[2024] UKUT 308 (AAC)

The general rule in social security law is that entitlement to benefit starts with the date of claim. This is, however, the general rule and not a universal rule. So, and again as a general rule, the usual start date for an award of PIP is the date when the relevant claim for benefit is made (see section 88(1) of the Welfare Reform Act 2012). However, the position for claimants transferring from DLA to PIP is – again, as a general rule – different. Thus, in RS v SSWP (PIP) Upper Tribunal Judge Mitchell posed the question “what is the start date of an award of Personal Independence Payment (PIP) granted to a transfer claimant (a person who was previously entitled to Disability Living Allowance (DLA))?” (paragraph 1). The answer, the judge found, was that “PIP transfer awards have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim” (paragraph 2; see also paragraphs 38 and 39(d)). The FTT in the present case relied on this conclusion at paragraph 13 of its reasons.

Judge Mitchell further explained (at paragraph 35 of RS v SSWP (PIP)) that making the assessment determination – what the judge referred to as “a mainstream PIP assessment” – has two consequences:

There are three points to note about this passage in Judge Mitchell’s decision.

The first is that Judge Mitchell was concerned with the original version of regulation 17, before its amendment with effect from 4 April 2016 by the Personal Independence Payment (Transitional Provisions) (Amendment) Regulations 2016 (SI 2016/189). These amending regulations modified the requirement for a terminally ill claimant transferring from DLA to (a higher rate of) PIP to wait a minimum of 28 days after the first pay day following the decision to award PIP (see now regulation 17(1)(b)(i) and 17(1B)). These amendments have no bearing on the present appeal.

The second is that the indented extract from the regulations at paragraph (b) in the passage at paragraph 23 above reflects the text (to be more precise) of regulation 7(2)(a) and not any other part of regulation 17(2).

The third (and related) point is that Judge Mitchell was laying down the general rule embodied in regulation 17. Judge Mitchell was not purporting to lay down a universal rule. At that time (and so before the terminally ill amendments) regulation 17(1)(b) in its entirety provided that “the claimant's entitlement to disability living allowance shall terminate, except where paragraph (2) of regulation 13 applies to the claimant, on the last day of the period of 28 days starting with the first pay day after the making of the determination”. In citing regulation 17(1)(b), Judge Mitchell observed that it was “subject to an immaterial exception”, that immaterial exception being the phrase “where paragraph (2) of regulation 13 applies to the claimant”. That exception was immaterial in RS v SSWP (PIP) simply because that situation did not arise on the facts of that case.

We must then turn to regulation 13(2) to understand the circumstances in which an exception is carved out of regulation 17(1). One must start with regulation 13(1). This applies where a transfer claimant has made a claim for PIP and has been made the subject of a negative determination (being, in effect, a determination that a person does not meet the PIP eligibility criteria because they have failed without good reason to comply with a requirement to provide evidence or to attend at and participate in a HCP consultation: see Welfare Reform Act 2012 section 80(5) and (6)). Regulation 13(1) further provides that in such circumstances “the transfer claimant's entitlement to disability living allowance shall terminate with effect from the last day of the period of 14 days starting with the first pay day after the day on which the determination is made”. Thus, in the present case, the DWP sent the Appellant a decision letter on 15 September 2020 informing her that her DLA award would end 14 days later on 29 September 2020.

Regulation 13(2) then covers the scenario where, notwithstanding the negative determination, there has subsequently been a substantive assessment determination made in respect of a claim by a transfer claimant, e.g. because the negative determination has been revised by the Secretary of State or successfully overturned on appeal by a First-tier Tribunal. The Appellant’s case satisfied that criterion. In those circumstances, if an award of PIP has been made, then “the transfer claimant shall be entitled to personal independence payment in accordance with regulation 17(2)(b).” The precise cross-reference, as underlined, is important. It means that in a regulation 13(2) case the end date of a DLA award and the start date of the transfer claimant’s PIP award are not governed by the general rule in regulation 17(1)(b) and 17(2)(a), i.e. the changeover does not take place (as it usually does) “on the last day of the period of 28 days starting with the first pay day after the making of the assessment determination”.

Instead, the transfer claimant’s entitlement to PIP is governed by regulation 17(2)(b). Thus, omitting the usual rule in regulation 7(2)(a):

In the instant case the outcome of the Appellant’s assessment determination was an award of both components of PIP, so the opening words of regulation 17(2) are satisfied. Regulation 13(2) also applied to the Appellant, as her original negative determination had been reversed on appeal by the First-tier Tribunal. Accordingly, by virtue of regulation 17(2)(b), her award of PIP should have started with effect from the day immediately following the day “on which the claimant's entitlement to disability living allowance terminated under regulation 13(1)”, namely 30 September 2020.

