The Secretary of State for Work and Pensions v GK (ESA)

Consent by a severely disabled person is not a condition of entitlement to Carer’s Allowance. The conditions in section 70 of the Social Security Contributions and Benefits Act 1992 do not require the cared-for person’s consent.

A declaration or statement by the cared-for person on the claim form is a safeguard and may provide evidence relevant to whether the statutory conditions are satisfied. It does not invalidate the claim merely because it is absent, incomplete or ineffective, where the omission is not directly relevant to entitlement.

The Secretary of State appealed against a decision of the First-tier Tribunal dated 1 November 2022, which had allowed GK’s appeal concerning the withdrawal of a severe disability premium from his employment and support allowance.

GK’s mother had been awarded Carer’s Allowance for caring for him. The First-tier Tribunal considered that GK lacked legal capacity to countersign the Carer’s Allowance claim and concluded that the countersignature was ineffective. The central issue was whether GK’s consent, or an effective statement on the claim form, was legally necessary to the mother’s entitlement to Carer’s Allowance and consequently to the severe disability premium.

1. Appeal allowed. The First-tier Tribunal’s decision was erroneous in law and was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal redecided the appeal and disallowed GK’s appeal from the Secretary of State’s decision.
2. The continuation of the severe disability premium depended, relevantly, on no person being entitled to and in receipt of Carer’s Allowance in respect of caring for GK. GK’s mother had been awarded that allowance.
3. The First-tier Tribunal had fundamentally erred in treating GK’s consent as legally relevant to the validity of the Carer’s Allowance claim. Section 70 of the Social Security Contributions and Benefits Act 1992 sets out the relevant conditions of entitlement. Consent by the cared-for person is not one of them. The allowance could therefore lawfully be awarded regardless of that person’s consent.
4. Although making a claim is also a condition of entitlement under section 1 of the Social Security Administration Act 1992, only matters affecting entitlement are relevant to the validity of the claim. The cared-for person’s statement on the form was a safeguard intended to ensure awareness of the claim and its possible consequences. It could not invalidate the claim.
5. The form’s request for confirmation that the carer provided at least 35 hours of care was evidential. It went to whether section 70(1)(a) was satisfied, rather than creating a separate consent requirement.
6. The Upper Tribunal did not decide whether lack of capacity could invalidate a claim for benefit, or whether the First-tier Tribunal had jurisdiction to determine the mother’s entitlement when no appeal against her award was before it. Those issues were left open.

• Upper Tribunal (Administrative Appeals Chamber): Appeal allowed. The First-tier Tribunal decision of 1 November 2022 was set aside as having been made in error of law, and the appeal was redecided by disallowing GK’s appeal from the Secretary of State’s decision.