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

Regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 permits supersession on receipt of qualifying medical evidence. It does not require proof of a change of circumstances since the previous award. Any previous award remains relevant evidence and must be assessed with the evidence as a whole.

Tribunals must give understandable reasons when reaching a different conclusion from an earlier award. Reasons must engage with material evidence and explain the significance of matters relied upon. Later evidence may be considered if it relates to circumstances obtaining at the date of the decision under appeal.

The Secretary of State superseded MK’s personal independence payment award after receiving a healthcare professional’s report. The First-tier Tribunal confirmed the termination of the award, relying principally on MK’s ability to drive an automatic car and his having travelled through an airport.

MK appealed to the Upper Tribunal. He challenged the failure to identify the supersession ground, the adequacy of the tribunal’s reasoning, and its treatment of later evidence. He also raised a procedural issue concerning the First-tier Tribunal’s treatment of his late application for permission to appeal.

1. Supersession. Regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 authorises reconsideration where the Secretary of State has received qualifying medical evidence. Receipt of that evidence is the relevant legal condition. A change of circumstances is not an additional legal requirement. The failure to identify the provision was therefore not material in this case.
2. Reasons and evidence. A tribunal must assess the previous award as one factor in the evidence as a whole. Where a claimant relies on continuity or worsening of their condition, the tribunal must make the reason for departing from the earlier award reasonably apparent or provide a brief explanation. The reasoning here did not adequately engage with the evidence. Driving an automatic car required investigation and explanation of its significance. A single journey through an airport, designed to guide passengers by signage and layout, was not comparable without further reasoning to navigating roads or traffic. The decision therefore contained an error of law and was set aside.
3. Later evidence. Section 12(8)(b) of the Social Security Act 1998 prevents the First-tier Tribunal from taking account of circumstances not obtaining when the appealed decision was made. Later evidence remains admissible where it relates to circumstances existing at that time. The relevance and timing of the trip to Slovakia could be investigated on rehearing.
4. Late permission application. Under rule 38(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, a late application requires consideration of an extension of time and, absent an extension, must not be admitted. The First-tier Tribunal incorrectly refused permission rather than refusing to admit the application. The Upper Tribunal could treat the decision according to its substance and admit the application where the interests of justice required it.
5. Practice Direction and rehearing. The Practice Direction on reasons is guidance under section 23(6) of the Tribunals, Courts and Enforcement Act 2007. It does not replace the legal requirement for adequate reasons. The case was remitted for a complete reconsideration by a differently constituted tribunal, in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC). The rehearing was not confined to the original grounds or evidence, and the tribunal had to reach its own conclusions.

• First-tier Tribunal (Social Entitlement Chamber): decision dated 7 September 2024 confirmed the Secretary of State’s supersession of the personal independence payment award.
• Upper Tribunal (Administrative Appeals Chamber): decision set aside for error of law and case remitted to a differently constituted First-tier Tribunal for rehearing.