Confused by appeal decision

trb10

I will post the decision in full below, apologies it is long!

Background 1. Mr X appeals against two decisions, one concerning entitlement to Income Related Employment and Support Allowance (“IRESA”), the other concerning entitlement to Universal Credit (“UC”).

2. The first decision, made on 24 February 2023, terminated Mr X award of IRESA because his earnings from employment exceeded the permitted work higher limit ().

3. The second decision, made on 5 March 2023, determined that Mr X was not entitled to the transitional SDP element in his award of UC because he was not entitled to an award of IRESA (with the Severe Disability Premium), within one month immediately prior to the first day of his award of UC (Tribunal ref: ).

4. The decisions concern different benefits but flow from the same circumstances. Consequently, the two appeals have been linked and were heard together by CVP video on 19 August 2024. Mr X attended with his representative Mr Smith. The Respondent was represented by one of her presenting officers. The Tribunal had the benefit of two appeal bundles one numbered to addition N1 , the other to addition E1). For ease of reading, the Tribunal’s decisions in respect of the two appeals are set out in a single decision notice.

Outcome 5. For the reasons set out below: a. appeal reference XX is dismissed and the Respondent’s decision of 24 February 2023 is confirmed.

b. Appeal reference XX is allowed and the Respondent’s decision of 5 March 2023 is set aside.

6. Pursuant to Reg 26 of the Universal Credit etc (Claims & Payments) Regulations 2013, the time for Mr X to claim UC is extended by one month, so the claim which he made on 5 March 2023, takes effect from 5 February 2023. Mr X’ claim for UC is now remitted back to the Respondent to recalculate entitlement in accordance with the Tribunal’s decision.

Reasons – first decision / appeal

7. Between 22 March 2015 and 20 October 2022, Mr X had an award of IRESA which included an additional amount for the support group and the Severe Disability Premium.

8. On 1 February 2021, Mr X commenced employment. Shortly before starting this work, he submitted form PW1 advising the Respondent that he would be working 14 hours per week and earning £599.22 per month (net).

9. On 15 February 2021, the Respondent decided that this was permitted work as defined by Reg.45(4) The Employment and Support Allowance Regulations 2008 (“the 2008 Regs) and therefore fell within the exceptions to the basic rule that a claimant is not to be treated as entitled to IRESA in any week in which they work (Reg.40(1) of the 2008 Regs).

10. Sometime between 19 January 2023 and 17 February 2023, the Respondent received information from HMRC that Mr X’ earnings had increased and, from 20 October 2022 onwards, exceeded the permitted work higher limit of £152 p/w (16 x £9.50 (the national living wage from 1 April 2022 onwards)). His earnings after that date were £158.01 per week, so he exceeded the limit by just £6 per week.

11. In the light of this information, the Respondent decided on 24 February 2023 that Mr X could not be treated as having limited capability for work and was not entitled to IRESA from 20 October 2022 onwards. [This is the first decision under appeal.] The Respondent did not write to Mr X to inform him of this decision. Mr X did not learn of the decision until he telephoned the Respondent on 2 March 2023, to enquire why he had not received a payment of ESA that month.

12. Mr X accepts that his increased earnings exceeded the permitted work higher limit from 20 October 2022 onwards. He says that he did not advise the Respondent of the changes in his earnings because he did not appreciate that the small increase had taken him above the higher limit for permitted work and also, because at the time of the increase, he was preoccupied with caring for his elderly father who was in poor health and passed away shortly afterwards.

13. These reasons are credible and Mr X’ omission to report the increase in his income is understandable. Nevertheless, he was under a duty to report the changes to the Respondent and had been made aware of this duty, together with the limits to permitted work, in the PW1 form which he completed prior to starting work. Consequently, it does not assist Mr X to say that the Respondent could and should have ascertained that he had exceeded the permitted work higher limit sooner than it did, either by making enquiries of HMRC and/or acting more promptly on receipt of information from HMRC.

14. In any event, the Tribunal has no discretion to disapply or vary the permitted work higher limit and since it is accepted that the limit was exceeded from 20 October 2022 onwards, it follows that from that day onwards, Mr X was not entitled to IRESA because he could not be treated as having limited capability for work (Regs 40(1) and 44(1) of the 2008 Regs). For these reasons the Respondent’s decision of 24 February 2023 is confirmed.

Reasons – second decision / appeal

15. Following the termination of his claim, Mr X could not make a fresh claim for IRESA because this is a legacy benefit which has been replaced by UC. Moreover, even if he had been able to make a new claim for IRESA, it could not have been treated as a continuation of the earlier claim (under the linking provisions in Reg. 145 of the 2008 Regs) because the two claims would have been separated by more than 12 weeks.

