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Whether a student may be entitled to carer's allowance during a deferral of studies Upper Tribunal Judge: Mitchell The question in this appeal was whether a student who deferred her full-time course for a year was undergoing a temporary interruption in attendance.
Mrs M had enrolled on a B. Once I have received this confirmation I will notify your Pathway Leader who will arrange a resumption meeting for you. This will enable you to discuss your return and provide you with information regarding for example, the timetable and placement information.
In her claim form, she wrote she wished to claim from 30th July Mrs M gave the following information about her degree course: In determining her subsequent appeal to him, Upper Tribunal Mitchell, sets out the following as the relevant legislation.
Regulation 5 3 is the focal point of this appeal and provides: In doing so he says that: But it does have a context and a purpose.
I accept that this does not flow neatly from the statutory wording used but nor is regulation 5 particularly neatly drafted … it is difficult, for example, to see why the legislator thought it was necessary to specify that abandonments or dismissals only counted, in determining the period of deemed attendance, if they occurred before the course had ended.
Judge Mitchell then concludes that: These other interruptions are temporary interruptions for the purposes of regulation 5. It does not promote potentially unstable caring arrangements where the carer tries to juggle full-time study with full-time care.
And I suspect this interpretation may have some symmetry with the student funding rules. As mentioned above, the parties agreed that one purpose of the legislation was to prevent student carers from accessing dual funding regimes. In this decision, Judge Jacobs holds that the amended past presence test for disability living allowance is not discriminatory, in breach of the public-sector equality duty or the duty to consider the best interests of children as a primary consideration.
Judge Jacobs holds that: In other words, there is a delay in payment, not an outright refusal of entitlement; disability living allowance is not the only source of funding available for children with disabilities, so the child will not be deprived of all financial support; whatever savings this may produce, will increase the pot available for other purposes, which may be to the benefit of children generally or children with disabilities; and children are almost always members of families.
The new past presence rules are not entirely a bad thing, as they allow more flexibility of movement for the family than the old test.
In addition, he finds no evidence any specific reference to the best interests of the child being a primary consideration: I would have expected the impact assessment to show that this was done. But the issue cannot be judged by mere empty formalism. What matters is what was done.
For the reasons, I have given on the public-sector duty, I consider that the evidence shows that the Secretary of State did act in accordance with Article 3 when formulating the policy that is enacted in the new past present test. Hemingway The principle issue raised by this appeal concerns the approach to be taken by the First-tier Tribunal in circumstances where it is dealing with an appeal against a decision concerning the renewal of an award of DLA.
In particular, where the Secretary of State has failed to provide it with all relevant documents because he has not produced the documentation relied upon when the previous awarding decision had been made rule 24 4 b of the Tribunal Procedure First-tier Tribunal Social Entitlement Chamber Rules The appeal concerned a renewal claim made by a year-old child Her mother was her appointee.
The claimant had Type 1 diabetes which required supervision relating to the injection of insulin and the monitoring of blood sugar levels. She had a DLA award at the lower rate of the mobility component and the middle rate of the care component running until the 24 January However, on 27 January a decision was made not to award her DLA.
With a tribunal having dismissed her appeal the claimant appealed to the Upper Tribunal. In considering the appeal, Upper Tribunal Judge Hemingway says that the tribunal had quite limited medical evidence before it. Also that unusually, it was not provided with documentation relating to the previous awarding decision.
Rule 24 of the Rules of Procedure requires a decision maker, upon receipt of a copy of a notice of appeal sent by the tribunal, to deliver a response to the appeal to the tribunal. However, without formally deciding the point because he does not have to, Judge Hemingway says that: It is not, in my judgment, acceptable where such documentation is of relevance or potential relevance for the Secretary of State to simply say, as here, that the documentation is available and can be produced if the tribunal requires it.
That is because to take such an approach would be to ignore the mandatory nature of the duty. Further, such an approach is unhelpful because a tribunal which has convened to decide such an appeal may well feel a natural impetus to get on with the job and a claimant might well have an understandable desire to get matters over with.
That combination might lead, in some cases, to tribunals understandably proceeding without evidence that might have made a material difference to the outcome rather than adjourning to obtain it. Judge Hemingway does not agree that a tribunal will always be under a duty to adjourn in order to obtain the missing evidence:Practice of personal hygiene should be carried out as daily, weekly, and monthly activities.
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