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Decision in brief

Claimant had telephoned to make a claim for income support but following non-attendance at an interview, no decision on the claim had been made and no further action taken – tribunal originally (and correctly) struck out the appeal as no decision had been made and therefore no right of appeal arose – subsequent decision to set aside the strike-out on the basis of R(IS) 6/04 incorrect as that was about appeal rights against a decision that a claim was invalid, not about where (as here) no decision had ever been made

Summary

The claimant was refused a funeral support payment (the replacement in Scotland for funeral grants from the social fund in the UK) because her claim was made too late. Her partner had died on 3 May 2020 – ie, during the Covid-19 pandemic. On 29 May, she contacted the DWP to make a claim and received a text message saying that it might take longer than usual to process it. But the DWP did not, as it was supposed to, refer the claim to Social Security Scotland (SSS). The funeral took place on 2 June 2020. Eventually the claimant contacted the DWP to enquire what was happening, at which point the Department apologised for its erroneous handling of the claim and (eventually) told the claimant she had to claim from SSS. That claim was made on 22 November 2022 and was refused by SSS because it was made more than six months after the funeral date. That decision was upheld by the First-tier Tribunal for Scotland. 

In the Upper Tribunal for Scotland, Lady Poole allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to a funeral support payment. The basic rule was that an application for a funeral support payment had to be made within six months of the day the funeral took place. But one of the limited exceptions to that was provided for by section 52B of the Social Security (Scotland) Act 2018 (‘the Act’). That was one of a number of specific provisions introduced during the Covid pandemic, and provided that an application may be treated as made on time if ‘...the reason for its not being made sooner is related to coronavirus’. Lady Poole held that on the facts and construing the reference in section 52B of the Act to the lateness being ‘related to coronavirus’, the claim to SSS should have been treated as made on time. The First-tier Tribunal had erred in law in not holding that. 

In construing section 52B, Lady Poole considered that the impaired ability of the DWP during the pandemic to pass the application to SSS meant that the reason the eventual claim was made outside the basic time limit was indeed ‘related to coronavirus’. In so holding, Lady Poole referred to the social security principles in section 1(a)–(h) of the Act. At section 2 of the Act, it is provided that ‘a court or tribunal...may take the Scottish social security principles into account’. The use of the word ‘may’ (rather than ‘must’), and the reference to ‘taking into account’ the principles (rather than using them to override rules) meant that arguments made for the claimant that the basic time limit for claiming should be disapplied or ignored, with the principles used as a checklist to be used by tribunals, had to be rejected. However, in the present case, the possible operation of the exception to the time limit in coronavirus cases, as set out in section 52B, was disputed and so required to be interpreted. 

Lady Poole held that ‘the social security principles help point towards the approach which is to be preferred’, and ‘if there is a construction and application of section 52B that gives effect to the policy and intention underlying principles (b) (social security is a human right), (c) (the delivery of social security is a public service) and (e) (that the Scottish social security system is to contribute to reducing poverty in Scotland), it is to be preferred over one which does not’ (paragraph 22). Accordingly, the DWP service failures and consequent lateness of the application could be said to ‘relate to’ coronavirus. 

Comment from CPAG

This decision provides helpful authority that the principles in section 1 of the Act can, in a relevant case, be used by courts and tribunals as an aid to interpreting and applying (albeit not simply ignoring) provisions regarding Scottish devolved benefits. Whether that should be done, and what the result is, will depend on the facts of the case.

Decision in brief

Claimant overpaid HB due to starting work and not telling the local authority until almost three months later – as the claimant’s earnings had changed a number of times during the overpayment period, the First-tier Tribunal was required to make clear findings of fact in respect of each of those changes of circumstances, to enable it to determine whether the overpayments caused by the claimant first finding work and then receiving increases in income were the results of official error (AG v Calderdale Council (HB) [2016] UKUT 396 (AAC) cited and approved)

Decision in brief

Non-European Economic Area family member who had acquired permanent right to reside after five years residence with that person - as had acquired permanent right to reside, fact of subsequent divorce from family member did not require claimant to be a worker, self-employed or self-sufficient to continue to have a right to reside – no longer needed family member status.

