Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/5132/2014

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Leeds on 6 February 2014. For the reason set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I re-make the First-tier Tribunal’s decision as follows:

The Claimant’s appeal against the decision of the Secretary of State made on 24 July 2012 is allowed. The Claimant is entitled to an allowance for lowered standard of occupation under Article 15 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (as amended).

2. The Claimant is a man now aged 56 who is in receipt of a 70% war pension in respect of the effects of various conditions caused by his service between May 1977 and April 1978. The First-tier Tribunal upheld the Secretary of State’s decision that the Claimant was not entitled to an allowance for lowered standard of occupation (ALSO) by reason of the provision in Article 15(2)(b) of the Service Pensions Order that no award of such an allowance shall be made where

“(iii) the member is in receipt of –

(aa) …………………………….

(bb) employment and support allowance under Part 1 of the Welfare Reform Act 2007 ………………..”

3. The Claimant claimed ALSO with effect from 26 January 2012. He told the First-tier Tribunal (see the Record of Proceedings at p.19) that he was awarded ESA, which was paid to him for 365 days and then stopped. I assume that that must have been contributory ESA. Information put before the First-tier Tribunal by the Secretary of State (pp.11-13) appears to show that from 5 July 2011 he had an ESA award of nil because his income exceeded his applicable amount. It appears, therefore, that from the date when his entitlement to contributory ESA expired by effluxion of time he was not entitled to income related ESA because his income was too high. From that time he was entitled only to incapacity credits. (The Claimant told the First-tier Tribunal that he was paid ESA down to the end of 2012, but the information provided by the Secretary of State appears to show that his contributory ESA entitlement had expired by 5 July 2011, at the latest).

4. The Secretary of State’s written submission to the First-tier Tribunal included the following submission:

“The Secretary of State notes the DWP Customer Information System confirms that the Appellant has an active ESA award from 5/7/11, and although not receiving payment, receives national insurance credits.

Where ESA has been awarded but is not in payment, or is in payment at a reduced rate, the claimant is still regarded as being in receipt of the allowance for the purposes of ALSO consideration.”

5. The First-tier Tribunal’s conclusion was as follows:

“Although more detailed argument on this issue form both parties would have been welcome, our decision in this case ….. is to accept the Secretary of State’s contention. We accordingly find that the receipt by the appellant of NI credits, as a result of the award of ESA, was sufficient to amount to the receipt of ESA for the purposes of article 15(2)(b)(iii) of the Service Pensions Order. It follows that the appellant was not entitled to an award of an allowance for lowered standard of occupation either at the date of claim or at the date of the decision under appeal.”

6. It is not necessary for me to decide whether there can be any circumstances in which, although not entitled to any actual payment of ESA, a claimant can be considered to be “in receipt of” it for the purposes of Article 15, although I somewhat doubt it. It is in my judgment quite clear that on the facts of the present case, where he appears to have had no entitlement to ESA, but an entitlement only to national insurance credits, the Claimant was not “in receipt of” ESA at the material time.

7. The Secretary of State has consented to my giving a decision, in the terms set out in paragraph 1 above, without reasons. The Claimant has opposed the giving of a decision without reasons, and has requested an oral hearing of this appeal so that he can explain fully what happened and why. I have thought it right to set out my reasons, but I refuse the Claimant’s request for an oral hearing, as a hearing is not necessary in order to enable me properly to decide this appeal.

Charles Turnbull

Judge of the Upper Tribunal

12 May 2015