Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 308 (AAC)

Fecha: 26-Sep-2024

The relevant legislation

The relevant legislation

15.

This case therefore turns on the proper interpretation and application of regulations 13 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013. Those two regulations use several terms which are defined as follows by regulation 2(1).

16.

An “assessment determination” means “the determination, under regulation 4 (assessment of ability to carry out activities) of the PIP Regulations, of a claim for personal independence payment made by a transfer claimant”.

17.

The “PIP Regulations” mean the (main or substantive) Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377).

18.

Finally, at least by way of relevant definitions, regulation 2(1) provides that:

“transfer claimant” means a person who is either—
(a)
a notified person who has claimed personal independence payment in response to a notification sent by the Secretary of State under regulation 3(1), or
(b)
a voluntary transfer claimant.

19.

For these purposes a “notified person” is “a DLA entitled person who has been sent a notification by the Secretary of State under regulation 3(1)” while a “voluntary transfer claimant” means “a DLA entitled person who has claimed personal independence payment under regulation 4.” Continuing the set of Russian doll definitions, a “DLA entitled person” in turn means, rather predictably, “a person aged 16 or over who is entitled to either component or both components of disability living allowance.”

20.

Regulation 13 then provides as follows:

Failure to provide information etc.

13.

—(1) Where, in relation to a claim for personal independence payment made by a transfer claimant—

(a)

a negative determination is made in relation to both components under regulation 8 (information or evidence required for determining limited or severely limited ability to carry out activities) of the PIP Regulations or paragraph (2) of regulation 9 (claimant may be called for consultation to determine whether the claimant has limited or severely limited ability to carry out activities) of the PIP Regulations, or

(b)

there is a determination by the Secretary of State that the transfer claimant has—

(i)

unreasonably failed to comply with a requirement imposed on the claimant by the Secretary of State under regulation 35 (attendance in person) of the Claims and Payments Regulations, or

(ii)

failed to comply with a requirement imposed on the claimant by the Secretary of State under regulation 37 (evidence and information in connection with a claim) of the Claims and Payments Regulations,

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.

(2)

Where—

(a)

for any reason an assessment determination is made on a claim by a transfer claimant in respect of which there has been a determination referred to in paragraph (1)(a) or (b) (for example, because the determination is revised by the Secretary of State under section 9 of the 1998 Act or there is a successful appeal in respect of the determination under section 12 of that Act), and

(b)

personal independence payment is awarded to the transfer claimant,

the transfer claimant shall be entitled to personal independence payment in accordance with regulation 17(2)(b).

21.

Regulation 17 further provides as follows (omitting paragraphs (4) and (5), which apply only in circumstances where a person’s claim for DLA has been refused):

Procedure following and consequences of determination of claim for personal independence payment

17.

—(1) Upon an assessment determination being made on a claim by a transfer claimant—

(a)

the Secretary of State must, as soon as practicable, send the claimant written notification of the outcome of the determination, and

(b)

except where paragraph (2) of regulation 13 applies to the claimant, the claimant’s entitlement to disability living allowance shall terminate—

(i)

where paragraph (1B) applies, on the earlier of—

(aa) the last day of the payment period during which the assessment determination is made, or

(bb) the first Tuesday after the making of the assessment determination;

(ii)

in any other case, on the last day of the period of 28 days starting with the first pay day after the making of the assessment determination.

(1A) In paragraph (1), “payment period” means a period in respect of which disability living allowance is paid to the claimant in accordance with regulation 22 of the 1987 Regulations.

(1B) This paragraph applies if—

(a)

the transfer claimant is terminally ill for the purposes of section 82 of the Act,

(b)

the outcome of an assessment determination in respect of that claimant is an award of personal independence payment, and

(c)

the total weekly rate of personal independence payment payable by virtue of that award is greater than the total weekly rate of disability living allowance payable by virtue of that claimant’s existing award of disability living allowance.

(2)

Where the outcome of an assessment determination is an award in respect of either or both components of personal independence payment, the claimant's entitlement to personal independence payment starts with effect from the day immediately following—

(a)

the day on which the claimant’s entitlement to disability living allowance terminates in accordance with paragraph (1)(b) of this regulation,

(b)

where paragraph (2) of regulation 13 applies to the claimant, the day ... on which the claimant's entitlement to disability living allowance terminated under regulation 13(1).

(3)

The notification referred to in paragraph (1) must state—

(a)

except where paragraph (2) of regulation 13 applies to the claimant, the day on which the claimant's entitlement to disability living allowance will terminate in accordance with paragraph (1)(b), and

(b)

if personal independence payment is awarded, the day on which the claimant's entitlement to personal independence payment starts in accordance with paragraph (2).