SR v Secretary of State for Work and Pensions (PIP)

This appeal is about identifying the correct start date for an award of Personal Independence Payment (PIP) following a claimant’s transfer from Disability Living Allowance (DLA). It is concerned with a particular and narrow sub-set of such cases, namely those that have been subject to a negative determination which has subsequently been overturned. The appeal involves consideration of the proper application of regulations 13 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013 (SI 2013/387).

The general rule in DLA transfer cases is that the start date for entitlement to PIP is determined by reference to the date of the Secretary of State’s entitlement decision, and not the date of the PIP claim (see regulation 17(1)(b) and 17(2)(a) and RS v Secretary of State for Work and Pensions (PIP) [2016] UKUT 85 (AAC)). However, there is an exception for cases in which the claimant has been subject to a negative determination which is then reversed on revision or appeal. In these cases the start date for PIP entitlement is determined by reference to the original date on which the DLA claim was terminated following the negative determination (see regulations 13 and 17(2)(b)).

In the instant case the First-tier Tribunal erred in law because it applied the general rule rather than the exception to that general rule.

The Appellant was previously entitled to the middle rate of the DLA care component and the lower rate of the DLA mobility component. The Department for Work and Pensions (DWP) invited her to make the transition from DLA to PIP. However, on 29 September 2020 the DWP stopped payment of her DLA, and also refused her PIP claim by way of a negative determination, on the basis that she did not have good reason for failing to attend a consultation with a health care professional (HCP). That DWP decision was subsequently set aside on appeal by a First-tier Tribunal (FTT), but not until February 2022. That FTT decision is not the one currently under appeal. Eventually, on 8 November 2022, the DWP reinstated payment of DLA as from 30 September 2020 up to and including 6 December 2022 and then awarded PIP for the period going forward from 7 December 2022 until 30 October 2028. The new PIP award comprised the enhanced rate of both the daily living and the mobility components.

As a ‘winner’ in the transition from DLA to PIP, it was obviously in the Appellant’s interests for her PIP award to start at the earliest possible date. In short, the Appellant argues that the start date for the new PIP award should have been 30 September 2020, when payment of her DLA had stopped. The Secretary of State’s position is that the correct commencement date for the PIP award was 7 December 2022, being the day after the end of the period for which her DLA was (belatedly) reinstated.

In September 2020 the Appellant’s DLA award would have been £83.30 a week (£59.70 DLA middle rate care + £23.60 lower rate mobility). Had PIP been in payment at that time instead, the new award would have been nearly twice as much (£89.15 enhanced rate daily living + £62.25 enhanced mobility = £151.40 a week). The difference between the two awards would therefore have been £68.10 a week. The aggregate differential over the entire period between September 2020 and December 2022 would accordingly have been (very roughly) a sum in the order of £7,700. That ballpark figure takes no account of the annual benefit up-ratings in April 2021 and 2022 and nor does it reflect the fact that the Appellant was ‘kept out of her money’ for a period of just over two years.

The mandatory reconsideration notice dated 14 February 2023 set out the Secretary of State’s reasons for finding the Appellant was entitled to PIP with effect from 7 December 2022:

The statement in that extract that “Personal Independence Payment regulations specify that Disability Living Allowance will continue to be paid for 4 weeks after the decision has been made on PIP. Any award of PIP will start after the 4 week period” is an accurate paraphrase (so far as it goes) of the rule in regulation 17(1)(b)(ii) and 17(2)(a) of the Personal Independence Payment (Transitional Provisions) Regulations 2013. However, the result of this appeal shows that it is not true to state baldly, as does the mandatory reconsideration notice, that “This happens in all cases no matter the outcome of the decision”.

The Appellant appealed to the FTT against the DWP’s decision dated 8 November 2022. The FTT confirmed that the Appellant scored 23 points for PIP daily living activities and 22 points for mobility activities. The FTT also confirmed the length of the PIP award from 7 December 2022 to 30 October 2028. Throughout the only point in issue on the appeal has been the start date for the PIP award, which the FTT, agreeing with the Secretary of State, affirmed as being 7 December 2022.

