[2024] UKUT 167 (AAC)

In neither the FtT nor the UT proceedings has there been an issue about non-entitlement to SDP in respect of the period between 6^th September 2019 and 6^th February 2020, as it is common ground that TT was entitled to and in receipt of CA during that time. Mr Pennington has not challenged the FtT’s decision that there was a recoverable overpayment of SDP in respect of that period.

The issue in these appeals solely concerns ST’s entitlement to SDP from 7^th February to 26^th November 2020. In their initial submissions to the Upper Tribunal the parties were in agreement that the FtT had erred in deciding that ST was not entitled to SDP during that period, the argument being as follows. The impact of regulation 4(5)(a) of the Social Security (Overlapping Benefits) Regulations 1979 was that the ESA(NS) to which TT had become entitled (this was a contributory benefit) was to be deducted from her CA (a non-contributory benefit) and only the balance of the CA, if any, was payable. As the amount of ESA(NS) was greater than that of CA, the effect was that no CA was payable. Moreover, pursuant to regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988, the amount that had already been paid as CA during the period 7^th February to 26^th November 2020 should be treated as properly paid as ESA(NS). In consequence, TT had an underlying entitlement to CA but she had not been in receipt of it, and so ST was entitled to SDP for the period between 7^th February 2020 and 26^th November 2020 and there was no overpayment in respect of that period.

I made written Observations on 14^th December 2023. I noted the position of the parties but observed that in the present case CA had in fact been paid to TT for the period in question. I directed further submissions on this point.

The Secretary of State’s further submissions were that TT had received both CA and ESA(NS) throughout the period 7^th February – 26^th November 2020, the ESA arrears were not and have not since been offset against the amount of CA paid and so TT was in receipt of CA (as that term was explained in DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) [2018] UKUT 46) throughout the period. Upon consideration of those submissions, Mr Pennington on behalf of ST also invited the Upper Tribunal to dismiss the appeal.