Although they are not technically an aid to construction, this reading is consistent with the Explanatory Notes to the Personal Independence Payment (Transitional Provisions) Regulations 2013, which explain as follows:

This reading of regulations 13 and 17 is not inconsistent with the passage from Judge Mesher’s decision in OM v SSWP (PIP) relied upon by the Secretary of State’s representative. Judge Mesher was making the general point that once there was no longer a negative determination in existence, the basis for the application of regulation 13(1) fell away and so DLA should go back into payment. Judge Mesher referred to regulation 13(1) and 17 but not to the exceptional case provided for by regulation 13(2) and 17(2)(b).

Stepping back from this close textual analysis of regulations 13 and 17, one can understand the reasons for the differential treatment of transfer claimants who fall under regulation 13(2). The starting point, as Judge Mitchell observed in RS v SSWP (PIP), was thatthe transition from DLA to PIP was “a significant legislative change, affecting millions of DLA recipients” (at paragraph 18). This necessitated appropriate phasing-in arrangements for DLA claimants (where they met the new eligibility criteria) to transfer from the old to the new disability benefits scheme. Fixing entitlement for transfer claimants by reference to the date of the decision awarding PIP, rather than the original date of claim for PIP, meant that the DWP had greater control over the take-up of the new benefit. In particular, it gave it more control over caseloads and costs.

This choice of the PIP start date for entitlement in transfer cases inevitably involved an element of rough justice. Those DLA claimants transferring to a higher rate of PIP would lose out in the short-term as they would have to wait for the new benefit rate to become payable. However, the Court of Appeal has held that this disadvantage did not amount to unlawful discrimination contrary to Article 14 of the ECHR (Worley v Secretary of State for Work and Pensions) [2019] EWCA Civ 15; [2019] AACR 15). In contrast, other DLA claimants, namely those who were transferring to a lower rate of PIP, were in one sense short-term gainers as they were able to stay on their higher DLA rate of benefit for a longer period than they might otherwise have expected (as Judge Mitchell noted at paragraph 30 of RS v SSWP (PIP)).

Accordingly, and as a general rule, claimants transferring from DLA to PIP have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim for PIP. However, this is not a universal rule. An exception has been carved out for those claimants who have received an award of PIP after successfully overturning a negative determination on revision or on appeal. Otherwise, such claimants would be doubly disadvantaged.

First, like all transfer claimants, they are reliant on the Secretary of State making an assessment determination, when there is no statutory requirement either to carry out an HCP assessment or to decide a PIP claim by any specified date. Rather, there is at best a weak public law duty to determine PIP claims within a reasonable time (R (C & Another) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin)).

Secondly, and uniquely, this group of claimants face further and often lengthy delays before they can successfully challenge a DWP decision-maker’s negative determination. In the instant case this delay ran to nearly 18 months, the negative determination being notified in September 2020 and not being set aside until the FTT hearing in February 2022. It would hardly be fair in effect to lay that lengthy delay at the Appellant’s door, when all she was doing was trying, with Mr Dance’s able assistance, to assert her rights (and in respect of which she was duly vindicated).

The start date for a PIP award in such circumstances could have been fixed as at the date of claim, but presumably policy-makers considered that a fair compromise (given the provisions governing the standard type of transfer case) was to commence PIP entitlement by reference to the date when DLA originally terminated as a result of the negative determination.

I therefore conclude that the First-tier Tribunal erred in law. It treated the Appellant’s case as if it were an ordinary transfer case with the commencement date for PIP entitlement being subject to regulation 17(1)(b)(ii) and regulation 17(2)(a). However, the Appellant’s case was an exception to the general rule that the start date for a PIP award is determined by reference to the Secretary of State’s entitlement decision. Rather, her case involved a PIP award being made following a successful appeal against a negative determination, and so it fell within regulation 13(2). As such the start date for her PIP award was determined by regulation 17(2)(b), not regulation 17(2)(a). This means in turn that her entitlement to PIP “starts with effect from the day immediately following … the day … on which the claimant’s entitlement to disability living allowance terminated under regulation 13(1).” That day was 30 September 2020 and I find accordingly.

A consequence of this Upper Tribunal decision is that the Appellant is entitled to the payment of arrears of PIP for the period from 30 September 2020 to 6 December 2022. Obviously that payment of arrears of PIP is subject to an offset to reflect the payment of DLA that has already been made in respect of the same period (see regulation 5 of the Social Security (Payments, Overpayments and Recovery) Regulations 1988 (SI 1988/664)).

In all other respects (e.g. as to the Appellant’s entitlement to the enhanced rates of both components and the duration of award) I adopt and endorse the decision of the First-tier Tribunal.