There is no real dispute as to the background facts, which were helpfully found by the FTT to be as follows:

In dismissing the Appellant’s appeal, and in doing so agreeing with the Secretary of State’s position as to the start date for the PIP award, the FTT reasoned as follows:

Mr Larry Dance, the Appellant’s friend and her assiduous representative in these proceedings, has submitted a carefully drafted notice of appeal on her behalf. In summary, he argues that the FTT was wrong to rely on the Upper Tribunal decision in RS v Secretary of State for Work and Pensions (SSWP)(PIP) [2016] UKUT 85 (AAC), as that case was dealing with a different situation. He contends instead that on a proper reading of regulation 13(2) and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 the Appellant’s award of PIP should have commenced on 30 September 2020 and not 7 December 2022. I intend Mr Dance no disrespect by leaving my summary of his detailed submissions there – the reason being that I accept the broad thrust of his arguments, as will be evident from the discussion that follows later.

Ms Yasmin Elhakim, the Secretary of State’s representative, has provided a written submission resisting the Appellant’s appeal. She submits that the FTT’s approach is consistent with the decision of Upper Tribunal Judge Mesher in OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC):

Mr Dance makes no further substantive submissions in reply to the Secretary of State’s submission, other than to observe that Ms Elhakim has essentially reiterated the DWP’s position as it has been throughout these proceedings and has not actually addressed his detailed submissions about the proper application of regulations 13(2) and 17(2).

This case therefore turns on the proper interpretation and application of regulations 13 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013. Those two regulations use several terms which are defined as follows by regulation 2(1).

An “assessment determination” means “the determination, under regulation 4 (assessment of ability to carry out activities) of the PIP Regulations, of a claim for personal independence payment made by a transfer claimant”.

The “PIP Regulations” mean the (main or substantive) Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377).

Finally, at least by way of relevant definitions, regulation 2(1) provides that:

“transfer claimant” means a person who is either—

(a)

a notified person who has claimed personal independence payment in response to a notification sent by the Secretary of State under regulation 3(1), or

(b)

a voluntary transfer claimant.

For these purposes a “notified person” is “a DLA entitled person who has been sent a notification by the Secretary of State under regulation 3(1)” while a “voluntary transfer claimant” means “a DLA entitled person who has claimed personal independence payment under regulation 4.” Continuing the set of Russian doll definitions, a “DLA entitled person” in turn means, rather predictably, “a person aged 16 or over who is entitled to either component or both components of disability living allowance.”

Regulation 13 then provides as follows:

Regulation 17 further provides as follows (omitting paragraphs (4) and (5), which apply only in circumstances where a person’s claim for DLA has been refused):

The general rule in social security law is that entitlement to benefit starts with the date of claim. This is, however, the general rule and not a universal rule. So, and again as a general rule, the usual start date for an award of PIP is the date when the relevant claim for benefit is made (see section 88(1) of the Welfare Reform Act 2012). However, the position for claimants transferring from DLA to PIP is – again, as a general rule – different. Thus, in RS v SSWP (PIP) Upper Tribunal Judge Mitchell posed the question “what is the start date of an award of Personal Independence Payment (PIP) granted to a transfer claimant (a person who was previously entitled to Disability Living Allowance (DLA))?” (paragraph 1). The answer, the judge found, was that “PIP transfer awards have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim” (paragraph 2; see also paragraphs 38 and 39(d)). The FTT in the present case relied on this conclusion at paragraph 13 of its reasons.

Judge Mitchell further explained (at paragraph 35 of RS v SSWP (PIP)) that making the assessment determination – what the judge referred to as “a mainstream PIP assessment” – has two consequences:

There are three points to note about this passage in Judge Mitchell’s decision.

The first is that Judge Mitchell was concerned with the original version of regulation 17, before its amendment with effect from 4 April 2016 by the Personal Independence Payment (Transitional Provisions) (Amendment) Regulations 2016 (SI 2016/189). These amending regulations modified the requirement for a terminally ill claimant transferring from DLA to (a higher rate of) PIP to wait a minimum of 28 days after the first pay day following the decision to award PIP (see now regulation 17(1)(b)(i) and 17(1B)). These amendments have no bearing on the present appeal.

