MU v Secretary of State for Work and Pensions

On an appeal concerning Personal Independence Payment, a tribunal must determine entitlement by reference to the circumstances obtaining when the Department for Work and Pensions decision was made. Social Security Act 1998 s 12(8)(b) does not exclude later evidence if that evidence demonstrates circumstances existing on or before the decision date. However, the tribunal cannot use subsequent improvements, incapable of being referred back to that date, to limit an award to a fixed period. Such later changes must ordinarily be addressed through supersession for change of circumstances.

The appellant appealed against a decision refusing her claim for Personal Independence Payment. The First-tier Tribunal awarded the standard-rate daily living component from 1 October 2021 to 31 December 2022, but made no mobility award. Permission to appeal was limited to the proper application of s 12(8)(b) of the Social Security Act 1998.

The First-tier Tribunal made findings both at the date of the Department’s decision, 13 May 2022, and concerning the appellant’s reduced limitations and support needs by the hearing date and in late 2022. The central issue was whether those later circumstances could justify restricting the duration of the award.

1. Appeal allowed. The First-tier Tribunal’s decision was erroneous in law and was set aside. The appeal was remitted for a completely fresh hearing before a differently constituted tribunal.
2. Section 12(8)(b) of the Social Security Act 1998 prevents the tribunal from taking account of circumstances not obtaining when the decision under appeal was made. It does not prevent consideration of later evidence where that evidence establishes circumstances existing at or before the decision date, as recognised in R(DLA)2/01 and R(DLA)3/01.
3. The First-tier Tribunal correctly identified 13 May 2022 as the relevant date, but went wrong by relying on the appellant’s post-decision reduction in limitations and withdrawal of formal support to determine the length of the award. Those were subsequent circumstances and could not be used for that purpose where they could not be referred back to the decision date.
4. Section 71(3) of the Social Security and Contributions Act 1992 permits an award for a fixed period. The decision whether to make such an award remains governed by the circumstances obtaining up to the decision date under s 8(2) of the Social Security Act 1998. Later improvement should ordinarily be considered through supersession for change of circumstances.
5. The rehearing must be conducted entirely afresh. The file was to be referred to a salaried First-tier Tribunal judge for case-management directions.

• Upper Tribunal (Administrative Appeals Chamber): the appeal from the First-tier Tribunal decision dated 5 January 2024 was allowed. The decision was set aside and the case remitted for a fresh hearing.