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Summary

The claimant was entitled to tax credits. When in 2019 she made an online claim for UC, a ‘stop notice’ was automatically issued to HM Revenue and Customs (HMRC) who then terminated her entitlement to tax credits. In April 2019, the DWP decided that she was not entitled to UC, because as she did not satisfy the right to reside test, she was by therefore treated as not meeting the basic condition to be ‘in Great Britain’, as set out in section 4(1)(c) of the Welfare Reform Act 2012. On appeal, she argued that the decision to terminate her tax credits on receipt of the stop notice was wrong, because the relevant rule on termination (at regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230), required the Secretary of State to be ‘satisfied’ that the basic conditions of entitlement to UC were met before termination could occur, and that could not be done without reference to the right to reside test.

Judge Jacobs rejected the claimant’s further appeal. Her tax credits were lawfully terminated, on a correct application of regulation 8. That rule was a transitional provision that provided for the transfer of claimants to UC, and was not dependent on the outcome of the claim. Specifically, regulation 8 only required the Secretary of State to be satisfied that the basic conditions in section 4(1)(a)–(d) were met. Section 4(1)(a) in itself merely required the claimant to be ‘in Great Britain’, and for the purposes of regulation 8 had a freestanding, unqualified meaning. It was only separate rules (specifically at regulation 9 of the Universal Credit Regulations 2013) that created the qualification that a claimant was to be treated as not in Great Britain if s/he did not satisfy the right to reside test. The judge considered that that that qualification did not apply for the purpose of the transitional arrangements created by regulation 8. So applying regulation 8 did not have to await the determination on the right to reside test that applied for the purposes of the separate decision on UC entitlement.

The judge considered that: ‘Regulation 8(1)(b) refers to “the basic conditions as specified in section 4(1)(a) to (d)”. That excludes cases in which a person is treated as not being in Great Britain under section 4(5)(a). In other words, it excludes cases in which section 4(1)(c) is qualified by deeming provisions. The words used are capable of bearing that meaning and it is the appropriate meaning in the context of the 2014 Regulations. My analysis provides a clear and rational basis for adopting an interpretation that limits the reference to the basic condition to the language of the section consistently with the omission of any reference to the financial conditions’ (paragraph 22). Also, if the claimant’s argument were correct: ‘… the result is an arbitrary distinction between the basic conditions and the financial conditions. Furthermore, it leaves decision makers and claimants uncertain, potentially for months, while information and evidence is gathered and enquiries made. From an administrative perspective, it is inefficient and far from the way that transitional provisions usually operate’ (paragraph 23). Instead, the judge held that the reference to the basic conditions in section 4(1)(a)–(d) entailed merely requiring an answer to three questions: ‘(a) what is your date of birth; (b) are you in Great Britain; and (c) are you receiving education?’ (paragraph 34). The fact that the stop notice was issued (legitimately) by a computer on receipt of the UC claim did not affect this reasoning. The decision of Judge Mitchell in HMRC v AB [2021] UKUT 209 (AAC) was not followed, as it was distinguished as being about a different issue and with different explanations offered about how the UC system works.

Comment from CPAG

Arguably, this decision is wrong in holding that the Secretary of State can be properly ‘satisfied’ regarding the basic conditions when, given the full statutory tests, they have only been partially considered – eg, without even a preliminary consideration of right to reside. It may be that such arguments are to be made in a future case before the Upper Tribunal. However, for the moment at least, this decision is authoritative (and is binding on First-tier Tribunals) on this issue. See also JL v Calderdale Metropolitan Borough Council and SSWP.

Decision in brief

Because the compression stockings were ‘therapy’, difficulties with them could not also lead to points under Activity 6 (dressing and undressing) as that is about the ‘more general’ activity of dressing and undressing, but the tribunal also erred in failing to consider whether the claimant qualified for points there as a result of difficulties dressing or undressing with ‘normal’ clothes

Summary

The claimant was in receipt of HB. But (on a date in April 2018) he submitted a claim for UC, apparently on the basis of informal advice given to him on the street and while under the influence of alcohol. About two and a half hours after submitting the claim, he contacted UC again to ask that it be withdrawn. But a ‘stop notice’ had already been sent (by computer) to the local authority, who terminated his HB and would not allow him to make a new claim. His UC claim was eventually ‘closed’ by the DWP as he failed to attend the initial interview. The First-tier Tribunal held that he had made a claim for UC.

