Upper Tribunal (Administrative Appeals Chamber)

TW v Secretary of State for Work and Pensions (PIP) (Human rights law, Personal independence payment) [2017] UKUT 25 (AAC) (17 January 2017)

Human rights law, Personal independence payment - general

Transfer from Disability Living Allowance to Personal Independence Payments - whether the Personal Independence Payments award can be back-dated to date of claim - whether the Transitional Provision Regulations are discriminatory under Article 14 ECHR

The appellant was receiving disability living allowance (DLA). She notified the Secretary of State of a change of circumstances and was invited to claim personal independence payment (PIP), which she did by telephone on 15 May 2014. The claim for PIP was refused on 11 November 2014 and the appellant was told that, as a result, her award of DLA would end on 9 December 2014. Upon reconsideration, however, the Secretary of State decided, on 20 January 2015, that the appellant was entitled to the enhanced rate of the daily living component of PIP from 10 December 2014. The appellant appealed to the First-tier Tribunal (F-tT) on the ground that the award should have been effective from the date of claim on 15 May 2014. She complained on the appeal that, whereas generally a person making a claim or applying for supersession of an existing award would be awarded the appropriate benefit from the date of the claim or application for supersession, as a DLA entitled person subject to the Personal Independence Payment (Transitional Provisions) Regulations 2013 SI 2013/387 (the TP Regs), she was treated less favourably and deprived of over £1,000. The F-tT dismissed the appeal. The appellant appealed to the Upper Tribunal (UT), which also dismissed the appeal. The appellant appealed to the Court of Appeal on two grounds: (1) the UT erred in the interpretation of regulations 20 and 17 of the TP Regs; and (2) the UT erred in failing to identify the correct comparator before moving to consider objective justification under Article 14 of the European Convention on Human Rights (ECHR).

Held, dismissing the appeal, that:

1. : : : : :the UT was right in its interpretation of the TP Regs. It was agreed that the appellant was a `transfer claimant' under the TP Regs'. Regulation 17, however, is clear and applies to all `transfer claimants'. There is no subset of `transfer claimants', like the claimant, of `change of circumstances claimants', to whom regulation 17 does not apply If that had been the intention regulation 3(5) of the TP Regs would have been qualified regulation 3(5) of the TP Regs so as not to require a person who was implicitly applying for a supersession to make a claim to which regulation 17 would apply. Further, regulation 17 does not cross-refer to regulation 20(2)(b), which would be expected if regulation 20(2)(b) was intended to override regulation 17, and it strains the plain language of regulation 17 to create a subset of claimants. It matters not that this correct interpretation of the TP Regs may render regulation 20 of little significance (paragraph 24 to 30);

2. : : : : :the UT's approach to Article 14 of the ECHR was consistent with Strasbourg jurisprudence and domestic case law. An overly rigid approach to Article 14 is to be avoided. The two key questions to ask were: what are the reasons for the differences in treatment and do they amount to objective and reasonable justification? The UT did identify a comparator, new PIP claimants, but focused its analysis on whether the difference in treatment between DLA entitled persons and new PIP claimants was justified (paragraphs 31 to 34); and

3. : : : : :the appellant's reformulation of her case in the Court of Appeal, so as to make the comparator the narrower class of successful PIP supersession claimants, did not affect the result. The Secretary of State had objectively justified the difference in treatment provided for in the Regulations. An important feature of the TP Regs in respect of this justification was about providing certainty to all claimants, whether they are ultimately winners or losers, about their income for the assessment period while transferring from DLA to PIP. The Secretary of State had a legitimate aim in treating DLA entitled persons who notify a change of circumstances differently to new PIP claimants, who are not already in receipt of a benefit (paragraphs 44 to 48).

A HTML version of this file is not available click here or view below the pdf version : 25.pdf