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Judge Bano and Regulation 26(1)(a)
I guess that I am looking for other people’s views and guidance.
I read Upper Tribunal Judge Bano’s assessment of Regulation 26(1)(a) of the Universal Credit (Decisions and Appeals) Regulations 2013 in Paragraph 7 of the decision in LS v SSWP (CPIP) [2019] UKUT 3 (AAC) with some disquiet. The statement that “Regulation 26(1) stands apart from the other supersession grounds now found in the 2013 Regulation …” and the rest of Paragraph 7 just didn’t ring true. Then I remembered that this is because of an earlier case I had read. That is the judgement of Upper Tribunal Judge Wikeley in TH v SSWP (PIP) [2017] UKUT 0231 (AAC) in which the Secretary of State conceded and Judge Wikeley agreed that:
“12. First, the Tribunal failed to establish whether a ground for supersession existed, and moreover failed to explain to the Appellant why his existing award should be removed.”
…
“14. Third, and linking back to the first reason, it was not enough simply to assume that the appearance of a new PIP assessment report provided an automatic ground for supersession of the original awarding decision under regulation 26(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381; “the D & A Regulations”). It could not simply be assumed that the second PIP assessment report in some way trumped the first PIP assessment report e.g. by virtue of being more recent. The Appellant as a matter of justice was entitled to an explanation as to why his award had been terminated ahead of time – see R(M) 1/96 and SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) at paragraph 21.”
If I was the First-tier Tribunal Judge in this case, I would be raging angry. You follow the case law as required and then another Upper Tribunal Judge, making absolutely no reference to the earlier case law which suggests that they didn’t know it exists, overturns your decision on this basis. Not only does Judge Bano make no reference to Judge Wikeley’s case, there is no attempt to contradict the reasoning given by the Secretary of State’s representative and accepted by Judge Wikeley.
So, if I am right, there are 2 contradictory decisions but one has a reasoned concession from the Secretary of State and the other contains an unreasoned assertion by the later Judge that makes no reference to the earlier decision or explains why it could be wrong. I know which one I would ask a First-tier Tribunal to prefer.