SJ v The Secretary of State for Work and Pensions

The Appellant is entitled to an award of the standard allowance, the housing element, the carer element and the transitional SDP element with effect from 14 May 2021;

The Appellant’s partner, Mr. J, is entitled to LCWRA payable from the start of the first assessment period on 14 May 2021;

The rate of the transitional SDP element to which the Appellant is entitled under Schedule 2 to the Universal Credit (Transitional Provisions) Regulations 2014 is £120 per month with effect from 14 May 2021;

The Appellant’s award of TSDPE is not subject to erosion by virtue of the award of LCWRA to Mr. J as LCWRA is payable from the start of the first assessment period on 14 May 2021.

This is an appeal to the Upper Tribunal from a decision of the First-tier Tribunal (“the F-TT”) dated 13 January 2023. By that decision the F-TT refused the Appellant’s appeal against the Respondent’s decision dated 19 June 2021, that the Appellant and her partner (“Mr J”), were entitled to an award of the transitional severe disability premium element (“TSDPE”) of Universal Credit (“UC”) in the amount of £285 per month. The Appellant contends that the F-TT erred in law and that she and her partner were entitled to a higher rate of TSDPE, in the amount of £405 per month.

The application for permission to appeal was stayed pending the decision of another Upper Tribunal case, Secretary of State for Work and Pensions v RW UA2023-001053-USTA (“RW”), because that case concerned very similar facts and issues. RW was decided by Upper Tribunal Judge West on 18 December 2024. After that, and after submissions were filed by the parties in this case, permission to appeal in this case was granted by Upper Tribunal Judge Fitzpatrick, on 3 June 2025.

In submissions made on 29 April 2025 and 10 September 2025, the Respondent to this appeal, the Secretary of State for Work and Pensions (“the SSWP”) says that:

The Appellant’s representative has filed two replies (one relating to the grant of permission, and one thereafter) stating that she does not wish to make any further observations – this stance follows the decision in RW.

Both parties have consented to a decision without reasons and neither party has asked for an oral hearing.

Given that approach, I am satisfied that I can decide this case fairly on the papers and all I need do is to say reasonably briefly why I have set aside the Tribunal’s decision and remade it. It is not necessary to set out the history of the case or to analyse the legal background, evidence and arguments. The relevant law is set out and discussed in RW and also in PR v Secretary of State for Work and Pensions [2023] UKUT 290 (AAC). In particular, whilst the decision in RW is not binding on me, I am satisfied that it should be followed and applied by me. It was decided after full argument was heard, and neither party in this case has tried to persuade me to adopt a different approach.

Mr and Mrs J were residing as a couple at the date of the claim for Universal Credit on 14/05/2021. Mr J was in receipt of Employment and Support Allowance (“ESA”) from 18/02/2014 to 04/05/2021. He was in receipt of the Severe Disability Premium (“SDP”) as part of his award and on behalf of his wife. On 05/05/2021, the ESA claim had to close because Mr J reached state pension age. Mr J was written to on 29/04/2021, warning him that the ESA award would end on that May date. On 14/05/2021, Mrs J made a joint claim for UC for herself and Mr J. UC does not have a provision for the SDP to be paid, but transitional provisions allow for an SDP element, subject to eligibility conditions. There had been no previous application for UC. At the date of claim, Mrs J declared that she was Mr J’s carer.

On 14/06/2021 the Respondent determined that with effect from 14 May 2021 the Appellant was entitled to an award of UC comprising the standard allowance and the housing element. The Appellant queried this award and a few days later, on 19/06/2021, the Respondent revised the award to include a carer element and a TSDPE in the sum of £285 per month.

The Appellant submitted an appeal to the F-TT on 12/07/2021, arguing that she was entitled to an award of the TSDPE in the sum of £405 per month.

In the course of preparing the Respondent’s response to the F-TT appeal, the Respondent reviewed the Appellant’s case entirely. The outcome of this review was that, on 27/04/2022, the Respondent awarded the Appellant the limited capability for work related activity (“LCWRA”) element, with effect from the original date of the UC award, namely 14/05/2021. However, it was determined that the LCWRA element in the amount of £343.63 was only payable from the first assessment period 3 months after 14 May 2021, that is from 14 August 2021. In the decision of 27/04/2022, the Respondent also determined that the Appellant was no longer entitled to the TSDPE with effect from 14 August 2021 (that is, from the date from which LCWRA was payable). This was a result of the ‘erosion principle’ provided in regulation 55 of the 2014 Regulations.

The Appellant then asked for the award of LCWRA to be backdated to 4/05/2021 (i.e., when the entitlement to ESA ended as Mr J reached state pension age). The Respondent rejected this request.

The F-TT held an oral hearing of the appeal by telephone at which the Appellant was present, and the Respondent was represented by a presenting officer. The F-TT dismissed the appeal.

