MA v Secretary of State for Work and Pensions

Entitlement to benefit must generally be assessed by reference to the claimant’s circumstances from the earliest date covered by the claim until the date on which the claim is decided. A decision-maker and an appellate tribunal must consider material changes occurring between those dates. Where entitlement arises during that period, benefit may be awarded from the date on which the conditions were first satisfied. The same approach applies to personal independence payment residence and presence conditions. A claim cannot be dismissed solely because the claimant failed a condition on the date of claim if the evidence shows that the condition was satisfied before the decision was made.

The claimant had previously received personal independence payment. He left the United Kingdom for India and, after his claim was treated as made on 20 December 2021, returned to Great Britain on 9 April 2022. The Secretary of State refused the claim on 29 July 2022, considering only the claimant’s absence from Great Britain before his return. The First-tier Tribunal dismissed the appeal.

Permission to appeal was granted on the question whether the First-tier Tribunal had erred by assessing entitlement at the date of claim rather than by reference to the period up to the Secretary of State’s decision.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

2. Under section 77(3) of the Welfare Reform Act 2012 and regulation 16 of the Social Security (Personal Independence Payment) Regulations 2013, presence in Great Britain is a condition of entitlement for each day on which personal independence payment is claimed. The assessment was not confined to the deemed date of claim.

3. Following GE v Secretary of State for Work and Pensions (ESA) [2017] UKUT 145 (AAC) and AM v Secretary of State for Work and Pensions (UC) [2022] UKUT 242 (AAC), entitlement must be assessed on a daily or weekly basis from the earliest date covered by the claim until the decision date. A claimant may become entitled after making the claim but before it is decided, and benefit may then be awarded from the later date.

4. 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. It therefore supports, rather than excludes, consideration of relevant circumstances arising between claim and decision. The First-tier Tribunal was required to consider the claimant’s return to Great Britain on 9 April 2022 because it was clearly apparent from the evidence, applying Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 and R(IS) 2/08.

5. The decision was remade under section 12(2)(b)(ii) of the 2007 Act. The claimant was not entitled from 20 December 2021 to 8 April 2022 because he did not satisfy the presence condition. He satisfied that condition from 9 April 2022. The matter was remitted to the Secretary of State to determine whether the other conditions of entitlement were satisfied, including the activities in Schedule 1 to the PIP Regulations, by reference to matters up to and including 29 July 2022.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal decision of 24 June 2024 was set aside for error of law and remade.
• First-tier Tribunal (Social Entitlement Chamber): The claimant’s appeal against the Secretary of State’s decision of 29 July 2022 was dismissed.