BL v Secretary of State for Work and Pensions (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Poole, QC |
| Neutral Citation | [2019] UKUT 364 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Employment,support allowance,support allowance - other,Poole,AI |
| Date | 14 November 2019 |
| Published date | 28 November 2019 |
BL v SSWP (ESA) [2019] UKUT 364 (AAC)
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Hearing: 24 October 2019, George House, George Street, Edinburgh
Representation: For the Appellant: Ms Severine-Mia Davison, Citizens
Advice and Rights Fife
For the Secretary of State for Work and Pensions: McIver,
Advocate
DECISION OF THE JUDGE OF THE UPPER TRIBUNAL
The appeal against the decision of the First-tier Tribunal given at Edinburgh on 20
August 2018 is refused.
REASONS FOR DECISION
Background
1. This is a case about a claim for employment and support allowance (“ESA”).
It is an appeal from a decision of the First-tier Tribunal (the “tribunal”) finding
that the appellant (the “claimant”) was not permanently incapacitated. It
followed that the claimant did not have a right to reside in the UK and, being a
person from abroad, was entitled to a nil amount of ESA.
2. The claimant is of Polish nationality and came to the UK on 29 August 2008.
Since then, he has amassed numerous convictions in the UK (bundle, page
78), and has been charged with multiple assaults (bundle, pages 76-78). He
has a diagnosis of schizophrenia exacerbated by multi drug abuse. He has
been subject to orders under the Mental Health (Care and Treatment)
(Scotland) Act 2003, orders under the mental health provisions of the Criminal
Procedure (Scotland) Act 1995 (including assessment orders under Section
52D), as well as spending time in prison. The claimant worked for periods in
farm jobs between 2008 and 2012; there were two periods during that time
when he claimed Jobseekers’ Allowance (income related); and there are
periods during that time when there is no evidence of the claimant being in
work or being in receipt of jobseeker’s allowance. He does not appear to have
worked since a short period in the summer of 2012. From August 2012 to
February 2013 he was in in-patient care, and thereafter was in the community
until 2016. The claimant was previously in receipt of ESA from 9 April 2014
until 18 July 2016, when he was detained on remand at HMP Perth.
3. When the claimant was transferred from prison to hospital on 1 August 2016,
he claimed ESA again. On 19 June 2017 the Secretary of State for Work and
Pensions (“SSWP”) decided that, because the claimant did not have a right to
reside, he was a person from abroad with a nil applicable amount for ESA.
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