The second is that the indented extract from the regulations at paragraph (b) in the passage at paragraph 23 above reflects the text (to be more precise) of regulation 7(2)(a) and not any other part of regulation 17(2).

The third (and related) point is that Judge Mitchell was laying down the general rule embodied in regulation 17. Judge Mitchell was not purporting to lay down a universal rule. At that time (and so before the terminally ill amendments) regulation 17(1)(b) in its entirety provided that “the claimant's entitlement to disability living allowance shall terminate, except where paragraph (2) of regulation 13 applies to the claimant, on the last day of the period of 28 days starting with the first pay day after the making of the determination”. In citing regulation 17(1)(b), Judge Mitchell observed that it was “subject to an immaterial exception”, that immaterial exception being the phrase “where paragraph (2) of regulation 13 applies to the claimant”. That exception was immaterial in RS v SSWP (PIP) simply because that situation did not arise on the facts of that case.

We must then turn to regulation 13(2) to understand the circumstances in which an exception is carved out of regulation 17(1). One must start with regulation 13(1). This applies where a transfer claimant has made a claim for PIP and has been made the subject of a negative determination (being, in effect, a determination that a person does not meet the PIP eligibility criteria because they have failed without good reason to comply with a requirement to provide evidence or to attend at and participate in a HCP consultation: see Welfare Reform Act 2012 section 80(5) and (6)). Regulation 13(1) further provides that in such circumstances “the transfer claimant's entitlement to disability living allowance shall terminate with effect from the last day of the period of 14 days starting with the first pay day after the day on which the determination is made”. Thus, in the present case, the DWP sent the Appellant a decision letter on 15 September 2020 informing her that her DLA award would end 14 days later on 29 September 2020.

Regulation 13(2) then covers the scenario where, notwithstanding the negative determination, there has subsequently been a substantive assessment determination made in respect of a claim by a transfer claimant, e.g. because the negative determination has been revised by the Secretary of State or successfully overturned on appeal by a First-tier Tribunal. The Appellant’s case satisfied that criterion. In those circumstances, if an award of PIP has been made, then “the transfer claimant shall be entitled to personal independence payment in accordance with regulation 17(2)(b).” The precise cross-reference, as underlined, is important. It means that in a regulation 13(2) case the end date of a DLA award and the start date of the transfer claimant’s PIP award are not governed by the general rule in regulation 17(1)(b) and 17(2)(a), i.e. the changeover does not take place (as it usually does) “on the last day of the period of 28 days starting with the first pay day after the making of the assessment determination”.

Instead, the transfer claimant’s entitlement to PIP is governed by regulation 17(2)(b). Thus, omitting the usual rule in regulation 7(2)(a):

In the instant case the outcome of the Appellant’s assessment determination was an award of both components of PIP, so the opening words of regulation 17(2) are satisfied. Regulation 13(2) also applied to the Appellant, as her original negative determination had been reversed on appeal by the First-tier Tribunal. Accordingly, by virtue of regulation 17(2)(b), her award of PIP should have started with effect from the day immediately following the day “on which the claimant's entitlement to disability living allowance terminated under regulation 13(1)”, namely 30 September 2020.

Although they are not technically an aid to construction, this reading is consistent with the Explanatory Notes to the Personal Independence Payment (Transitional Provisions) Regulations 2013, which explain as follows:

This reading of regulations 13 and 17 is not inconsistent with the passage from Judge Mesher’s decision in OM v SSWP (PIP) relied upon by the Secretary of State’s representative. Judge Mesher was making the general point that once there was no longer a negative determination in existence, the basis for the application of regulation 13(1) fell away and so DLA should go back into payment. Judge Mesher referred to regulation 13(1) and 17 but not to the exceptional case provided for by regulation 13(2) and 17(2)(b).

