HYM v The Secretary of State for Work and Pensions

For a qualifying claimant who transferred from disability living allowance to personal independence payment after reaching pensionable age, regulation 27A(1) of the Social Security (Transitional Provisions) Regulations 2013 disapplies the age restriction when the existing award is revised or superseded. Regulation 27A(2) imports mobility restrictions only where that existing award includes the mobility component and is superseded. It is not a universal condition for retaining any PIP award, and it does not prevent mobility entitlement being added to an award containing only the daily living component. The separate deeming rule in regulation 27(4) of the Social Security (Personal Independence Payment) Regulations 2013 does not enlarge the regulation 27A(2) gateway. A court cannot use broad policy aims or the presumption against absurdity to write a new prohibition and exceptions into the regulations.

HYM had transferred from disability living allowance to personal independence payment after reaching pensionable age. After moving to Spain, he ceased to qualify for the mobility component, and his existing PIP award was superseded. When he returned to the UK, the Secretary of State refused to restore that component, relying on HYM’s age. The First-tier Tribunal (Social Entitlement Chamber) dismissed his appeal on 19 March 2024.

HYM appealed to the Upper Tribunal. The central issue was whether regulation 27A(2) prevented a transfer claimant whose existing PIP award contained only the daily living component from becoming entitled to the mobility component when that award was superseded.

1. Appeal allowed. The First-tier Tribunal made a material error of law by failing to consider regulation 27A of the Social Security (Transitional Provisions) Regulations 2013. The Upper Tribunal set its decision aside and remade it. HYM was entitled to the enhanced daily living and mobility components from 2 April 2022 on an ongoing basis. The parties did not dispute the points he scored or that his functional restrictions were unlikely to change.
2. The mobility award ended while HYM was in Spain. Section 77(3) of the Welfare Reform Act 2012, regulation 16(c) of the Social Security (Personal Independence Payment) Regulations 2013, and regulation 23 of those Regulations meant that the residence exception applied to daily living, not mobility. HYM therefore ceased to satisfy the mobility entitlement conditions. Section 77 concerns entitlement, not payment. Since none of the suspension grounds in regulation 44(2) of the Universal Credit etc. (Decisions and Appeals) Regulations 2013 applied, DWP had no basis to suspend payment while preserving an underlying mobility entitlement.
3. Regulation 27A(2) has a limited gateway. Regulation 27A(1) applied because HYM had previously met the transfer conditions in regulation 27 of the Transitional Regulations and his existing PIP award was superseded. It disapplied the age restriction in section 83(1). Paragraph (2) applies only where the existing award includes the mobility component and is superseded. In that event it imports paragraphs (2) and (3) of regulation 27 of the PIP Regulations. The words ‘subject to paragraph (2)’ give paragraph (2) priority when its conditions are met; they do not make those conditions universal. Where the existing award contains only daily living, paragraph (2) does not prevent mobility being added, and it does not restore the age restriction.
4. The existing award is the award being changed. Regulation 27(4) of the PIP Regulations does not deem a previous mobility award to be part of the existing award when deciding whether regulation 27A(2) is engaged. The Upper Tribunal left open whether regulation 27(4) affects the restrictions after that gateway has been met. It also held that purposive interpretation and the presumption against absurdity did not permit the court to invent a broader prohibition and choose its exceptions. The statutory language, legislative history and policy materials did not establish the intended content of such a rule with the certainty required to correct an obvious drafting error.
5. Earlier Upper Tribunal decisions did not decide the distinct question. SC v SSWP (PIP) [2022] UKUT 97 (AAC) and MM v SSWP (PIP) [2024] UKUT 288 concerned regulation 27 of the PIP Regulations. Neither determined the separate gateway in regulation 27A. GH v SSWP (PIP) [2023] UKUT 104 (AAC) involved an existing award that already included mobility. Giving full weight to the comity principle in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC), the Upper Tribunal held those decisions did not resolve the question before it.
6. DWP’s assurances could not create entitlement. Incorrect advice cannot create a benefit entitlement that legislation does not provide. The Upper Tribunal applied SSWP v SC and MJ v London Borough of Bromley [2025] UKUT 299 and explained that a claimant who relies on incorrect advice may complain and seek redress. HYM’s entitlement following his return arose from the regulations, not from DWP’s assurances.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision and remade it. HYM was awarded the enhanced daily living and mobility components from 2 April 2022 on an ongoing basis.
• First-tier Tribunal (Social Entitlement Chamber): Dismissed HYM’s appeal on 19 March 2024 and refused the mobility component.