives in UK but does not contribute to the cost of providing for her – claimant not entitled under domestic law as neither she nor her daughter have been present in UK or ordinarily resident here – EU law does not help the claimant as she works in Poland, which is the competent state, and her daughter lives with her in Poland rather than in another EU state – former husband is working in the UK which is his competent state, but cannot be entitled as his daughter does not, and cannot be treated as, living with him and he is not contributing to the cost of providing for her – European Court of Justice decision in Slanina v Unabhängiger Finanzsenat, Außenstelle Wien (Case C363/08) distinguished on its facts.

Jurisdiction
Upper Tribunal
On
Appeal reference
CF/2685/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MA v SSWP (PIP)

[2020] UKUT 172 (AAC)

Tribunals – set-aside of First-tier Tribunal decision - must be on the basis of an application – cannot be on basis of a request for a statement of reasons – tribunal cannot decide to set-aside on its own volition – ie, without an application

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2140/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KK v Liverpool CC (HB)

[2020] UKUT 80 (AAC)

Tribunals – not limited to judicial review considerations or evidence in existence at time of decision

Decision in brief

The First-tier Tribunal in deciding an appeal afresh is not exercising a judicial review jurisdiction nor should it limit itself to reviewing whether the process by which the respondent came to its decision was fair, legal and rational – evidence produced after the date of decision under appeal can still be considered as long as it is relevant to the circumstances at the date of the decision.

Jurisdiction
Upper Tribunal
On
Appeal reference
CH/1766/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

HO’H v SSWP (PIP)

[2020] UKUT 135 (AAC)

Personal independence payment (PIP) mobility descriptor 1(d) (‘cannot follow the route of a journey…’) – physical health problems and inability to use public transport

Decision in brief

Reference to scoring for inability to use public transport in the PIP Assessment Guide is merely DWP guidance and not the law – in any case the context of the guidance is on scoring for mobility Activity 1 being for mental health, cognitive or sensory impairment, not physical impairment – nothing in the lead decision on Activity 1, MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12, suggests a purely physical health problem in getting from A to B leads to entitlement under descriptor 1(d).

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/302/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

HK v SSWP (PC)

[2020] UKUT 73 (AAC)

Right to reside – where a British national has worked in another European Union member state and ‘genuinely’ resided there with a family member

Decision in brief

On return to the UK, the British national confers a right to reside on the family member, irrespective of whether the British national continues to be a worker (or otherwise is a ‘qualified person’ under the right to reside rules) in the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016 to be construed in light of the decision of the European Court of Justice in C-291/05 Minister voor Vremdelingenzaken en Integratie v RNG Eind [2008] 2 CMLR 1.

Jurisdiction
Upper Tribunal
On
Appeal reference
CSPC/330/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

DD v HMRC and SSWP (CB)

[2020] UKUT 66 (AAC)

Child benefit and right to reside – claimant was a jobseeker and the ‘genuine chance of being engaged in employment’ test applied to her

Decision in brief

The First-tier Tribunal applied the wrong legal test – both the HMRC submission and the HMRC guidance on which it was based got the relevant law wrong – First-tier Tribunals may need to examine with caution appeal responses put before them by HMRC in right to reside cases and satisfy themselves that HMRC has engaged in proper evidence gathering.

Jurisdiction
Upper Tribunal
On
Appeal reference
CF/66/2017
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

CL v SSWP

[2020] UKUT 146 (AAC)

‘Living in’ common travel area for three months requirement for income-based jobseeker’s allowance – not invalid under European Union law - to be given its ordinary meaning and not to be equated with habitual residence (although it is a part of the test for that)

Jurisdiction
Upper Tribunal
On
Appeal reference
CJSA/1053/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

CH (by TH) v SSWP (PIP)

[2020] UKUT 70 (AAC)

Tribunals – claimant transferred from maximum award of disability living allowance (DLA) to personal independence allowance but awarded only the standard rate of the daily living component

Decision in brief

First-tier Tribunal may have wrongly assumed that claimant declined opportunity to put the evidence from her previous DLA award into consideration – tribunal erred in not probing further and/or in not explaining why it did not call for the DLA evidence – tribunal should probe as to whether what DWP said in GD v SSWP (PIP) [2017] UKUT 415 (AAC) about its practice of asking claimants if they want the DLA evidence to be used has in fact been followed.

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2836/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website