TW v Secretary of State for Work and Pensions

During the managed transition from disability living allowance to personal independence payment, the Transitional Regulations lawfully postpone a transfer claimant’s PIP entitlement until the DLA award ends. A notification of changed circumstances does not operate as an application to supersede DLA where regulation 20 directs that it is not to be treated as relating to DLA.

The resulting disadvantage to claimants whose PIP award exceeds their DLA award was justified. The regulations pursued a legitimate and proportionate transition, maintaining DLA during assessment and protecting claimants whose new entitlement was lower or unchanged. It was rational and proportionate to avoid separate DLA reassessments or retrospective PIP calculations whose cost and complexity would impede the programme.

The claimant received lower-rate mobility and lowest-rate care disability living allowance. After reporting a deterioration in her condition, she was invited to claim personal independence payment. Her eventual PIP award included the enhanced daily-living component, but began only after her DLA award terminated under the Personal Independence Payment (Transitional Provisions) Regulations 2013.

The First-tier Tribunal dismissed her appeal seeking PIP from the claim date. On appeal, she contended that the transitional scheme was incompatible with Article 14, read with Article 1 of Protocol 1, and was ultra vires insofar as it prevented an increased DLA award during the PIP assessment. The central issue was whether the delayed effective date was lawful for PIP claimants whose entitlement under PIP exceeded their former DLA entitlement.

1. Appeal dismissed. Regulation 20(2)(a) meant that the claimant’s notification of changed circumstances was not an application for supersession of DLA. Regulation 20(2)(b) did not convert the existing DLA award into a PIP award, nor enable Social Security Act 1998 section 10(5) to fix PIP entitlement from the notification or claim date. The claimant was instead invited to make a PIP claim, to which regulation 17 applied.

2. For Article 14 purposes, status, analogy and justification are inter-related. A tribunal need not finally determine status or an exact comparator where the difference in treatment is justified. The approach in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 showed that a distinction between disabled persons may engage Article 14, including one connected with the duration or nature of disability.

3. The primary discrimination claim failed. PIP winners outside the narrower class were not truly analogous to new PIP claimants in the context of a gradual statutory replacement of DLA. The delayed transfer date was justified by the legitimate aims of an effective, manageable transition, continuity of DLA during assessment, protection for PIP losers and neutrals, and reduced public expenditure. Backdating PIP after setting off DLA would entail additional administration and substantial cost.

4. The regulations were within the broad power in Welfare Reform Act 2012 section 93(1). It was rationally open to the Secretary of State to avoid DLA reassessments for transferring claimants. Those reassessments would be burdensome, costly and often of no benefit. Although computer interaction could in principle permit retrospective awards, the Secretary of State could regard the cost of backdating all PIP winners as disproportionate, particularly because the narrower class could not be identified without further assessments.

5. Even assuming that the narrower class had a relevant status and was analogous to successful new PIP claimants, any unequal treatment was proportionate. Saving public expenditure was a permissible legitimate aim in Article 14 analysis when combined with a proportionate means of securing an orderly transition. The claimant’s loss was significant, but an element of rough justice was tolerable in this non-expense-specific long-term disability benefit scheme.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant’s appeal in [2017] UKUT 25 (AAC).
• First-tier Tribunal: on 10 July 2015, dismissed the claimant’s appeal against the Secretary of State’s PIP decision.
• Secretary of State: revised the decision on 19 January 2015 to award the enhanced daily-living component of PIP from 10 December 2014.