YK v Secretary of State for Work and Pensions (USTA)

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 16 May 2024 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh Tribunal in accordance with the following directions. Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The First-tier Tribunal hearing the remitted appeal shall not involve any members of the panel whose decision the Upper Tribunal has set aside.

3. If any party has any further evidence to put before the First-tier Tribunal this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal.

4. The panel hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes the new panel may reach the same or a different outcome from the previous panel.

5. Copies of this decision shall be added to the bundle to be placed before the panel of the First-tier Tribunal hearing the remitted appeal. These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal. REASONS FOR DECISION Introduction

1. This appeal relates to a decision of the First-tier Tribunal dated 16 May 2024 to confirm the decision made by the Secretary of State on 17 November 2023 that the Appellant was not entitled to Universal Credit (UC) for the period 1 December 2020 to 21 August 2022.

2. On 29 December 2020 a decision maker decided that the Appellant had not shown evidence of a qualifying right to reside for Universal Credit (UC) purposes and was not entitled to UC.

3. After a mandatory reconsideration a decision maker determined that the Appellant did have a right to reside.

4. Following a review it was determined on 17 November 2023 that the Appellant did not satisfy the habitual residency test between 1 December 2020 and 21 August 2022 because the decision maker determined that the Appellant’s employment in that period was not genuine so they did not have worker status.

5. That decision was unchanged after mandatory reconsideration. The Appellant appealed to the First-tier Tribunal. The decision of the First-tier Tribunal

6. The First-tier Tribunal in a decision dated 16 May 2024 upheld the decision of 17 November 2023.

7. The Appellant applied for and was provided with a statement of reasons. The Appellant applied for permission to appeal to the Upper Tribunal. The decision to give the claimant permission to appeal

8. District Tribunal Judge Curley refused permission to appeal on 4 October 2024 on the grounds that there was no error of law in the decision and that the findings of fact were explained adequately in the statement of reasons.

9. The Appellant renewed his application to the Upper Tribunal.

10. Upper Tribunal Judge Wright gave permission to appeal for the following reasons: I give permission to appeal because I consider there is a realistic prospect of [the Appellant] establishing that the First-tier Tribunal (“FTT”) erred materially in law in its decision of 16 May 2024 by failing to adequately address in its reasons key aspects of [the Appellant’s] appeal before the FTT. Those aspects are set out in the grounds of appeal. The submissions in the appeal to the Upper Tribunal

11. The Secretary of State’s representative made thoughtful submissions on the appeal and indicated that the Secretary of State supported the appeal. She asked that the First-tier Tribunal decision be set aside and the matter remitted to a freshly constituted panel of the First-tier Tribunal for redetermination.

12. Mr Ellinson, on behalf of the Appellant, made no substantive submissions in response.

13. Both parties agreed to a decision without reasons. Why there was no oral hearing

14. Neither party asked for an oral hearing (unless the Upper Tribunal intended to remake the decision itself). In exercising my discretion I took account of the fact that the parties have provided detailed written submissions and that the appeal was supported by the Respondent. I decided that I could fairly determine the appeal on the papers and that it was proportionate and in the interests of justice to do so. Decision

15. I am satisfied on the arguments before me that the First-tier Tribunal erred in law in failing to provide adequate reasons and that the decision should be set aside as a result.

16. I agree with the Secretary of State that the First-tier Tribunal has failed to explain why it preferred the Secretary of State’s evidence on a number of key points, and has failed to adequately address in their reasons a number of key arguments set out in the grounds of appeal. It is not clear whether the First-tier Tribunal have taken into consideration the Appellant’s evidence on these points or what it made of that evidence.

17. I conclude thatthe reasons are not sufficient to give the parties a reasonable understanding of the basis on which the First-tier Tribunal’s conclusions were reached and it is not possible to know whether the First-tier Tribunal may have misdirected itself or omitted to take account of some material consideration which might have led it to reach a different conclusion.

18. I find, for those reasons, that the First-tier Tribunal materially erred in law because it failed adequately to explain its reasons for the findings it did make.

19. For the above reasons the appeal is allowed and the decision is set-aside.

20. Because further facts need to be found, and because the First-tier Tribunal is best placed to find those facts, I am not able to re-decide the appeal and I remit the matter to be re-heard by a newly constituted First-tier Tribunal.

21. The Appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that Tribunal to assess in accordance with the law on the basis of its findings of fact. Sophie Buckley Judge of the Upper Tribunal Authorised by the Judge for issue on 20 June 2025 Anonymity: The appellant in this case is anonymised in accordance with the practice of the Upper Tribunal approved in Adams v Secretary of State for Work and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28.