Decision in brief

Claimant last worked on 21 July 2020 and the claim for UC was made on 24 October 2020 (ie, just over three months later) – ‘undue delay’ test regarding retained worker status and gaps between the end of work and contacting the job centre to register as a jobseeker, established in SSWP v MK [2013] UKUT 163 and subsequent decisions – on the facts, claimant took no steps prior to 24 October to notify the DWP, and there was no evidence of job search in that period – lack of DWP monitoring of that is irrelevant – in particular considering the three-month delay, there was ‘undue delay’ and claimant had therefore not retained worker status

Decision in brief

Descriptor (d)(i) ‘cannot’ engage due to such activity causing ‘overwhelming psychological distress’ - relevance of ability to engage with social support – a tribunal is ‘quite entitled to infer from the fact that a claimant actually carries out an activity reasonably often that he or she can do so without undue pain, distress or other discomfort’ – MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 did not hold that being anxious, worried or emotional could not amount to ‘overwhelming’ distress or that it had to be a ‘momentary’ episode, rather that the threshold was very high – regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (need to carry out an activity safely, etc.) is relevant to (d)(i) but not to reasons other than overwhelming distress: ‘Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as overwhelming and, equally, distress that is not overwhelming cannot, if regulation 4(2A) is properly applied, have the effect that a claimant cannot engage with other people.’

Decision in brief

Tribunal took some details from appointee but (because of not realising she was the appointee and failure to adjourn to clarify this) did not put to her concerns about the medical evidence and so appointee did not have proper opportunity to address the tribunal – breach of fairness rules – claimant’s application for permission to appeal to the Upper Tribunal, although late and after a late request for a statement of reasons had been refused, cannot have lawfully been refused by ‘tribunal administration’ – ie, without putting before a judge.

Decision in brief

Hernias ‘do not necessarily give rise to the type of substantial and sufficiently enduring type of limitation covered by the ADP [adult disability payment] regulations, particularly when potential treatments are taken into account’, and so the ‘required period condition’ for ADP entitlement was a ‘substantial question’ in this particular case – the tribunal erred by not explaining why it considered the required period condition was satisfied – decision quashed and remitted to a fresh tribunal

Summary

The claimant had been late requesting a review of his tax credits decision and HMRC had refused to carry out a late appeal. The First-tier Tribunal had struck out his appeal for not complying with the mandatory reconsideration requirement. In the Upper Tribunal decision in this case (CTC/886/2021), Judge Scolding QC had held that the ‘mandatory reconsideration’ requirement at section 38(1A) of the Tax Credits Act 2002 was satisfied, as in line with the position in benefits (established by R (CJ) and SG v Secretary of State for Work and Pensions (ESA) [2017] UKUT 324 (AAC), reported as [2018] AACR 5 – ‘CJ’) and so as not to deprive the claimant of his right of appeal, the rule had to be construed as meaning that a review had been ‘carried out’ even where, following a late application, HMRC had in fact refused to review the decision. HMRC appealed. 

Giving the lead decision in the Court of Appeal, Lady Justice Falk agreed that the Upper Tribunal decision was in error. CJ was based on legislation that was materially different to section 38(1A) of the Tax Credits Act 2002, which was clear in requiring that a review has been carried out, and ‘left no scope’ for the sort of approach adopted for benefits in CJ (paragraph 36). On a correct construction of section 38(1A), no review was done in this case, so the mandatory reconsideration requirement was not met. 

