Kerry Underwood

SOCIAL SECURITY: EMPLOYMENT: UPPER TRIBUNAL CASES 2019/20

leave a comment »


Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

Here I look at Upper Tribunal decisions, that is decisions on appeal, in relation to Social Security in the Employment context.

All of the information in all of these posts is taken directly from the Senior President of Tribunals’ Annual Report 2020, which is an invaluable and free resource dealing with all aspect of the work of tribunals as well as setting out these summaries of key cases.

The whole report can be accessed here.

Administrative Appeals Chamber: Social Security: Employment

CitationPartiesJurisdictionCommentary
[2019] UKUT 114 (AAC)JW v Her Majesty’s Revenue & CustomsSocial SecurityThe Upper Tribunal decided that the First-tier Tribunal had erred in law in finding that the business of the “self employed” appellant as defined in the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 was not carried out on a commercial basis as a trade, profession or occupation because it was unprofitable applying a test of “genuine and effective”. There was also a subsidiary issue as to the circumstances in which the Upper Tribunal will hear an appeal against a decision of the First-tier Tribunal in a case challenging a decision under Section 16 of the Tax Credits Act 2002 when a Section 18 decision has subsequently been issued.

[2019] UKUT 118 (AAC)SA v Secretary of State for Work and Pensions (ESA)Social SecurityThe Upper Tribunal considered regulations 23 and 24 of the Employment and Support Allowance Regulations 2008 and the meaning of “good cause” in respect of failure to attend a medical examination. It decided that regulation 24 which requires that the claimant’s “state of health at the relevant time” be considered means the time at which the claimant was required to attend and submit to the medical examination. The requirement to consider the claimant’s “state of health” relates to the degree of the claimant’s health problems at that time. Regulation 24(c) requires the decision maker or tribunal to consider “the nature of any disability the claimant has”. This could include, in relation to a condition that does not affect the claimant all the time, the pattern of the claimant’s symptoms so does not preclude an approach looking beyond the day of the appointment.

 
[2019] UKUT 135 (AAC)JS v Secretary of State for Work and Pensions (IS)Social SecurityThe Upper Tribunal decided that “Saint-Prix” retention of worker status in respect of “right to reside” may extend to other situations where a claimant has needed temporarily to cease working. It also considered the correct approach to proportionality and “lacuna filling” after Mirga. The circumstances of this case were whether the appellant had a right to reside at the time he made his claim for income support in March 2011 and whether his personal circumstances in March 2011, having given up his employment in February 2011 to care for his very young (and in one case seriously disabled) children because they otherwise would be ‘taken into care’, conferred on him a right to reside under EU law.  

[2019] UKUT 220 (AAC)LG v Secretary of State for Work and Pensions (ESA)Social SecurityThe Upper Tribunal decided, on an appeal about Income Related Employment and Support Allowance (ESA (IR)), that some payments from a trust should have been taken into account rather than others in determining whether the claimant met the financial conditions for ESA (IR).  

[2019] UKUT 284 (AAC)CM v Secretary of State for Work and Pensions (ESA)Social SecurityThe Upper Tribunal decided that EI v Secretary of State for Work and Pensions (ESA) [2016] UKUT 397 (AAC) was wrongly decided on two points. The first concerned the powers of the First-tier Tribunal on an appeal from a decision made by the Secretary of State under Regulation 30 of the Employment and Support Allowance (“ESA”) Regulations 2008 on a second or repeat claim. The second concerned the wording in Regulation 30(1) “to be treated as having limited capability for work until such time as it is determined whether or not the claimant has limited capability for work”.  

[2019] UKUT 374 (AAC)IR v Secretary of State for Work and Pensions (PIP)Social SecurityThe Upper Tribunal allowed the claimant’s appeal and decided that as a general rule the Secretary of State should have produced the letter arranging the assessment interview with a Health Care Professional so that the First-tier Tribunal could be satisfied that attendance was a requirement and failure to attend would have consequences. In this particular case the Upper Tribunal was not persuaded that the letter from Atos imposed a mandatory legal requirement to attend.  

 
[2020] UKUT 50 (AAC)KH v Bury MBC and Secretary of State for Work and Pensions (HB)Social SecurityThe Upper Tribunal decided that the “genuine chance of being engaged” test under regulation 6(2) (b)(ii) of the Immigration (EEA) Regs 2006 is contrary to European Union law in respect of those with retained worker status under Article 7(3)(b) of Directive 2004/38/EC and considered whether European Union law differs in this context between mere workseekers and those seeking to retain worker status by jobseeking. It also decided that the appeal was not correctly a referral case under section 9(5) b) of the Tribunals, Courts and Enforcement Act 2007.  

[2020] UKUT 53 (AAC)AH v Secretary of State for Work and PensionsSocial SecurityThe Upper Tribunal decided that an insured person under Regulation (EC) 883/2004 is not necessarily someone who has rights by virtue of insurance or contributions. Article 21 applies to those persons and members of their family even if the benefits in question are not ones that the claimant is claiming in their own right and not by virtue of being a member of the family. An insured person who is pursuing employment has priority over one who is not. It further decided that this result is consistent with freedom of movement and is not inconsistent with EU law. In this the Upper Tribunal rejected the argument that the child’s best interests could override Article 21 or be used to interpret it.    

[2020] UKUT 59 (AAC)PPE v Secretary of State for Work and PensionsSocial SecurityThe Upper Tribunal considered the requirement in respect of employment and support allowance to attend a medical examination under Regulation 23(2) of the Employment and Support Allowance Regulations 2008 and the meaning of “fails … to attend”, whether “failure” can occur in the absence of a legal obligation to attend and whether the standard Medical Services appointment letter imposes a legal obligation to attend. The Tribunal also considered whether the First-tier Tribunal can properly dismiss an appeal against a decision treating a claimant as not having limited capability for work under regulation 23 of the Employment and Support Allowance Regulations 2008 without evidence of the terms of the appointment letter.    

[2020] UKUT 66 (AAC)DD v Her Majesty’s Revenue and Customs & Secretary of State for Work and Pensions (CB)Social SecurityThe Upper Tribunal considered the adequacy of the HM Revenue and Customs’ (HMRC) guidance on how to apply the “genuine chance of being engaged in employment” test in relation to a jobseeker’s right to reside for the purposes of entitlement to child benefit. The Upper Tribunal found that the wrong version of regulation 6 of the Immigration (European Economic Area) Regulations 2006 had been applied both by HMRC in its appeal response to the First-tier Tribunal and by the First-tier Tribunal in its decision.  
 

Written by kerryunderwood

August 25, 2020 at 8:34 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: