LK v Social Security Scotland / [2025] UT 06 / Ref: UTS/AS/24/0052
Here are the main points from the decision of the Hon. Lord Fairley in the appeal of LK against Social Security Scotland:
- Decision:
- The appeal is allowed, and the decision of the First Tier Tribunal (FTS) dated 15 March 2024 is set aside.
- Further procedure will be decided based on written submissions or an oral hearing if requested.
- Background:
- The appellant’s child, E, is deaf, and the appellant applied for Child Disability Payment (CDP).
- The respondent awarded the care component at the lowest rate, but the appellant argued it should be at the middle rate.
- The FTS initially refused the appeal, but the appellant obtained leave to appeal from this tribunal.
- Regulations:
- Regulation 11 of the 2021 Regulations outlines the criteria for the care component of CDP.
- The care component is payable at the lower rate if the condition in regulation 11(1)(a) is satisfied and at the middle rate if through regulation 11(1)©(i).
- FTS’s Errors:
- The FTS’s reasons were unclear and grammatically incorrect.
- The FTS incorrectly concluded that the conditions in regulations 11(1)(a) and © are mutually exclusive.
- The FTS failed to make clear findings about the frequency and nature of the care required by E.
- Conclusion:
- The appeal is allowed, and the decision of the FTS is set aside.
- Further submissions will determine whether the case should be remitted to a different tribunal or decided by this tribunal.
Hon. Lord Fairley notes:
13/14. The very fact that parliament provided for two different amounts or kinds of attention makes it clear that ‘significant portion’ of the day and ‘frequent attention throughout the day’ are not the same thing, are, indeed mutually exclusive. The tribunal as a matter of fact decided that the various ‘small things’ that the child needed amounted to a significant portion of the day but not to frequent attention throughout the day.’
‘Whilst there may be cases in which only one or other condition is satisfied, there may also be circumstances where both are met. That would be the case where a child required frequent attention throughout the day in connection with their bodily functions such that the aggregate period of attention amounted to a significant portion of the day.’ (paragraph 10)