MM v Secretary of State for Work and Pensions

The issue in this case is whether the claimant could qualify for the mobility component of a personal independence payment after attaining the age of 65. I have decided that she could not. When the Secretary of State mistakenly included the mobility component on a supersession, it could be removed on revision for official error.

The claimant’s age is relevant because of section 83 of the Welfare Reform Act 2012. This provides that a claimant is not entitled to either the daily living component or the mobility component of a personal independence payment for any period after they reach the relevant age. In this case, the relevant age for the claimant was 65. She attained that age on 26 September 2015.

Section 83 is subject to exceptions in regulations.

The claimant made a claim for a personal independence payment 9 July 2015. The Secretary of State made an award for the inclusive period from 9 July 2015 to 1 September 2019. It consisted of the daily living component at the standard rate.

On 9 February 2019, the Secretary of State made a supersession. The decision-maker extended the award to 28 January 2022 and added the mobility component at the standard rate. The letter accompanying the decision explained that the mobility component could not be awarded, but there is no doubt that it was included and paid to the claimant.

The period of the award was subsequently extended to 28 October 2022, probably on account of the disruption to decision-making caused by the pandemic.

In 2021, the claimant reported that her condition had deteriorated. This led the Secretary of State to make a new decision. This changed the award to consist of the daily living component at the standard rate only for the inclusive period from 9 February 2019 to 28 November 2022. The mobility component was removed from the award with retrospective effect on the ground of official error. Subsequently, the duration of the award was made on-going.

On appeal to the First-tier Tribunal, the tribunal increased the rate of the daily living component to the enhanced rate, but did not include the mobility component in the award. It rejected the argument for the claimant that there was a lacuna in the legislation or that the tribunal had a discretion.

The claimant applied to the Upper Tribunal for permission to appeal. Upper Tribunal Judge Wikeley directed an oral hearing, which took place before Judge Hansen. The judge gave permission to appeal in a detailed judgment. He referred in particular to a decision of Judge Wikeley in SC v Secretary of State for Work and Pensions [2022] UKUT 97 (AAC), saying that he was not persuaded by some of the reasoning.

Both parties have made their submissions and the case has been come before me for decision.

Section 83 of the Welfare Reform Act 2012 provides:

Section 83(3) allows for exceptions and refers to regulations. The exceptions are contained in the Social Security (Personal Independence Payment) Regulations 2013(SI No 377). Only two are relevant to this case:

This is how the legislation applies.

The claimant attained 65 on 26 September 2015. From that moment, she was no longer entitled to either component of personal independence payment, unless she came within one of the exceptions. Those exceptions are set out in regulations 25 to 27 of the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377). It is important to remember that the effect of section 83 revived as soon as, and to the extent that, the claimant no longer came within an exception.

On 25 September 2015, the day before her birthday, the claimant had an award of a personal independence payment consisting of the daily living component. Accordingly, she immediately fell within the exception in regulation 25(a). This applies if the claimant was entitled to an award of either or both components on the day before she attained 65. As the exception applied, it displaced section 83 and the claimant remained entitled to her award. In other words, the effect of regulation 25(a) was to preserve that award.

In February 2019, the Secretary of State made a supersession. At that moment, regulation 27 applied. Section 25(a) no longer applied. The award that it had preserved no longer existed and was replaced by the award made on supersession. Section 25 cannot operate in conjunction with regulation 27. If it did so, it would override the restrictions in regulation 27.

Those restrictions apply to the mobility component. The regulation envisages two possibilities.

One possibility is in regulation 27(2)-(3). This applies if ‘the original award includes an award of the mobility component’. The original award means, and can only mean, the award that was made on the July 2015 claim. It did not include the mobility component, so this possibility does not apply.

The other possibility is in regulation 27(4). This applies if ‘the original award does not include an award of the mobility component but C [the claimant] had a previous award of that component’. The original award was, as before, the one made on the July 2015 claim. It did not include the mobility component. Nor had the mobility component been included in a previous award. So this possibility does not apply either.

The result is that regulation 27 provides for exceptions when an award is revised or superseded. It contains two provisions which permit an award containing the mobility component. Neither applies to the claimant in this case. The result was that section 83 applied in respect of the mobility component. There was no legal basis on which a decision given on revision or supersession could include the mobility component.

Despite that, the Secretary of State did include the mobility component in the award on 9 February 2019. But that was a mistake. The Secretary of State was entitled to correct that mistake and to do so retrospectively. That was done on 3 July 2021 and the tribunal had no choice other than to confirm that it was correctly done.

Regulation 27 is not an exhaustive provision dealing with entitlement to personal independence payment or even the mobility component. Its only function is to provide for an exception to section 83. Apart from that, it does not affect the normal operation of revision and supersession, which are governed by the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI No 381). In particular, these Regulations provide the grounds for revision and supersession. One of the grounds for revision is official error. Regulation 9(a) provides for a decision to be revised where it arose from official error. Regulation 2 defines an official error as ‘an error made by an officer of the Department for Work and Pensions … acting as such which was not caused or materially contributed to by any person outside the Department’. The decision-maker’s failure to comply with section 83 and regulation 27 satisfies that description. Regulation 9 provides the authority for revising the decision of 9 February 2019 and removing the mobility component from the award

In fact, it is simpler than that. There has never been an exception that disapplies the effect of section 83 in respect of the mobility component.