[2025] UKUT 026 (AAC)

I gave permission to appeal in a decision issued on 17 July 2023. The permission decision said this under the sub-heading Why I have decided there is an arguable error of law in the challenged [FTT] decision:

“2.

The key element of the challenged decision was to decide that regulation 6(33) of the Social Security (Claims and Payments) Regulations 1987 did not apply to Mrs W’s claim for carer’s allowance. This was because that claim was not made within 3 months of a decision made on revision, on 19 May 2020, awarding the daily living component of personal independence payment (PIP) (i.e. a “qualifying benefit” – see regulation 6(22), limb (b), and s70(2) Social Security Contributions and Benefits Act 1992) to Mr W, from 15 November 2019.

3.

The challenged decision arguably erred in law by not considering regulation 6(33) in the light of the decision made on appeal by the FTT on 23 July 2021, which also awarded the daily living component of PIP to Mr W, from 15 November 2019. Specifically, the challenged decision arguably erred in failing to find that regulation 6(33) did apply to Mrs W’s claim for carer’s allowance because

a.

the 23 July 2021 FTT awarded Mr W a “qualifying benefit”; and

b.

Mrs W’s claim for carer’s allowance was made prior to the date falling 3 months after the 23 July 2021 FTT decision and therefore was made “within 3 months” of that decision of the FTT.

4.

This arguable error of law is material, because its correction would result in the date of Mrs W’s carer’s allowance claim being deemed to be the first day of the benefit week in which Mr W’s award of PIP became payable.”

In further directions issued on 5 December 2023, I stated that there may be an error of law in the challenged FTT decision in that that, arguably, the FTT may not have had jurisdiction in relation to the decision (notified by letter of 4 October 2021) made by the Respondent on the (new) claim for carer’s allowance made by Mrs W on 12 July 2021. The reason the FTT may, arguably, have had no jurisdiction in relation to that decision is that, it appears, the Respondent did not undertake “mandatory reconsideration” of its decision (this being a requirement of having a right to appeal: see regulation 3ZA Social Security and Child Support Regulations (Decisions and Appeals) Regulations 1999). I expressed myself tentatively as I noted:

I also noted that, if the challenged FTT decision is wrong in law by reason of the point immediately above, and the Upper Tribunal were to set it aside for that reason, that would not give Mrs W the outcome she sought.

Mrs W’s “reasons for appeal” in her form seeking permission to appeal from the Upper Tribunal, was over about two typewritten pages – but attached a list of 72 other documents, covering 264 pages. The 2 pages of “reasons for appeal” were at times expressed in very strong language, such as accusing the Department for Work and Pensions of committing “crimes”, and the FTT being “complicit”. Although permission to appeal was not formally limited to the matters just enumerated, I observed in directions issued on 5 December 2023 that many of the matters raised in Mrs W’s application were outside the scope of the Upper Tribunal’s powers (being to set aside errors of law in decision of the FTT and remake the decision or remit it to the FTT for reconsideration). As for those which could be seen as within the scope of the Upper Tribunal’s powers (such as allegations of procedural irregularity in the FTT proceedings), I observed in those directions that the only issue on which I could see a realistically arguable error of law was that presented in my permission decision.

The Respondent opposed the appeal. It argued that neither of the arguable errors identified by the Upper Tribunal were, on analysis, errors of law in the challenged FTT decision.

The reply made on behalf of Mrs W was, like her original application, lengthy, expressed in often extreme language, and not focused on the issue of errors of law in the challenged FTT decision. As I observed in case management directions issued on 10 September 2024, a few of the pages in Mrs W’s submissions were clear and succinct, and appeared to written by an unidentified legal representative. In those directions I addressed the main points made in those pages, namely that the matters raised in a document called “formal letter of claim” did not engage the jurisdiction of the Upper Tribunal, and that I was not persuaded that “disclosure” of any further documents from the Respondent was relevant to any issue that engaged the Upper Tribunal’s jurisdiction.