[2023] UKUT 246 (AAC)

The First-tier Tribunal (from now on, simply ‘the Tribunal’) held a remote CVP hearing of the appeal on 26 October 2022. It issued its decision notice (but with extensive summary reasons) a few days later on 31 October 2022. This was followed by the Tribunal’s full written reasons (signed on 3 December 2022, issued on 12 December 2022).

I start by making one observation about the content and the formatting of the Tribunal’s decision notice and its full written reasons. Under the heading “DECISION”, both documents record that the decision of the Tribunal was to “ALLOW IN PART” the claimant’s appeal against the Secretary of State’s decision of 28 January 2022. However, neither document actually explains in the text under the heading “DECISION” the extent to which the appeal had indeed been allowed in part. It is only towards the end of the 6^th (unnumbered) paragraph on the decision notice that we are told that the Tribunal “find that from 1/11/2021 he was entitled to ALSO. [The claimant] was not capable of following an occupation with equivalent gross income to that of his regular service occupation from 1/11/2021.” Likewise in the full written reasons the Tribunal stated it was satisfied that the claimant’s employment as a Concierge from November 2021 “was at a lower rate of pay than his service equivalent … and therefore find that from 1/11/21 he was entitled to ALSO” (paragraph 8).

Leaving aside the substantive issues that arise on this appeal, the Tribunal’s decision notice and full written reasons are therefore less than clear in two respects. First, the documents do not actually spell out in terms that the Tribunal found that the claimant was not entitled to ALSO from 23 December 2020 to 31 October 2021, although that proposition can be inferred or deduced from the Tribunal’s reasons. Second, neither document allows the reader to understand at a glance the extent to which the appeal had subsequently been allowed (namely with effect from 1 November 2021). The reader may be e.g. a busy Veterans UK officer charged with implementing the Tribunal’s decision or an equally busy reviewing or appellate judge who is considering an application for permission to appeal. Either way the reader needs to be able to grasp readily the core features of the decision. However, in the present case a key part of the Tribunal’s decision was buried in the text of the Tribunal’s reasons.

Turning to the substantive issues, the Tribunal’s full written reasons to a large extent incorporated its summary reasons (subject to one matter referred to below) and ran to 11 paragraphs in total. Paragraphs 1-3 inclusive set out undisputed factual matters. The reasons then recorded the claimant’s acceptance that as at April 2020 his salary as a Concierge Team Leader with his former employer (£36,050) was greater than his service equivalent salary (£27,961). It also noted that his former employer had made him redundant with effect from 2 December 2020 (paragraph 4). The Tribunal recorded the component elements of the claimant’s redundancy package (paragraph 5). Paragraph 6 is central to the Tribunal’s decision, as it set out the background to the redundancy:

Pausing there, and referring back to the lack of clarity mentioned above, the only possible inference from paragraph 6 is that the Tribunal found that the claimant was not entitled to ALSO as at the point he was made redundant (an inference supported by the Tribunal’s observation in paragraph 10 of its full reasons, referred to below). At paragraph 7 the Tribunal noted that after being made redundant, the claimant sought another Team Leader or Head Concierge role but had to settle for a Concierge post with effect from 1 November 2021. As mentioned above, at paragraph 8 the Tribunal found as a fact that this role was remunerated (as is not in dispute) at a lower rate of pay than his regular service occupation. On that basis alone the Tribunal ruled the claimant was entitled to ALSO with effect from 1 November 2021. Paragraph 9 gave directions for implementation of the Tribunal’s decision, while paragraph 10 commented on the claimant’s feeling “that he had lost out on ALSO for the period from 2/12/2020 to 1/11/2021.” In paragraph 11 the Tribunal made some explanatory observations on the inter-relationship between ALSO and Universal Credit.

There is just one paragraph of note in the summary reasons which did not find its way into the Tribunal’s full reasons. This was the Tribunal’s observation about the claimant’s decision to take a Concierge post in November 2021:

On 2 February 2023 Tribunal Judge Siddique (who had not sat on the Tribunal which heard the claimant’s appeal) refused the Secretary of State’s application (drafted in-house by Veterans UK) for permission to appeal to the Upper Tribunal.