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Decision in brief

On the facts of the case, the placing of the money in the joint bank account meant that the money was held in the account on a bare trust for the claimant, and so it should have been disregarded as capital under paragraph 17 of Schedule 8 of the Jobseeker’s Allowance Regulations 1996 – tribunal erred in requiring money to be in ‘personal injury trust’, as the requirement is that the funds ‘derived from’ the compensation are held in ‘a trust’.

Decision in brief

Enforcement reference to the Upper Tribunal invalid as under rule 7(3) can only arise from failure to comply with direction of the First-tier Tribunal – DWP not a legal person – can only be made by the Chamber President or a regional tribunal judge of the Social Entitlement Chamber, not a district tribunal judge.

Decision in brief

Before 4 July 2019 amendments, transitional rules had an unintended lacuna in that they failed to provide an exemption in transfer cases subject to revision or supersession from the primary rule in s83 Welfare Reform Act 2012 that a claimant over the age of 65 is not entitled to any award of PIP - Lacuna filled by amendment from 4 July 2019 – Secretary of State applied extra-statutory payments to remedy lacuna before that date

Decision in brief

Tribunal should have adjudication history available so that it can properly see the terms of the decision under appeal – advice from work coach to seek placement in support group will be relevant evidence in an appeal against refusal to put in support group – official guidance is that adjudication histories and, where relevant to the appeal, ‘action plans’ recording what work-related activity the claimant is expected to undertake should be included in appeal submissions – but it ‘remains to be seen’ whether this is observed in practice.

Decision in brief

Claimant entitled to income support (IS) on basis of disability before going into prison in March 2016, claiming universal credit on his release in September 2017 – three month qualifying period at regulation 28 of the Universal Credit Regulations 2013 correctly applied (so element not included until December 2017) as claimant’s entitlement to IS was extinguished when went into prison (and did not, as tribunal wrongly reasoned, persist as underlying entitlement) – therefore transitional rule at regulation 22 of the Universal Credit Transitional Provisions Regulations 2014 did not apply.

Decision in brief

Claimant argued that she had not failed to attend a Work Programme appointment and so should not have been sanctioned in August 2013 – but tribunal allowed her appeal on basis that the WPO5 document recording the claimant’s initial referral to the Work Programme was not in the appeal papers and so it was not satisfied the claimant had properly been referred to the scheme – tribunal erred in regarding that as a matter raised by the appeal and deciding against the Secretary of State on a matter not raised by the appeal, and also in consequently failing to deal with the claimant’s argument about non-attendance, which on the facts did not succeed.

Decision in brief

Claimant argued that the relevant interview had been cancelled – but tribunal allowed his appeal on basis that Secretary of State had not provided evidence (as directed by tribunal) that claimant had at point of referral to the Work Programme been given sufficient information to allow him to make ‘informed and meaningful’ representations about his ability to take part – tribunal erred in not explaining why in this case the failure to satisfy this ‘prior information requirement’ was material – claimant had simply argued the appointment had been cancelled – on the facts that argument did not succeed.

Summary

This is the decision of the Court of Appeal on the claimant’s (MK’s) appeal against the decision of the Upper Tribunal in HM v SSWP (BB); MK v SSWP (BB) [2023] UKUT 15 (AAC). The Court of Appeal dismissed the claimant’s further appeal. 

The claimant had been unmarried to her late partner. Her February 2017 claim for ‘bereavement benefit’ (ie, bereavement payment and bereavement allowance where no dependent children, under sections 36 and 39B respectively of the Contributions and Benefits Act 1992, both of which were repealed on 6 April 2017) was refused. That was because entitlement depended on the claimant having been married or in a civil partnership with her late partner. In the Upper Tribunal (UT), the claimant’s arguments based on discrimination on marital status or sex grounds were dismissed. Although the UT considered that, because at the time civil partnership was not available to different-sex couples, there had been discrimination between the claimants and same-sex couples (as in Steinfeld v Secretary of State for International Development [2018] UKSC 32; [2020] AC 1), it had no jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. 

