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Decision in brief

In refusing a number of points under the daily living activity, the tribunal did not adequately explain why it did not accept the evidence of the claimant and her mother – the tribunal seemed to prefer other evidence and reason from claimants ability to, for example, undertake driving lessons – although entitled to weigh evidence as it sees fit, the tribunal must ‘consider it in a holistic manner, make sufficient findings of fact and provide adequate reasons explaining why it preferred the evidence that it has’ – if ‘reading across’ from ability in one activity to another, must ensure the activity is genuinely comparable to the one it is considering

Decision in brief

Issue in claimant’s personal independence payment (PIP) appeal was whether at the time of her claim she was a person subject to immigration control – tribunal wrongly relied on evidence from Home Office that she was a person subject to immigration control without further consideration, when claimant had submitted evidence to the effect that she was not – tribunal should not have proceeded on the papers, and claimant unfairly told she did not need to attend a further hearing – claimant was unfairly not given an opportunity to respond to the Home Office evidence, which was wrongly not disclosed to the tribunal or appellant but merely read out at the reconvened hearing

Decision in brief

All this was misconceived: the application had been made on time and not been withdrawn and so remained pending before the tribunal – the appointee was not dissuaded and eventually their application for permission to appeal was dismissed by the Upper Tribunal – but Upper Tribunal judge wanted observations on tribunal’s direction to be published

Decision in brief

Student in Wales whose maximum student loan was reduced by a Welsh Government Learning Grant (‘WGLG’) – in legal reality, this was simply a label for what remained of her maintenance grant after the rest of it had been treated as part of her special support payment – the ‘WGLG’ did not fall to be disregarded and the claimant’s maximum student loan did not fall to be reduced by it – test regarding ability to acquire a maximum student loan in regulation 69(1) of the Universal Credit Regulations 2013 is notional and does not require analysis of the reasonableness of the steps in fact taken by a particular student – effect is that the maximum student loan was not reduced by the grant

Decision in brief

Start date of PIP award where claimant initially had a ‘negative determination’ of PIP claim and termination of DLA (for failure to attend medical), but that was subsequently reversed on appeal and PIP award made – regulations 13 and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 apply, so as to make the start date of PIP award from the date of the termination of the DLA award – RS v SSWP (PIP) [2016] UKUT 85 (AAC) wrongly applied by tribunal, as that applied the general rule in regulation 17 (under which the start date was after a 28-day period in which the DLA award continued), and was not purporting to lay down a universal rule and was subject to the exception in 17(2)(b)

Summary

The claimant began a Master of Arts course at Goldsmiths, University of London. A ‘confirmation of enrolment’ document provided by Goldsmiths said that the course was ‘full time’ and was for 21 hours or more of study per week. Two further documents referred to at least six hours per week independent study. The claimant was refused UC on the basis that he was in ‘full-time advanced education’ and no relevant exceptions applied. The claimant’s appeal was refused by the First-tier Tribunal, who said that the college’s description of the course as full time was determinative of the matter.

Judge Rowley refused the claimant’s further appeal. The tribunal had not erred in finding that the claimant was in full-time advanced education and so not entitled to UC. Regulation 12(2)(a) of the Universal Credit Regulations 2013 provides that a definition of when a claimant is ‘receiving education’ (and so not entitled to UC) is if s/he is in ‘full-time advanced education.’ There was no dispute in this case that the claimant was in advanced education. His contention was that he was not in ‘full-time’ education as he managed his own study hours so that he was still available for work, although he also pointed to the different reports of minimum study hours in the documents from the college. Those arguments were rejected by the judge.

A number of principles emerged from the existing authority on whether a course was ‘full time’: (a) whether or not a person is undertaking a full-time course is a ‘question of fact for the tribunal having regard to the circumstances in each particular case’; (b) the words ‘full-time’ relate to the course and not to the student. ‘Specifically, they do not permit the matter to be determined by reference to the amount of time which the student happens to dedicate to their studies’; (c) evidence from the educational establishment as to whether or not the course is full time is ‘not necessarily conclusive, but it ought to be accepted as such unless it is inconclusive on its face, or is challenged by relevant evidence which at least raises the possibility that it ought to be rejected, and any evidence adduced in rebuttal should be weighty in content’; (d) if the course is offered as full-time course, ‘the presumption is that the recipient is in full-time education’. There may be exceptions to the rule, such where a student is granted exemptions from part of the course (paragraph 19). The judge accepted the Secretary of State’s submissions that the college had consistently described the course as full time, and – with regard to the principles above – there was nothing in the evidence to challenge or rebut the resulting presumption that the claimant was on a full-time course.

