MW v Secretary of State for Work and Pensions

A retrospective decision establishing entitlement to a qualifying benefit is declaratory of the entitlement existing during the period awarded. It is not, merely because it was made later, a circumstance which an appellate tribunal must disregard under section 12(8)(b) of the Social Security Act 1998.

In paragraph 4 of Schedule 1B to the Income Support (General) Regulations 1987, “in receipt of” is to be read as entitled to receive payment. A retrospective award of personal independence payment and carer’s allowance could therefore establish continuing entitlement to income support from the earlier effective dates.

The claimant had received carer’s allowance and income support while caring for a friend. Her friend’s disability living allowance ended and he was initially refused the daily living component of personal independence payment. The claimant’s carer’s allowance ended from 23 July 2018 and the Secretary of State decided that her income support would end after the run-on period.

The friend later succeeded before the First-tier Tribunal and was awarded the daily living component retrospectively from 18 July 2018. The Secretary of State then re-awarded the claimant carer’s allowance retrospectively from 23 July 2018, but advised her to claim universal credit rather than reinstate income support. The First-tier Tribunal dismissed her appeal against the earlier income-support decision.

The Upper Tribunal considered whether the First-tier Tribunal had jurisdiction and whether retrospective awards meant that the claimant met the income-support conditions at the time of the decision under appeal.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, and remade.

2. The appeal lay against the income-support decision of 15 August 2018, not against the later refusal to revise it. A refusal to revise can extend the time for appealing the original decision. Although the written request of 4 December 2019 was outside the absolute time limit for a regulation 3(1) application, the Secretary of State and the First-tier Tribunal could properly treat the claimant’s contacts on 9 July or 6 September 2019 as a timely application. No written form was required. The First-tier Tribunal therefore had jurisdiction.

3. Section 12(8)(b) of the Social Security Act 1998 prevented the tribunal from considering a later change of circumstances, but did not prevent it from acting on a later retrospective determination of entitlement. The later decisions awarding the friend personal independence payment from 18 July 2018 and the claimant carer’s allowance from 23 July 2018 showed that the 2018 income-support decision had been wrong when made.

4. The words “in receipt of” in paragraph 4 of Schedule 1B to the Income Support (General) Regulations 1987 did not require literal contemporaneous payment. They meant entitled to receive payments, and that entitlement could be conferred by a retrospective decision. A literal reading would wrongly prevent arrears of income support despite retrospective restoration of the qualifying benefits.

5. The claimant satisfied paragraph 4(b) from 23 July 2018. She was entitled to income support from that date. Payments made between 23 July and 19 September 2018 were to be treated as paid on account of the award. Consequential matters were remitted to the Secretary of State, with separate appeal rights.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant’s appeal, set aside the First-tier Tribunal’s decision and remade the income-support decision.
• First-tier Tribunal (Social Entitlement Chamber): on 8 April 2020, dismissed the claimant’s appeal against the decision ending her entitlement to income support.