Judge Jacobs refused the claimant’s further appeal, holding that he had indeed made a claim for UC, that the HB was correctly terminated as a result, and his attempt to withdraw the claim was either ineffective or of no relevance. In so holding, he declined to follow the decision of Judge Mitchell in HMRC v AB [2021] UKUT 209 (AAC) as that was made on ‘different arguments and a different explanation of how the online universal credit system works’ (paragraph 13). Regarding termination of the HB, the relevant rule was at regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230. That provides for termination where a claim is made and the Secretary of State is satisfied that the basic conditions at section 4(1)(a)–(d) of the Welfare Reform Act for UC entitlement are met. The nature of the UC online system is that a claim is only capable of submission when those conditions are (for the purpose of regulation 8) met. The judge held that the claimant’s admission to the tribunal that he had been competent to submit the claim when he did meant that there was no argument that he had not in fact made a valid claim.

Regarding withdrawal of a claim, the relevant rule was at regulation 31(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380. That allows withdrawal of a claim ‘at any time before a determination has been made on it’. The judge considered, firstly, that because a ‘determination’ had already been made that the basic conditions were satisfied (ie, immediately on receipt of the online claim), it was not possible for the claim to be withdrawn. But, secondly, even if that were not correct on the basis that the ‘determination’ referred to in regulation 31(1) is in fact the later decision on the claimant’s actual entitlement to UC, it remained that a claim could not be withdrawn retrospectively – so the automatic issue of the stop notice still negated the withdrawal. Thirdly, even if the withdrawal was retrospective, it still had no effect, because that had no relevance to the transition rule in regulation 8 of the Transitional Provisions Regulations. Referring to his decision in SK v HMRC and SSWP (see below), the judge considered that regulation 8 is ‘freestanding and operates without regard to regulation 31…On my analysis in SK, the point of reference of regulation 8 as a transitional provision is on the moment when the claim is made and the Secretary of State is satisfied that the relevant basic conditions are met. At that moment, as a matter of fact in history, there is no doubt that the claimant had made a claim and no doubt either that he met the necessary basic conditions’ (paragraph 34).

Comment from CPAG

The conclusion that, regarding termination of an existing HB award, withdrawal of the UC claim effectively makes no difference is contrary to the approach of Judge Mitchell in HMRC v AB, although as the present decision is the later of the two, it is likely to be given more weight and require another (contrary) decision to displace it. The insistence that regulation 8 is ‘freestanding’ and that receipt of a claim automatically means that the basic conditions are satisfied for transition purposes is arguably wrong: see the comment to SK v HMRC and SSWP.

Summary

The claimants were all entitled to ‘legacy’ means-tested benefits (income-related employment and support allowance (ESA), income-based jobseeker’s allowance (JSA) and income support). They applied for a judicial review of the decision by the Secretary of State not to ‘uplift’ the rates of those benefits in the light of the coronavirus pandemic so as to match the £20 per week uplift to the UC standard allowance that applied from March 2020, by virtue of the Social Security (Coronavirus) (Further Measures) Regulations 2020 No.371. They argued that that refusal was unlawful as discrimination against them in breach of Article 14 of the European Convention on Human Rights (read with Article 1 of Protocol 1).

