Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 124 (AAC)

Fecha: 26-May-2023

The decision of the Upper Tribunal is to allow the Secretary of State’s appeal. The decision of the First-tier Tribunal made on 29 September 2021 was made in error of law. Under section 12(2)(a) and (

The decision of the Upper Tribunal is to allow the Secretary of State’s appeal. The decision of the First-tier Tribunal made on 29 September 2021 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remake it as follows:

The claimant was disqualified for receiving payments of contributory employment and support allowance from 3 January 2020 to 21 December 2020.

The claimant’s award of contributory employment and support allowance is superseded on the ground that there have been material changes of circumstances.

From either 3 January 2020 or 14 February 2020 to 21 December 2020, the claimant was to be treated as not having limited capability for work and, therefore, he was not entitled to contributory employment and support allowance from either 3 January 2020 or 14 February 2020 to 21 December 2020.

To the extent that it has not already been done, the Secretary of State must now make a decision –

(a)

as to the claimant’s entitlement to income-related employment and support allowance from 3 January 2020 to 21 December 2020 (which may be nil) and

(b)

as to the claimant’s entitlement to employment and support allowance from 22 December 2020.

REASONS FOR DECISION

This is an appeal, brought by the Secretary of State with permission given by the First-tier Tribunal, against a decision of the First-tier Tribunal dated 29 September 2021, allowing the claimant’s appeal against the Secretary of State’s decision, dated 18 January 2021 and maintained on “mandatory reconsideration”, to the effect that the claimant was not entitled to employment and support allowance from 3 January 2020 because he had been in prison. The First-tier Tribunal held that the claimant not only had an underlying entitlement to employment and support allowance from that date but also that employment and support allowance remained payable to him.