[2024] UKUT 308 (AAC)

In reaching its unanimous decision as to the start date of the PIP award, the Tribunal reminded itself that PIP transfer awards have effect from a date determined by the Secretary of State’s entitlement decision, and not the date of the transfer claim. In this case, the Respondent decided that the Appellant’s entitlement took effect approximately one month after the PIP award decision of 8.11.22.

It also reminded itself that the Respondent does not have an express duty to carry out a PIP assessment, in response to a PIP claim, and there is also no express statutory requirement for a PIP assessment to be carried out, or a PIP claim to be decided, by any specified date.

The PIP (Transitional Provisions) Regulations 2013 set out the provisions for DLA recipients who go on to claim PIP. Regulation 13 deals with failure to provide information and Regulation 17 with the procedure following, and consequences of, a determination of a claim for PIP; both these were relied upon in the Representative’s submission as well as case law.

In the request for mandatory reconsideration (page 184 of the Schedule of Evidence), the Appellant’s representative submitted that Regulation 13(2) applied, in that, in short, an assessment determination had been made on a transfer claim and PIP had been awarded to the claimant, the claimant should be entitled to PIP payment in accordance with Regulation 17(2)(b). This latter provision states that where an outcome of an assessment determination results in an award of both components of PIP, entitlement allowance to PIP should commence from the day immediately following the day on which the claimant’s entitlement to DLA terminated under Regulation 13(1).

It was argued on behalf of the Appellant that her PIP should be backdated immediately after her DLA was terminated. We found that the Respondent, having accepted the Appellant’s failure to attend a PIP assessment had actually paid to the Appellant a sum equivalent to her DLA entitlement representing a period from the 30.9.20 – 6.12.22 (albeit not immediately after the 29.9.20). We determined that this showed a clear indication that the Respondent accepted that the Appellant continued to be entitled to this benefit. There followed unsuccessful efforts to rearrange further assessments, attempts which we considered reflected the Respondent’s awareness of and efforts to accommodate the Appellant’s mental health issues. With a view to processing the Appellant’s PIP claim, the Respondent eventually resolved the matter by means of a paper determination assisted by evidence from her GP. A decision was subsequently made as to her entitlement to PIP as referred to above and entitlement commenced in accordance with the relevant legislation.

Whilst the Appellant’s representative had referred to the case of OM v SSWP (PIP) [2017] UKUT 458 (AAC) where the main issue was that the First-tier Tribunal should have considered whether a telephone assessment should have been considered, we placed more reliance upon the case of RS v SSWP [2016] UKUT 0085 (AAC). This case deals specifically with the workings of Regulation 17 of the PIP (Transitional Provisions) Regulations. In this case, Upper Tribunal Judge Mitchell approved the First-tier Tribunal’s striking out the Appellant’s appeal against the effective date when transferring from DLA to PIP giving detailed reasons in his judgment for doing so. Having regard to this, we determined the Tribunal has no discretion or power to change the effective date in this case, as Regulation 17(2) makes it clear that an award of PIP cannot start until the 29^th day after the date of the entitlement decision.

We found that under the PIP Transitional legislation and case law quoted above, the Respondent had correctly fixed the start date of the Appellant’s award by reference to her PIP award date, and that no error of law had been made. The start date is fixed by Regulation 17 by reference to the date of the PIP award decision. Having accepted good cause for failing to attend an assessment, the award of DLA continued and was paid to cover the period from 30.9.20-6.12.22 and PIP entitlement correctly commenced on the 7.12.22, namely, 4 weeks after the PIP entitlement decision.

For the above reasons, the appeal fails.