SM v Secretary of State for Work and Pensions (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Church |
| Neutral Citation | [2020] UKUT 265 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Earnings,other income,Employment,support allowance,other income - disregards,support allowance - income-related ESA,Church,TH |
| Date | 02 September 2020 |
| Published date | 10 November 2020 |
SM v Secretary of State for Work and Pensions
[2020] UKUT 265 (AAC)
CE/1849/2019
1
IN THE UPPER TRIBUNAL Case No. CE/1849/2019
ADMINISTRATIVE APPEALS CHAMBER
Before T H Church, Judge of the Upper Tribunal
Decision: As the decision of the First-tier Tribunal (which it made at Peterborough on 18
February 2019 under reference SC304/18/02779) involved the making of an
error of law, it is set aside and I remake the decision in the following terms:
“The appeal is allowed.
The decision of the decision maker for the Respondent dated 10 July 2018 is
set aside.
The regular payments received by the Appellant from the discretionary
family trusts established by her parents are voluntary payments which fall
to be disregarded under paragraph 16(1) of Schedule 8 to the Employment
and Support Allowance Regulations 2008 (the “ESA Regulations”),
Regulation 104 of the ESA Regulations and Section 4 of the Welfare Reform
Act 2007. The Respondent shall now re-assess the Appellant’s income and
capital and make any appropriate award of ESA(IR) on that basis.”
This decision is made under Section 12 of the Tribunals, Courts and
Enforcement Act 2007.
REASONS FOR DECISION
Background
1. The background to the case is that the Appellant made a claim for income-related
Employment and Support Allowance (“ESA (IR)”) on 03 August 2016, asking that any
award be backdated to 02 June 2016. It is agreed that at the time she made her claim
she was receiving regular monthly payments from trust funds established by her
parents, initially at a level of £600 per month, rising to £750 per month from July
2016. She also declared regular monthly payments of £750 per month from a lodger
from July 2016.
2. A decision maker for the Respondent decided on 10 July 2018 that the Appellant was
not entitled to ESA(IR) (the “SoS Decision”) as her income exceeded the allowable
limit for eligibility under the Employment and Support Allowance Regulations 2008
(the “ESA Regulations”). The Appellant requested a mandatory reconsideration of
the SoS Decision but while it was reconsidered by another decision maker for the
Respondent the SoS Decision was confirmed and the outcome remained unchanged.
3. The Appellant appealed to the First-tier Tribunal on the basis that the trust payments
she received from the family trusts should have been disregarded when calculating
her income. On 18 February 2019 the Appellant’s appeal was determined by a judge
of the First-tier Tribunal on the papers without a hearing. The judge refused the
appeal and confirmed the SoS Decision (the “FtT Decision”).
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