ST (by his appointee TT) v Secretary of State for Work and Pensions (ESA)

For severe disability premium purposes, the requirement that no person is entitled to and in receipt of carer’s allowance concerns factual receipt, not whether the allowance was lawfully payable. A person who actually receives carer’s allowance therefore prevents entitlement to the premium even where an overlapping contributory benefit means that carer’s allowance ought not to have been payable.

The offsetting provisions for payments on account do not deem sums actually received as carer’s allowance to have been received as another benefit unless the statutory conditions, including payment of that other benefit in lieu, are met.

The appellant received income-related employment and support allowance with severe disability premium. His mother, acting as his appointee, received carer’s allowance while caring for him. She later obtained a retrospective award of New Style employment and support allowance for part of the same period.

The Secretary of State decided that the appellant was not entitled to severe disability premium and that there had been an overpayment. The First-tier Tribunal refused both appeals on 8 November 2022. The appellant appealed to the Upper Tribunal, contending initially that the retrospective award meant that his mother had not been in receipt of carer’s allowance. The central issue was whether actual payment of carer’s allowance prevented entitlement to the premium despite the overlapping-benefits rules.

1. The appeals were refused. The First-tier Tribunal had not erred in deciding that the appellant was not entitled to severe disability premium throughout the disputed period and that the resulting overpayment was recoverable.

2. Under paragraph 6(2)(a)(iii) of Schedule 4 to the Employment and Support Allowance Regulations 2008, the relevant question is whether a person is both entitled to and in receipt of carer’s allowance for caring for the claimant. The phrase concerns factual receipt, rather than whether the allowance was payable. Judge Markus KC respectfully agreed with the construction adopted in DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) [2018] UKUT 46 (AAC).

3. The award of New Style employment and support allowance meant, by operation of regulation 4(5)(a) of the Social Security (Overlapping Benefits) Regulations 1979, that carer’s allowance was no longer payable. It did not alter the fact that the mother had actually received both benefits during the period. She was consequently in receipt of carer’s allowance, and the appellant could not receive severe disability premium.

4. Regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 did not apply. New Style employment and support allowance had not been awarded or determined to be payable in lieu of carer’s allowance. The regulation could not convert actual receipt of carer’s allowance into receipt of New Style employment and support allowance where both had been paid in full.

5. The appellant did not challenge recoverability. The First-tier Tribunal’s findings that the appointee had failed to disclose receipt of carer’s allowance, despite reasonably being expected to know it affected entitlement, justified recovery under section 71 of the Social Security Administration Act 1992.

• Upper Tribunal (Administrative Appeals Chamber): appeals from the First-tier Tribunal refused.
• First-tier Tribunal (Social Entitlement Chamber): on 8 November 2022, refused the appeals against the entitlement and overpayment decisions.