[2025] UKUT 001 (AAC)

The claimant’s first PIP claim was made on 6 September 2017. In the decision letter dated 30 November 2017, disallowing that claim, the decision-maker stated:

The decision letter added that “If you disagree with our decision you can ask us to look at it again. You must do this within one month of the date of this letter.” As is evident from the chronology above, the claimant did not pursue that option (at least at that time), instead making further (unsuccessful) PIP claims in October 2018 and February 2020. Meanwhile, however, the DWP had been considering how to respond to two Upper Tribunal decisions on test cases concerning the eligibility criteria for PIP, namely MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12 (‘MH’) and RJ, GMcI and CS v Secretary of State for Work and Pensions (PIP) [2017] UKUT 105 (AAC); [2017] AACR 32 (‘RJ’).

In the first of these cases, MH, a decision promulgated on 28 November 2016, the Upper Tribunal decided that a person who experienced overwhelming psychological distress could potentially score points for the purposes of mobility activity 1 for being unable to follow the route of a journey. The second decision, RJ, a case decided on 9 March 2017, considered the concept of safety in the context of the PIP eligibility criteria. On the facts of the claimant’s case, it was only MH that was potentially relevant to her circumstances.

In June 2018 the DWP published new guidance for its decision-makers on how to apply MH. As the previous guidance had been deficient, in the same month the DWP launched a LEAP exercise, reviewing previous PIP decisions which may have been affected by MH. The scope of the LEAP review was limited to decisions which had been taken before the publication of the new guidance, as in principle these were the only decisions that could have been adversely affected by the old guidance. The official position was explained in the DWP policy paper PIP administrative exercise: progress on cases cleared, at 30 November 2022 (15 December 2022) (see https://www.gov.uk/government/publications/pip-administrative-exercise-progress-on-cases-cleared-at-30-november-2022):

Pausing there, it is to be noted that all three of the claimant’s PIP claims were made (and so necessarily decided) after the dates of the judgments in the Upper Tribunal cases of MH and RJ. However, only the first PIP claim (in 2017) was decided before the DWP had issued its new guidance (in June 2018) on the implementation of the test case decisions. That new guidance had been in force for about 8 months by the time the second 2018 claim was refused.

Approximately a year after the third 2020 claim had been refused, the DWP sent the claimant a letter on 4 June 2021 headed ‘Personal Independence Payment: Changes in PIP law’. Although it does not use the (admittedly unhelpful) LEAP terminology, both parties are agreed that the letter was prompted by that review. In passing I observe that the letter of 4 June 2021 was not actually in the papers before the FTT, and it is only thanks to the claimant that a copy has appeared in the Upper Tribunal bundle. The material parts of the letter read as follows (emphasis in bold as in the original):

On 15 June 2021 the claimant, taking up the suggestion at the start of the final paragraph above, telephoned the DWP to make what was treated as a request for a mandatory reconsideration (MR) of the decision communicated in the letter of 4 June 2021. DWP records state simply “T/c [telephone call] from claimant - segmentation call, explanation given claimant would like further explanation/MR as has cognitive impairment. MR registered under MH.”

On 25 June 2021 the DWP duly sent the claimant a mandatory reconsideration notice. The key passage in that notice read as follows:

On 16 August 2021 the claimant filed a ‘Benefit appeal form’ (SSCS1 PIP/ESA/UC), citing the mandatory reconsideration notice dated 25 June 2021. In the box provided for setting out her reasons for appealing, the claimant wrote (in summary):

The DWP’s written response to the claimant’s appeal made clear its view that the scope of the appeal was limited to the 2017 claim. Thus, the response stated that the date of claim was 6 September 2017, the outcome decision was dated 30 November 2017 and the reconsideration decision was on 25 June 2021. In terms of the sequence of the decision-making history, the DWP’s response to the claimant’s appeal provided the following summary:

Plainly, therefore, it was the DWP’s understanding that the FTT was solely concerned with the claimant’s appeal against the DWP’s decision on the first 2017 claim and not the decisions on the subsequent 2018 and 2020 claims. These were the ‘Further Decisions’, reference to which had in effect been included for information only.

Focussing for the moment just on the claimant’s 2021 challenge to the decision on her 2017 claim, an obvious point arises as to time limits. By the time that the claimant made her mandatory reconsideration request (on 15 June 2021), more than 13 months had elapsed since the date of the DWP’s original decision on her 2017 claim (30 November 2017). As such, the claimant was outside the absolute time limit for seeking an ‘any grounds’ revision of the decision on the 2017 claim (see regulations 5 and 6 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381); ‘the Decisions and Appeals Regulations 2013’). But the claimant had to have made an application for revision of the relevant decision before her right of appeal crystallised (regulation 7 of the Decisions and Appeals Regulations 2013). Accordingly, her request could succeed only if she fell within one of the circumstances permitting an ‘any time’ revision – in practice, on the basis of official error (regulations 8 and 9(a) of the Decisions and Appeals Regulations 2013). The time for appealing to the FTT then ran from the date of the mandatory reconsideration notice (see PH and SM v Secretary of State for Work and Pensions (DLA)(JSA) [2018] UKUT 404 (AAC); [2019] AACR 14 at paragraphs 13 and 21).

