H.R.A. v The Secretary of State for Work and Pensions

A claimant for Personal Independence Payment must satisfy the past presence test in regulation 16(b) of the Social Security (Personal Independence Payment) Regulations 2013, subject only to the exceptions provided by Part 4. Tribunals have no general discretion to create an additional exception for a claimant involuntarily detained overseas. A bright-line presence rule may be legally permissible despite harsh individual results. Where the First-tier Tribunal has found the facts rationally, explained its decision, applied the law and acted fairly, the Upper Tribunal cannot interfere merely because the result appears unreasonable.

The applicant, a dual Afghan-British national, claimed Personal Independence Payment after returning to Great Britain following several years’ imprisonment in Afghanistan. The First-tier Tribunal found that he had been present in Great Britain for substantially less than 104 weeks during the preceding 156 weeks and dismissed his appeal. It rejected the available exceptions and his argument that his absence should be disregarded because it was involuntary.

The applicant sought permission to appeal, arguing that his alleged unlawful imprisonment had not been properly taken into account. The central issue was whether that circumstance disclosed an arguable error of law or engaged an exception to the past presence test.

1. Permission refused. The application was dismissed because there was no arguable error of law in the First-tier Tribunal’s decision.
2. Section 77(3) of the Welfare Reform Act 2012 requires prescribed conditions relating to residence and presence. Regulation 16(b) of the Social Security (Personal Independence Payment) Regulations 2013 requires presence in Great Britain for at least 104 weeks out of the preceding 156 weeks. The applicant did not satisfy that condition.
3. The exceptions in regulations 17 to 23A were limited and carefully defined. None applied. Regulation 17 could treat a person as present only for the first 13 weeks of a qualifying temporary absence.
4. Neither the First-tier Tribunal nor the Upper Tribunal had a discretionary power to add a catch-all exception for a person detained overseas through no fault of their own. Tribunals could deliver justice only in accordance with the law.
5. The judgment considered FM v Secretary of State for Work and Pensions [2017] UKUT 380 (AAC); [2019] AACR 9, concerning the permissibility of bright-line past presence rules. It noted that such rules could be permissible despite a possible mismatch with underlying policy. The later decision in TS v Secretary of State for Work and Pensions; EK v Secretary of State for Work and Pensions [2020] UKUT 284 (AAC); [2021] AACR 4 did not assist because it concerned a different issue.
6. The First-tier Tribunal had made rational findings, given adequate reasons, applied the law correctly and acted fairly. The Upper Tribunal therefore could not interfere simply because the outcome appeared harsh.

• First-tier Tribunal (Social Entitlement Chamber): dismissed the applicant’s appeal against refusal of Personal Independence Payment, holding that he did not satisfy regulation 16(b) of the Social Security (Personal Independence Payment) Regulations 2013.
• Upper Tribunal (Administrative Appeals Chamber): refused permission to appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007. No arguable error of law was identified.