MW v Secretary of State and Work and Pensions (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge West |
| Neutral Citation | [2023] UKUT 50 (AAC) |
| Subject Matter | Employment,support allowance - other,West,M |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 15 March 2023 |
MW v SSWP (ESA)
[2023] UKUT 50 (AAC)
MW v. SSWP (ESA) UA-2021-001803-ESA
UA-2021-000859-ESA
1
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001803-ESA
(ADMINISTRATIVE APPEALS CHAMBER) UA-2021-000859-ESA
(previously CE/771/2021
CE/824/2021)
On Appeal from the First-tier Tribunal (Social Entitlement Chamber)
SC944/20/00633 & SC944/20/00634
BETWEEN
Appellant MW
and
Respondent THE SECRETARY OF STATE FOR WORK AND PENSIONS
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided on consideration of the papers: 24 February 2023
DECISION
The stay on the proceedings is lifted.
The decision of the First-tier Tribunal sitting at Liverpool on 10 March 2021 under file
reference SC944/20/00633 (the overpayment decision) does not involve an error on
a point of law. The appeal against that decision is dismissed.
The decision of the First-tier Tribunal sitting at Liverpool on 10 March 2021 under file
reference SC944/20/00634 (the civil penalty decision) involves an error on a point of
MW v SSWP (ESA)
[2023] UKUT 50 (AAC)
MW v. SSWP (ESA) UA-2021-001803-ESA
UA-2021-000859-ESA
2
law. The appeal against that decision is allowed. The decision in that case is
remade. The claimant is not liable to a civil penalty of £50.
This decision is made under sections 11 and 12(2)(a) and (b)(ii) of the Tribunals,
Courts and Enforcement Act 2007.
REASONS
Introduction
1. This is an appeal, with the permission of Upper Tribunal Judge Rowley, against
the decision of the First-tier Tribunal sitting at Liverpool on 10 March 2021.
2. I shall refer to the appellant hereafter as “the claimant”. The respondent is the
Secretary of State for Work and Pensions. I shall refer to him hereafter as “the
Secretary of State”. I shall refer to the tribunal which sat on 10 March 2021 as “the
Tribunal”.
3. The claimant appealed against the decision of 26 November 2019 that he had
been overpaid employment and support allowance (“ESA”) totalling £17,854.75 for
the period from and including 26 February 2014 to and including 13 August 2019
which was recoverable from him. On the same day a further decision was made to
impose a civil penalty of £50.00. The decisions were based on the claimant’s failure
to notify the Secretary of State that his adult daughter had moved in with him on 27
February 2014, which meant that he was no longer entitled to a severe disability
premium (“SDP”) on his ESA. The decisions were reconsidered on 14 January 2020,
but not revised.
4. The matter came before the Tribunal on 10 March 2021 when the claimant
appeared by telephone and gave oral evidence. A presenting officer was also
present. The appeals against the overpayment and civil penalty appeals were
refused, as was a further appeal against the separate decision that the claimant was
no longer entitled to SDP.
MW v SSWP (ESA)
[2023] UKUT 50 (AAC)
MW v. SSWP (ESA) UA-2021-001803-ESA
UA-2021-000859-ESA
3
The Statement Of Reasons
5. So far as material, in its statement of reasons the Tribunal stated that
“1. The appeal was heard as a telephone hearing attended by
the Appellant and his representative. Three decisions were in
issue. The first related to an entitlement decision that the
Appellant's ESA (Income Related) (IR) should not contain the
severe disability premium (SDP) from 26.02.2014 because his
daughter had then begun to live with him. The second was that
there had been an overpayment of £17804.75 ESA (IR) for the
period 26.02.2014 to 13.08.2019 which was recoverable from
pursuant to section 71 Social Security Administration Act 1992
and the third that he should pay a civil penalty under section
115D Administration Act 1992. The Tribunal disallowed each
appeal. This statement covers all the appeals.
2. It was common ground that the Appellant had been in receipt
of Incapacity Benefit. This was converted to ESA (IR) from
18.09.2013 and the Appellant had been placed in the Support
Group from 18.09.2013. After the award had been made the
Appellant's adult daughter returned to live with him. For the
purpose of these appeals this was said to have happened on
27.02.2014 although there is also evidence from the letters the
Appellant sent to the Local Authority that she returned earlier
on 11.11.2013.
3. The tribunal is satisfied that the return of his daughter to live
with the Appellant meant that he was no longer entitled to the
SDP. The conditions for the SDP are set out in para 6(1) of
Schedule 4 to the ESA Regulations 2008. This is because his
daughter is treated as a non-dependant and she did not herself
have an award of DLA or PIP to exempt her from being treated
as a non-dependant nor were there any other circumstances to
mean that she was not to be treated as a non-dependant. It
was not claimed, for example, that his daughter had returned to
care for the Appellant.
4. The tribunal was satisfied that from 27.02.2014 there were
grounds to supersede the award of ESA (IR) based on the
change of circumstances when his daughter returned to live
with him so that entitlement to the SDP ceased from
26.02.2014. His daughter remained living with the Appellant
throughout the period covered by the overpayment. The
Appellant told the Tribunal that his daughter has since left and
the SDP has been restored to the Appellant.
To continue reading
Request your trial