Decision in brief

Claimant not entitled to points regarding daily living activity 10 (making budgeting decisions) merely on the basis that he was not permitted to operate a bank account because he was an undischarged bankrupt – decisions about entitlement should specify whether an award is for a fixed or a limited period

Summary

The claimants were a couple getting UC since May 2018. According to the DWP, the claimant’s partner was sent a ‘to do’ instruction on her UC online account to accept her claimant commitments by 29 March 2020. Following a warning and extension of the time for complying, the couple’s claim was ‘closed’ (ie, entitlement was terminated) on 14 April 2020. Following mandatory reconsideration, the First-tier Tribunal (FTT) rejected the claimant’s appeal, deciding that the failure of the claimant’s partner ‘was due to carelessness or indifference, and no good reason for this failure is made out’.

Judge Wikeley allowed the claimants’ further appeal and substituted a decision that the claim had been wrongly ‘closed’ and that they remained entitled to UC from 14 April 2020. The Department had erred in terminating an existing award for the alleged failure (rather than considering a sanction). Additionally, the tribunal had erred in failing to consider whether the DWP had complied with its duty under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008, SI No.2685 to produce ‘copies of all documents relevant to the case in the decision maker’s possession’, and in unfairly concluding that the partner had failed to agree a claimant commitment without actually knowing what had been required of her.

Before the Upper Tribunal, the Secretary of State submitted that ‘there is no legal basis to consider ending the award of UC for failing to accept the revised claimant commitment since the previous claimant commitment already in place still applies... The requirements to participate in an interview to review commitments during an award would be under the provisions of section 23 of the WRA [Welfare Reform Act 2012] and could only ever result in a sanctionable failure if the claimant failed to comply with the interview requirement for no good reason.’ Any failure to take part in a claimant commitment review meeting was sanctionable, but ‘not reason to suspend or terminate an award of UC’ (quoted at paragraph 14). As to good reason for not complying, the Secretary of State’s representative pointed out that for existing UC claimants as of 30 March 2020, who already had an existing accepted claimant commitment, any work search or work availability requirements were expressly lifted in response to the Covid-19 pandemic and no sanctions were imposed for failing to comply with work-related requirements.

As to the tribunal, it had heard no oral evidence. Judge Wikeley said: ‘Putting it mildly, the DWP’s written response to the FTT appeal was on the thin side. There was no copy of the original universal credit claim. The claimant commitment document was not included. Crucially, there was no sight at all of the crucial online ‘To-do’ dated 23 March 2020’ (paragraph 6). Judge Wikeley observed that the moral of this case was: ‘… a good example of why First-tier Tribunals may sometimes need to be wary about taking at face value the Department for Work and Pensions (DWP)’s written submission in response to a claimant’s appeal. This is especially so where the DWP has been economical with the photocopier’ (paragraph 1).

Comment from CPAG

The judge seems not to have had reference to any possible relevance of the need under section 14(5) of the Welfare Reform Act for a claimant to accept ‘the most up-to-date’ version of the claimant commitment – although clearly there was no sign of that in the evidence. The somewhat casual attitude taken to the ‘closure’ of the claim in this case by both the Department and the First-tier Tribunal led to material error. Judge Wikeley’s observation that tribunals may need to be wary about accepting a DWP submission at face value in such cases is well made.

Summary

The claimant was entitled to income support (IS) on the basis that she was a carer for her friend, who was entitled to the care component of disability living allowance (DLA) at either the middle or the higher rate. In July 2018, on transfer to personal independence payment (PIP), the DLA ceased and no award of PIP daily living component was made. On 15 August 2018, the claimant’s entitlement to IS was ended (from September, after the statutory ‘run-on’ period). In July 2019, the claimant’s friend was successful in her appeal against the refusal to award the daily living component of PIP, so that she was awarded the standard rate fully backdated to July 2018. Meanwhile, the claimant had not claimed UC but had relied on child tax credits and child benefit. The claimant asked for reinstatement of her IS both in July 2019 and again in September 2019 after she was re-awarded carer’s allowance (CA), backdated to July 2018. On both occasions the response from the DWP was that she must claim UC instead. Eventually, the claimant got representation and in December 2019 explicitly requested a revision of the August 2018 termination of her IS. Following a refusal to revise, the matter came before a First-tier Tribunal who refused the appeal, on the basis that the subsequent award of PIP and CA were changes in circumstance after the termination and could not be taken into account.

Judge Rowland allowed the claimant’s appeal and substituted a decision that the claimant’s entitlement to IS was reinstated from August 2018 – ie, from the date it had been terminated by the Department. That the claimant had requested her entitlement to be reinstated in July and September 2019 meant that potential problems regarding absolute time limits for an ‘any grounds’ revision did not arise. He agreed with the claimant’s representative that the awarding of the standard rate of the daily living component of PIP as applied on appeal meant that the termination of the IS fell to be revised. It was not, as had been argued by the Secretary of State, a change of circumstance after the date of the termination which therefore (per section 12 Social Security Act 1998) could not be taken into account. Rather than being a change of circumstance, the award of PIP back to July 2018 was ‘declaratory of a state of affairs that is to be taken as always having existed’ throughout the period of entitlement. So although the Department’s decision terminating IS ‘appeared to be correct’ when it was made, the subsequent award of the PIP daily living component and the related re-award of CA actually showed the decision to ‘have been wrong when it was made’ (paragraph 26). Therefore the decision did indeed fall to be revised. Further: ‘It follows that the Secretary of State was wrong to advise the claimant on 9 July 2019 and 6 September 2019 that she could claim universal credit, without also advising her that she could instead make a late (but not irredeemably late) application for revision…of the decision of 15 August 2018 ending her entitlement to income support’ (paragraph 31).