The claimant asked the court to use its jurisdiction to make such a declaration. A declaration under section 4 was only available in relation to the present effect of legislation. The benefits concerned had been abolished in April 2017. The claimant relied, for a finding of continuing incompatibility, on comparison with those in same-sex couples who, under transitional 2017 provisions, may have some limited continuing rights to them (essentially where they were entitled but had not yet been paid). However, the court considered that difference was solely based on the ‘different circumstances’ required by the transitional provisions rather than different sexual orientation (paragraph 80). 

Even if that were wrong, it would not be appropriate to make a declaration of incompatibility. The court agreed that the ‘real substance’ of the complaint in this case was the Steinfeld discrimination – ie, the unavailability of civil partnership for the claimant at the relevant time (paragraph 83). But that discrimination was now in the past and had been remedied by post-Steinfeld changes to the Civil Partnership Act 2004. It was not ‘remotely likely’ that government or parliament would respond a legislative remedy to a declaration of incompatibility which would have the retrospective effect the claimant argued for (paragraph 84).

Summary

The claimant had drug and alcohol addiction and long-term depression. While entitled to income-related ESA, he funded his addictions by knowingly handling and selling stolen bikes as part of a criminal conspiracy. In a period of just over a year, he deposited almost £30,000 into his bank accounts. When the DWP became aware of this, decisions were made terminating his ESA entitlement and raising a recoverable overpayment, on the basis that he had been engaged in self-employed work which had not been declared to the DWP, the earnings from which were above the permitted work limit. The claimant’s appeals against both decisions were allowed by the First-tier Tribunal, which held that the claimant had not been engaged in work ‘in any accepted sense of the word’, and therefore did not have any ‘income’ from it. 

Judge Wikeley allowed the further appeal of the Secretary of State and remitted the case to a fresh tribunal to make new determinations about the claimant’s work and income. The tribunal had erred in holding that the claimant’s activity could not be ‘work’ for the purpose of the ESA rules and that he could not be considered to have ‘income’ from it. The judge accepted the Secretary of State’s submissions, that the tribunal erred in law in its interpretation of the term ‘work’ in regulation 40 of the Employment and Support Allowance Regulations 2008 (SI No.794), such that the claimant had been engaged in ‘work’, and that the tribunal had also erred in its definition of ‘income’ in the regulations, such that the money the claimant made from buying and selling the bikes should be counted as income for the claimant’s ESA. 

Regulation 40(7) provides that ‘work’ means ‘any work which a claimant does, whether or not the claimant undertakes it in expectation of payment’. The judge agreed that the question of whether the claimant was ‘doing work’ for these purposes when buying and selling bikes admitted only one answer: ‘yes’ (paragraph 29). The judge concluded: ‘There is, accordingly, no suggestion in the legislation that the term “work” necessarily excludes any work that involves criminal activity. On the contrary, all the indications are that “work” carries a broad meaning’ (paragraph 30). Regarding ‘income’, the regulations referred to income from employment either as an employed earner or self-employed earner, and there was no disregard for monies received as a result of criminal activity. Again, the judge agreed with the Secretary of State that there was nothing to suggest a presupposition of a lawful source for any ‘income’. And there was no reason why criminal activity should provide an exemption from the means test (paragraphs 48–50). He also agreed that there was in principle no difficulty with calculating the claimant’s income from the criminal activity as being ‘self-employed earner’ income – although if there were it could alternatively be treated as ‘income other than earnings’. 

Comment from CPAG

Universal credit (UC) does not contain an equivalent to regulation 40 or to the ESA ‘permitted work’ rules, as UC can be claimed both in and out of work. Even so, it is possible that the broad approach taken to the admissibility of some criminal activity as work in this case could be applied to UC, with the ‘earned income’ being ‘self-employed earnings’ under regulations 52 and 57 of the Universal Credit Regulations 2013. However, the conclusion will inevitably much depend on the individual facts.

Summary

The claimant was found to have been overpaid HB while in temporary homeless accommodation. Her award had been based on ‘passporting’ to maximum HB on the basis that she (and her partner) had been entitled to UC. But it emerged that in the relevant period in January to May 2020, she only had a ‘nil award’ of UC due to excess income, and so the local authority terminated entitlement and raised an overpayment. The First-tier Tribunal allowed the claimant’s appeal on the basis that the ‘nil award’ of UC meant that she was still on UC and so retained entitlement to maximum HB. 