The F-TT first held that paragraph 3(b) in Schedule 2 to the Universal Credit (Transitional Provisions) Regulations 2014 meant that the Appellant was entitled to TSDPE at the rate of £285 per month and not the higher rate of £405 per month. This was because Mr. J ceased to be entitled to ESA on 4 May 2021 (the day before he reached state pension age). The Appellant had been awarded the carer element of UC, but at the material time not LCWRA, so that it could not be said that “the higher rate of SDP was payable” in accordance with the terms of paragraph 3(b). It dismissed the appeal on this issue.

On the backdating issue, the F-TT concluded that the UC award could not be backdated to 5 May 2021 because Mr. J had received a letter dated 29 April 2021 notifying him of the end of the ESA award, thus leaving enough time for a UC claim to be made before the ESA award ended. Again, this aspect the appeal therefore failed.

The first ground of appeal concerns the Appellant’s entitlement to TSDPE at the higher rate, and the provisions in Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014.

The SSWP states:

“In the first place, the ruling in RW governs the Appellant’s case on the issue of the amount of TSDPE to which they are entitled. First, the Appellant declared herself to be Mr. J’s carer. Secondly, an award of LCWRA was made to Mr. J, backdated to the date of the UC award on 14 May 2021. Accordingly, one member of the couple has an award of LCWRA and it follows that the amount of TSDPE to which they are entitled from the date from which the UC award runs is £120 per month.

The award of TSDPE in the amount of £285 per month which was made by the Respondent’s decision on 19 June 2021, and upheld by the F-TT, was erroneous. The correct amount of TSPDE to which the Appellant is entitled from the date from which the UC award runs, in line with paragraph 5(b)(ii) of Schedule 2 [of the Universal Credit (Transitional Provisions) Regulations 2014], is £120 per month.”

I accept these submissions, based as they are on RW. Specifically, in RW, UT Judge West ruled that where an award of UC is made and includes both a carer element of UC in respect of caring for a partner and a LCWRA element, paragraph 3(b) of Schedule 2 to the 2014 Regulations means that the award must include only a prescribed lower amount of TSDPE and not the higher amount, notwithstanding that before the date from which the award of UC runs, the ESA claimant received the higher rate of the SDP premium of income related ESA. This reflects the sums payable by way of the LCWRA element.

Accordingly, whilst the F-TT correctly dismissed the Appellant’s claim to be entitled to £405 per month, the decision in RW requires that the award of £285 should be replaced by one of £120 per month.

The second ground of appeal concerns the award of LCWRA with effect from 14/05/21, and the impact of that award on the erosion of the TSDPE, pursuant to regulation 55 of the 2014 Regulations. The Appellant has submitted that the erosion principle does not apply in the circumstances of this case. The Respondent agrees, stating that “The Appellant’s award of TSDPE is not subject to erosion by virtue of the award of LCWRA to Mr. J as LCWRA is payable from the start of the first assessment period on 14 May 2021.”

The third ground of appeal argues that the F-TT erred in law in its decision that the issues concerning the backdating of the UC award did not arise in the appeal.

The Respondent now accepts, given the decision in PR v Secretary of State for Work and Pensions [2023] UKUT 290 (AAC), that there should be no relevant period of 3 months before LCWRA can be paid. Accordingly, the award of UC including LCWRA runs from 14/05/2021, not 14/08/21.

The decision in PR was issued on 29 November 2023; in it UT Judge Wright decided, first, that elements of Regulation 28 of the UC Regs, preventing the applicant in that case from being awarded the LCWRA element for the first three months of her claim, were discriminatory and contrary to her rights under Article 14 when read with Article 1, Protocol 1 of the ECHR. The offending (part of) regulation 28 must therefore be disapplied. The result of this, given the terms of regulation 27(1) of the Universal Credit Regulations 2013, is that the appellant’s award of Universal Credit had to include the LCWRA element from the date of the claim.

The SSWP accepts, as do I, that the situation considered in PR was materially the same as in this case. Both concerned an applicant whose age and circumstances meant that they were unable to benefit from any of the exceptions to the ‘three-month delay rule’, because the entitlement to the ESA award ended before the UC claim was made.

However, the SSWP says that he was not required to backdate the period of entitlement further, to a date before the UC claim was made. The F-TT’s conclusion, refusing the appeal on this issue, was correct. He again relies on PR v Secretary of State for Work and Pensions [2023] UKUT 290 (AAC), where this issue was considered by Judge Wright (considering Regulation 26 of the UC Regulations 2013, which allow backdating in limited circumstances only). The Appellant here could reasonably have been expected to make the claim by the point at which entitlement to ESA ended and there is nothing in Regulation 26 of the UC Regulations 2013 which permits further backdating in those circumstances. Judge Wright’s conclusions on this issue in PR concerned an applicant who could not reasonably have been expected to make an earlier claim.

It follows that the F-TT’s decision to dismiss this element of the claim also involved a legal error – backdating to 14 May 2021 (but not earlier) should have been directed.

I have set out the legal errors which the SSWP contends, and I accept, the F-TT made. It reached its conclusions before the decisions in RW and PR, which have clarified the law.

In the circumstances, I set aside the F-TT decision and remake it in the terms invited by the SSWP.