MM v Secretary of State for Work and Pensions

Entitlement to the mobility component of personal independence payment ends on reaching the relevant age unless a regulatory exception applies. An exception preserving an existing award does not continue unchanged when that award is revised or superseded. Regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013 then governs the available exceptions. Where neither of its mobility-component pathways applies, section 83 of the Welfare Reform Act 2012 prevents entitlement. A mobility component mistakenly included in a supersession decision may be removed retrospectively by revision for official error.

The claimant reached the relevant age of 65 while receiving only the daily living component of personal independence payment. A later supersession mistakenly added the mobility component. Following a further decision, the Secretary of State removed that component retrospectively on the ground of official error.

The First-tier Tribunal increased the rate of the daily living component but upheld the removal of the mobility component. The claimant appealed to the Upper Tribunal, arguing that the legislation contained a lacuna or gave the tribunal a discretion to maintain the mobility award. The central issue was whether the mobility component could lawfully be awarded after the claimant reached the relevant age.

1. The appeal was dismissed. The First-tier Tribunal had not made an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.

2. Section 83 of the Welfare Reform Act 2012 removes entitlement to both components of personal independence payment after the relevant age, subject to regulatory exceptions. The claimant reached that age on 26 September 2015.

3. Regulation 25(a) of the Social Security (Personal Independence Payment) Regulations 2013 preserved the claimant’s existing daily-living award because she was entitled to an award on the day before reaching the relevant age. The effect of section 83 revived as soon as, and to the extent that, an exception ceased to apply.

4. When the award was superseded in February 2019, regulation 27 applied. Regulation 25 could not operate alongside regulation 27, because that would circumvent regulation 27’s restrictions. The relevant original award was the award made on the July 2015 claim. It included no mobility component and there had been no previous mobility award.

5. Neither mobility-component route in regulation 27 applied. Regulation 27(2)–(3) was unavailable because the original award contained no mobility component. Regulation 27(4) was unavailable because there had been no previous mobility award. Section 83 therefore prevented any lawful mobility award.

6. Regulation 27 is not an exhaustive code governing entitlement or revision and supersession. The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 continued to govern revision and supersession. Regulation 9(a) authorised revision for official error, and the decision-maker’s failure to comply with section 83 and regulation 27 constituted such an error. The mobility component was therefore correctly removed retrospectively.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal decision involved no error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Social Entitlement Chamber): on 16 May 2022, increased the daily living component to the enhanced rate but did not include the mobility component.