The Upper Tribunal | UT Case Number: UA-2025-000279-PIP |
Summary: Personal independence payment – general (41)
United Kingdom remained competent State despite claimant’s move to Spain
Before
UPPER TRIBUNAL JUDGE JACOBS
Between
ADA (by his mother as appointee) | Appellant |
and | |
Secretary of State for Work and Pensions | Respondent |
THE UPPER TRIBUNAL ORDERS that, without the permission of this Tribunal: No one shall publish or reveal the name or address of ADA, who is the Appellant in these proceedings, or any information that would be likely to lead to the identification of any of him or any member of his family in connection with these proceedings. Any breach of this order is liable to be treated as a contempt of court and may be punishable by imprisonment, fine or other sanctions under section 25 of the Tribunals, Courts and Enforcement Act 2007. The maximum punishment that may be imposed is a sentence of two years’ imprisonment or an unlimited fine. |
Decided on 23 October 2025 without a hearing
Representatives
Claimant: Honey van Reeuwijk, Citizens Advice Eastbourne
Secretary of State: DMA Leeds
Decision of Upper Tribunal
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Reference: | SC325/24/00012 |
Decision date: | 23 October 2024 |
Hearing: | Ashford |
As the decision of the First-tier Tribunal involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: ADA remained entitled to his personal independence payment despite his move to Spain on 28 August 2023.
Reasons for Decision
This decision is given with the agreement of the parties. That allows me to be brief.
ADA was born on 11 October 2006 and awarded a disability living allowance. When he attained the age of 16, he was required to claim a personal independence payment, which he did. The family moved to Spain on 28 August 2023. At first, the Secretary of State refused the claim, but revised this to make an award of a personal independence payment from the date of claim until the family moved to Spain. The basis for the decision was that, from the date of the move, Spain became the competent State for the claimant’s sickness benefit. The First-tier Tribunal dismissed ADA’s appeal, but I gave permission to appeal to the Upper Tribunal:
It seems that the First-tier Tribunal failed to apply KR v Secretary of State for Work and Pensions [2019] UKUT 85 (AAC), in which the Secretary of State conceded in similar circumstances that a claimant would remain entitled under Article 7 or Article 21 of Regulation 883/2004. The position should be the same under the equivalent provisions of the Withdrawal Agreement given that the claimant is a dual national.
As far as I can tell, there is no difference of view between the United Kingdom and Spain, as Spain has not been asked for or expressed its view.
The Secretary of State’s invited the Upper Tribunal to set aside the First-tier Tribunal’s decision and re-make it. The Secretary of State’s representative has corrected my understanding about ADA’s nationality and submitted as follows:
The claimant is the child of a Spanish national but under Spanish nationality laws, an application to the Spanish consulate would have to be made for him to be granted dual nationality. Based on the information provided in both the FtT and UT bundles, there is nothing to suggest that this application has been made and that the claimant himself is a dual national.
However, the claimant’s mother is a Spanish national who was granted ILTR [indefinite leave to remain] on 30/05/2019. At the end of TP [Transitional Period] she was a union citizen who was residing in and subject to the legislation of the UK, falling within scope of the EUWA [EU Withdrawal Agreement] via Article 30 (1) (a), meaning that at the end of TP the claimant was a dependent child of a person within scope and that Article 7 of Regulation 883/2004 can be brought into consideration. This states: ‘Unless otherwise provided for by this Regulation, cash benefits payable under the legislation of one or more Member States or under this Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated.’
As stated in paragraph 7 of this submission, the claimant was in receipt of DLA until they turned 16 and were subject to an assessment in order to qualify for PIP. Based on this assessment, a decision was made that the claimant had no entitlement, and no award of PIP was made. As the termination of benefit award had pushed the claimant’s appointee into financial hardship, they decided to temporarily move to Spain on 28/08/2023 to stay with her parents, maintaining payments on their UK property as best she could. On 27/10/2023 a letter was sent to the claimant’s appointee (pages 32-28 of the FtT bundle) stating that the PIP decision had been revised and would be payable up until the point of them leaving the UK.
As per the previous paragraph, although the move to Spain took place when there was no award, there was a dispute in progress, which then went in the claimant's favour. There was an entitlement to an award before he went away, with the UK being the competent state, so that should have continued without interruption under Article 7 of Regulation 883/2004.
I respectfully submit the reasons I have detailed above as reasons there has been an error in law. I suggest that the FtT did not make adequate findings over whether the claimant is covered by the EUWA prior to making their decision. This would have shown that the claimant should be treated as a family member of a person within scope of the EUWA and the UK being the competent state for the payment of PIP.
I accept that submission and re-make the First-tier Tribunal’s decision as requested by the Secretary of State and as agreed by ADA’s representative.
Authorised for issue | Edward Jacobs |