Upper Tribunal (Administrative Appeals Chamber)

CH and KN v Secretary of State for Work and Pensions (PIP) [2018] UKUT 330 (AAC) (4 October 2018)

DLA - PIP - Transfer case - Evidence relating to previous award

The Appellants had each been in receipt of Disability Living Allowance (DLA) for a number of years. CH had been in receipt of the Higher Rate Mobility Component and the Middle Rate Care Component of DLA. KN had been in receipt of the Lower Rate Mobility Component and the Middle Rate Care Component. Pursuant to the Personal Independence Payment (Transitional Provisions) Regulations 2013 they claimed Personal Independent Payment (PIP). The Secretary of State decided that CH was entitled to the enhanced rate of the daily living component of PIP but not the mobility component, and that KN was not entitled to either component of PIP. On appeal, the First-tier Tribunal (F-tT) confirmed the Secretary of State’s decisions.

The appellants appealed to the Upper Tribunal (UT). The issues before the UT were: (1) in an appeal to the F-tT relating to entitlement to PIP of a person who had previously been in receipt of DLA (a “transfer case”), in what circumstances (if at all) should the F-tT obtain evidence relating to the previous award of DLA; and (2) how if at all do the principles in R(M)1/96 apply to the F-tT’s duty to give reasons in transfer cases.

Held, allowing the appeal in CPIP/2307/2017 and dismissing the appeal in CPIP/2386/2017 that:

1. the question for the First-tier Tribunal in a PIP appeal is whether the claimant qualifies for PIP in accordance with the statutory criteria relevant to that benefit. There is no expectation of entitlement based on a previous award, nor of adopting previous findings of fact relating to that award. However, DLA evidence may be relevant to a PIP claim or appeal. In the light of the degree of overlap between the tests for DLA and for PIP, and the overlap between the assessments for both benefits (where there was one for DLA), in many cases DLA evidence will address the same conditions and functional difficulties as are in issue in the PIP claim and may shed light on whether any PIP tests are satisfied, where there has been no change since the date of the DLA evidence. (paragraphs 45 and 46);

2. a tribunal need only consider whether to obtain DLA evidence if it has decided that it is or may be relevant. Even if it decides that DLA evidence would be relevant, it may determine the appeal without obtaining it, but it must consider hitherto do so and take into account the range of relevant considerations. The question is whether the evidence is necessary fairly to determine the appeal. Ultimately it is for the First-tier Tribunal to make its own judgment whether DLA evidence may be relevant and whether to call for it in a PIP appeal. (paragraphs 59, 61 and 69);

3. where the question whether to seek DLA, evidence has arisen and the tribunal decides to proceed without it, the duty on the tribunal to act judicially means that an appropriate explanation should be given. In most cases a brief explanation will suffice (paragraph 69);

4. the principle in R(M) 1/96 will apply where there is an apparent inconsistency between the PIP award and the previous DLA award. It is for the tribunal to judge in the circumstances of the particular case whether there is an apparent inconsistency such that reasons are called for (paragraphs 77- 80);

5. in CH’s case, the DLA medical evidence was not included within the appeal bundle despite CH having asked for it to be taken into account, Nonetheless the F-tT was entitled to proceed without it, taking into account the age of the DLA evidence, that the F-tT had substantial and much more recent evidence and, was satisfied that the HCP report was reliable and was broadly consistent with the medical evidence, and that the F-tT did not believe much of CH’s evidence. It was unrealistic to suppose that the DLA evidence could have materially assisted the F-tT. Although there was potential inconsistency between the DLA award and PIP decision, the F-tT reasons were adequate because there was nothing more it could have said given the lack of information about the DLA award and the reasons adequately explained any divergence from the DLA award (paragraphs 94 and 96).

6. in KN’s case, there was a clear potential overlap between the test for the lower rate of the mobility component of DLA and PIP mobility descriptor 1d. Given the complexity of KN’s health issues and that KN had challenge the HCP’s assessment, the DLA award may have shed light on the issues and the F-tT should have considered whether to obtain it (paragraph 105-106).

The Judge gave guidance as to the application of the relevant principles, set aside the F-tT decision in KN’s case, and remitted that case to another Tribunal for fresh consideration.

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