[2024] UKUT 10 (AAC)

In its statement of reasons dated 21 July 2023 the Tribunal stated that

“6.

Article 41 of the Naval, Military and Air Forces (Disablement and Death) SPO 2006 applies and governs this Appeal. The effect of that Article is to place the burden of proof on the claimant at least to the extent of him requiring to raise a reasonable doubt in [his] favour based upon reliable evidence.

7.

[The claimant] advised that he was in receipt of State benefit of Universal Credit and part of that award was a component for limited capability for work related activity (LCWRA). He indicated he was also in receipt of State benefit Personal Independence Payment (PIP). He indicated that he was not in receipt of the State benefit Employment Supplement Allowance (ESA).

8.

[He] advised that the Benefits Agency had confirmed to him that they would not take into account any of the unemployability supplement payment being paid under the SPO when assessing eligibility for the amount of payment of Universal Credit benefits. As far as the Benefits Agency were concerned there was no overlap of benefit when assessing Universal Credit.

9.

[He] said he was not attempting to claim double compensation for the same injury. He advised that the Benefits Agency had accepted all of his stated injuries under the War Pension Scheme. [He] accepted that an award of ESA would be an overlapping benefit. We have considered the case by the Secretary of State.

10.

Mr. Ferguson referred to page 3 of the Statement of Case which was the written reasons for the Secretary of State’s reason for the decision under review. It is stated in that that [the claimant] was initially awarded Unemployability Supplement on 18 March 2019 and there was a review on 15 March 2021.

11.

On the claim form [the claimant] had stated that he was receiving Universal Credit and an e-mail enquiry from the Department of Work and Pensions (DWP) dated 29 October 2021 confirmed that [his] Universal Credit included a component for limited capability for work and work-related activity (LCWRA). The DWP confirmed this had been in payment since 7 August 2018 and included a health allowance component at the rate of £343.63 per month.

12.

It was stated that upon claiming Universal Credit, an individual’s ability to work will be assessed via a Work Capability Assessment. Those who are considered unable to work and are not expected to be able to prepare for work in the future are placed in the limited capability for work-related activity group and receive a monthly health allowance component.

13.

It is also stated that Universal Credit currently disregard the War Disablement Pension (WDP) and supplementary allowances in their consideration of Universal Credit, and there is no provision within the overlapping benefit regulations which can prevent an award of allowances under both schemes.

14.

There is reference to Article 52 of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order and that the provisions of Article 52 had been applied in the current case namely that individuals should not be compensated twice for the same purpose from public funds.

15.

It goes on to say under Article 52 the Secretary of State may take compensation into account against a pension or gratuity in such a manner and to such an extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly.

16.

The position is summarised on reverse of page 3 and it is stated that the Secretary of State considers the claimant’s unemployability supplement should be abated in respect of the health allowance component of Universal Credit under Article 52 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 2006. The Tribunal finds the following material facts.

17.

[The claimant] was initially awarded unemployability supplement on 18 March 2019.

18.

A review claim form was received on 15 March 2021.

19.

The claimant was and is in receipt of Universal Credit and [his] Universal Credit included a component for limited capability for work and work-related activity (LCWRA). Universal Credit had been paid to the claimant since 7 August 2018 and included a health allowance component at the rate of £343.63 per month.

20.

[The claimant] is in receipt of Personal Independence Payment (PIP).

21.

The Benefits Agency do not consider unemployability supplement as an overlapping benefit when assessing eligibility for Universal Credit. The State benefit ESA could be taken into account by the Secretary of State when assessing Unemployability Supplement payments. The Tribunal’s consideration in deciding this Appeal are:

22.

We considered Article 12 of the SPO 2006 which is found on page 4 of the Statement of Case and comprises of awards in respect of disablement.

23.

Under the heading Unemployability Allowances in Article 12 which article provides that where a member of the Armed Forces is in receipt of retired pay or a pension in respect of disablement so serious as to make him unemployable he shall be awarded unemployability allowances.

24.

Article 12(10)(b) provides that where a personal allowance or additional allowance has been awarded under the law of any place outside the United Kingdom being a benefit which, in the opinion of the Secretary of State, is analogous to benefits under Chapters 1 or 2 of part 2 of the Social Security Act 1975, the Secretary of State may take into account any pension referred to and may make any adjustment which would be made if the person were eligible for analogous benefits under Chapters 1 or 2 of part 2 of the Social Security Act 1975. Taking this Article along with Article 52 we came to the view that if any element of Universal Credit contained a component analogous to one of the 1975 listed benefits then we believe it would be appropriate to make adjustment to the unemployability supplement.

25.

The benefits listed under the 1975 Social Security Act are as follows. The Chapter II non-contributory benefits listed are:-

Descriptions of non-contributory benefits.

1.

Attendance allowance

2.

Non-contributory invalidity pension

3.

Invalid care allowance

4.

Guardians allowance

5.

Retirement benefits for the aged

6.

Age addition.

26.

We considered the fact that [the] LWRCA is paid due to a health condition or disability a person’s condition is such that they are not capable of preparing for work.

27.

We have considered that sickness benefit as listed in the 1975 Act was paid when a person was unable to work for reasons of ill health and that benefit would be paid for a period of 168 days and thereafter would convert to invalidity benefit both of which were listed in the 1975 Act. We came to the view that the health component and LWRCA payment within the Universal Credit payments were analogous benefits to those found in the 1975 Act and therefore the Secretary of State was entitled to abate.

28.

We considered the UK Government guidance entitled War Pension Scheme: Unemployability Supplement (UnSUPP) published on 21 February 2020.

29.

That guidance contains eligibility rules for claiming UnSUPP one of which is that the applicant for UnSUPP must have a War Pension disability assessment of 60% or higher. [The claimant] has an award of 70% so he meets this eligibility criteria.

30.

The guidance also states that UnSUPP cannot be claimed when in receipt of Employment and Support Allowance (ESA).

31.

Universal Credit replaced a number of benefits one of which was ESA and [the claimant] accepted ESA could be offset against UnSUPP.”