[2024] UKUT 131 (AAC)

This Upper Tribunal appeal, in a nutshell, is about whether a claimant who buys and sells stolen bikes on ‘an industrial scale’ is entitled to income-related employment and support allowance (ESA). More specifically, the questions raised by the appeal are whether, for the purposes of a claim for income-related ESA, (i) the activity of buying and selling stolen bikes counts as ‘work’; and (ii) the moneys received from that activity qualify as ‘income’.

Putting it another way, as did the District Tribunal Judge when giving the Secretary of State permission to appeal to the Upper Tribunal, “these appeals essentially turn on the issue as to whether a person engaged in criminal activity (handling stolen goods) which is fuelled by substance abuse and addiction issues can be said to be self-employed for the purposes of permitted work whilst in receipt of Income Related Employment and Support Allowance.”

The position of the Department for Work and Pensions (DWP) was that the claimant was still engaged in a trade, albeit an illicit one, and so was to all intents and purposes a self-employed person. Furthermore, the DWP argued, the cash payments he received qualified as ‘income’ under the ESA regime. In short, however, the First-tier Tribunal (FTT) found that the claimant’s criminal activity did not amount to ‘work’ and neither did his cash receipts count as ‘income’ under the relevant regulations.