16. On 5 March 2023 Mr X made a new claim for UC. On the same day, the Respondent decided that he was entitled to an award of UC comprising the standard allowance and the housing element. Entitlement to the transitional SDP element was also considered but not awarded because he had not been entitled to ESA (with the Severe Disability Premium) within one month immediately prior to the first day of his award of UC (i.e. since 5 February 2023), contrary to para 3(a) of Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014. [This is the second decision under appeal.] The award of UC started on 5 March 2023, being the date on which Mr X made the claim.

17. In his appeal, Mr X contends that he claimed UC as soon as he learnt that his award of IRESA had been terminated and was denied the opportunity of bringing himself within para 3(a) because the termination of his IRESA took effect four months prior to the decision itself. The short answer to this, is that any delay in terminating his award of IRESA, resulted from his own omission to notify his increased earnings and is not something which can be attributed to the Respondent. 18. In support of his appeal, Mr X brought the Tribunal’s attention to two Upper Tribunal decisions.

19. The first of these authorities was JW v SSWP [2022 UKUT 117 (AAC), in which UTJ Wikely considered the circumstances in which the Limited Capability for Work-Related Activity (“LCWRA”) element can carry over from a legacy award of ESA into a new claim for UC where the gap in entitlement between the benefits spans several months. In that case, he held that the claimant could rely on Reg 21 of the Universal Credit (Transitional Provisions) Regulations 2014 (“the 2014 Regs”) (because she was entitled National Insurance credits on the date on which her claim for UC was made) to establish entitlement to the LCWRA element of UC from the outset of her claim and did not have to wait three months as would otherwise have been the case. 20. Reg 21, nor for that matter Regs 19 and 20 of the 2014 Regs, do not assist Mr X because on the day he claimed UC he could not be treated as having limited capability for work because his earnings exceeded the permitted work higher limit and therefore, he was not entitled to National Insurance credits.

21. The second authority cited by Mr X was CP v SSWP [2020] UKUT 309 (AAC). In this case, Upper Tribunal Judge Jacobs considered the application of Reg 26 of the Universal Credit etc (Claims and Payments) Regulations 2013 (“the 2013 Regs), entitled “Time within which a claim for Universal Credit is to be made”.

22. Amongst other things Reg 26 of the 2013 Regs provides that, where a claimant was previously in receipt of IRESA and notification of the expiry of that award was not sent to them before the date on which their entitlement expired, the time for them to make a claim for UC can be extended by up to one month if, as a result of that omission, they could not reasonably have been expected to make the claim any earlier.

23. In this case, Mr X award of IRESA was terminated with effect from 20 October 2022, but he was not informed that this had happened until he spoke to the Respondent by telephone on 2 March 2023. Accordingly, Mr X was not notified of the expiry of his award until after it had expired.

24. Taking into account Mr X’ explanation of why he did not notify the increase in his earnings at the time it occurred (see para 12 above) and the Respondent’s failure to inform him of the termination of his award of IRESA until he enquired why the payments had stopped, the Tribunal is satisfied that he could not reasonably have been expected to make the claim for UC any earlier than he did.

25. Accordingly, whilst Mr X was not entitled to the transitional SDP element, his award of UC should have started from 5 February 2023 and his entitlement should be recalculated on that basis (this date falls part way between the earliest and latest dates on which the Respondent received notification of Mr X’ increased earnings – see para 10 above).

So my question is, the judge has upheld my second appeal with regards to UC so does that also mean that I will now get transitional protection because the notice seems to contradict saying that the appeal has been set aside but then says I'm not entitled to TP which was the whole point of that appeal.

Any help would be appreciated.

poppy123456

Hmm I agree that there's a contradiction here with the 2nd appeal and at the start it says decision set aside.

Then it goes onto say that because you failed to claim UC within 1 month of the ESA ending you are not entitled to TP.

You need to contact HMCTS and ask them to confirm what the decision was. DWP will highly likely question this too, if they haven't already.

trb10

I phoned them up yesterday and they were totally confused too and have gone back to the judge to ask him to clarify exactly what he meant.

WhatThe

b. Appeal reference XX is allowed and the Respondent’s decision of 5 March 2023 is set aside.

6. Pursuant to Reg 26 of the Universal Credit etc (Claims & Payments) Regulations 2013, the time for Mr X to claim UC is extended by one month, so the claim which he made on 5 March 2023, takes effect from 5 February 2023. Mr X’ claim for UC is now remitted back to the Respondent to recalculate entitlement in accordance with the Tribunal’s decision.

I think it means you are due a month's UC - but no TP - I'm sorry to say. It makes sense to me.