Judge Wright allowed the further appeal of the local authority. In law there cannot be a nil award of, or nil entitlement to, UC, and therefore the tribunal had erred in holding that the claimant was ‘on’ UC at the relevant time, and so she had indeed been overpaid HB. Whether that overpayment was recoverable from her (ie, under regulations 100 and 101 of the Housing Benefit Regulations 2006 (SI No.213) – the ‘HB Regs’) was remitted to a fresh tribunal for consideration. 

On the facts, it was indeed the case that the claimant had been described as having, due to excess income, a ‘nil award’ (or a ‘current award’ of ‘£.0.00’) of UC in screen prints from the DWP. That had been taken by the tribunal as evidence that the claimant was ‘on’ UC for the purposes of regulation 2(3B) of the HB Regs, and so entitled to be ‘passported’ to maximum. That requires entitlement to UC, but the tribunal was persuaded by the reference to any day of UC entitlement ‘whether it is in payment or not’. But Judge Wright held that, despite the language used in the DWP screen prints, a claimant cannot in law be entitled to a ‘nil award’ of UC. It was a condition of entitlement to UC that a claimant meet the financial conditions (sections 3 and 5 of the Welfare Reform Act 2012). Without the requisite entitlement to an award of at least one penny, there could be no entitlement to UC. As the nil payments showed that in law the claimant was not entitled to UC, it followed that the tribunal was wrong in law to decide that the claimant was ‘on’ UC, and therefore was also wrong to decide she had not been overpaid HB. The use of language such as ‘current award’ in the screen print was ‘confusing and potentially misleading’, and DWP notifications to the claimant referring to ‘what you’re entitled to’ were ‘entirely inapposite in circumstances where the true legal position is that the claimant was not entitled to universal credit’ (paragraphs 39 and 43). 

Comment from CPAG

The decision is authority that (1) a claimant with a ‘nil award’ of UC does not have entitlement to UC and (2) in law there is no such thing as ‘nil award’ of UC – even though such language is routinely used by the DWP.

Summary

The claimant was in receipt of UC. His assessment period began on the 29th of each month. On 17 June 2021 he left Great Britain, travelling to Ethiopia to be with his wife and young son, who was unwell. He intended to return after three weeks. However, he was (as a matter of law) prevented from returning due to travel restrictions imposed during the coronavirus pandemic, and he contacted the UC team to advise them of that on 26 July. On 30 July, his UC was superseded on the basis that he had been absent for over a month, so that his entitlement was removed from 29 May – ie, the start of the assessment period in which his absence began. An overpayment was raised from that date. His eventual appeal was dismissed by the First-tier Tribunal. 

Judge Church allowed the claimant’s further appeal and substituted a decision that his UC award was superseded from 29 June 2021 on the basis that he had (by 18 June) been absent from Great Britain for month, with his last assessment period of entitlement starting on 29 May and ending on 28 June. In effect therefore, the overpayment period began on 29 June and not 29 May. The tribunal had erred in failing to hold that the claimant’s absence in the assessment period beginning on 29 May was to be disregarded. 

The relevant rule was at regulation 11 of the Universal Credit Regulations 2013, on temporary absence from Great Britain. That provides that a temporary absence is disregarded (and entitlement can continue) in certain circumstances, including as a default that ‘the absence is not expected to exceed, and does not exceed, one month’. It was clear from the agreed facts that the claimant’s temporary absence had not exceeded a month as at 28 June 2021. The judge agreed with the submission of the Secretary of State that: ‘In the absence of a finding of fact that the claimant’s intentions had changed in the period up to 28 June 2021, or any finding that his absence was otherwise “expected” to exceed one month (and the date on which that “expectation” arose), the First-tier Tribunal was bound to find that the claimant’s absence from Great Britain in the assessment period beginning on 29 May 2021 was to be disregarded under regulation 11(1) of the Universal Credit Regulations 2013.’ (paragraph 25). 

Comment from CPAG

The decision is authority that the default one-month temporary absence period does not end (if it remains temporary) until that month is up. So, termination of entitlement is not in effect backdated to the start of the absence, but rather to the assessment period in which the month’s absence is actually exceeded. See the Q&A in Bulletin 301, p9.