[2023] UKUT 151 (AAC)

On 16 January 2018 the Appellant telephoned the Department for Work and Pensions (DWP) to ask for a further review of his PIP entitlement. On 12 February 2018 he completed a PIP review form (pp.295-328). He had another HCP assessment on 4 April 2018 (pp.333-362), which recommended daily living descriptors 1d, 3b, 4c, 6c, 9b and 10b (11 points in total), together with no scoring mobility descriptor. On 12 May 2018 a decision-maker again decided that the Appellant was entitled to the standard rate of the PIP daily living component (but this time for the period from 12 May 2018 to 3 April 2022; pp.363-369). According to the accompanying explanation, “You asked us to look at your award on 16 January 2018. I looked at the health care professional consultation report and changed the descriptors previously chosen based on the medical evidence received, I decided to award you PIP for a longer time. Your rate of PIP has not changed.”

On 21 May 2018 the Appellant requested a mandatory reconsideration of that decision. That process led to a change to the start date (to 9 April 2018, for reasons that are unclear) but no change to the rate of the PIP award (pp.372-378). Thus the decision letter did not explain the reason for the change of date but it made no difference in practice as the level of the award had remained the same throughout, namely the standard rate of the PIP daily living component. The Appellant appealed again to the FTT. His new representative filed a written submission arguing that the Appellant qualified for the enhanced rate of both components (pp.386-387). On 28 August 2019 a FTT dismissed the Appellant’s appeal against the decision of 12 May 2018 (pp.399-400) and later provided a statement of reasons (pp.402-410). The FTT made no reference to the revised start date of 9 April 2018 as stated in the mandatory reconsideration notice. Instead, the FTT referred to 12 May 2018 as both the date of the Secretary of State’s decision and as the start date for the newly extended award of the standard rate of the PIP daily living component (p.399). This date was presumably chosen because the change made (namely to maintain the existing level of award but to extend the period of the award) was regarded as a supersession initiated by the Secretary of State.

The Appellant then applied for permission to appeal to the Upper Tribunal on the basis that the FTT had made inadequate findings of fact and/or given inadequate reasons in relation to various of the daily living activities (pp.416-419). On 20 July 2020 the FTT refused permission to appeal (pp.420-421). However, on 10 September 2020 the Upper Tribunal gave the Appellant permission to appeal under case reference CPIP/1171/2020 (p.433). Furthermore, on 4 February 2021, the Upper Tribunal allowed the Appellant’s appeal and remitted the case to the FTT for re-hearing. This was a short-form decision, with the reasons running to just a single page, as the Judge had accepted the arguments advanced by the Secretary of State in support of the Appellant’s appeal. In remitting the case the Upper Tribunal also directed as follows: “the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on and from the effective date of 12 May 2018.” The choice of that date was not explained in the Upper Tribunal’s short decision in CPIP/1171/2020, but was presumably based on the date identified by the FTT as the relevant date (see the previous paragraph above).

On 11 August 2021 a new and differently constituted FTT re-heard and allowed the Appellant’s remitted appeal against the DWP’s decision of 12 May 2018 (p.445). This is the decision now under appeal to the Upper Tribunal. There was both a straightforward aspect and a much less straightforward aspect to the FTT’s decision.

The straightforward aspect of its decision was that the FTT awarded the Appellant the enhanced rate of both PIP components (scoring the Appellant at 13 points for daily living (descriptors 1b, 3b, 4c, 6c, 9c and 10b) and 14 points for mobility (descriptors 1d and 2b)). It is only right to point out that the Secretary of State’s representative has not challenged that substantive aspect of the FTT’s decision.

The much less straightforward aspect of the FTT’s decision was the period for which the new rate of PIP was awarded and in particular its start date. At the end of the hearing, and after the FTT had deliberated, the Tribunal Judge announced that the FTT’s decision was to award the enhanced rate of both PIP components with effect from 16 January 2018, being the date the change of circumstances was notified by the Appellant. However, there was then some further discussion after the end of the hearing, with the Appellant and his representative arguing that the new award at the enhanced rates should start in 2016, when his DLA had stopped. After another adjournment for the FTT to deliberate further, the Tribunal Judge then announced that the award would in fact take effect from 26 August 2017, being the day after the date of the previous tribunal on 25 August 2017, relating to the first PIP appeal. The FTT’s decision notice then recorded that the award was for the period from 26 August 2017 until 15 January 2028.

In its decision notice, the FTT stated further as follows: “The Tribunal considered that the respondent was entitled to supersede the earlier decision however the Tribunal has made the above award. The commencement date is the date on which the appellant first notified the respondent of a change in circumstances” (p.446).

In its subsequent statement of reasons, the FTT gave the following explanation for the period of its award:

For the reasons that are explained later, this explanation as to how the FTT alighted on 26 August 2017 as the effective date for the supersession decision is, to put it mildly, somewhat problematic.