[2025] UKUT 035 (AAC)

On 16 March 2022 MJ appealed to the Tribunal and on 19 April 2023 the Tribunal allowed her appeal. The Tribunal upheld her appeal on the grounds that her Convention rights were breached by the erosion decision which eroded the whole of the TSDPE. The Tribunal agreed with MJ’s argument that the erosion decision discriminated against her because it treated her, a carer in receipt of the carer element, differently compared with a person who was not a carer who moved from having the LCW element to having the LCWRA element.

The Tribunal disapplied regulation 55 of the 2014 Regulations to avoid the discriminatory outcome. MJ’s TSDPE was to be eroded by the difference between the carer’s element and the LCWRA element from the assessment period from 10 October 2021 to 9 November 2021 and for each subsequent assessment period.

The decision notice stood as the statement of reasons and the Tribunal gave permission to appeal to the Upper Tribunal on the day of the hearing. I have not set out the decision notice at length because in large measure it accepted and incorporated MJ’s submissions by reference rather than setting out her contentions in the body of the decision. It is also common ground that the decision of the Tribunal erred materially in law and that its decision should be set aside and remade. There was a brief argument at an earlier stage in the proceedings as to whether the Tribunal had power to grant permission to appeal in the absence of an actual application by the Secretary of State. MJ accepted, however, that the appeal should be treated as such an application and she did not object to the Secretary of State being granted such permission. For the avoidance of doubt, and to the extent necessary, I grant permission to appeal to obviate any argument on the point hereafter.

The error of law occurred in this way. As explained by CPAG in its initial response of 31 January 2024, a misunderstanding led CPAG to base its draft submissions on a factual premise which did not actually exist in the case. The “relevant facts” section of CPAG’s draft submission stated, incorrectly, that MJ had, prior to claiming UC, been assessed as having LCW and then, correctly, that she had been receiving ESA and (again, correctly) that, once on UC, she had later been assessed as having LCWRA.

On receiving CPAG’s draft submissions MJ’s representative spotted the inaccuracy and, with one minor exception, corrected the “relevant facts” section of the submission to make clear that she had not been assessed as having LCW. However, the discrimination argument relied upon before the Tribunal had depended crucially on a difference in treatment between a carer with LCW moving to UC and a carer without LCW moving to UC at the point when they were both later assessed as having LCWRA. That meant, that once the facts had been corrected, the legal argument made was no longer applicable. As a consequence MJ’s submissions, as provided to the Tribunal, continued to put forward arguments based on MJ having been assessed as having LCW prior to having subsequently being assessed as having LCWRA.

In accepting MJ’s arguments, which were argued on the basis of facts which did not pertain in her case, the parties are in agreement that the Tribunal erred in law. MJ’s position is nevertheless that the Tribunal’s decision (a) that there was discrimination contrary to Article 14 ECHR and (b) its outcome decision were correct.

Thus the Tribunal erroneously agreed with MJ’s argument that the erosion decision discriminated against her because it treated her, a carer in receipt of the carer element, differently compared with a person who was not a carer who moved from having the LCW element to having the LCWRA element.

The Secretary of State submitted that that was not a sound comparator in any event: the LCW and LCWRA elements are health-related elements whereas the carer element is not. MJ now accepts that the comparator identified by the Tribunal was erroneous, in particular because MJ did not at the material time have LCW (as explained above). However, MJ now advances two different comparators in order to resist the appeal. The first is someone in “exactly the same situation as [her]”, but who is “not a carer”. That is, someone who is not a carer, who receives TSDPE and then is awarded LCWRA which will erode TSDPE. The second is “any other person with a transitional element of UC” leading to a change in a UC element.

It is the Secretary of State’s contention that, when MJ’s case is correctly analysed, the erosion principle in regulation 55 of the 2014 Regulations is not material to the case. Rather, the appeal only concerns the effect on the amount of an award of UC to which a claimant is lawfully entitled where LCWRA is added, with the consequence that the carer element is removed. Essentially for that reason, the Secretary of State contends that the erosion decision was correct in law and the various comparators, whether the one erroneously addressed by the Tribunal or the two now advanced by MJ, are not relevant.

Before the Tribunal the Secretary of State’s arguments on justification, viz. that the TSDPE was only a transitional measure, were not accepted by the Tribunal. As explained above, it considered that the TSDPE was only to be eroded by the difference between the carer element and the LCWRA element for the assessment period and each subsequent assessment period.