Expanding on his reasoning, the judge said: ‘Insofar as a decision is concerned with entitlement, that must be the correct approach. It was made clear by the Court of Appeal in Reilly v Secretary of State for Work and Pensions [2016] EWCA Civ 413; [2017] Q.B. 257; [2017] AACR 14 at [137] that this is the way that retrospective legislation works and it seems to me that a retrospective decision as to entitlement made by either the Secretary of State or a tribunal must operate in the same way. Indeed, this must apply not only to decisions as to a claimant’s underlying entitlement but also to decisions as to whether a benefit is “payable”, which is the term used where a claimant has not only an underlying “entitlement” but also an entitlement to receive payments’ (paragraph 27). Although the relevant IS legislation regarding entitlement for carers (at Schedule IB paragraph 4(a)(i) and (b) of the Income Support (General) Regulations 1987, SI No.1967) refers to being ‘in receipt’ of the benefit required, it was right here to treat that as equivalent to ‘payable’. Otherwise, there would have been no way of paying arrears of IS to someone in the claimant’s position, even before the introduction of UC. That would have been ‘plainly unfair’, and the judge concluded: ‘I am therefore satisfied that the words “in receipt of” in paragraph 4 of Schedule 1 to the 1987 Income Support Regulations are not to be given their literal meaning but are to be read as “entitled to receive payments of”. Such entitlement may be conferred by a decision made retrospectively’ (paragraph 30).

Comment from CPAG

The principle established here that a later backdated entitlement decision is not change of circumstance but rather is ‘declaratory of a state of affairs that has always existed’ might apply on other facts.

Summary

The claimant was refused UC on the basis that she did not satisfy the right to reside test. That decision was upheld by the First-tier Tribunal. In the event, it was agreed by all parties at the Upper Tribunal that that was wrong and that the claimant did in fact have a right to reside and was entitled to UC.

However, in the course of its proceedings the First-tier Tribunal had refused to make an order requiring the DWP to provide information regarding the claimant’s estranged husband. That was despite the fact that the tribunal was made aware that the claimant was separated following domestic abuse and that there was a non-molestation order in place against the husband. The District Tribunal Judge in the First-tier Tribunal insisted that even then the claimant needed to make contact with her husband through solicitors. In the Upper Tribunal, Judge Ward did not have to formally decide whether the tribunal was in error in this regard. But he did provide obiter (non-binding) comment, in particular regarding the First-tier Tribunal’s (‘FTT’) powers to make a relevant order under rule 16 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 (‘the FTT’s Rules’). The judge said:

‘As to the the FTT’s apparent reluctance to make the order sought, while it is not for me to second-guess their approach to matters of case management, it does seem to me that, speaking generally, in the context of domestic violence and a non-molestation injunction there may realistically be limitations on what a party can be expected to achieve on their own initiative, even with a degree of support, and that in such circumstances the FTT’s power to make an order under rule 16 of the FTT’s Rules may be a useful tool for enabling DWP’s data protection issues to be overcome and enabling justice to be done. I do understand that intervention by the FTT should not be a first resort and advisers seeking such orders may be well-advised to make clear in a stand-alone application not only what they are seeking and why, but what steps have been taken, unsuccessfully, to date’ (paragraph 8).

Comment from CPAG

Though formally not binding, Judge Ward’s comments provide a clear steer to tribunals that they should be aware of their powers under rule 16 and not simply expect claimants to exhaust all routes themselves. However, neither should rule 16 interventions simply a first resort, and advisers should set out their position clearly when applying to the tribunal for such an intervention.

Decision in brief

Judge declined to decide the question – but was prepared to indicate disagreement with First-tier Tribunal that for dentures to count as an aid or appliance, they must assist with both chewing and swallowing: ‘I have formed what is only an opinion, albeit I have to say a very strongly held one, that for an item to count as an aid or appliance for the purpose of taking nutrition it does not need to assist with more than one of the necessary components’ set out in the definition of ‘take nutrition’.

Decision in brief

Regulation 48 of the ‘ADP Regulations’ applied and no barrier to taking the change into account in this situation – given failure to do so, tribunal were obliged to apply regulation 48, and so its decision including reflecting increased entitlement from a certain date in light of the change was not unlawful

Comment from CPAG

This decision would seem to be based on the application in a redetermination of regulation 48 – ie, where the claimant already has entitlement and Social Security Scotland is aware of a change of circumstances. It would not appear to be directly relevant in a redetermination/appeal where the claimant has no ongoing entitlement, even though their circumstances have changed.