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Decision in brief

Claimant given a low level sanction for failure to attend a telephone appointment with job centre and so fulfil a work-related requirement, despite the fact that, on the day after not taking part, he submitted evidence from his GP that he was suffering from a stomach complaint – in refusing the claimant’s appeal, the First-tier Tribunal erred in not adequately addressing whether the claimant had been sufficiently notified of the requirement to take part in a work-focused interview and of the consequences for not doing so (JB v SSWP (UC) [2018] UKUT 360 (AAC) cited) – in addition, the tribunal erred in failing to give adequate consideration to the claimant’s health condition – on the facts, the claimant had not been properly notified and did have good reason and so no sanction was applicable.

Decision in brief

Calculation under Social Security Benefit (Computation of Earnings) Regulations 1996 – averaging under regulation 8(3)(b) where has been more than one change and there is no recognisable cycle of work – tribunal wrongly failed to apply that on the facts – the period taken into account in the averaging exercise under 8(3)(b) could include earnings before the second change – not restricted to period beginning after the second change – but nothing in that obviously requires changes to decisions on past period of entitlement

Decision in brief

Guidance about proper approach to this (ie, so as to take proper account of pain, distance, halts, etc) in JT v SSWP (DLA) [2013] UKUT 221 (AAC) also applies to mobility Activity 2 test in personal independence payment, even though JT was a decision about the highest rate of the mobility component of disability living allowance – although statutory tests are not identical, similarities are such that JT should apply in context of consideration of ability to walk in an airport.

Decision in brief

Claimant had been a non-dependant of her adult son, but when he stopped being entitled to HB she became the tenant and claimed – tribunal erred (given the facts of the case) in finding that the claimant had always been a tenant – but did not err in following the approach to the meaning of ‘take advantage of the housing benefit scheme’ in CH/39/2007 and not instead following MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC) – the CH/39/2007 approach (which involves considering whether there has been something close to ‘abuse’ or ‘taking improper advantage’) is not changed by MP, and was approved by it – it is true that MP had facts closer to those in the present case but the proposition of law contained in it is the same

Decision in brief

No agreement about level of ‘remuneration’ received for the work – the giving of donations by passers-by does not involve a common understanding as to the amount of remuneration provided to the street musician, and there is also a good argument that, for the same reason, it does not involve remuneration at all.

Decision in brief

The First-tier Tribunal is a ‘court’ for those purposes and the claimant did not have the required leave – the tribunal therefore had no jurisdiction to determine the appeal and should have struck it out – Upper Tribunal has jurisdiction to determine the claimant’s application for leave to appeal against the tribunal decision but as there should have been no such appeal, permission to appeal is refused.

Decision in brief

Family member of European Economic Area (EEA) national – requires the EEA national to have exercised free movement rights – CDLA/708/2007 approved – contrary approach in JFP v Department for Social Development (DLA) [2012] NICom 267 not followed.

Summary

In this decision, the Court of Appeal holds that it has jurisdiction (under the Tribunals, Courts and Enforcement Act 2007 – ‘the Act’) to consider an appeal against a decision of the Upper Tribunal refusing to set aside its earlier refusal of permission to appeal. Although the Court had such jurisdiction, that did not mean that the Upper Tribunal’s original refusal to grant permission was also appealable to the Court. 

The claimant, having lost her personal independence payment (PIP) appeal at the First-tier Tribunal, was refused permission to appeal to the Upper Tribunal, first by the First- tier Tribunal and then by the Upper Tribunal. She then asked for that latter refusal to be set aside, under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008 No.2698. The Upper Tribunal refused to set the refusal aside, holding that it was not (as required by regulation 43) ‘in the interests of justice’ to do so and that there had been no ‘procedural irregularity’ in the Upper Tribunal’s refusal to grant permission to appeal. 

In the Court of Appeal, Lord Justice Lewis held, 

‘...I am satisfied that section 13 of the Act confers jurisdiction on the Court of Appeal to consider an appeal against a decision of the Upper Tribunal refusing to set-aside its earlier decision refusing permission to appeal to the Upper Tribunal against a decision of the First- tier Tribunal. Any such appeal would, however, have to be based on arguable grounds that the Upper Tribunal erred in considering that that it was not in the interests of justice or in finding that there was no procedural error or irregularity in the proceedings in the Upper Tribunal as specified in rule 43. The appeal would not be an appeal against the refusal of permission. It would be an appeal against the refusal to set aside.’

Decision in brief

Fact that insurance policy had ‘matured’ by the time of the death and that claimant could have claimed the money on grounds other than the person’s death irrelevant – if the money was legally due to the claimant on the person’s death, that will be deductible (PA v SSWP [2010] UKUT 157 (AAC) cited) – but it is relevant whether or not the money was actually due, claimed and paid due to the person’s death.

Summary

The claimant was entitled to a category A retirement pension. It included an additional pension based on her additional national insurance contributions under the SERPS scheme. Her late husband had also been entitled to a category A retirement pension. But (unlike the claimant) he had ‘contracted out’ of the SERPS scheme, had a smaller additional pension and had built up a ‘guaranteed minimum pension’ (GMP) in his occupational pension. Following his death, the claimant became entitled a widow’s pension from her husband’s occupational pension, which included a GMP of £53.21 a week. The Secretary of State made a ‘contracting-out’ deduction of that from the claimant’s retirement pension (which remained her own category A pension, as that was worth more than her category B retirement pension as a widow). The preceding decision of the Upper Tribunal held the deduction unlawful, emphasising that the claimant had not inherited any part of her late husband’s state pension and remained instead on her own category A retirement pension based entirely on her own contributions. 

The Court of Appeal upheld the Secretary of State’s further appeal, holding that a deduction did fall to be made. The relevant law under consideration by the Court was section 46(1) of the Pension Schemes Act 1993 (the ‘PSA 1993’). That deals with the effect of GMP on social security benefits and provides, among other things, that where ‘a person’ is entitled to both a category A retirement pension and to one or more GMPs, the category A retirement pension is reduced by the additional pension or the GMP, whichever is the less. 

The Court of Appeal unanimously agreed that the Upper Tribunal had erred in the construction of section 46 of the PSA 1993 in concluding that a deduction could not be made in respect of the GMP the claimant inherited from her husband. Giving the lead decision of the Court, Lord Justice Nugee said that on the ‘plain wording’ of section 46, a deduction fell to be made, and that was ‘entirely consistent’ with examples of how the deduction would work in other possible scenarios (paragraph 60).

Decision in brief

Tribunal erred in law in giving inadequate reasons for why it refused to admit the claimant’s father’s video evidence, why it made the findings it did as to how much time the claimant spent in the autism unit, or why his parents watching him as he made the journey between his home and his grandparents’ home did not amount to ‘supervision’ – the tribunal also erred in finding that the claimant’s playing with his penis in public was not ‘extremely disruptive’ behaviour – the behaviour does not have to be violent to be ‘extremely disruptive’ and to regularly require intervention to prevent injury.

Decision in brief

‘Prompting’ in this test is different from ‘explanation’ where the claimant actually does not read or understand the information – reference to signs and symbols in definition of ‘basic information’ does not mean the test does not require ability to read and understand words – prompting can relate to requirement that the activity is carried out to a reasonable standard – not being able to do it ‘at all’ does not require inability to read/understand literally no words – re Activity 10 (budgeting) there is also a need to consider the need for assistance/prompting – merely paying bills is not conclusive evidence of ability to ‘make decisions’, and to ‘know’ the price of an item is not the same as knowing how to calculate the price.