JA-K v Secretary of State for Work and Pensions (DLA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2017] UKUT 420 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA,AA,MA: general,Equality Act,Human rights law,MA: general - age conditions,Human rights law - application of Human Rights Act,Wright,S |
| Date | 13 October 2017 |
| Published date | 03 November 2017 |
JA-K –v- SSWP (DLA) [2017] UKUT 420 (AAC)
IN THE UPPER TRIBUNAL Appeal No: CDLA/1461/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal dismisses the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Southend on
25 February 2013 under reference SC919/11//05547 did not
involve any error on a material point of law and therefore the
decision is not set aside. The First-tier Tribunal correctly
concluded on the facts and as matter of law that on her
application for supersession of 25 March 2011 the appellant
was not entitled to the higher rate of the mobility component
of Disability Living Allowance because she was then aged 71
years old and so exceeded the maximum age at which
entitlement to that component could first be awarded.
This decision is made under section 12(1) and 12(2)(a) of the
Tribunals, Courts and Enforcement Act 2007.
Representation: Mr Isaac Maka of counsel for the appellant.
Mr Tim Buley of counsel for the Secretary of
State.
JA-K –v- SSWP (DLA) [2017] UKUT 420 (AAC)
REASONS FOR DECISION
Introduction
1. This appeal begins and ends with remedy, or at least the lack of one
that may avail the appellant on the case as argued before me. Before
coming to that issue however I must first explain what the case is about
and address some of the other arguments made before me.
2. None of the other arguments (upon which remedy, if available, would
depend if the appeal was to be successful) were pursued before me with
any great rigour at either hearing by the appellant, and were in fact
entirely absent from the appellant’s counsel’s oral submissions to me at
the second hearing of the appeal, where the focus was entirely on what
useful remedy, if any, could be provided to the appellant even assuming
all the other arguments fell in her favour. However, those other
arguments were addressed in some detail in the parties written
submissions on the appeal and I therefore seek to address them in that
context below, subject to the caveat that they were not developed in
argument before me and to the further caveats set out in the two
paragraphs immediately below.
3. The Secretary of State, mindful of the result that obtained in the
litigation which ended in the Court of Session’s decision in SSWP –v-
Robertson [2015] CSIH 82
1
, argued, in effect, that the same result
would obtain in this appeal, particularly in relation to the argument
made under section 149 of the Equality Act 2010, because no remedy
could be afforded to the appellant. The concern he expressed was that
the Upper Tribunal should avoid making findings as to whether section
1
It was held in Robertson that the Secretary of State’s further appeal to the Court of Session
was incompetent because he had su cceeded before the Upper tribunal, even though in the
course of its decision the Upper Tribunal (SSWP –v- YR [2014] UKUT 80 (AAC) had found
that the regulation conferring ent itlement for those with severe visual impairment was ultra
vires. The Secret ary of State had succeeded before the Upper Tribunal because the Upper
Tribunal had accepted notwithstanding its ultra vi res holdings that the regulation could not
be read any other way but disapplying it would not benefit the claimant (because her
argument was that the regulation did not go far enough as its effect was only to con fer
entitlement on some severely visually impaired claimants).
JA-K –v- SSWP (DLA) [2017] UKUT 420 (AAC)
149 of the Equality Act 2010 had been breached, or the regulations in
issue offended against the Human Rights Act 1998, if in the result the
appeal had to be dismissed because no remedy could be afforded to the
appellant.
4. The Secretary of State also deployed a further argument, distinctive to
the Equality Act 2010, which was against the Upper Tribunal in its
appellate function under section 14(3) of the Social Security Act 1998
and section 11 of the Tribunals, Courts and Enforcement Act 2007
having even the jurisdiction to rule on arguments alleging breach of any
provision of the Equality Act 2010. This argument is founded on
section 113 of the Equality Act 2010 and, for the reasons given below, it
may be well made, even though it has not seemingly been taken as a
point in previous Upper Tribunal appeals.
5. I have borne all of these considerations in mind and can see the force in
them. However I do not consider that they should lead me not to even
comment or give a view on the many and varied issues that arise in this
case, even though the appellant effectively conceded in the end that
there was no remedy that could be afforded to her on this appeal. This
decision can at least be a useful vehicle in which to address the various
jurisdiction arguments. Moreover, it might provide some assistance by
explaining the various flaws in the appellant’s arguments: see to like
effect PL –v- SSWP (JSA) [2016] UKUT 0177 (AAC). And the effect of
the Secretary of State’s ‘jurisdictional bar’ arguments, if I may call them
that, varies between the Human Right Act 1998 and the Equality Act
2010.
6. Further, if I may say so, it seems to me that the Secretary of State’s
Robertson concern may be overstated and misplaced. I say this because
arguably the Robertson litigation can best be viewed as an instance
where the Upper Tribunal’s conclusion that, per section 12(1) of the
Tribunals, Courts and Enforcement Act 2007, “the making of the [First-
tier Tribunal’s] decision concerned involved the making of an error on a point
of law”, was limited to the Upper Tribunal holding that the First-tier
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GH (deceased) (by his wife as his appointee/attorney) v Secretary of State for Work and Pensions (PIP)
...most recently in SC v SSWP (PIP) [2022] UKUT 97 (AAC). 14. The remedy issue is similar to that which arose in J-AK v SSWP (DLA) [2017] UKUT 420 (AAC). That decision concerned a challenge under the Equality Act 2010 as well as a discrimination argument under the Human Rights Act 1998. Howeve......