Lecia Viant v Secretary of State for the Department of Work and Pensions

These proceedings concern an appeal brought by the Appellant against a decision of the First-tier Tribunal (“FtT”) dated 19 May 2023, which upheld the Respondent’s determination that, from 14 January 2019, she was entitled only to contributory ESA.

Permission to appeal was granted by the FtT on 19 February 2024.

The Upper Tribunal has power under section 12(2)(b) of the Tribunals, Courts andEnforcement Act 2007 to re-make the decision of the First-tier Tribunal. Rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that the Upper Tribunal may, at the request of the parties and if it considers it appropriate, make a consent order disposing of the proceedings and making such other provision as the parties have agreed.

Following the grant of a stay, sought by the parties, the Respondent accepted that the Appellant’s claim for Employment and Support Allowance (“ESA”), made on 8 January 2019, constituted an advance claim for income-related ESA. This was in accordance with article 4A of the Universal Credit (Transitional Provisions) Regulations 2014, as amended by the Universal Credit (Transitional Provisions) (SDP Gateway)Amendment Regulations 2019 (“the Gateway Regulations”), which came into force on 16 January 2019.

The Respondent now accepts that the Appellant continued to meet the conditions of entitlement to income-related ESA from 16 January 2019 until 6 February 2025, when she was awarded Universal Credit. The agreed factual position is set out in the Respondent’s Further Submissions attached to this order.

I was satisfied based on the Respondent’s considered position following a stay and applying the overriding objective, disposal of this case by way of a rule 39 order is appropriate. The parties have signed and filed a consent order which is attached to this order.

The decision of the First-tier Tribunal issued on 19 May 2023 contained a material error of law.

The decision of the Respondent and that of the First-tier Tribunal were erroneous in law because they failed to apply article 4A of the Gateway Regulations to the Appellant’s claim for Employment and Support Allowance made on 8 January 2019. Properly construed, that claim fell to be treated as an advance claim for income-related Employment and Support Allowance, payable from 16 January 2019, when it was determined on 21 January 2019.

The appeal is therefore allowed, and the decision of the First-tier Tribunal is re- made as follows:

The appeal concerns the Respondent’s decision dated 21 January 2019

The Appellant made her claim for Employment and Support Allowance on 8 January 2019. The claim was determined by the Respondent on 21 January 2019. The Respondent decided that the Appellant was entitled to nsESA with effect from 14 January 2019. When the Appellant made her claim for Employment and Support Allowance, the law was to the effect that such a claim could only be treated by the Respondent as a claim for nsESA.

On 16 January 2019, that is, some eight days after the Appellant made her claim for Employment and Support Allowance and five days before the Appellant’s claim was determined, the law changed, such that a claim for Employment and Support Allowance decided after 16 January 2019 was subject to a restriction applicable to claims for Universal Credit. The new rules were introduced by article 4A of the Universal Credit (Transitional Provisions) Regulations 2014, which entered force on 16 January 2019 pursuant to the Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 (“2019 Regulations”). These provisions are are often referred to as ‘the gateway’.

In summary, the effect of the gateway was that claims for Employment and Support Allowance made after 16 January 2019 continued to be treated as claims for irESA. If the Appellant’s claim for Employment and Support Allowance had been made on or after 16 January 2019, or treated as being made as an advance claim, she could have been awarded irESA and received both SDP and EDP. In other words, she would have benefited from the gateway.

The Appellant’s request for mandatory reconsideration of the Respondent’s decision of 16 January 2019 turned out to be somewhat convoluted, in part as a result of the pandemic. The Appellant made a complaint and, in due

On 22 November 2024 Upper Tribunal Judge Brewer issued directions in the appeal and at the same time made observations which raised a ground of appeal referencing article 14 of and article 1 of the first protocol to the European Convention on Human Rights. The parties made submissions responding to this ground of appeal, in the Respondent’s case on 1 April 2025. At that time, the Respondent continued to resist the appeal.

After the Respondent’s further submission of 1 April 2025 was filed and served, the Respondent gave further consideration to the facts of the Appellant’s case and the law applicable to it, in particular, the rules contained in the 2019 Regulations. The Respondent decided that both the decision on 21 January 2016 and the FTT decision are vitiated by a material error of law.

The Respondent considers that the Appellant’s claim for Employment and Support Allowance made on 8 January 2019 should correctly have been treated as an advance claim for Employment and Support Allowance when it was determined on 21 January 2019. By that date, the gateway had entered force and the decision-maker should have determined the claim as if it was a claim for ESA; in other words, one which was covered by the gateway.

Material to the reasons for how the claim should have been determined on 21 January 2019 is that, after that date, the Appellant could not make a new claim for benefits, notwithstanding that the gateway was intended to cover persons in her situation. This is because of the effect of s.8(2) of the Social Security Act 1998 which makes the Respondent’s decision on the

Given that the Appellant’s claim for Employment and Support Allowance was on its face an advance claim (the claim having been for a period on and after 14 January 2019), the decision-maker should, when determining the claim on 21 January 2019, have treated it as an advance claim for the period on and after 16 January 2019. In this way, the Appellant would benefit from the gateway.

The Respondent now accepts that this was the legally correct decision which should have been made on 21 January 2019. The FTT should have allowed the Appellant’s appeal on the same basis. The Respondent respectfully submits that the Upper Tribunal should remake the FTT decision accordingly.

Following the Respondent’s decision, in effect, to support the appeal, there was correspondence between the Appellant and the Respondent with a view to settlement of the appeal. The Appellant and the Respondent now agree on the terms of the draft consent order as the basis on which the Appellant’s appeal should be allowed.

In summary, for the reason that the FTT decision was erroneous in law. in that it failed to apply the provisions in article 4A of the Universal Credit (Transitional Provisions) Regulations 2014 to the Appellant’s claim for Employment and Support Allowance made on 8 January 2019, such that, when the claim was determined on 21 January 2019, it fell to be determined as an advance claim for income related Employment and Support Allowance payable from 16 January 2019, the Appellant’s appeal is allowed. The decision of the FTT is re-made such that the Appellant is entitled to an award of income related Employment and Support Allowance (which is to include Severe Disability Premium and Enhanced Disability Premium) from 16 January 2019 to 6 February 2025.

It follows from the re-made decision that is proposed to be made, that the Appellant is entitled to be paid a sum of Employment and Support Allowance for the relevant period covered by the appeal, namely 16 January 2019 to 6 February 2025 (on which date the Appellant became entitled to an award of Universal Credit). That sum amounts to £18,252.97.

The Respondent will pay the sum of £18,252.97 to the Appellant, being the sum of Employment and Support Allowance to which the Appellant is entitled in line with the decision of the FTT which the Upper Tribunal is asked to re-make, as contained in the draft consent order.

There being no further issue which arises in this appeal, and the Appellant having succeeded in the appeal, the Respondent respectfully submits that the consent order brings an end to the appeal.

The appeal is allowed.

The decision of the First-tier Tribunal issued on 19 May 2023 contained a material error of law.

The Respondent’s decision and that of the First-tier Tribunal were erroneous in law in that they failed to apply the provisions in article 4A of the Gateway Regulations to the Appellant’s claim for Employment and Support Allowance made on 8 January 2019, such that, when the claim was determined on 21 January 2019, it fell to be determined as an advance claim for income related Employment and Support Allowance payable from 16 January 2019.

The decision of the First-tier Tribunal is re-made as follows: