SR v Secretary of State for Work and Pensions (PIP)

Where a claimant transferring from DLA to PIP has received a negative determination which is later overturned, and a substantive assessment determination results in a PIP award, the ordinary 28-day DLA run-on rule does not apply. Under regulations 13(2) and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, PIP entitlement begins on the day after DLA originally terminated following the negative determination. The general rule that a transfer award begins by reference to the Secretary of State’s entitlement decision applies only where that exception is absent.

The appellant had been receiving Disability Living Allowance (DLA) when she was required to transfer to Personal Independence Payment (PIP). Following her failure to attend an assessment, the Secretary of State made a negative determination and her DLA ended on 29 September 2020. A First-tier Tribunal later allowed her appeal against that determination.

After a paper-based assessment, the Secretary of State awarded enhanced-rate PIP from 7 December 2022 and paid DLA arrears for the preceding period. The First-tier Tribunal, in a decision of 1 June 2023, upheld that commencement date. The appellant appealed to the Upper Tribunal on the ground that the award should instead begin on 30 September 2020.

The central issue was whether the ordinary transfer rule in regulation 17 applied, or whether the exception in regulations 13(2) and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 governed the start date.

1. Appeal allowed. The First-tier Tribunal erred in treating the case as an ordinary DLA-to-PIP transfer. Its decision was set aside and the Upper Tribunal remade the decision.

2. The ordinary rule is that a transfer claimant’s DLA ends after the prescribed run-on period following an assessment determination, and a successful PIP award begins the next day. That rule fixes the start date by reference to the Secretary of State’s entitlement decision. However, it is expressly displaced where regulation 13(2) applies.

3. Regulation 13(2) applied because the appellant had first received a negative determination, her DLA had consequently terminated under regulation 13(1), and that determination was later overturned on appeal before an assessment determination awarded PIP. In that situation, regulation 17(2)(b), rather than regulation 17(2)(a), fixes the commencement date.

4. Accordingly, under regulations 13(2) and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, the appellant’s PIP entitlement began on 30 September 2020, the day after her DLA had originally terminated. The reasoning in RS v Secretary of State for Work and Pensions (PIP) [2016] UKUT 85 (AAC) stated only the general rule and did not address this exception. OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC) was not inconsistent, as it did not address the exceptional commencement rule.

5. The appellant was entitled to arrears of PIP for 30 September 2020 to 6 December 2022, subject to an offset for DLA already paid for the same period. Her enhanced-rate awards and their end date were otherwise unchanged.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade the decision so that enhanced-rate PIP commenced on 30 September 2020.

• First-tier Tribunal (Social Entitlement Chamber): On 1 June 2023, upheld the Secretary of State’s commencement date of 7 December 2022. That decision was set aside by the Upper Tribunal.

• Earlier First-tier Tribunal: In February 2022, allowed the appellant’s appeal against the negative determination and directed that she be given the opportunity to pursue her PIP claim.