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Social Security Scotland against JS (Upper Tribunal - Social Security Chamber) [2025] UT 27 (23 April 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut27.html
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[2025] UT 27
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1
2025UT27
Ref: UTS/AS/25/0009
DECISION OF
LADY POOLE
IN AN APPEAL
in the case of
Social Security Scotland
Appellant
- and -
JS
Respondent
FTS reference: FTS/SSC/AE/01868
Representation:
Social Security Scotland: Scottish Government Legal Directorate
JS: no appearance
23 April 2025
DECISION
The appeal is allowed. The decision of the First-tier Tribunal for Scotland ("FTS") of 12
November 2024 is quashed and re-made as follows:
"The appeal against the refusal to award Adult Disability Payment is allowed.
The applicant is entitled to the daily living component of Adult Disability
Payment at the standard rate from 8 December 2023 to 7 December 2026. He
scored 8 points under descriptors 4b, 5b, 6b and 9b in part 2 of schedule 1 of the
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Disability Assistance for Working Age People (Scotland) Regulations 2022. No
award is made in respect of the mobility component."
REASONS FOR DECISION
Introduction and summary
1. This is an appeal about the start date of an award of Adult Disability Payment ("ADP").
It finds that the FTS erred in law because it failed properly to apply the provision which
governs the start date of awards, regulation 35 of the Disability Assistance for Working
Age People (Scotland) Regulations 2022 (the "ADP Regulations"). Because the award in
this case was based on functional limitations as a result of a stoma operation on 8
September 2023, under the ADP Regulations, the earliest the award could start was 13
weeks after that operation.
Background
2. The appellant ("JS") suffers from irritable bowel syndrome and, on 8 September 2023,
had an operation resulting in the fitting of a stoma bag. Prior to that, on 4 September
2023, he had telephoned Social Security Scotland ("SSS"). In that call he had provided
his name, date of birth and address and requested an application form for ADP. SSS
received an application form completed and signed by JS on 5 October 2023. In a decision
on the application dated 1 February 2024, SSS found that JS did not qualify for ADP. It
confirmed that decision in a redetermination dated 1 April 2024. SSS assessed JS as
scoring 6 points for daily living activities only (in respect of descriptors 4b, 5b, and 6b in
schedule 1 part 2 of the ADP Regulations) which was insufficient for an award.
3. JS appealed to the FTS. Before the FTS, additional information was provided about
mental health problems associated with coping with the stoma, medication and
treatment, and difficulties socialising. On 12 November 2024, the FTS found that JS scored
an additional 2 points in respect of daily living activity 9b, and was therefore entitled to
the daily living component of ADP. It found that a 3 year award was necessary to afford
JS the opportunity to recover both physically and mentally from the procedure he had
undergone. The FTS decided the award should run from 5 September 2023 to 4
September 2026.
4. SSS appealed the decision of the FTS in relation to the start date of the award only. The
FTS granted permission to appeal on 7 January 2025 on the following ground of appeal:
"The FTS has misdirected itself in law as to the effect of regulation 35 of the ADP
Regulations and so has erred in its conclusion as to the date on which the
appellant's entitlement to assistance begins".
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5. The appeal has not been opposed and it is fair and just to determine it on the papers.
Governing law
6. Regulation 35 of the ADP Regulations is entitled "When an application is to be treated as
made and beginning of entitlement to assistance" and provides:
"(1) An application for Adult Disability Payment is to be treated as made--
(a) on the day it is received by the Scottish Ministers, or
(b) if applicable, on the day identified by the Scottish Ministers in
accordance with paragraph (2).
(2) If, before making a determination on the basis of an application, the Scottish
Ministers consider that the individual in respect of whom the application is
made--
(a) would not satisfy a requirement in--
(i) regulation 5 (daily living component),
(ii) regulation 6 (mobility component),
(iii) regulation 11 (required period condition: daily living
component),
(iv) regulation 12 (required period condition: mobility component),
(v) Part 5 (residence and presence conditions), or
(vi) regulation 22 (age criteria),
if the application were treated as made on the day it was received, and
(b) would likely be entitled to receive Adult Disability Payment if those
requirements were satisfied within a 13-week period beginning on the day
it was received, the Scottish Ministers may choose the date within that 13
week period on which the application is to be treated as made.
(3) Where, on the basis of an application (other than where regulation 58(1)
applies), a determination is made that an individual is entitled to Adult Disability
Payment, the date on which entitlement begins is to be identified in accordance
with paragraphs (4) to (6).