However, the court held that it remained that the claimant did have the right of appeal. That was because section 38(1A) was itself unlawful. That had been introduced under a so-called ‘Henry VIII’ power, in which an Act (ie, in this case, the Tax Credits Act 2002) had been amended not by another Act, but by a regulation (by contrast, in benefits, the mandatory reconsideration requirement had been created by provisions in the Welfare Reform Act 2012). Although amendment by a Henry VIII power was not in itself unlawful, the court considered that in this case the relevant amending regulation (the Tax Credits, Child Benefit and Guardian’s Allowance Reviews and Appeals Order 2014, SI No.886 – the ‘2014 Order’) had gone beyond the powers (ie, was ultra vires) of the relevant primary legislation that applied to it, which was section 124 of the Finance Act 2008. Reviewing various authorities on restricting the right of access to tribunals and courts, noting that section 38(1A) ‘entirely excludes’ the right of appeal contemplated by parliament before the 2014 Order took effect (paragraph 66) and the relevance of ‘the reality that many tax credit claimants will be vulnerable in some respect’ (paragraph 70), the court considered that in this case parliament had not passed the necessary enabling legislation for the Order. The amendment introducing the mandatory reconsideration requirement was unlawful as ultra vires and struck out. 

Comment from CPAG

HMRC is not appealing further. This decision removes the mandatory reconsideration requirement from the tax credits regime (but not the benefits regime). Rules providing for reviews are left intact, so that claimants may still request a review before going on to appeal, but the requirement to have done so is gone. See the article on p9 of Bulletin 299.

Summary

In this decision, the Court of Appeal unanimously dismissed the Secretary of State’s appeal against the decision of the Upper Tribunal in this case (AM v SSWP (UC) [2022] UKUT 242 (AAC)). As a result, the Upper Tribunal’s decision was upheld, and it remains that a claimant may request ‘backdating’ of their claim for universal credit (UC) on revision of the initial decision on entitlement, even if they did not request backdating when making the claim. 

Giving the lead decision, Lord Justice Underhill said: 

‘If the Secretary of State decides that the specified conditions are not satisfied, the claimant will not be entitled to the benefit for the past period; but there is no reason why that decision should not be treated simply as part of the determination of the claim, and subject, like the determination itself, to the procedures for revision and appeal’ (paragraph 51). 

The court also criticised the absence of a question about backdating on the online UC claim form (although formally that was not taken into account in the court’s decision): 

‘It is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated’ (paragraph 35). 

Comment from CPAG

The Secretary of State’s representative told the court that the issue of the absence of a question or prompt about backdating in the UC claim process was ‘under review within the DWP’. The case was brought by CPAG: for more details, see our test case No requirement to request backdating before a claim to universal credit determined

Summary

The claimant was refused adult disability payment (ADP), a decision that was upheld on appeal by the First-tier Tribunal for Scotland (FTS). The claimant argued that the tribunal had erred in law by failing to use its powers to call for further evidence, particularly further medical evidence. He cited Lady Poole’s own comment in NB v Social Security Scotland [2023] UT 35, that in some cases it may be necessary for the FTS to consider exercising procedural powers (ie, to call for further evidence) in the First-tier Tribunal for Scotland Social Security Chamber Rules of Procedure 2018 (the ‘FTS Rules’) before determining the appeal. 

Lady Poole refused permission to appeal, holding that the FTS in the present decision had not erred. NB v SSS was decided on its own facts, which included that the appeal to the FTS in that case was decided on the papers without an oral hearing, the claimant’s account changed considerably over time, and GP records were not obtained. In the present case, by contrast, there had been an oral hearing at which the claimant gave evidence, and the information in the appeal bundle included information obtained by Social Security Scotland from the claimant’s medical practical and other sources. This was a common set of circumstances and is why, held Lady Poole: 

‘...in many cases, documents already lodged before the FTS will be sufficient to enable it to determine the case fairly and justly. This is particularly so in cases where written evidence is supplemented by additional oral evidence at a hearing, and the expertise of the FTS is used effectively (rule 2(2)(d) FTS Rules)’ (paragraph 5). 

Lady Poole also rejected a further argument by the claimant that the tribunal had given inadequate reasons for its decision. She held: 

‘The classic test for adequacy of reasons in Scotland is found in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The tribunal must “give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader ... in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”’ (paragraph 8). 

She also referred to DS v SSWP (ESA) [2019] UKUT 347 (also a decision of hers, which in turn had included reference to Wordie Property Co Ltd). Adopting that approach, the tribunal expressly addressed the substantial questions in its decision, setting out its findings on the relevant facts and giving adequate reasons for those findings. 

