CK & Anor v Secretary of State for Work and Pensions

Delegated legislation may amend prescribed daily living activities used to assess entitlement to personal independence payment where the enabling statutory scheme permits it. The activities are umbrella descriptions, while descriptors provide the operational scoring rules. A consultation duty will not generally be superimposed on statutory rule-making procedures containing parliamentary safeguards, particularly where an amendment restores an existing policy rather than introducing a new one. In a welfare-benefits discrimination challenge, a wide margin of judgment may be appropriate. Restoring the original policy, supported by prior consultation, parliamentary scrutiny and legitimate budgetary aims, was proportionate.

Two conjoined appeals concerned the lawfulness of regs. 2(2) and 2(3) of the Social Security (Personal Independence Payment) (Amendment) Regulations 2017. The amendments altered Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, limiting help with managing medication or monitoring a health condition to the one-point descriptor and excluding those matters from the definition of therapy.

Both appellants had type 1 diabetes. One appeal followed the loss of an existing award; the other arose from a First-tier Tribunal decision which had failed to apply the amendments. The challenges alleged failure to consult, ultra vires delegated legislation and discrimination contrary to article 14 of the Convention. The central issue was whether tribunals could lawfully give effect to the 2017 amendments.

1. Appeals dismissed. The 2017 amendments were lawful and tribunals were required to give effect to them.
2. The Secretary of State established that the policy reflected in the amendments existed by late 2011 or early 2012. The amendments therefore restored the intended policy rather than changing it. The prior consultation process was broad, and the statutory negative-resolution procedure and SSAC mechanisms were relevant safeguards. Ground 1 failed.
3. Under ss. 78(4) and 80(3) of the Welfare Reform Act 2012, prescribed daily living activities are umbrella descriptions which may be supplemented by descriptors. The descriptors are operationally important, but the activity definitions remain legally significant. The 2017 amendments narrowed Activity 3 by defining therapy so as to exclude medication and monitoring. Parliament had permitted later changes to prescribed activities by delegated legislation. The amendments were therefore not ultra vires, even though the amended activity language was not apt to encompass the medication descriptors.
4. The discrimination claim required consideration of Convention-right ambit, analogous differential treatment, status and objective justification. Persons needing substantial help with medication or monitoring were treated differently from persons needing equivalent support with therapy. Being a person with diabetes was a relevant status. Applying the flexible proportionality approach in R(SC) v SSWP, the legislator was entitled to a wide margin of judgment. The prior consultations, parliamentary scrutiny and legitimate aim of restoring the original policy made the measure proportionate.

The appeals were dismissed.

• Upper Tribunal (Administrative Appeals Chamber): appeals from the First-tier Tribunal (Social Entitlement Chamber) dismissed. The Upper Tribunal held that the 2017 amendments were lawful and could be applied by tribunals.