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BD v SSWP

[2020] UKUT 178 (AAC)

Supersession on award made by First-tier Tribunal – Secretary of State may supersede an award made by a tribunal as long as the relevant statutory grounds are made out - those grounds not limited to error of fact – contrary finding by tribunal showed ‘a misunderstanding at a very basic level of some fundamental principles on which social security operates’

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2110/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

CH (by TH) v SSWP (PIP)

[2020] UKUT 70 (AAC)

Tribunals – claimant transferred from maximum award of disability living allowance (DLA) to personal independence allowance but awarded only the standard rate of the daily living component

Decision in brief

First-tier Tribunal may have wrongly assumed that claimant declined opportunity to put the evidence from her previous DLA award into consideration – tribunal erred in not probing further and/or in not explaining why it did not call for the DLA evidence – tribunal should probe as to whether what DWP said in GD v SSWP (PIP) [2017] UKUT 415 (AAC) about its practice of asking claimants if they want the DLA evidence to be used has in fact been followed.

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2836/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

CL v SSWP

[2020] UKUT 146 (AAC)

‘Living in’ common travel area for three months requirement for income-based jobseeker’s allowance – not invalid under European Union law - to be given its ordinary meaning and not to be equated with habitual residence (although it is a part of the test for that)

Jurisdiction
Upper Tribunal
On
Appeal reference
CJSA/1053/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

DD v HMRC and SSWP (CB)

[2020] UKUT 66 (AAC)

Child benefit and right to reside – claimant was a jobseeker and the ‘genuine chance of being engaged in employment’ test applied to her

Decision in brief

The First-tier Tribunal applied the wrong legal test – both the HMRC submission and the HMRC guidance on which it was based got the relevant law wrong – First-tier Tribunals may need to examine with caution appeal responses put before them by HMRC in right to reside cases and satisfy themselves that HMRC has engaged in proper evidence gathering.

Jurisdiction
Upper Tribunal
On
Appeal reference
CF/66/2017
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

HK v SSWP (PC)

[2020] UKUT 73 (AAC)

Right to reside – where a British national has worked in another European Union member state and ‘genuinely’ resided there with a family member

Decision in brief

On return to the UK, the British national confers a right to reside on the family member, irrespective of whether the British national continues to be a worker (or otherwise is a ‘qualified person’ under the right to reside rules) in the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016 to be construed in light of the decision of the European Court of Justice in C-291/05 Minister voor Vremdelingenzaken en Integratie v RNG Eind [2008] 2 CMLR 1.

Jurisdiction
Upper Tribunal
On
Appeal reference
CSPC/330/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

HO’H v SSWP (PIP)

[2020] UKUT 135 (AAC)

Personal independence payment (PIP) mobility descriptor 1(d) (‘cannot follow the route of a journey…’) – physical health problems and inability to use public transport

Decision in brief

Reference to scoring for inability to use public transport in the PIP Assessment Guide is merely DWP guidance and not the law – in any case the context of the guidance is on scoring for mobility Activity 1 being for mental health, cognitive or sensory impairment, not physical impairment – nothing in the lead decision on Activity 1, MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12, suggests a purely physical health problem in getting from A to B leads to entitlement under descriptor 1(d).

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/302/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

HT v SSWP

[2020] UKUT 57 (AAC)

European Union co-ordination rules – Article 5 EC Regulation 883/2004 and treating a benefit paid by another member state as an equivalent benefit to a UK benefit

Decision in brief

Need for benefit to be ‘comparable’ – pension credit for claimant in receipt of a Polish pension additional amount for severe disability – to be included in the claimant’s entitlement, because she receives Dodatek Pielenacyjny, which is in her circumstances equivalent to attendance allowance

Jurisdiction
Upper Tribunal
On
Appeal reference
CSA/0387/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KK v Liverpool CC (HB)

[2020] UKUT 80 (AAC)

Tribunals – not limited to judicial review considerations or evidence in existence at time of decision

Decision in brief

The First-tier Tribunal in deciding an appeal afresh is not exercising a judicial review jurisdiction nor should it limit itself to reviewing whether the process by which the respondent came to its decision was fair, legal and rational – evidence produced after the date of decision under appeal can still be considered as long as it is relevant to the circumstances at the date of the decision.

Jurisdiction
Upper Tribunal
On
Appeal reference
CH/1766/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

LM v SSWP (ESA)

[2020] UKUT 41 (AAC)

Tribunals – deciding case without a hearing

Decision in brief

Claimant had said she wanted a hearing of her appeal about failure of the work capability assessment – but was not notified of a date, and tribunal decided appeal against her without a hearing and without consulting her, as it considered it was able to make a decision without a hearing – tribunal erred in breaching rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 – it did not get the agreement of the parties to the appeal – this was so even though the tribunal found the claimant scored sufficient points to pass the work capability assessment, as it failed to put the claimant in the support group, and so she could have got more from her appeal.

Jurisdiction
Upper Tribunal
On
Appeal reference
CE/1901/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MA v SSWP (PIP)

[2020] UKUT 172 (AAC)

Tribunals – set-aside of First-tier Tribunal decision - must be on the basis of an application – cannot be on basis of a request for a statement of reasons – tribunal cannot decide to set-aside on its own volition – ie, without an application

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2140/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MZ v HMRC

[2020] UKUT 65 (AAC)

Child benefit – claimant not entitled under domestic law or European Union (EU) law

Decision in brief

Claimant lives in Poland with her daughter and neither have ever lived in UK – former husband lives in UK but does not contribute to the cost of providing for her – claimant not entitled under domestic law as neither she nor her daughter have been present in UK or ordinarily resident here – EU law does not help the claimant as she works in Poland, which is the competent state, and her daughter lives with her in Poland rather than in another EU state – former husband is working in the UK which is his competent state, but cannot be entitled as his daughter does not, and cannot be treated as, living with him and he is not contributing to the cost of providing for her – European Court of Justice decision in Slanina v Unabhängiger Finanzsenat, Außenstelle Wien (Case C363/08) distinguished on its facts.

Jurisdiction
Upper Tribunal
On
Appeal reference
CF/2685/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

NK v SSWP (DLA)

[2020] UKUT 14 (AAC)

Tribunals – mother had provided detailed evidence of her view of her son’s disabilities - tribunal wrong to require corroborative evidence (from the GP) of what claimant’s mother had said – its job is to assess the evidence and it could not simply abdicate its role on the basis that corroboration was required – tribunal also erred in ignoring evidence from the claimant’s school

Jurisdiction
Upper Tribunal
On
Appeal reference
CDLA/1733/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website