(4) Where an application is made within 8 weeks of the day on which the full
name and date of birth of an individual ("the required data") is submitted by, or
on behalf of, the individual to the Scottish Ministers for the purpose of an
application for Adult Disability Payment, entitlement begins on whichever is the
later of the day--
(a) on which the required data was submitted, or
(b) identified in accordance with paragraph (2).
(5) Subject to paragraph (6), where an application is made after the 8 week period
described in paragraph (4), entitlement begins on the day on which the
application is treated as made in accordance with paragraph (1).
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(6) Where the Scottish Ministers are satisfied that there is a good reason why an
application was made after the 8 week period described in paragraph (4), they
may treat the application as having been made within that period.
(7) For the purposes of section 38(3) of the 2018 Act, the period covered by an
application for Adult Disability Payment--
(a) under paragraph (1)(a)--
(i) begins on the day on which the application is treated as having
been made, and
(ii) ends on the day on which the determination of entitlement is
made, and
(b) under paragraph (1)(b)--
(i) is deemed to begin on the day before the determination of
entitlement is made provided that the requirements are satisfied,
and
(ii) ends on the day on which the determination of entitlement is
made."
7. One of the conditions for entitlement to ADP under regulations 3, 5 and 6 of the ADP
Regulations is the required period condition. Under regulations 11 and 12, an individual
meets the required period condition for the daily living and mobility components of ADP
where, if the individual's ability to carry out the daily living and/or mobility activities
were determined every day in the required period, it is likely that the Scottish Ministers
would determine on all of those days that the individual had limited or, as the case may
be, severely limited ability to carry out the daily and/or mobility living activities. Under
regulation 10(3),
""required period" means --
(a) where an individual's entitlement to Adult Disability Payment falls to be
determined, the period of 13 weeks ending with the relevant date together with--
(i) in relation to an application after an interval (see regulations 14 and 23),
the period of 39 weeks beginning with the date on which that application
is made,
(ii) in relation to any other application, the period of 39 weeks beginning
with the day after the relevant date.
(b) where Adult Disability Payment has been awarded to an individual--
(i) during the period of 13 weeks following a determination of entitlement
in the circumstances where regulation 14 or 23 applies, the period of 13
weeks ending with the relevant date together with, for each day of the
award, the period of 39 weeks beginning with the day after each day of the
award,
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(ii) in any other case, for each day of the award, the period of 13 weeks
ending with that day of the award together with the period of 39 weeks
beginning with the day after that date".
8. Regulation 13 of the ADP Regulations states:
"Except where regulation 14 or 23 applies, in these Regulations, the "relevant
date" is--
(a) where the individual has made an application for Adult Disability Payment
which has not been determined--
(i)
the date of that application, or
(ii)
if later, the earliest date in relation to which, if the individual's
ability to carry out daily living activities or, as the case may be,
mobility activities, had been determined on every day in the
previous 13 weeks, it is likely that the Scottish Ministers would
have determined on all of those days that the individual has
limited ability or, as the case may be, severely limited ability to
carry out those activities, and
(b) where the individual has an award of either or both components, each day of
that award".
Decision
9. The FTS does not explain in its reasons why it selected the start date for the award of
ADP of 5 September 2023. It is possible that it was as a result of an oral submission to it
by the presenting officer from SSS, based on an error about the date the appellant first
telephoned SSS. Nevertheless, since the points awarded by the FTS were based on the
consequences of a stoma operation on 8 September 2023, a start date for ADP earlier than
that operation appears unlikely to be correct.
10. What the FTS should have done was apply regulation 35 of the ADP Regulations to
determine the correct start date for the award it decided to make. As the UTS has already
commented, it is unfortunate regulation 35 is difficult to understand and apply (Social
Security Scotland v GK 2024 UT 71 para 4). But that does not absolve the FTS from the
requirement to use its terms to decide the commencement of an award.
11. The starting point, because the present claim is based on an application, is regulation
35(3), which provides that the date on which entitlement begins is to be identified in
accordance with regulations 35(4), (5) and (6). Because SSS received JS's fully completed
application form on 5 October 2023, which was within 8 weeks of the day JS first
contacted ADP and gave his full name and date of birth, the applicable provision is
regulation 35(4). Regulation 35(4) gives two possible options for the starting date. If the
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dates of those two options are different, the FTS on the wording of the subsection cannot
just pick whichever date it prefers, but must choose the later of the two dates.
12. The first possible option for the start date of the award is the date on which the required
data was submitted. The "required data" are defined within regulation 35(4) and are in
essence the full name and date of birth. JS provided his full name and date of birth to SSS
for the purposes of an application for ADP on 4 September 2023.
