Is AT a relevant determination?

I am sure I’ve seen it written somewhere that AT is a relevant determination for the purposes of S27 Social Security Act 1998.

However, as usual, I’m wondering if I dreamt it.

With the background at the CJEU I can’t see how it could be, but something’s jarring me.

I think you are getting ahead of things. The DWP doesn’t believe that AT is a relevant determination because their position is simply that it is wrong..

If and when the Court of Appeal or Supreme Court confirms what the UT decided, then they might try to argue its a relevant determination.

I expect that if it comes to that, we will all be arguing that AT does nothing more than put a gloss on what was already decided in CG, but that is an argument for another day.

There was some discussion that the DWP might use its powers under s26 in relation to issues relating to AT.

Elliot Kent - 14 February 2023 03:58 PM

There was some discussion that the DWP might use its powers under s26 in relation to issues relating to AT.

https://www.rightsnet.org.uk/forums/viewthread/15988/P75/#89969

I’ve got another one tomorrow so if there are any updates I’ll share; I’m expecting to get stayed though.

Although I learnt nothing from my hearing, I’ve just received an appeal response asserting that AT is a relevant determination.

Here we go again…

Sorry Dan:

Are we talking here about them using s.26 (to force FTT to decide case as if AT lost/stay it or refer it back to SSWP) or s.27 (periods prior to AT cannot have AT applied)?

My thoughts:

Isn’t the point that s.27 SSA 1998 would only make a difference in an appeal case if the actual decision under appeal was made after AT? Otherwise you are not in a situation where s.27(1)(b) applies and you are fine.
And if it is a case where the actual SSWP decision was made after AT then the only effect s.27 would have is as regards periods before AT.

Can I be clear whether in your case they are seeking to rely on s.26?  If so, I wonder whether in such a case you could threaten JR against SSWP use of s.26? The decision to do so is arguably itself another thing that causes claimant not to be able to rely on dignity and denies her an appeal hearing within reasonable time etc.

I would really like to see a copy of any s.26 argument SSWP makes- and the notice served under s.26(2) if such notice has been served.

Finally, with regard to FTT’s adjourning or staying these cases to await AT in CA: if the evidence of destitution is good, I really struggle to see how that is right as it seems to me to involve the FTT in a dignity breach and so on. Such a decision could potentially be appealed (notwithstanding the PD on how one should not in general do this- arguably here is a paradigm case of when an appeal against interlocutory decision would be appropriate)- or certainly make further written representations applying for case to be unstayed and heard on expedited basis.

With regard to this final point on staying though- I think it absolutely essential that the evidence on destitution is really well presented and the claimant circumstances dire etc.

Martin