DC v Secretary of State for Work and Pensions

A valid written invitation to a disability living allowance recipient to claim personal independence payment may be issued under the Secretary of State’s general power in regulation 3(1) of the Personal Independence Payment (Transitional Provisions) Regulations 2013. It is therefore immaterial that the recipient may not have notified a change of circumstances which required an invitation under regulation 3(5).

A tribunal assessing entitlement to personal independence payment need not obtain historic disability living allowance evidence where it has sufficient current evidence directed to the different statutory criteria. However, a finding that contradicts unambiguous medical evidence is irrational and is an error of law requiring the decision to be set aside.

DC had received disability living allowance at the higher mobility rate and lowest care rate. After contact with the Department for Work and Pensions, he made a claim for personal independence payment. The Secretary of State decided on 21 August 2014 that he was not entitled to that benefit.

The First-tier Tribunal dismissed his appeal, finding that he scored insufficient points. DC appealed on grounds including that he had not intended to trigger a personal independence payment claim, that historic disability living allowance evidence should have been produced, and that the Tribunal had misread his general practitioner’s evidence about good and bad days.

The central issues were whether the transfer claim was lawful, whether fairness required disclosure of the earlier disability living allowance evidence, and whether the Tribunal’s factual findings disclosed an error of law.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside and the appeal was remitted for a complete rehearing before a differently constituted tribunal.

2. Under regulation 3(5) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, notification of a relevant change of circumstances triggers a duty to issue an invitation to claim personal independence payment. But regulation 3(1) also gives the Secretary of State a general power to issue such an invitation at any time. Even if DC had not notified a disability-living-allowance-related change, the invitation was within that power. Once it was issued and DC claimed personal independence payment, he became a transfer claimant. His challenge to the lawfulness of the transfer decision could not succeed. The First-tier Tribunal’s failure to address that argument was therefore immaterial.

3. The First-tier Tribunal did not act unfairly by deciding the appeal without the evidence relied on when disability living allowance had been awarded eight years earlier. It had detailed and current evidence concerning DC’s condition in 2014, directed to personal independence payment criteria which differed from those for disability living allowance. No request for the historic material had been made. Fairness did not require disclosure, nor was the Tribunal bound to find that the Secretary of State had failed to provide relevant documents.

4. The Tribunal nevertheless made an irrational finding when it treated the general practitioner’s evidence as showing more good days than bad. The evidence stated that four days out of seven were bad days. That error required the decision to be set aside. The rehearing must determine entitlement as at 21 August 2014 and must not include a member of the original panel.

• Upper Tribunal (Administrative Appeals Chamber): Allowed DC’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal: Sitting at Norwich on 27 March 2015, dismissed the appeal against the Secretary of State’s decision on entitlement to personal independence payment.