[2025] UKUT 259 (AAC)

The correct approach is to apply under rule 5(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to amend a document. The document is the notice to appeal under rule 22(2)(b), which consists of the grounds on which permission was given. This coincides with the approach under CPR rule 52.17: “An appeal notice may not be amended without the permission of the appeal court.” As Hickinbottom LJ explained in Hickey v Secretary of State for Work and Pensions [2018] 4 WLR 71:

“74.

… an appellant who has obtained permission to appeal and wishes to add to or otherwise amend his grounds must make a formal application to do so under CPR r 52.17, as soon as he reasonably can. Grounds of appeal cannot be covertly amended, for example by including changes to them in the skeleton argument …

75.

Compliance with the rules will ensure that appeal hearings are properly focused, as they must be. Although of course the merits of an application to amend grounds of appeal will necessarily be fact-specific, where an appellant proposes substantial changes to the grounds of appeal from those upon which he has obtained permission to appeal but has made no application — or no reasonably prompt application — to amend, he should not expect an appeal court to be sympathetic. Appeal courts have a variety of sanctions at their command should a party fail to comply with important mandatory procedural rules that apply to appeals.”

Those remarks related to CPR, but they apply equally to the position under the Tribunal Procedure Rules. Lateness will be a consideration in the Upper Tribunal’s assessment of whether to grant such permission.

There is no good reason why the Ground 2A could not have been brought at an earlier stage. The Appellant has already had considerable indulgence, both in being granted permission on two grounds not advanced at first instance and again in extensions of time. My further directions of 25 February 2025 gave the Appellant the opportunity to reply to the Secretary of State’s late witness statement, but that was not an invitation to advance a yet further ground of appeal almost a year after the appeal process had commenced. If it were to be advanced, the Secretary of State should in fairness be given the opportunity to put in further evidence in reply, explaining the differences of approach between housing benefit and UC and the reasons for them. To do so at this stage would require an adjournment and yet further submissions, as the Appellant candidly accepted. That is not in accordance with the overriding objective, particularly having regard to the delay in hearing the appeal which has already occurred. I therefore to refuse the Appellant permission to amend to include Ground 2A.

In any event, I am satisfied that Ground 2A has no reasonable prospect of success. As Ms Ivimy KC rightly submitted, the complex housing benefit rules turn on the application of conditions governing occupation of the home. They pre-date UC, which was intended to be a simplification and departure from existing rules governing benefits for housing. There is no reason why there should be any read across from housing benefit rules on temporary absence to the entirely different legislative scheme in regulation 11 of the 2013 Regulations.

Moreover, differences of treatment between UC claimants and housing benefit claimants who are pensioners or in supported housing/temporary accommodation do not give rise to a legitimate claim for discrimination. I again agree with Ms Ivimy KC that is not appropriate to seek to draw a comparison between legacy benefits and the UC regime in this respect on the basis that the differences give rise to discrimination under Article14. Although housing benefit and UC continue for the present to exist side-by-side, UC is ultimately a replacement scheme for housing benefit. The same was true for the benefits in issue in RJ. In any event, any difference of treatment is a function of the different bases on which the rules governing the two benefits operate and cannot be impugned as manifestly without reasonable foundation: see in this context R (TP) at [68].