[2025] UKUT 288 (AAC)

The Welfare Reform Act 2012 (the “2012 Act”) introduced the new benefits of universal credit and personal independence payment.

Section 77 of the 2012 Act provides for a personal independence payment to be payable to a person subject to satisfaction of conditions of entitlement. Section 77(3) provides:

“A person is not entitled to personal independence payment unless the person meets prescribed conditions relating to residents and presence in Great Britain.”

Regulations 16 and 17 of the Social Security (Personal Independence Payment) Regulations 2013 (the “PIP Regulations”) set out the prescribed conditions referred to in section 77(3) of the 2012 Act:

“Conditions relating to residents and presence in Great Britain

16.

- Subject to the following provision of this Part, the prescribed conditions for the purposes of section 77(3) of the [2012 Act] as to residence and presence in Great Britain are that on any day for which C claims personal independence payment C –

(a)

is present in Great Britain;

(b)

has been present in Great Britain for a period of, or periods amounting in aggregate to, not less than 104 weeks out of the 156 weeks immediately preceding that day;

(c)

is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and

(d)

is a person –

(i)

who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum act 1999; or

(ii)

to whom, by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, section 115 of that act does not apply to the purposes of personal independence payment.”

“17, - (1) Where C is temporarily absent from Great Britain, C is treated as present in Great Britain for the purposes of regulation 16(a) and (b) for the first 13 weeks of absence.

(2)

C is temporarily absent if, at the beginning of the period of absence, C’s absence is unlikely to exceed 52 weeks.”

Regulations 18 and 19 provide further instances in which absence from Great Britain is to be disregarded, covering medical treatment and particular types of employment overseas. Neither of these regulations applies in this case, as the claimant was not travelling for medical reasons or for employment reasons.

There are other conditions of entitlement, including those relating to the scoring of points in respect of difficulties with the activities described in Schedule 1 to the PIP Regulations, but these are not relevant for the purposes of the current appeal.

The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (the “Claims and Payments Regulations”) set out how a claim for a personal independence payment must be made and when it is treated as having been made. Regulation 11 of the Claimants and Payments Regulations states in paragraph (1) the claim for a personal independence payment must be made:

“(a)

in writing on a form authorised by the Secretary of State for that purpose and completed in accordance with the instructions on the form;

(b)

by telephone call to the telephone number specified by the Secretary of State; or

(c)

by receipt by the claimant of a telephone call from the Secretary of State made for the purpose of enabling a claim to personal independence payment to be made,”

Regulation 11 (4) states that a claim made by telephone in accordance with paragraph (1) is properly completed if the Secretary of State is provided during that call with all the information required to determine the claim, and the claim is defective is not so completed. Regulation 12 sets out how to calculate the date on which a personal independence payment claim is made, including where the claim is defective. Paragraphs (1) and () of regulation 12 provides:

“(1)

subject to paragraph (4), where a claim for personal independence payment is made in accordance with regulation 11 the date on which the claim is made is –

(a)

in the case of the claim in writing made by means of an electronic communication in accordance with the provisions set out in Schedule 2, the date on which the claim is received at the appropriate office;

(b)

in the case of the claim made by telephone, the date on which a claim made by telephone is properly completed; or

(c)

where a person first notifies an intention to make claim and provided that a claim made in writing produced other than by means of electronic communication is properly completed and received at the appropriate office designated by the Secretary of State in that claimant’s case within one month or such longer period as the Secretary of State considers reasonable of the date of first notification, the date first notification,

or the first day in respect of which the claim is made later than the above.

(2)

in the case of a claim which is defective by virtue of regulation 11(3) or (4) –

(a)

subject to sub- paragraph (b) and paragraph (4), the date of claim is to be the first date on which the defective claim is received or made but is treated as properly made in the first instance in accordance with regulation 11(6);

(b)

the date of claim is to be the date of first notification of an intention to make claim where a claim made by a person to paragraph (1)(c) applies is defective but is treated as properly made in the first instance in accordance with regulation 11(6).”

The Social Security Act 1998 (the “1998 Act”) makes provision for a right of appeal against decisions of the Secretary of State in relation to claims under Part V of the Social Security Contributions and Benefits Act 1992 to the First-tier Tribunal.

Section 12(8) of the 1998 Act provides:

“In deciding an appeal under this section, the First-tier Tribunal –

(a)

need not consider any issue that is not raised by the appeal; and

(b)

shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”