The Secretary of State for Work and Pensions v RB

For the education exception in regulation 14(1)(b) of the Universal Credit Regulations 2013 to apply, the Secretary of State must have determined on or before the relevant date of claim that the claimant has limited capability for work or is to be treated as having it. The Tribunal cannot itself make a retrospective determination to satisfy that condition. Under regulation 39(7), a claimant can be treated as having limited capability for work under paragraphs 4 or 5 of Schedule 8 only after a work capability assessment has determined that the claimant does not have limited capability for work. The date from which a determination takes effect under the Medical Evidence Regulations does not determine whether regulation 14(1)(b) applies.

RB was an 18-year-old student in non-advanced education who received Personal Independence Payment. She claimed Universal Credit on 19 August 2021. On 1 September 2021, the Secretary of State awarded her Universal Credit and determined that she had limited capability for work, without a work capability assessment. In June 2023, the Secretary of State revised that award on the ground of official error and decided that RB had not qualified for Universal Credit while in education. The First-tier Tribunal allowed RB’s appeals against the entitlement and overpayment decisions, finding that she was to be treated as having limited capability for work under Schedule 8. The Secretary of State appealed. The central issue was whether the education exception applied when no qualifying determination had been made by the date of RB’s claim.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. The Upper Tribunal set it aside and re-made the decision, dismissing RB’s appeals against the Secretary of State’s entitlement and overpayment decisions of 9 June 2023.
2. The appeal had to be decided under the law in force when the original decision was made on 1 September 2021. Under section 12(1) and (8)(b) of the Social Security Act 1998, the First-tier Tribunal had to consider whether, by the date of the original claim on 19 August 2021, the required determination had been made. The relevant version of regulation 14(1)(b) required a determination by the Secretary of State, on or before the claim date, that the claimant had limited capability for work or work-related activity, or was to be treated as having it.
3. Schedule 8’s deemed-treatment provisions were not freestanding. Regulation 38 requires limited capability for work to be determined under Part 5 of the Universal Credit Regulations 2013. Under regulation 39(7), a claimant can be treated as having limited capability for work under paragraphs 4 or 5 of Schedule 8 only if a work capability assessment has determined that the claimant does not have limited capability for work. The equivalent requirement for limited capability for work-related activity appears in regulation 40(6). RB had not had a work capability assessment by the date of her claim. The First-tier Tribunal therefore could not decide for itself that she met the Schedule 8 condition at that date.
4. There was no duty on the Secretary of State to make a determination on the day a claim was made, or by some other particular date, to create entitlement. Upper Tribunal Judge Stout agreed with the approach in KL (by MR) v SSWP [2024] UKUT 392 (AAC), while stating that she would have reached the same conclusion without that authority.
5. The Social Security (Medical Evidence) Regulations 1976 did not affect the regulation 14(1)(b) question. They concern when a determination takes effect for the relevant waiting period under regulation 28(2)(b), not whether the education exception applies. KS v SSWP [2025] UKUT 015 (AAC) concerned that separate effective-date question.
6. The wording of regulation 14(1)(b) was clear. The claimant’s policy arguments did not justify a different interpretation, and the provision was consistent with the policy intent described in R (Kays) v SSWP [2022] EWHC 167 (Admin). The claimant had not raised a Convention challenge. The judge nevertheless observed that such an argument had failed in the Kays litigation and that its reasons would apply in large part here, alongside other considerations specific to the available support and the separate exception in regulation 14(1)(a). Those observations were not necessary to the decision.

1. Upper Tribunal (Administrative Appeals Chamber) — [2026] UKUT 320 (AAC) . Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision and re-made it by dismissing RB’s appeals.
2. First-tier Tribunal (Social Entitlement Chamber) — Allowed RB’s appeals against the entitlement and overpayment decisions after a hearing on 2 April 2025.