“The calculation of a person’s earned income in respect of an assessment period is, unless otherwise provided in this Chapter, to be based on the actual amounts received in that period.”
“I believe that the First Tier Tribunal has erred in law by not properly considering and applying the findings of both the Johnson case and the Pantellerisco case, with regards to the claimant who are not paid on a non-monthly basis. This is particularly evident as the Judge has made no reference to each or any of the five issues/questions identified by the Court of Appeal in Johnson, and which were comprehensively addressed by Mr Justice Garnham in Pantellerisco. Although the claimants in the Johnson case were monthly paid, the court found that the DWP had incorrectly interpreted their own regulations regarding earned income (Regulation 54 of theUniversal Credit Regulations 2013 ) and wrongly assumed that where salaries for two different months were received during the same assessment period, the combined salaries from the two pays were to be treated as earned income in respect of that assessment period. Albeit the appellant in this case is paid four weekly, she received two pays within the one assessment period, which were clearly meant for two different periods, as these pays would cover eight weeks of work. Given that in both of the judgements referred to above, there were clear findings of irrationality on the part of the Secretary of State for Work & Pensions, the tribunals’ decision in [the claimant’s] case appear to be discriminative against her rights. LG v SSWP (CUC)[2021] UKUT 121 (AAC) Case No: CSUC/280/2020 6 Furthermore, legislation has now been put in place to address claimants who are paid twice in one assessment period, who are normally paid monthly. To not apply this legislation where the claimant is paid on a lunar payment cycle would be discriminatory.”
“Although the claimants’ pay situation is similar to but not on all fours with that of the claimants in Johnson, as she is paid four weekly rather than monthly, the reasoning in Johnson equally applies to such situations to the extent that: ‘There may however need to be an adjustment where it is clear that the amounts received in an assessment period do not, in fact, reflect, the amounts of earned income in respect of the period of time included within that assessment period (Johnson §52). As such, we would respectfully submit that the Secretary of State’s decision of11 August 2019 be set aside, and her entitlement be recalculated in line with the principles outlined above.”
“ … the principles the court identified, and the essential logic of the argument they accepted, apply with equal force to cases that claimants paid on the four week basis. In doing so he said at paragraph 87: Second, in monthly payment cases the difficulty arises in a few months each year, with lunar monthly cases such as the first claimants, it arises in eleven months out of twelve. In those circumstances it seems to me that the case for the regulations making an exception for such a claimant is even stronger than it was in Johnson. In these circumstances in paragraph 88 he said in those circumstances, my judgement, the claimants are entitled to a declaration to the effect that the earned income calculation is irrational and unlawful in respect of employees paid on a four week basis.”
“In Johnson, the problem would arise in several months each year, in the claimant’s case it arises in eleven out of twelve months. As in Johnson the problem will last throughout the year of the claimant’s period of entitlement.”
“8. Although the Secretary of State submits that R.(Pantellerisco) v Secretary of State for Work and Pensions[2020] EWHC 1944 (Admin) is not applicable to this case, the outcome of the Court of Appeal hearing (schedule for 15 and16 June 2021 may have a bearing on the Upper Tribunal Judge’s determination. As such it is respectfully requested that LG v SSWP (CUC)[2021] UKUT 121 (AAC) Case No: CSUC/280/2020 10 a decision be delayed until Pantellerisco is resolved at the Court of Appeal.”