[2025] UKUT 288 (AAC)

'54. I accept it will sometimes be possible to say that if a claimant does not have a particular right of residence at the date of claim she probably will not have it at the date of decision either. For example, it is extremely unlikely that a claimant who does not retain worker status when she claims ESA will somehow retain it ten days later when the claim is decided.

However, that does not change the general principle that decision-makers can and must take into account changes in a claimant's circumstances between the date of claim and the date of the decision.

That principle is axiomatic and it is therefore difficult to cite direct legislative authority for it. However it is implicit in section 12(8)(b) of the Social Security Act 1998, which prevents the F-tT from considering circumstances that did not obtain at the date of the decision under appeal. It is also inherent in regulation 3(9)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) - and the equivalent provisions of the other sets of Decisions and Appeals Regulations - which prevents the Secretary of State from revising a decision under the "any grounds" power conferred by regulation 3(1) on the basis of a "relevant change of circumstances which occurred since the decision had effect". It follows that a relevant change of circumstances which occurred before the decision had effect can be taken into account on an "any grounds" revision. That, in turn, only makes sense if the original decision maker could also have taken that change into account.

The ability to take into account a change in circumstances that occurs between the date of a claim and the date that claim is decided cuts both ways. The claimant who has not retained worker status in the example in [54] above may have married another EU national who does retain that status during the period between claim and decision. If so, he may have acquired a right of residence as a family member from the date of the wedding. Equally, an ESA claimant with a right of residence may get better during that period and return to work, thereby losing entitlement to benefit.

There is no reason in law why the first of those changes of circumstances should be treated differently from the second. In all claims for benefit, whether the claimant satisfies the conditions of entitlement falls to be assessed on a daily, or sometimes weekly, basis from the earliest date covered by the claim until the date on which the claim is decided. If a claimant does not satisfy those conditions when she first claims but does satisfy them from some later date (before the date of decision) then the correct decision is to award benefit from the date on which the conditions were first satisfied. If she did satisfy the conditions at the start of the claim but ceased to do so before the claim is decided, the correct decision is to award benefit up to, but not after, the date of the change. All this is elementary and it applies in right to reside cases as it does in others.'

"It is possible for the decision-maker to decide that entitlement begins only after the date of claim but before the date of decision. This does not affect the analysis. The relevant period does not change, but the decision-maker is able to award from a later date in the period. This is a result of the claim subsisting until it is decided. That was decided in R(S) 1/83 at [10] and is assumed by section 8(2)(a) of the 1998 Act.

Where, although a person does not satisfy the requirements for entitlement to personal independence payment on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances the person will satisfy those requirements for a period beginning on a day ("the relevant day") not more than 3 months after the date on which the decision on the claim is made, the Secretary of State may award personal independence payment from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day."