[2023] UKUT 151 (AAC)

It may be helpful to recap the key relevant chronology. As a result of his first PIP claim, the Appellant had an award of the standard rate daily living component for the period from 12 October 2016 to 18 August 2019. During the currency of that award, he applied by telephone on 16 January 2018 for his PIP entitlement to be reviewed. The DWP made a decision on 12 May 2018 that he remained entitled at that rate and for the period from 12 May 2018 to 3 April 2022. This was the decision under appeal to the FTT and which was before the FTT on 11 August 2021 (the Upper Tribunal having allowed his appeal against the earlier FTT decision of 28 August 2019 and remitted the case for re-hearing). The FTT on 11 August 2021 decided that the Appellant was entitled to the enhanced rate of both PIP components but the question remained as to the period of that award. That question in turn involved identifying the start date of the new award.

The effect of the FTT’s decision on 11 August 2021 was thus to increase the Appellant’s PIP award by way of making the supersession decision that the DWP should have made on 12 May 2018. Section 10(5) of the Social Security Act 1998, which governs supersessions, provides that “a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made”. Furthermore, regulation 35 of the Universal Credit, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013 (SI 2013/381; ‘the D & A Regulations 2013’) governs ‘Effective dates: Secretary of State decisions’. In particular, regulation 35(1) provides as follows:

The general rule, as laid down by paragraph 12 of Schedule 1 to the D & A Regulations 2013, is that “in the case of personal independence payment, a superseding decision made on the ground of a change of circumstances takes effect on the date on which the relevant change of circumstances occurs or is expected to occur.”

There are, however, several exceptions to this general or default rule, notably paragraph 14:

To sum up, the FTT on 11 August 2021 was superseding the existing PIP award (standard rate daily living) which ran for the period from 12 May 2018 to 3 April 2022. The start date for the new award (enhanced rate daily living and enhanced rate mobility) had to be determined by the rules governing the effective date for the implementation of a supersession decision. As the superseding decision was both “advantageous to the claimant” and had been “notified … more than one month after the change” (the FTT recognising that the Appellant’s conditions were of longstanding), it followed that “the superseding decision takes effect from the date of notification of the change”, namely 16 January 2018. There has been no suggestion that the highly restrictive criteria in regulation 36 had been made out, which might otherwise have allowed an earlier date to be identified.

The FTT, at least initially, correctly identified 16 January 2018 as the date of notification and hence the start date for the supersession decision making the new award. It also announced this orally as part of its decision. However, it then changed its mind, which leads on to the third error of law in the FTT’s approach.