Worley v The Secretary of State for Works And Pensions

An existing DLA claimant who is invited to claim PIP after notifying a change of circumstances remains a transfer claimant. Regulation 17’s 28-day rule applies to the whole class. Regulation 20(2)(b) merely treats the notification as satisfying PIP’s change-notification requirement; it does not create a supersession claim or backdate PIP. For Article 14, an exact comparator is unnecessary. The court must examine the reasons for different treatment and whether they are objectively and reasonably justified. In social-security legislation, bright-line rules are permissible and a measure will fail only if the justification is manifestly without reasonable foundation. Certainty during transition, cliff-edge protection, practical administration and contextual cost considerations justified the differential treatment.

The appellant was receiving DLA when she notified the Secretary of State of a change of circumstances and was invited to claim PIP. Her PIP claim was initially refused, but on reconsideration she received the enhanced daily living component from 10 December 2014. She contended that payment should have begun on 15 May 2014, the date of her claim.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal, in its decision of 17 January 2017 in CPIP/2980/2015, also dismissed it. The Court of Appeal considered whether the transitional regulations permitted backdating and whether the 28-day rule discriminated against her under Article 14 of the ECHR read with Article 1 of Protocol 1.

The appeal was dismissed unanimously.

1. Statutory interpretation. The appellant was a transfer claimant. A DLA entitled person who notified a change of circumstances and claimed PIP in response to a notification under regulation 3(1) fell within regulation 2(1). Regulation 17 therefore applied to her as it applied to all transfer claimants. It fixed the termination of DLA and commencement of PIP by reference to the 28-day period following the assessment determination, and did not permit the claimed backdating.
2. Regulation 20(2)(b) did not create a separate class exempt from regulation 17. It treated the DLA notification as a notification for PIP purposes under regulation 38(4) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013/380. Its function was to ensure that the PIP notification obligation had been met, not to determine the effective date of the award. The absence of any cross-reference overriding regulation 17 supported the plain-language interpretation.
3. Article 14. A rigidly formulaic approach and the search for an exact comparator were unnecessary. The court asked what explained the difference in treatment and whether the difference had objective and reasonable justification, applying Ghaidan v Godin-Mendoza [2004] 2 AC 557, R (Carson) v SSWP [2006] 1 AC 173 and AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434.
4. In the social-security context, the justification would have to be manifestly without reasonable foundation before the measure could be held unjustified or disproportionate. Bright-line policies were permissible, subject to careful scrutiny, applying Humphreys v HMRC [2012] 1 WLR 1545 and Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250.
5. The transitional scheme legitimately provided certainty and protection against a cliff edge for all DLA claimants during assessment. The changed PIP criteria meant that a notified factual change did not necessarily predict the eventual benefit outcome. Practical concerns were relevant to overall proportionality. The aim of reducing expenditure could not alone justify discrimination, but was a relevant contextual factor alongside the scheme’s other aims. The difference in treatment was objectively justified.

• Court of Appeal (Civil Division) — In [2019] EWCA Civ 15, the court dismissed the appeal.
• Upper Tribunal (Administrative Appeals Chamber) — On 17 January 2017, in CPIP/2980/2015, the Upper Tribunal dismissed the appeal.
• First-tier Tribunal — The tribunal dismissed the appellant’s challenge to the effective date of her PIP award.