SM v Secretary of State for Work and Pensions (UHC)

Entitlement to an additional universal credit bedroom for an overnight carer depends on all components of the overnight care condition. Receipt of the daily living component of personal independence payment does not conclusively establish that overnight care is provided or required. The word care inherently involves a service needed by the person receiving it. “On a regular basis” means sufficiently often in context. It does not require evenly spaced intervals or care on most nights.

The appellant and his wife claimed universal credit while living with their adult daughter, who received the daily living component of personal independence payment. They sought an additional bedroom because family members sometimes stayed overnight to provide care when the daughter’s mother needed a break.

The First-tier Tribunal found that the daughter did not require overnight care and, alternatively, that any third-party care was not provided regularly. The appeal concerned whether the regulations required consideration of whether care was needed and the meaning of “on a regular basis” in paragraph 12(3)(b) of Schedule 4 to the Universal Credit Regulations 2013.

1. Ground 1. Paragraph 12(3) of Schedule 4 contains three separate components. Receipt of a qualifying benefit under paragraph 12(3)(a) does not itself satisfy paragraphs 12(3)(b) and (c), nor is it conclusive evidence that those requirements are met.
2. The decision-maker must construe and apply the ordinary word care in context. Care involves providing a service needed by the person cared for. The absence of an express requirement that care be “required” does not remove that requirement, because need is inherent in the meaning of care.
3. The legislative history and the decisions in Burnip v Birmingham City Council and R (MA) v Secretary of State for Work and Pensions supported a continuing policy that an additional bedroom is available where overnight care is needed.
4. The First-tier Tribunal was entitled to consider whether the daughter required overnight care. Its findings, including that she could calm herself when her mother was unavailable, supported the conclusion that she did not.
5. Ground 2. Although unnecessary to the result, “on a regular basis” means sufficiently often in context. It does not demand uniform intervals or care on a majority of nights. The issue is assessed over a fairly long period and is ordinarily one of fact, subject to correct statutory construction.
6. The First-tier Tribunal had misunderstood “regular” by apparently treating a pattern of uniform care as necessary. That error was immaterial because the finding that overnight care was not required independently disposed of the appeal. The appeal was dismissed.

• First-tier Tribunal (Social Entitlement Chamber): dismissed the appeal against the Secretary of State’s decision that the overnight care condition was not satisfied.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal. The First-tier Tribunal’s error concerning “regular” was immaterial because its conclusion that overnight care was not required was unassailable.