SR v Secretary of State for Work and Pensions

An advance claim for personal independence payment may be made even where the claimant does not satisfy the entitlement conditions on the claim date. Regulation 33 of the Universal Credit etc (Claims and Payments) Regulations 2013 permits an award from a later relevant day, subject to the claimant satisfying the conditions then. A tribunal errs in law if it determines that a claim is invalid solely because the claim was made before the three-month qualifying period ended, without considering regulation 33. A tribunal also errs where it makes an adverse decision without sufficiently warning the claimant of the specific issue, so that the claimant cannot prepare the case. On setting aside the decision, the appeal should ordinarily be remitted for a fresh hearing before a differently constituted tribunal.

The claimant appealed to the Upper Tribunal against a decision of the First-tier Tribunal dated 4 April 2023. The Secretary of State had awarded the standard rate of the daily living component of personal independence payment, but the First-tier Tribunal proceeded in the claimant’s absence and removed the award because the claim had been made less than three months after the claimant’s accident and the onset of his conditions.

The Upper Tribunal considered whether the First-tier Tribunal had erred by failing to consider the statutory provision governing advance claims and by failing to give adequate warning of the specific issue on which it intended to disallow the award.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. Regulation 33(1) of the Universal Credit etc (Claims and Payments) Regulations 2013 permits an advance claim for personal independence payment. The claimant need not satisfy the entitlement requirements on the claim date if the Secretary of State considers that, absent a change of circumstances, those requirements will be satisfied within the permitted period. The award may begin on the relevant later day, subject to satisfaction of the conditions then. The decisions in AH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 541 (AAC) and EB v Secretary of State for Work and Pensions (PIP) [2017] UKUT 311 (AAC) explain this effect.
3. The First-tier Tribunal focused on the accident date and the claim date and gave no indication that it had considered regulation 33(1). Its conclusion that the claimant could not receive any points because the claim was made before the qualifying period ended therefore involved an error of law.
4. The tribunal also failed to give adequate notice of its specific concern that the award might have to be disallowed. A general warning that an award might be increased, reduced or removed did not give the claimant a proper opportunity to prepare his case. The principle stated in CPIP/3480/2016 was applicable.
5. The case was remitted under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 for an oral rehearing before a fresh tribunal. The new tribunal was not bound by the earlier decision and was to determine entitlement afresh. It had to consider the claimant’s circumstances as at 20 April 2022, because section 12(8)(b) of the Social Security Act 1998 prevents consideration of circumstances not obtaining when the decision under appeal was made.

• Upper Tribunal (Administrative Appeals Chamber) — allowed the appeal, set aside the First-tier Tribunal’s decision dated 4 April 2023, and remitted the case for reconsideration by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber) — proceeded in the claimant’s absence and refused the appeal, setting aside the Secretary of State’s award on the ground that the claim had been made before the qualifying period ended.