Recapping on the central thrust of the parties’ respective submissions, the Secretary of State and the claimant were agreed that the LEAP decision letter, the mandatory reconsideration request and the mandatory reconsideration notice were all concerned with the DWP’s decision on the first PIP claim in 2017. The fundamental difference between them was that Mr Anderson submitted that was all they were concerned with, whereas Mr Williams and Mr Royston contended that those various decision-making stages also encompassed consideration of the 2018 and 2020 claims. It is therefore important to consider each step in the proceedings in turn. This was the prime focus of the first Upper Tribunal oral hearing.

What then of the LEAP decision letter of 4 June 2021? Mr Williams submitted that there was no indication on the face of the letter that it was solely concerned with the decision on the first claim. Rather, he argued, the more natural reading was that the DWP had looked at all of the claimant’s applications for PIP. On his analysis the use of the formulation “claim(s)” – as in “The main health conditions we have for you on our system indicate your PIP claim(s) are not affected by these changes” – carried the implication that, where there were decisions on more than one claim, all the claims had been considered. The overall difficulty with this construction is that it involves reading the letter in relative isolation. It completely ignores the context, namely that the LEAP review involved looking at decisions which were taken at a time when DWP staff were labouring under a misapprehension as to the true position under PIP law – i.e. decisions that had been taken before the DWP issued its new guidance on the test cases in June 2018. Mr Williams’ reliance on the reference in the contingent plural to “claim(s)” takes him no further – read in context, this must refer to that claim or those claims that fell within the scope of the LEAP exercise.

What then of the mandatory reconsideration request of 15 June 2021? We do not know exactly what was said, but Mr Williams submits that the note of the telephone call is best interpreted as the claimant phoning to say she thought all of the decisions about her entitlement to PIP were wrong. I accept it is entirely possible that that was indeed her view, but an individual’s subjective belief as to what is in issue does not define the parameters of a DWP decision taken under a complex statutory decision-making regime. The claimant’s telephone call was in response to the DWP’s letter of 4 June 2021 and that communication was in substance confined to the decision on the first claim (see above). The call-handler’s note as to MH referred to the Upper Tribunal’s decision in the relevant test case and that in turn tied it back to the 2017 claim, as it was only the 2017 claim that was affected by the LEAP exercise. It follows that looked at objectively, and bearing in mind the context, the claimant’s request was necessarily confined to the decision on the 2017 claim.

What then of the mandatory reconsideration notice of 25 June 2021? Mr Williams submits that the notice purportedly refused to revise all three PIP decisions. His argument, in essence, is that the text of the notice is sufficient to show that the decisions on the latter two PIP claims were also considered by the decision-maker with a view to possible revision. However, the notice makes a clear distinction between “the decision made on your claim on 30/11/2017 [which] is unaffected by the changes in PIP law” and “the decisions made on 06/02/2019 and 28/07/2020 [which] are unaffected by the changes in PIP law as these would have already been considered”. I do not accept Mr Williams’s submission that the latter formulation connoted a refusal to revise the two decisions in question. Rather, that formulation involves a recognition that the decisions do not fall in the same ballpark for consideration, not least as they were not covered by the decision in the letter of 4 June 2021, that being concerned solely with the 2017 claim. In effect, the latter two decisions were being noted for the purposes of completeness, and not because they had been subject to any form of reconsideration. It is noteworthy that in the detailed narrative under the heading ‘My decision’ the decision-maker makes no reference to the 2018 and 2020 claims, explaining that “the decision dated 30 November 2017 was looked at again taking into consideration the 2 tribunal judgements [sic] detailed below”.

What then of the claimant’s notice of appeal dated 16 August 2021? It is true that this is written in the present tense, indicating that the claimant was seeking to establish her current entitlement to benefit. It is entirely understandable that she should focus on her current entitlement rather than on the details of particular past periods of entitlement. However, the point remains that a claimant’s subjective perception as to the scope of an appeal is not determinative – in a decision-based adjudication regime that scope is dependent on the nature of the relevant decision under challenge.

Standing back to take stock, the LEAP letter of 4 June 2021, which kickstarted the present appeal, undoubtedly has its deficiencies, not least that it does not actually specify in terms which PIP decision has been looked at. However, given the context, an objective reading of that letter is that it was solely concerned with the decision on the 2017 claim. It follows in particular that the claimant’s request for a mandatory reconsideration on 15 June 2021, prompted in turn by that decision, was on any proper analysis likewise confined to the 2017 claim. The mandatory reconsideration notice of 25 June 2021 and the claimant’s subsequent appeal dated 16 August 2021 were likewise restricted to the 2017 decision that had been revisited as part of the LEAP exercise. As there was no valid request for a reconsideration of either of the two later PIP decisions, the FTT’s jurisdiction was limited by the parameters of the first claim in 2017. That conclusion is sufficient in itself to dispose of the claimant’s submissions designed to uphold the FTT’s unlimited award on alternative grounds.