Appeal No. UA-2025-000269-ESA
Between:
RP
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Citron
Decided on consideration of the papers
Representation:
Appellant: by himself
Respondent: by the Decision Making and Appeals section of the Department for Work and Pensions
On appeal from:
Tribunal: First-tier Tribunal ( Social Entitlement Chamber)
Tribunal ref: SC010/23/00063, 00065 and 00066
Tribunal Venue: Scarborough
Decision Date: 9 July 2024
DECISION
The appeal is dismissed, as the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
REASONS FOR DECISION
The appeals to, and decision of, the First-tier Tribunal
The decision of the First-tier Tribunal (the “FTT”) in question dismissed RP’s appeals against decisions of the Respondent of 19 August 2021, to the effect that (from 2 October 2019 to 30 March 2020) RP was not entitled to the severe disability premium payable as part of income-related employment and support allowance, that there had been overpayment of that premium to RP, and imposing a civil penalty.
References in what follow to numbers in square brackets are to paragraphs of the FTT’s statement of reasons (unless otherwise indicated).
The grant of permission to appeal by the Upper Tribunal
The Upper Tribunal on 15 April 2025 issued my decision (the “permission decision”) giving permission to appeal. This said that the FTT’s decision on ‘entitlement’ was, arguably, legally flawed, as:
the legal provision relating to ‘entitlement’ – paragraph 6 of Schedule 4 to the Employment and Support Allowance Regulations 2008 – is cited neither in the FTT’s decision, nor in the Respondent’s response to the appeal. This is not itself an error of law, but it suggests that the legal aspects of ‘entitlement’ were not forefront in the arguments before the FTT;
paragraph 6(2)(a)(iii) appears to be the requirement of ‘entitlement’ that the FTT considered was not present on the facts of this case: this is a requirement that “no person is entitled to, and in receipt of, a carer’s allowance … in respect of caring for the claimant [here, RP]”;
the permission decision emphasised the words “is entitled to”, because this is an aspect of paragraph 6(2)(a)(iii) that, arguably, the FTT lost sight of: whilst the FTT clearly found, as a fact, that a third party, JD, claimed carer’s allowance (see [13]), the FTT arguably erred in law by not considering if JD was entitled to carer’s allowance (as, if JD was not so entitled, then it would appear that the requirement of paragraph 6(2)(a)(iii) was satisfied in this case);
the permission decision accepted that this arguable legal error may be immaterial, given that, at [19], the FTT decision found that the fact that another individual, Ms B, lived in as an au pair and provided care to RP, “also” disentitled RP from receiving the severe disability premium. The aspect of paragraph 6(2) which the FTT appeared to have in mind here was paragraph 6(2)(a)(ii), which requires that the claimant have no “non-dependants” aged 18 or over “normally residing with the claimant or with whom the claimant is normally residing”. Regulation 71 defines “non-dependant” as “any person … who normally resides with a claimant or with whom a claimant normally resides” (with certain exceptions that do not appear to apply in this case). The permission decision considered that there was also arguable legal error in the FTT decision’s reliance on paragraph 6(2)(a)(ii), as
that provision is subject to paragraph 6(4), which, at (b), provides an exception (limited to the first 12 weeks – paragraph 6(7)) for “a person who joins the claimant’s household for the first time in order to care for the claimant … and immediately before so joining the claimant … was treated as a severely disabled person”; the FTT appears not to have considered whether this exception applied, on the facts of this case; and
there is neither fact-finding, nor reasoning, as to why Ms B, as an au pair, was to be regarded as “normally” residing with RP, or as a person with whom RP “normally” resided.
Why I have determined the appeal without a hearing
In their respective response and reply, subsequent to the permission decision, neither the Respondent, nor RP, asked for an oral hearing of the appeal. In the circumstances, it seems to me fair and just to determine the appeal without a hearing.
Why I have decided that the FTT’s decision was not legally flawed
I am persuaded, largely by the submissions made by the Respondent in their response, that the arguable legal flaw in the FTT decision’s consideration of RP’s entitlement to the severe disability premium, identified in the permission decision, is not, in reality, a legal error. I am referring to the permission decision’s focus on paragraph 6(2)(a)(iii) (of Schedule 4 to the Employment and Support Allowance Regulations 2008), and its requirement that no third party be entitled to (as well as in receipt of), a carer’s allowance; the question raised was whether the FTT decision had fallen into error by not considering whether JD was entitled to carer’s allowance. The reason this was not a legal error is that
it is evident that the Respondent had made a decision to award carer’s allowance to JD, with the first payment being made on 7 October 2019 (see page C of the Respondent’s FTT response, section 4, paragraph 3); and
under section 17 of the Social Security Act 1998, that decision was final (as it had not been revised or superseded by the Respondent, or set aside by a tribunal). I add, for completeness, that the FTT considering RP’s appeal was not in a position to disturb the decision to award carer’s allowance to JD, as that decision was not the subject matter of the appeal before it (and only JD would have legal standing to bring such an appeal).
The gist of the matter, as RP identified in his reply at his paragraph numbered 4 (where he questioned why the Respondent had not made a decision to disentitle JD), is that the only person, other than JD, with the legal standing to disturb the award of carer’s allowance to JD, would be the Respondent (via a later decision revising or superseding the original award). However, neither the FTT, nor the Upper Tribunal, has any power to compel the Respondent to make such a decision. To be clear: I make no comment as to whether the Respondent should make such a decision; I simply note that the tribunals have no powers in that regard (and that is why it would be inappropriate for me to make any such comment).
Given the above, it is not necessary to consider whether there was a legal flaw in the FTT decision’s alternative analysis, based on paragraph 6(2)(a)(ii) (as even if there was, that would not affect the overall decision by the FTT on RP’s entitlement to the severe disability premium).
I appreciate this decision will come as a disappointment to RP, but the Upper Tribunal’s powers are limited to circumstances where the FTT’s decision involves an error on a point of law.
Zachary Citron
Judge of the Upper Tribunal
Authorised by the Judge for issue on 4 September 2025