Upper Tribunal (Administrative Appeals Chamber), December 05, 2016, [2016] UKUT 541 (AAC)

Resolution Date:December 05, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:AH v Secretary of State for Work and Pensions (PIP) (Personal independence payment : General)

AH v Secretary of State for Work and Pensions

[2016] UKUT 0541 (AAC)

Upper Tribunal Case No: CPIP/2504/2016


Decision of the Upper Tribunal

(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC053/16/00238, made on 18 March 2016 at Wolverhampton, did not involve the making of an error on a point of law.

Reasons for Decision

A. History and background

  1. The claimant was receiving a disability living allowance when he was invited by the Secretary of State to make a claim for a personal independence payment. He did so on 10 September 2015, but the Secretary of State refused the claim on 25 November 2015. The claimant exercise his right of appeal to the First-tier Tribunal, but the tribunal dismissed his appeal. In explaining the tribunal's decision, the presiding judge wrote:

  2. General. The Tribunal considered the Appellant's entitlement in the light of the prevailing circumstances down to the date of the decision under appeal on 25th November 2016.

  3. On the face of it, what the judge wrote was an unassuming paragraph, apart from the obvious error in the date: the decision was made in 2015, not 2016. That aside, it is the sort of statement that judges write every day in order to explain that they have complied with the limit on their jurisdiction imposed by section 12(8)(b) of the Social Security Act 1998, which provides that a tribunal `shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.'

  4. In this case, the passage was sufficient for the claimant's representative to argue that the tribunal had misdirected itself in law. His argument was this. Regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377) requires that the claimant satisfy a descriptor only for 50% of the `required period', which was `a 12 month period starting 3 months before the date of claim and extending 9 months thereafter.' The tribunal should have investigated and made findings on the whole of that period and, had it done so, it might have found sufficient points to allow an award to be made.

  5. I come to the parties' argument after analysing the relevant legislation. I am not aware of any relevant caselaw on the personal independence payment provisions.

    B. Analysis

    Components and rates

  6. Personal independence payment consists of two components, the daily living component and the mobility component: section 77(2) of the Welfare Reform Act 2012. It is the former that is in issue here. Each component may be awarded at one of two rates, the standard rate or the enhanced rate: sections 78 and 79. It is the former that is in issue here.

    The required period condition - the statute

  7. It is a condition of entitlement to a personal independence payment that the claimant `meets the required period condition': section 78(1)(b). That provision applies to the daily living component at the standard rate, which is what is in issue here. There are equivalent provisions for the daily living component at the enhanced rate (section 78(2)(b)) and both rates of the mobility component (section 79(1)(b) and (2)(b)).

  8. Sections 80(2) and 81 enable regulations to be made on the required period condition:

    80 Ability to carry out daily living activities or mobility activities

    (1) For the purposes of this Part, the following questions are to be determined in accordance with regulations--

    (a) whether a person's ability to carry out daily living activities is limited by the person's physical or mental condition; ...

    (2) Regulations must make provision for determining, for the purposes of each of sections 78(1) and (2) and 79(1) and (2), whether a person meets `the required period condition' (see further section 81).

    81 Required period condition: further provision

    (1) Regulations under section 80(2) must provide for the question of whether a person meets `the required period condition' for the purposes of section 78(1) or (2) or 79(1) or (2) to be determined by reference to--

    (a) whether, as respects every time in the previous 3 months, it is likely that if the relevant ability had been assessed at that time that ability would have been determined to be limited or (as the case may be) severely limited by the person's physical or mental condition; and

    (b) whether, as respects every time in the next 9...

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