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Decision in brief

Prompting requires some active steps by another person and the mere presence of children does not amount to that – however, it may be that the claimant’s children did prompt him by actively encouraging him to undertake certain activities – and the effect of the children’s presence on the claimant may be evidence of a need for prompting

Decision in brief

‘If a carer’s allowance is in payment to someone claiming a disability benefit on their own behalf it is understandable for a tribunal to wish to examine that. However it is not axiomatic that the receipt of carer’s allowance precludes entitlement to PIP, and the enquiry cannot start from that premise’ – for example, a carer with physical health problems may be providing verbal support to a partner with mental health problems

Decision in brief

Tribunals can take a ‘robust approach’ to appellants who do not turn up for oral hearings that they have requested – but should then be a greater preparedness to set aside decisions where appropriate

Decision in brief

Where a concession is offered by a competent representative, a tribunal will ordinarily be entitled to accept it if it wishes – but that does not necessarily follow in the case of an unrepresented claimant – in such circumstances it should satisfy itself that the claimant has properly understood matters and is making an informed decision

Decision in brief

Analysis regarding jobseeker’s allowance housing costs in SK v SSWP [2013] UKUT 138 (AAC) approved and applied

Decision in brief

Paragraph 1 of Schedule 1 to the State Pension Credit Regulations 2002, No.1792 – in this context ‘receipt’ of AA is not synonymous with ‘payable’ – literal meaning of ‘in receipt of’ is simply that AA payments are received and, in this context, that is not unworkable or irrational

Decision in brief

So cannot apply where someone else undertakes the whole task for the claimant – claimant who only eats a proper meal if someone else cooks it for him is not receiving ‘assistance’ under that definition

Comment from CPAG

This decision was made some time ago but has recently been placed on the Upper Tribunal website, no doubt as a consequence of its adoption in the more recent CP v SSWP (CPIP) decision.

Decision in brief

Definition requires physical ‘intervention’ and is not involved where someone undertakes the whole task for the claimant (SSWP v GM [2017] UKUT 268 (AAC) – see below) – but can involve someone intervening to undertake a discreet or number of discreet parts of an overall process – for example, handling of hot pans but otherwise allowing claimant to cook – with result that points for ‘assistance’, but not for complete inability to cook, would result

Decision in brief

The money was not the subject of a court order and the claimant was free to deal with it as he wished – nothing in the separation agreement compelled the claimant to deploy the pension to maintain his wife – it was therefore properly regarded as the claimant’s income

Decision in brief

Claimant was a French national who lived with a self-employed British citizen in France but did not marry him until after returning to the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016, as interpreted in light of relevant European caselaw, requires that the claimant was the family member of (ie, in this case, married to) the British citizen in the other European member state before the return to the UK – as that did not apply, claimant did not have the right to reside as a family member of a British citizen in the UK

Decision in brief

So wrongful advice given by the A4e provider to end jobseeker’s allowance claim does not provide basis for backdating of the subsequent new claim under regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987, No.1968

Summary

The claimant was the father of a child. When the child started college, she began living with her godparents as their house was close to the college. But the claimant supported her financially (he got child benefit for her) and in other ways, and she stayed with him on alternate weekends. However, the claimant was refused the child element on the basis that, applying the relevant rule (at regulation 4 of the Universal Credit Regulations 2013, No.376), the claimant was not ‘responsible’ for the child as she did not ‘normally live’ with him. That was upheld by the First-tier Tribunal on the basis that the claimant lived most of the time with her godparents.

Judge Wikeley set aside the tribunal’s decision and held that the child ‘normally lived’ both with the godparents and the claimant, but, in this situation, applying regulation 6(4), the claimant should be regarded as responsible as he had ‘main responsibility’ for her (paragraphs 52–63). He remitted the case to a new tribunal for more findings on whether the child still counted as a child or qualifying young person. The tribunal had adopted a ‘fatally flawed’ approach to the test in regulation 6, including failing to appreciate the nuances of meaning in ‘normally lives with’ and eliding the statutory test (paragraph 46).

Regarding ‘normally living with’, the official guidance (at Advice for Decision Makers, Chapter F1, paragraph F1060) stated that it was a test of whether the child spend more time with the person than anyone else. That was wrong and based on a misunderstanding (paragraph 42). It drew on caselaw (CFC/1537/1995) about the ‘normally living with’ test for family credit (now child tax credit). But that considered a very differently worded rule and does not apply to UC (paragraphs 37–38). The UC rule presupposed that a child may normally live with a ‘minority carer’, and the ‘main responsibility’ test at regulation 6(4) provided a mechanism for resolving disputes in such situations. The expression ‘normally lives with’ should be applied ‘with a focus on the quality rather than the quantification’ of the normality, and the amount of time may be a factor ‘but cannot be the exclusive or determinative factor’ (paragraph 41). On the facts of the present case, the child ‘normally lived with’ both the godparents and the claimants. In such situations, responsibility was then a case of who had the ‘main responsibility’. On the facts, it was clear that the claimant had the ‘main responsibility’ for her (paragraph 60).