DR v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

It must be heard by an entirely fresh panel.

The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT. I draw attention to me remarks below that it seems to me that this case should be capable of being settled without the need for a further FtT hearing, and I encourage the parties to do so.

Neither party now requests an oral hearing. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.

I can repeat the factual summary of the case set out by DUTJ Gullick KC in his grant of permission: :

DUTJ Gulick KC gave permission to appeal on 5 September 2023 on one ground relating to an argument that the appellant might have been entitled to a LCWRA element from the outset of her claim, in which case under Schedule 2 to the Universal Credit (Transitional Provisions) Regulations 2014, she would have been entitled to both the LCWRA element of Universal Credit from the outset and in addition a £120 transitional element because of her previous receipt of Severe Disability Premium: which would not then have been reduced as a result of the award of the LCWRA element coming in later than the initial award of Universal Credit

Subsequently the respondent requested that the case be stayed behind the case of Secretary of State for Work and Pensions v MJ (UT appeal reference: UA-2023-000561-USTA, which raised the same factual issue, (albeit, not an issue that has specifically been raised by anyone in this case at that time) namely the position of a claimant who had been entitled to a carer element and transitional protection, who then became entitled to a LCWRA element and thus lost entitlement to the carer element and also lost transitional protection, with the result that they were overall worse off when receiving the LCWRA than they had been when receiving the carer element. UT Judge West stayed this case accordingly on 23 April 2024.

On 29 January 2025 UT Judge West gave judgement in Secretary of State for Work and Pensions v MJ [2025] UKUT 35 (AAC). He held that the erosion of the full amount of transitional protection when a claimant moved from receiving a carers element to a LCWRA element was discriminatory and in breach of convention rights. He held that the necessary remedy was to read regulation 55(4) of the Universal Credit (Transitional Provisions) Regulations 2014 as if it said:

The effect in the MJ case was that MJ’s transitional severe disability premium element was to be eroded (ie reduced) by the difference between the carer’s element of UC and the LCWRA element of UC (rather than being eliminated entirely). In plain English the practical effect of that was that MJ could be no worse off when she received LCWRA than she had been when she was receiving the carers element, and, if the amount by which the LCWRA element exceeded the carers element was less than her transitional protection, she might be better off.

On 27 February 2025 the stay in this case was lifted and the respondent was directed to file submissions. On 28 March 2025 she did so, saying:

On 19 May 2025 Ms N on behalf of the appellant filed her final observations, With no disrespect to her they are mainly directed to the effects this case and the reduction in her benefits have had on her mother, and they repeat a point about moving to universal credit shortly before reaching pension age that was rejected at the permission stage. No doubt this case has been difficult for the appellant (and I dare say for her daughter Ms N) and although my decision is limited to points of law I would not want her to think I am unaware of the human story behind the case (as, I am sure, the Secretary of State is also). I was sorry to read that she is unwell.

The appeal must be allowed and the appellant’s entitlement recalculated applying the law as set out in MJ, which is to say applying 55(4) of the Universal Credit (Transitional Provisions) Regulations 2014 as it is to be read in light of that case.The effect will be as the respondent submits, namely that the appellant’s transitional element will not be eroded by the full amount of the LCWRA element, but only by the amount by which the LCWRA element exceeds the carer element.

For the benefit of the appellant and again in plain English this means that she cannot be worse off for having moved from a carer element to an LCWRA element. If the figures in DUTJ Gullick KC’s grant of permission are correct I believe she will be somewhat better off overall, but I am not performing the calculation in this decision nor am I making any order as to what must be paid. I simply say this so she has an idea what is likely to happen in real world terms. Subject to a comment I make below about the respondent reconsidering its decision what should actually be paid will be a matter for the FtT.

It is unclear to me if there is any dispute between the parties as to the date from which the LCWRA element should have been included in the award. If there is this too may be resolved by the FtT.

I believe that the appellant lost her transitional protection as from 6 November 2021. I also believe that she will have received the state pension from her 66^th birthday in 2022, and thus presumably stopped being paid universal credit at that time. So the case is in practice about an underpayment for a period of some months around three years ago. It seems to me that working out the amount of the underpayment should be a simple question of arithmetic. Bearing in mind that delay and what Ms N says about stress and ill health, I would hope that the respondent would now be able to calculate and pay the underpayment promptly without the need for any further proceedings in front of the FtT. However whilst I encourage that, the disposal from the Upper Tribunal is the usual one of remittal back to the FtT.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel.