PW v Secretary of State for Work and Pensions

For the backdating rule in Social Security (Claims and Payments) Regulations 1987, regulation 6(33), a First-tier Tribunal decision on an appeal can itself award a qualifying benefit. This is so even where the decision-maker had already awarded that benefit, because the tribunal makes the decision which the decision-maker could have made.

However, a claim for carer’s allowance made within three months of that tribunal decision must be made during the three-month period beginning with the decision. A claim made before the decision is outside that period. The natural meaning of the regulation governs despite the apparent hardship of a claim made shortly before the qualifying decision.

PW v Secretary of State for Work and Pensions concerned entitlement to carer’s allowance for a period after the appellant’s husband’s disability living allowance ended.

The respondent later awarded him the daily living component of personal independence payment from 15 November 2019. He appealed, and the First-tier Tribunal increased his mobility award by a decision dated 23 July 2021. The appellant had made a new carer’s allowance claim 11 days before that tribunal decision.

The First-tier Tribunal held that the claim could not be backdated to the start of the personal independence payment award. On appeal, the issues were whether the tribunal decision awarded a qualifying benefit for regulation 6(33), whether a pre-decision claim was made within three months of it, and whether mandatory reconsideration had occurred.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.

2. Regulation 6(33) of the Social Security (Claims and Payments) Regulations 1987 treats a carer’s allowance claim as made when the qualifying benefit became payable if it is made within three months of a specified decision awarding that benefit. A decision of the First-tier Tribunal on appeal is among the specified decisions.

3. The First-tier Tribunal’s decision on the husband’s personal independence payment appeal did award the daily living component, although the respondent had already awarded that component. In a social-security appeal the tribunal stands in the decision-maker’s shoes and may make any decision which the decision-maker could have made. It could therefore have refused, maintained, or otherwise determined the daily living component. Its decision was accordingly a decision on appeal awarding a qualifying benefit.

4. Nevertheless, the appellant’s claim was made 11 days before the tribunal decision. The natural and plain meaning of “within three months of” a decision confines the period to the three months beginning with that decision. It does not mean any time before the three-month expiry date, nor a period extending three months on either side of the decision. The fact that an early claim might cause hardship did not justify departing from that meaning.

5. The Upper Tribunal also accepted that, read in context, the respondent’s mandatory-reconsideration notice covered both decisions under appeal. The First-tier Tribunal therefore had jurisdiction over the appellant’s challenge to the later carer’s allowance decision. Any confusion caused by merging the two appeals was immaterial and did not affect their outcome.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision involved no material error of law: [2025] UKUT 26 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): on 11 October 2022, confirmed the respondent’s decision awarding carer’s allowance only from 19 April 2021 and held that there was no entitlement from 7 October 2019 to 18 April 2021.