In the High Court, Mr Justice Swift refused the claimants’ applications. Firstly, being recipients of legacy benefits was not in itself an ‘other status’ for the purposes of Article 14, so they could not found a claim on that point. The claimants did have an ‘other status’ as claimants with disabilities. However, any difference in treatment to those on UC was justified and so not unlawful. The judge accepted that in the context of the coronavirus pandemic, the Secretary of State had made a legitimate choice to target the uplift on new claimants (who may have just experienced a decline in income and were more likely to be claiming UC). The judge said: ‘With the benefit of hindsight it may well be possible to pick holes in the strict logic of the decisions taken. But in the circumstances of this case, where the decision challenged (the 2020 Regulations) was a temporary measure addressing a situation which the government was entitled to regard as one of national emergency, a sensible margin of discretion must be permitted. Even accounting for the fact that the claimants’ indirect discrimination case is a claim on grounds of disability, I am satisfied that the reasons relied on by the Secretary of State to explain the decision to make the 2020 Regulations provide a sufficient justification. The justification provided is sufficient to answer each of the discrimination claims the claimants advance’ (paragraph 38).

Decision in brief

Legislation requires average of 10 hours or more work per week for five consecutive weeks or more – on facts, claimant did not work at this level for five weeks in the relevant period, and his REA therefore correctly ceased

Decision in brief

Her mental health problems included (including prescription of antipsychotic and antidepressant medication) rendered her a ‘vulnerable adult’ for the purposes of the hearing before the tribunal (RT v SSWP (PIP) [2019] UKUT 207 (AAC)) – this made the Senior President of Tribunals’ Practice Direction on ‘Child, Vulnerable Adult and Sensitive Witnesses’ relevant – tribunal failure to consider that (or why it considered that it did not mean that additional measures were required) was an error of law

Decision in brief

Nigerian primary carer of a European child with a permanent right to reside – child had been a ‘Chen’ child (ie, with right to reside as a self-sufficient person) but had eventually acquired a permanent right to reside – claimant was the child’s primary carer – his derivative right to reside (ie, to make the child’s right effective), given that the child had a permanent right rather than a ‘Chen’ right, did not require him to be a self-sufficient person (ie, with sufficient resources and comprehensive sickness insurance cover)

Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – attempted to make a new claim for tax credits in August 2019 – not possible due to introduction of UC – savings rule at Article 7(6) of SI 2015 No.634 (‘the No.23 Order’) did not apply as the August claim was not, as required, ‘for the next tax year’

Decision in brief

Claimant missed time limit for submitting a claim in years up to 2019 – fact that women of same age would generally have been treated as making a claim in time on basis of retirement pension records at DWP did not amount to discrimination – relevant provision was discretionary and applied to DWP records regarding several benefits not just retirement pension – in any case, any difference in treatment was justified as objectively justified

Decision in brief

Need to apply regulation 11 of the Social Security (General Benefits) Regulations 1982 – claimant applied for a supersession of the assessment of his disablement from an industrial accident – tribunal in refusing to supersede accepted that there had been some degenerative changes regarding that but also found that disablement also resulted from another cause – regulation 11(4) required the tribunal to perform a notional assessment of the deterioration as a building block towards the actual assessment – should have assessed how disabled the claimant would have been during the period taken into account by the assessment if the other degenerative changes had not occurred

Decision in brief

First-tier Tribunal hearing the appeal regarding the original claim was unaware of the withdrawal of the second claim and so limited the period of the award it made to the start of the decision on the second claim – inadvertent breach of the rules of natural justice

Decision in brief

The local authority terminated her housing benefit by ‘treating’ her as having excess capital, originally as someone analogous to a sole trader or partner in a company, under regulation 49(5) of the Housing Benefit Regulations 2006 – before the First-tier Tribunal, the local authority said it had revised that and instead ‘treated’ the claimant as having ‘actual’ capital in the company, under regulation 43 – the tribunal misdirected itself in saying that that it refused the claimant’s appeal by treating her as possessing capital in the form of a share of the capital value of the companies under regulation 49(5), but also saying that regulation 49(5) was discretionary and that the local authority had validly decided not to exercise it in this case – the tribunal therefore failed to identify any ground for treating the claimant as possessing capital above the relevant limit – it was an available option instead to calculate the capital the claimant actually held in the companies, by identifying the value of her shareholding in them – regulation 49(5) applies where that option is not used