13. The second possible option for the commencement of the award is a day "(b) identified in
accordance with paragraph (2)". Regulation 35(2) aims to give some flexibility where an
appellant would not satisfy all of the conditions of ADP on the date SSS received an
application, but might come to satisfy them within a 13 week period after that.
14. One of the conditions to qualify for ADP is the "required period" condition. It is not
enough only to score sufficient points for an award; regulations 5 and 6 also have the
effect that the required period condition must also be met. The required period is
essentially a one year period, with start and end dates calculated in accordance with the
ADP Regulations. Essentially there is a "backwards" test and a "forwards" test. The
backwards test, paraphrased and simplified, means that the limitations on ability which
score enough points for an award must have existed for 13 weeks prior to the date an
award starts. The forwards test means that the relevant limitations must persist for at
least 39 weeks after an award starts. The reason the required period condition exists is to
ensure ADP awards are channeled towards impairments with significant and not short-
term effects (Social Security Scotland v FK 2024 UT 23 paras 1 and 16). Given that the
underlying medical event giving rise to limitations on ability was based on a stoma
operation on 8 September 2023, the earliest date the required period condition could have
been met was 13 weeks after that operation, or 8 December 2023.
15. Of the two possible options for start dates under regulation 35(4) in this case, 4 September
2023 and 8 December 2023, the later date must be selected as the start date of the award.
The FTS therefore erred in selecting 5 September 2023 as the commencement date for the
award. Its decision was made in error of law, because it failed properly to apply
regulation 35 of the ADP regulations.
Outcome
16. The only challenge to the decision of the FTS in this appeal concerns the dates of the
award. There is no challenge to the finding of the FTS that JS scored sufficient points
under descriptors 4b, 5b, 6b and 9b in part 2 of schedule 1 of the ADP Regulations to
qualify for the daily living component of ADP at the standard rate, but not the mobility
component. Nor is there a challenge to the express finding of the FTS that the award
should be made for a three year period. In those circumstances, rather than remitting the
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case to the FTS for reconsideration, it is appropriate under section 47 of the Tribunals
(Scotland) Act 2014 to quash the decision and re-make it, in the terms set out at the start
of this decision. The award of the daily living component of ADP remains, based on the
facts found and conclusions reached by the FTS, as does the three year period for an
award, but the commencement date is altered properly to reflect regulation 35 of the ADP
Regulations.
Observation
17. This is not the only case before the UTS in which dates of an award made by the FTS have
been challenged by SSS. Parties have an obligation under rule 2(4) of the First-tier
Tribunal for Scotland Social Security Chamber Rules of Procedure 2018 ("the FTS Rules")
to help the FTS to further the overriding objective of dealing with cases fairly and justly.
Given that obligation, it would be of assistance to the FTS if SSS provided information
enabling the FTS properly to apply the provisions of regulation 35, should it decide to
make an award of ADP. That is so even if SSS's primary position is opposition to an
appeal.
18. Information of assistance to the FTS might include:
(i)
the date on which SSS was given the full name and date of birth of an individual
in connection with a claim for ADP (the "required data" within regulation 35(4))
(ii)
the date when SSS received the application for ADP
(iii)
the date on which SSS considers an award of ADP ought to commence, should the
FTS decide an award is warranted, upon application of the provisions of
regulation 35
(iv)
any other matters that SSS considers relevant to the dates of any award made.
19. SSS ordinarily provides a written appeal response where it is a party to an appeal before
the FTS. SSS has indicated to the UTS that it is reviewing its templates for appeal
responses, and will take into account guidance given by the UTS. It is likely that in due
course information to enable the FTS properly to apply regulation 35 will be included in
appeal responses. However, there will inevitably be a transition period, because there are
many appeals where responses have already been lodged with the FTS. Meantime, if
there is an oral hearing at which there is a presenting officer, the necessary information
can be provided orally.
Lady Poole
23 April 2025
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A party to this case who is aggrieved by this decision may seek permission to appeal to the Court of Session
on a point of law only. A party who wishes to appeal must seek permission to do so from the Upper
Tribunal within 30 days of the date on which this decision was sent to him or her. Any such request for
permission must be in writing and must (a) identify the decision of the Upper Tribunal to which it relates,
(b) identify the alleged error or errors of law in the decision and (c) state in terms of section 50(4) of the
Tribunals (Scotland) Act 2014 what important point of principle or practice would be raised or what other
compelling reason there is for allowing a further appeal to proceed.