GH v The Secretary of State for Work and Pensions

A tribunal cannot provide an effective remedy for alleged human-rights incompatibility by disapplying a beneficial regulation where the underlying Act excludes entitlement altogether. Disapplying the regulation would remove the statutory basis for entitlement rather than secure the higher benefit claimed. A declaration of incompatibility does not affect the validity or continuing legal effect of an Act. Nor may a tribunal read words into regulations where that would alter the carefully limited statutory scheme and amount to legislating. An interpretive remedy must respect Parliament’s intention and the coherence of the regulations.

The appellant had been awarded the standard-rate mobility component of Personal Independence Payment before reaching pensionable age. After becoming terminally ill, he sought an enhanced-rate mobility award. The Secretary of State refused that increase under section 83 of the Welfare Reform Act 2012 and regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013.

The First-tier Tribunal dismissed his appeal on 2 February 2022. Before the Upper Tribunal, he argued that the statutory restrictions unjustifiably discriminated against terminally ill people under Article 14 of the ECHR. He died during the proceedings. The central issue was whether any effective legal remedy could be granted even if the discrimination arguments were otherwise successful.

1. Appeal dismissed. The First-tier Tribunal had not erred in law. No effective remedy could be afforded, even assuming that the appellant could establish discrimination and lack of justification.
2. Section 83(1) of the Welfare Reform Act 2012 expresses the general rule that entitlement to PIP ends at pensionable age. Section 83(3) permits regulations to create exceptions. Regulations 25 to 27 of the Social Security (Personal Independence Payment) Regulations 2013 provide the only basis on which entitlement could continue.
3. Under regulation 27(3), a standard-rate mobility award made before pensionable age cannot be increased to the enhanced rate on supersession after pensionable age. Disapplying regulation 27 would not confer entitlement to the enhanced rate. It would remove the beneficial exception and leave section 83(1) operating against the appellant.
4. The remedy considered in RR v Secretary of State for Work and Pensions [2019] UKSC 52 was distinguishable. There, disapplying the regulation itself removed the discriminatory deduction. Here, regulation 27 was beneficial and its disapplication could not provide the claimed entitlement.
5. A tribunal cannot disapply an Act of Parliament. Even a declaration of incompatibility under section 4 of the Human Rights Act 1998 would not affect the provision’s validity or continuing legal effect. Nor could the proposed read-in remedy be adopted. It would contradict Parliament’s expressly limited exceptions, place the amendment in an inapt regulation, and render regulation 27’s restrictions substantially incoherent.
6. Regulation 27(4) did not assist because the appellant had continuously held a mobility award, and in any event the restrictions in regulation 27(3) would remain applicable.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision of 2 February 2022 was not made in error of law.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appeal and upheld the Secretary of State’s decision of 8 July 2021.