JN v Secretary of State for Work and Pensions (UC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2023] UKUT 49 (AAC) |
| Subject Matter | Tribunal procedure,practice - precedence of decisions,Universal Credit - Other,Wright,S |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 14 March 2023 |
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IN THE UPPER TRIBUNAL JN v SSWP (UC) [2023] UKUT 49 (AAC)
ADMINISTRATIVE APPEALS CHAMBER UA-2022-SCO-000030-UC
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between: JN Appellant
- v –
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Wright
Decision date: 22 February 2023
Decided after an oral hearing on 22 November 2022 and following further written
submissions.
Representation: Mike Dailly, solicitor advocate, for the appellant
Graham Maciver, advocate, for the respondent
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the
First-tier Tribunal made on 16 August 2021 under case number SC113/21/00170 was
made in error of law. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and
Enforcement Act 2007 I set that decision aside and redecide the appeal. In
redeciding the appeal, I set aside the Secretary of State for Work and Pensions’
decisions of 28 February 2020, 28 May 2020, 28 August 2020 and 28 November
2020 as being unlawful. It will now be for the Secretary of State to redecide on a
lawful basis the appellant’s entitlement to universal credit for all periods covered by
the aforementioned four decisions of the respondent.
REASONS FOR DECISION
Introduction
1. This appeal is concerned with the legal effect of the order and declaration made
by the Court of Appeal in SSWP v Johnson and others [2020] EWCA Civ 778; [2020]
PTSR 1872. The Court of Appeal’s judgment was given on 22 June 2020 . Its order
followed a few days later, on 30 June 2020. The material parts of the order read as
follows:
UA-2022-SCO-000030-UC
JN v SSWP (UC) [2023] UKUT 49 (AAC)
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“1. Save that the declaration set out in the Divisional Court’s order dated
24 February 2019 is replaced by the declaration in paragraph 2 below, the
appeal is dismissed.
2. It is declared that the earned income calculation method in Chapter 2 of
Part 6 of the Universal Credit Regulations 2013 is irrational and unlawful
as employees paid monthly salary, whose universal credit claim began on
or around their normal pay day, are treated as having variable earned
income in different assessment periods when pay dates for two
(consecutive) months fall in the same assessment period in the way
described in the judgment.”
2. This appeal to the Upper Tribunal is from a decision of the First-tier Tribunal
dated 16 August 2021 (“the tribunal”). The tribunal refused the appeal and upheld
four decisions of the Secretary of State for Work and Pensions (“SSWP”) dated 28
February 2020, 28 May 2020, 28 August 2020 and 28 November 2020. The effect of
those decisions was that the appellant was said to entitled to universal credit (“UC”)
of £0.00 for the UC assessment periods covered by the four decisions
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. For example,
it was said she was entitled to nil UC for the assessment period 28 January 2020 to
27 February 2020 under the 28 February 2020 decision.
Relevant factual background
3. Given the lack of any dispute about the facts, I can address the key factual
background very briefly.
4. The appellant worked at the material time as a records assistant in a hospital
and was paid on a monthly basis on the last Wednesday of each month. She made
a claim for UC on 28 January 2020 and the one month assessment period under UC
ran from that date (per section 7(2) of the Welfare Reform Act 2012 and regulation 21
of the Universal Credit Regulations 2013).
5. It was not, and is not, disputed that on the basis of the real time information
received from HMRC in respect of each of the assessment periods under the above
four decisions, the appellant had an entitlement to UC of nil (or, perhaps more
accurately, was not entitled to UC for those assessment periods). It is also not
disputed that these consequences resulted from the application of the earned income
calculation in Chapter 2 of Part 6 of the Universal Credit Regulations 2013 (“the UC
Regs”), and in particular regulations 54 and 61 of the UC Regs. It is accepted by the
SSWP that the appellant’s case is, on all material aspects, on all fours with the case
of Ms Johnson in Johnson.
The First-tier Tribunal’s decision
6. The tribunal decided the appellant’s appeal(s) after Johnson had been decided
by the Court of Appeal. It found, however, that the Court of Appeal’s declaration that
the earned income calculation method in Chapter 2 of Part 6 of the UC Regs was
irrational and unlawful for someone in the appellant’s position could not assist the
appellant. It explained its reasoning as follows:
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Nothing turns on the form i n which the Secretary of State’s decisions were expressed on t his appeal.
However, sections 3(1)(b) and 5(1)(b) of the Welfare Reform Act 2012 when read with regulation 17 of
the Universal Credit Regulations 2013 may preclude the possibility of there being an entitlement to
universal credit of £0.00.
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