PE v Secretary of State for Work and Pensions

When deciding whether a jobseeker’s allowance claim may be backdated, a bereavement involving a close relative is not necessarily confined to the specific bereavement provision. The same circumstances may also amount to a domestic emergency where they have the required serious, disruptive and urgent character, and the statutory conditions are met.

A tribunal deciding an appeal without a hearing must address both whether the parties consented and whether a paper determination would be fair. Failure to give adequate reasons on either issue may amount to an error of law.

The appellant claimed New Style jobseeker’s allowance on 8 August 2022 and sought backdating to 18 May 2022. The Secretary of State refused. The First-tier Tribunal dismissed the appeal on the papers, concluding that the appellant’s circumstances did not satisfy the statutory grounds for extending the time to claim.

The Upper Tribunal granted limited permission on two issues: whether the First-tier Tribunal adequately explained its decision to proceed without a hearing, and whether it wrongly treated bereavement as falling exclusively within the one-month bereavement provision rather than also being capable of constituting a domestic emergency.

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

2. A tribunal determining an appeal on the papers must expressly consider both whether the parties have consented to that course and whether it can fairly decide the appeal without a hearing. The First-tier Tribunal did not adequately explain the latter issue. The Upper Tribunal relied on DT v SSWP (UC) [2019] UKUT 268 (AAC) and MM v SSWP (ESA) [2011] UKUT 334 (AAC).

3. Regulation 29(5)(f) of the Universal Credit, Personal Independence Payment, Jobseekers Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 provides a specific one-month ground where a close relative has died. That provision does not prevent the same death from being considered under regulation 29(3)(e) as a possible domestic emergency.

4. Domestic emergency is not defined in the Regulations and must be given its ordinary meaning. The relevant circumstances must have a serious, disruptive and urgent quality, and the claimant must show that, as a result, it was not reasonably practicable to obtain assistance and the claimant could not reasonably have been expected to claim earlier.

5. The case was remitted to the First-tier Tribunal for rehearing by a fresh tribunal at an oral hearing. The new tribunal must assess the evidence and circumstances obtaining when the Secretary of State made the decision, although later evidence may be admitted if it relates to those circumstances.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal’s decision was set aside for error of law and the case was remitted for rehearing by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 27 January 2023, the appeal against refusal to backdate New Style jobseeker’s allowance was dismissed following a paper determination.