[2024] UKUT 308 (AAC)

20 … it is my submission that following the OM judgment the Tribunal’s decision regarding the start date of PIP was correct. Upper Tribunal Judge Mesher in OM held that where there is no longer a negative determination in existence, DLA should be reinstated to await the outcome of the PIP assessment determination:

“37.

Since the decision disallowing entitlement to PIP has been set aside, the basis for the application of regulation 13(1)(a) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 (see paragraph 10 above) falls away, because there is no longer a negative determination under regulation 9(2) of the PIP Regulations in existence. It is perfectly clear from the terms of the notification letter of 22 July 2016 that the Secretary of State’s decision covered both PIP entitlement and the termination of entitlement to DLA. The claimant’s appeal against that decision must therefore be regarded as covering both those aspects of the decision. Accordingly, my substituted decision sets aside the termination of entitlement to DLA after 9 August 2016. Payment of the amount due under the existing of award of DLA from 10 August 2016 onwards must now be made unless and until either that award terminates under its own terms or is brought to an end by supersession, a PIP assessment determination is made (regulation 17 of the Transitional Regulations), another negative determination is made or there is a failure to comply with some other requirements (regulation 13(1)).”

This is what has happened in the present case, albeit late on behalf of the DWP. When the Tribunal on 25/02/2022 allowed the claimant’s appeal and found she had good reason for not attending the PIP consultation, the negative determination in effect was no longer in existence and, as per OM, the DLA should have been reinstated and paid pending the outcome of the PIP assessment determination. Unfortunately, due to an administrative error the DLA wasn’t put back into payment until 08/11/2022, but on that date the error was rectified and the claimant was paid DLA for the period 30/09/2020 to 06/12/2022. This was the correct action following the guidance provided in OM. Furthermore, as per Regulation 17(1)(b)(ii) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, upon reinstating DLA and finding that the claimant satisfied the conditions of entitlement for an award of the enhanced rate of the daily living and mobility component of PIP, the DLA should have then run on for a period of 28 days starting with the first pay day after making the PIP determination. This is what has correctly happened in this case – the DLA continued for 28 days after the PIP decision made on 08/11/2022 and therefore DLA was correctly terminated on 06/12/2022 and PIP subsequently put into payment from 07/12/2022.

I therefore submit that the entitlement date provided by DWP and confirmed by the Tribunal is correct and therefore holds no error of law. The Tribunal have provided adequate reasons for reaching their decision as set out above in this submission and outstanding payments of DLA were paid for the period specified above until PIP payments correctly commenced, 28 days later following the PIP decision letter issued on 08/11/2022. As such I respectfully submit that the appeal be dismissed.