Stepping back from this close textual analysis of regulations 13 and 17, one can understand the reasons for the differential treatment of transfer claimants who fall under regulation 13(2). The starting point, as Judge Mitchell observed in RS v SSWP (PIP), was thatthe transition from DLA to PIP was “a significant legislative change, affecting millions of DLA recipients” (at paragraph 18). This necessitated appropriate phasing-in arrangements for DLA claimants (where they met the new eligibility criteria) to transfer from the old to the new disability benefits scheme. Fixing entitlement for transfer claimants by reference to the date of the decision awarding PIP, rather than the original date of claim for PIP, meant that the DWP had greater control over the take-up of the new benefit. In particular, it gave it more control over caseloads and costs.

This choice of the PIP start date for entitlement in transfer cases inevitably involved an element of rough justice. Those DLA claimants transferring to a higher rate of PIP would lose out in the short-term as they would have to wait for the new benefit rate to become payable. However, the Court of Appeal has held that this disadvantage did not amount to unlawful discrimination contrary to Article 14 of the ECHR (Worley v Secretary of State for Work and Pensions) [2019] EWCA Civ 15; [2019] AACR 15). In contrast, other DLA claimants, namely those who were transferring to a lower rate of PIP, were in one sense short-term gainers as they were able to stay on their higher DLA rate of benefit for a longer period than they might otherwise have expected (as Judge Mitchell noted at paragraph 30 of RS v SSWP (PIP)).

Accordingly, and as a general rule, claimants transferring from DLA to PIP have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim for PIP. However, this is not a universal rule. An exception has been carved out for those claimants who have received an award of PIP after successfully overturning a negative determination on revision or on appeal. Otherwise, such claimants would be doubly disadvantaged.

First, like all transfer claimants, they are reliant on the Secretary of State making an assessment determination, when there is no statutory requirement either to carry out an HCP assessment or to decide a PIP claim by any specified date. Rather, there is at best a weak public law duty to determine PIP claims within a reasonable time (R (C & Another) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin)).

Secondly, and uniquely, this group of claimants face further and often lengthy delays before they can successfully challenge a DWP decision-maker’s negative determination. In the instant case this delay ran to nearly 18 months, the negative determination being notified in September 2020 and not being set aside until the FTT hearing in February 2022. It would hardly be fair in effect to lay that lengthy delay at the Appellant’s door, when all she was doing was trying, with Mr Dance’s able assistance, to assert her rights (and in respect of which she was duly vindicated).

The start date for a PIP award in such circumstances could have been fixed as at the date of claim, but presumably policy-makers considered that a fair compromise (given the provisions governing the standard type of transfer case) was to commence PIP entitlement by reference to the date when DLA originally terminated as a result of the negative determination.

I therefore conclude that the First-tier Tribunal erred in law. It treated the Appellant’s case as if it were an ordinary transfer case with the commencement date for PIP entitlement being subject to regulation 17(1)(b)(ii) and regulation 17(2)(a). However, the Appellant’s case was an exception to the general rule that the start date for a PIP award is determined by reference to the Secretary of State’s entitlement decision. Rather, her case involved a PIP award being made following a successful appeal against a negative determination, and so it fell within regulation 13(2). As such the start date for her PIP award was determined by regulation 17(2)(b), not regulation 17(2)(a). This means in turn that her entitlement to PIP “starts with effect from the day immediately following … the day … on which the claimant’s entitlement to disability living allowance terminated under regulation 13(1).” That day was 30 September 2020 and I find accordingly.

A consequence of this Upper Tribunal decision is that the Appellant is entitled to the payment of arrears of PIP for the period from 30 September 2020 to 6 December 2022. Obviously that payment of arrears of PIP is subject to an offset to reflect the payment of DLA that has already been made in respect of the same period (see regulation 5 of the Social Security (Payments, Overpayments and Recovery) Regulations 1988 (SI 1988/664)).

In all other respects (e.g. as to the Appellant’s entitlement to the enhanced rates of both components and the duration of award) I adopt and endorse the decision of the First-tier Tribunal.

The First-tier Tribunal in this case erred in law in its application of regulations 13 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013. Accordingly, I allow the Appellant’s appeal to the Upper Tribunal, set aside the First-tier Tribunal’s decision and remake the decision under appeal as follows (section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007):