Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 299 (AAC)

Fecha: 17-Abr-2025

Factual background and the First-tier Tribunals’ decisions

Factual background and the First-tier Tribunals’ decisions

(a)

SSWP v SC

SC claimed, and was awarded, universal credit (“UC”) from 28 July 2021 onwards. SC contacted her work coach at the Department for Work and Pensions (“DWP”) which administers benefit on behalf of the Secretary of State for Work and Pensions (“SSWP”). SC notified her work coach that she would be going abroad to Canada from 29 May 2022 to 15 July 2022 (a period of just under seven weeks).

On 30 May 2022, a DWP decision-maker decided SC was not entitled to UC, because she had left Great Britain, and her absence was planned to exceed one month. DWP notified SC of its decision through her online UC journal on 30 May 2022. The notification stated that SC’s UC award ended on 28 April 2022. SC received the notification while in Canada.

SC asked DWP to reconsider its decision. DWP later accepted it had made an error in calculating the end date of SC’s UC award as 28 April 2022. On 04 July 2022, having received a complaint from SC, DWP revised its decision dated 30 May 2022 to decide that SC’s UC award ended on 28 May 2022. This was the first day of the assessment period in which SC went abroad.

On 16 September 2022, SC appealed to a First-tier Tribunal. On 29 July 2023, the First-tier Tribunal (“FTT1”) allowed SC’s appeal and set aside DWP’s decision. In its Decision Notice, FTT1 decided SC’s UC claim should have been suspended from the first day of the assessment period on 28 May 2022 to the first date of the assessment period following her return to the UK. FTT1 directed DWP to implement this decision.

The SSWP requested a Statement of Reasons for this decision. FTT1’s Statement of Reasons stated the Tribunal had revised the SSWP’s decision and made SC a nil award of UC from the first day of the assessment period in which she went abroad (28 May 2022) and a paying award of UC on the basis of a continuing claim for the assessment period commencing on 28 June 2022. On 15 January 2024, DWP requested permission to appeal to the Upper Tribunal. A salaried First-tier Tribunal Judge granted the SSWP permission to appeal in a decision dated 02 February 2024.

A summary of the SSWP’s appeal grounds is:

(a)

FTT1 made an error of law by revising DWP’s decision dated 30 May 2022 to make a “nil award” to SC until the assessment period in which she returned to Great Britain. This was an error of law because there are no legislative provisions allowing FTT1 to make this decision. The concept of a “nil award” is alien to, and inconsistent with, UC legislation;

(b)

A basic condition of UC entitlement is that a person is in Great Britain. Unless they satisfy the legislative provisions for being treated as only temporarily absent, a person who leaves Great Britain will no longer be entitled to UC, so their award will be superseded (changed) on the basis there has been a relevant change of circumstances. The superseding decision replaces the existing entitlement decision with a new outcome decision;

(c)

The new outcome decision is that the person is not entitled to UC, with effect from the first day of the assessment period in which they went abroad. The existing award will be replaced by a disallowance;

(d)

If a claimant has already returned to Great Britain before the supersession decision is carried out, the supersession will apply for a closed period of time (the past period in which the person was not entitled) and the existing award will remain. See the Upper Tribunal’s decision in CIS/1305/2012; and

(e)

In SC’s case, she was still outside Great Britain when DWP superseded her entitlement to UC. There was no form of UC award that would remain after that point. A decision that a person is not entitled to UC is not a “nil award” decision. Instead, it is a decision that an award cannot be made because there is no entitlement to UC.

In granting permission to appeal, the salaried First-tier Tribunal Judge explained it would be useful to have guidance from the Upper Tribunal about whether, for a claimant in SC’s position, a UC award could continue at a nil rate.

(b)

MJ v (1) LB Bromley and (2) SSWP

10.

MJ was receiving housing benefit (“HB”), which was administered by the London Borough of Bromley (“LB Bromley”). MJ was receiving several benefits administered by DWP in consequence of her ill health. On 05 January 2023, MJ booked return flights to Brazil, to leave on 19 March 2023 and to return on 20 April 2023 (a period of just under five weeks).

11.

On 22 February 2023, MJ notified LB Bromley about her planned trip. LB Bromley suspended MJ’s HB claim on 24 February 2023, due to a separate issue and sought further information. On 16 March 2023, MJ confirmed to LB Bromley that she was due to be away from 19 March 2023 to 20 April 2023. On 20 March 2023, LB Bromley closed MJ’s claim with effect from 19 March 2023. MJ reclaimed HB but on 19 June 2023, LB Bromley informed her that she was not entitled to claim HB as she was instead entitled to claim UC with the housing element.

