KK v Secretary of State for Work and Pensions

A final tribunal decision on entitlement determines the claimant’s entitlement for the period within its jurisdiction. It cannot be reopened merely because the claimant considers the original award wrong. A later, advantageous supersession based on a longstanding change of circumstances takes effect from notification where the change was notified late, unless the limited conditions for an earlier effective date are met.

A tribunal decision given orally at a hearing is promulgated then and cannot be changed informally after further discussion. A tribunal rehearing a remitted appeal must follow the Upper Tribunal’s directions, although a failure will be material only if it affects the lawful outcome.

The appellant had moved from disability living allowance to personal independence payment (PIP). A First-tier Tribunal decision of 25 August 2017 finally confirmed his standard-rate daily-living award for the relevant earlier period.

After the appellant requested a further review on 16 January 2018, the Secretary of State made a decision on 12 May 2018 maintaining that rate. Following an earlier successful appeal and remittal, a differently constituted First-tier Tribunal awarded enhanced rates of both PIP components. It initially announced an effective date of 16 January 2018, but then purported to substitute 26 August 2017.

The issue was the lawful effective date of the superseding award and whether the First-tier Tribunal could alter its orally announced decision.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision and remade it. The appellant was entitled to enhanced-rate daily-living and mobility components from 16 January 2018 to 15 January 2028.

2. The 2017 First-tier Tribunal decision was final under section 17(1) of the Social Security Act 1998. It conclusively determined the appellant’s earlier PIP entitlement. Since it was not further appealed and a First-tier Tribunal decision could not be revised, it could thereafter be altered only by a supersession. The appellant could not use the later appeal to obtain enhanced PIP from 2016.

3. The later award was a supersession under section 10 of the Social Security Act 1998. Under regulation 35 and Schedule 1 to the Universal Credit, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013, the ordinary effective date was the change of circumstances. However, the award was advantageous and the longstanding change had been notified more than one month late. Paragraph 14 therefore made the effective date the notification date, 16 January 2018. There was no basis for an earlier date under regulation 36.

4. The First-tier Tribunal had also erred by changing its decision after orally announcing it. Rule 33(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 permits an oral decision at a hearing; once given, it is definitive. Applying Patel v Secretary of State for the Home Department, [2015] EWCA Civ 1175, the tribunal had no power to alter it informally after further representations.

5. The remitted tribunal should have followed the earlier Upper Tribunal direction to investigate entitlement from 12 May 2018. Its failure was not material because the applicable supersession rules required consideration of the earlier effective date of 16 January 2018.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision of 11 August 2021, and remade the PIP award: [2023] UKUT 151 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): On 11 August 2021, after remittal, allowed the appeal against the Secretary of State’s decision of 12 May 2018 and awarded enhanced rates from 26 August 2017.
• Upper Tribunal (Administrative Appeals Chamber): On 4 February 2021, under reference CPIP/1171/2020, allowed the appeal from the First-tier Tribunal’s dismissal of 28 August 2019 and remitted the matter for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): On 25 August 2017, dismissed the appellant’s first PIP appeal. Permission to appeal was later refused, so that decision became final.