[2024] UKUT 228 (AAC)

The tribunal observed at §j of the tribunal’s decision that the Appellant’s case was that her income should be calculated over a course of a year period, applying the discretionary provision at regulation 8(3). At §l the tribunal stated that the default position on computation is as provided at regulation 8(b)(i) because she was paid on monthly basis. The tribunal while recognising at §l that her earnings fluctuated month by month went on to conclude at §n that:

“In the present case, the Tribunal does not consider it irrational not to apply regulation 8(3) because she was, in the main being paid something each month and this figure could vary quite considerably. It was therefore most accurate to calculate her weekly earnings by reference to that monthly figure and averaging out on a rolling basis would not, in fact, result in a more accurate figure for the weeks in that month.”

The Secretary of State in their written submissions to the Upper Tribunal stated there was no arguable error of law in the tribunal’s approach and/or findings vis a vis regulation 8(3). The Respondent accepted in their submission that the language used by the tribunal appeared to suggest it was reviewing the rationality of the Secretary of State’s decision, rather than the tribunal exercising the discretion (see [15]). The Secretary of State however maintained that the tribunal had referred to the correct approach to regulation 8(3) at §l of its decision. Further, observing that the tribunal had concluded that the purpose of the discretionary regulation 8(3) was to ensure that the more accurate figure was obtained to assess entitlement, and in this case computing earnings pursuant to regulation 8(3) would not provide a more accurate figure.

For reasons that are two-fold I am satisfied that the tribunal materially misdirected themselves vis a vis regulation 8(3). Firstly, I echo what was said by UTJ Wright in the permission to appeal decision:

I have considered the totality of the reasons given by the tribunal and I am satisfied that in adopting the language of irrationality, the tribunal did misdirect itself on the correct approach to be taken to the application of regulation 8.

Secondly, and this may be reflective of the tribunal’s approach being confined to one of review, the tribunal failed to give adequate reasons to explain why computation of the Appellant’s earnings in accordance with regulation 8(1)(b)(i) would result in a more accurate figure than that under regulation 8(3).

Further, the Appellant had arguably identified a recognisable cycle of work (one year) and on the facts as found by the tribunal arguably came within the scope of regulation 8(3)(a), it is unclear why discretion should not be exercised and regulation 8(3)(a) applied.