12.

On 13 July 2023, with support from Annerley CAB and Bromley MIND, MJ appealed to the First-tier Tribunal. Her appeal was decided on 08 November 2023 by a First-tier Tribunal (“FTT2”). MJ was supported by a representative from Bromley MIND. LB Bromley did not take part in the appeal.

13.

FTT2 refused MJ’s appeal and confirmed LB Bromley’s decision that MJ was not entitled to HB from 19 March 2023 as she was absent from her home for more than the 4 weeks permitted by housing benefit legislation. FTT2 stated in its Decision Notice that the change of circumstances (caused by MJ going abroad) was notified before the end of the period affected by the change and could not be treated as a closed period supersession.

14.

MJ requested a Statement of Reasons, which was issued on 01 January 2024. Permission to appeal to the Upper Tribunal was refused by a salaried First-tier Tribunal Judge on 22 March 2024. MJ requested permission directly from the Upper Tribunal on 17 April 2024.

15.

A summary of MJ’s appeal grounds is:

(a)

Her case involves a novel issue not previously considered by the Upper Tribunal. This is whether it is possible to conduct a prospective supersession decision removing benefit entitlement for a specific period during which the conditions of entitlement will not be met but that also restores entitlement from the (future) date when it is known the conditions will again be met;

(b)

FTT2 misdirected itself in law by deciding it could not make a decision removing MJ’s HB entitlement only for the period she was absent from Great Britain;

(c)

Regulation 7(2)(a)(ii) of the Housing Benefit (Decisions and Appeals) Regulations 2001 expressly provides a power to supersede a decision awarding HB on the basis that it is anticipated a change of circumstances will occur;

(d)

As a matter of law, regulation 7(2)(a)(ii) allows a decision-maker aware of a situation where there will be two changes of circumstances, the first of which reduces / ends entitlement, and the second would restore entitlement, can make a prospective supersession decision reducing or removing entitlement only for the period where the first change of circumstances applies;

(e)

While the case law dealing with “closed period supersession” decisions all relate to decisions made after both sets of changes of circumstances have occurred, there is nothing in principle to prevent a similar approach being taken in advance, where it is known as a matter of fact, at the time the decision is taken, that there will be a further future change of circumstances that will restore entitlement;

(f)

FTT2 should have treated the Upper Tribunal decision in SSWP v NC (ESA) [2023] UKUT 124 (AAC) as allowing it to apply a closed period supersession where, if a timely change of circumstances decision had been made, the claimant could no longer claim their legacy benefit and would have to claim UC. Instead, FTT2 incorrectly decided that on return to the UK, MJ could not have continued to qualify for HB because she was entitled to apply for UC instead (which permanently disentitled her to HB); and

(g)

MJ’s interpretation of the decision-making scheme and power to supersede for an anticipated change of circumstances restoring entitlement, is consistent with the wording of regulation 7(2)(a)(ii) but also achieves desirable policy consequences. In addition, it is only likely to apply in a few cases.

16.

On 03 July 2024, Upper Tribunal Judge Stout decided that the appeal grounds MJ raised were arguable and granted her permission to appeal.

17.

On 25 November 2024, Upper Tribunal Stout made case management directions to add the SSWP as a Second Respondent to MJ’s appeal. This was on the basis that LB Bromley had not responded to the appeal as directed and the appeal grounds raised an issue of potential wider importance to the benefits scheme. This was whether it was possible to have a prospective supersession decision removing entitlement to a benefit only for a period during which the entitlement conditions will not be met but then restored entitlement from when it is known those entitlement conditions will again be met.

18.

Upper Tribunal Stout explained she was reluctant simply to allow MJ’s appeal in the absence of a response from LB Bromley, given the point of law raised was of some complexity and potentially much wider importance. Judge Stout therefore directed for the SSWP to be joined as Second Respondent to the appeal.

19.

On 06 February 2025, the Government Legal Department (“GLD”), the legal department for the SSWP, filed a Response to MJ’s appeal. It also wrote to the Upper Tribunal, applying for a direction under rule 5(3)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules 2008”) for MJ’s appeal to be heard together with SSWP v SC.

20.

The GLD wrote that the two appeals raise a common issue of law, namely whether it is open to the SSWP in administering UC, or a local authority administering HB, to make a supersession decision terminating a claimant’s benefit entitlement for a period of time after the decision is made, but otherwise not affecting the claimant’s benefit entitlement after that period expires. The letter confirmed the SSWP agreed the point of law raised was complex and had a potential wider importance.