Comment from CPAG

The approach taken to evidence and the adequacy of reasoning required in a First-tier Tribunal decision is very similar to that taken in extant caselaw from the UK Upper Tribunal. The reference to DS v SSWP (ESA) in this context further indicates, in relevant cases, the likely persuasive status of such authority before the Upper Tribunal for Scotland.

Summary

The claimant was entitled to income-related employment support allowance (ESA) that included the severe disability premium (SDP) and enhanced disability premium (EDP). In July 2018, she moved address and – having lost entitlement to housing benefit as a consequence – claimed universal credit (UC), thus undergoing ‘natural’ migration to UC and so ending her income-related ESA award. Her UC award was eventually corrected to award a transitional SDP amount (now known as a transitional SDP element). The claimant appealed as her UC still fell short of her income-related ESA, particularly because the transitional SDP element did not compensate her for the absence of an EDP in her UC. The First-tier Tribunal dismissed her appeal, holding that the UC correctly included the transitional SDP element at the prescribed amount. 

Judge Wikeley allowed the claimant’s further appeal. The tribunal had erred in failing to find, as it was bound to do, that in the light of the High Court’s decision in R (on the application of) TP and AR (TP and AR No.3) [2022] EWHC 123 (Admin) (‘TP (No.3)’), the failure of the transitional SDP element to compensate the claimant for the loss of the EDP as well as the SDP was in breach of her human rights. It was accepted (including by the Secretary of State) that the effect of the High Court’s declaration in TP (No.3) was that regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014 (‘the Transitional Provisions Regulations’) were unlawfully discriminatory. That was due to a breach of Article 14 on Human Rights read with Article 1 of Protocol 1 of the European Convention on Human Rights (‘the ECHR’). The breach was by failing to provide any transitional relief for the loss of the EDP on the claimants’ natural migration from legacy benefits to UC. Judge Wikeley observed that it was a basic starting point that the tribunal ‘is not, and should not be, in the business of applying unlawful regulations’ (paragraph 39). That applied (unless the tribunal was prevented by acting by statute) regardless of the public law error that the regulations contain, whether that is because they are ultra vires or irrational or (as here) because they breach rights in the ECHR (JN v SSWP (UC) [2023] UKUT 49 (AAC); [2023] AACR 7 cited). 

However, that left the question of remedy of the unlawfulness. It was argued for the claimant that the correct approach was to disapply the part of the Transitional Provisions Regulations (at regulation 48) that required ‘managed migration’ to have taken place before the claimant was entitled to full transitional protection to the amount of legacy benefit, so that that protection applied in natural migration cases too. Judge Wikeley disagreed. The relevant principles were those set out by the Supreme Court in RR v Secretary of State for Work and Pensions [2019] UKSC 52. That included that there was nothing to prevent a tribunal disapplying subordinate (not primary) legislation where that was necessary to comply with the Human Rights Act 1998 (which applied the ECHR). But in the present case, it was not regulation 48 requiring managed migration to apply before the transitional element could be awarded that resulted in the breach of the claimant’s human rights, but rather regulation 63 and Schedule 2 providing for the transitional SDP element. The judge also considered that the proposed disapplication of regulation 48 was not possible to do without undermining the statutory scheme by collapsing the distinction between natural and managed migration. ‘Collapsing the distinction between natural migration and managed migration,’ said the judge, ‘would be to stretch the art of the possible beyond breaking point, and would involve social engineering on a massive scale. Such decisions are for parliament and not judges’ (paragraph 54). However, the judge did agree with the claimant’s secondary argument, that it remained that the tribunal had been in error and that (in the absence of an obvious way of remedying the error) the appropriate remedy was (as in JN) to allow the appeal and remit the decision to the Secretary of State with a direction to remake the decision. The judge directed the Secretary of State to ‘redecide on a lawful basis the claimant’s entitlement to universal credit...’ (paragraph 60). 

Note from CPAG

The Universal Credit (Transitional Provisions) (Amendment) Regulations 2023, SI No.1238 (see Bulletin 298, p11) makes additions to the SDP transitional element so as also to compensate for loss of the EDP, but only takes effect from 14 February 2024.