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PIP Mobility over pension age

Elliot Kent
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MH v SSWP (PIP) [2020] UKUT 185 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/mh-v-secretary-of-state-for-work-and-pensions-pip-2020-ukut-185-aac

There is a fairly common misapprehension that PIP awards cannot be superseded to include or increase a mobility component except on the basis of issues which pre-date retirement. This is on the basis of Reg 27 of the Social Security (Personal Independence Payment) Regulations 2013. The Regulation is worth reading closely, as this case shows.

Reg 27(1) provides an exception to the usual rule that PIP cannot be paid to people of retirement age. That is then subject to a potential limitation. Reg 27(2) tells us when the limitation applies:

(2) Where the original award includes an award of the mobility component and is superseded for a relevant change of circumstance which occurred after C reached the relevant age, the restrictions in paragraph (3) apply in relation to the supersession.

Reg 27(3) tells us that the limitation is that (a) you can’t go from standard to enhanced and (b) if you are already on either standard or enhanced, you can’t stay on it unless its on the same basis as previously (Note that there is nothing in reg 27(3) to stop you going from no mobility to either standard or enhanced).

The point made in this case is that reg 27(2) only applies where the award “is superseded for a relevant change of circumstances”. A supersession on any other basis is not restricted.

As we know from innumerable other cases on this theme, the DWP does not need to prove a “relevant change of circumstances” in order to supersede an award. That’s because it can use Reg 26 of the Decisions and Appeals Regulations to supersede a decision simply on the basis that it has received new medical evidence such as a HCP report. Because that ground is broader and easier to prove, it is almost invariably the one which the DWP relies on.

Because a supersession under reg 26 D&A Regs does not depend on a “relevant change of circumstances”, it does not engage the limitation under reg 27(2) PIP Regs. A supersession under this ground can therefore be used to introduce or increase a mobility entitlement beyond pension age.

Further - because the claimant is entitled to take advantage of the most advantageous supersession ground available (see para 22), even if the supersession comes about because of a change of circumstances (e.g. a fall, broken leg or a stroke), provided that a HCP report has been obtained the ground under reg 26 D&A will still be available and should be used.

This is likely to be extremely useful if you are advising PIP claimants beyond pension age.

Paul_Treloar_AgeUK
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Thanks for highlighting this case Elliot, could be very useful.

Mr Finch
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I have a similar enquiry, although the claimant hasn’t ever had enhanced mobility in PIP.

He was awarded standard mobility before pension age in 2015. His condition hasn’t changed but he contends that the decision was wrong. He has been reassessed and is appealing the new decision.

I want to argue that in the new appeal, he isn’t caught by reg 27 because the supersession decision wasn’t based on a change of circumstances, but on the medical assessment ground. His mobility problem isn’t new in any case. I also want to argue he isn’t caught by 26 either, because this isn’t a new claim: the DWP decided to supersede before his award expired so he is now free to go for enhanced mobility.

Any thoughts welcome….

Elliot Kent
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Mr Finch - 15 July 2020 03:04 PM

I have a similar enquiry, although the claimant hasn’t ever had enhanced mobility in PIP.

He was awarded standard mobility before pension age in 2015. His condition hasn’t changed but he contends that the decision was wrong. He has been reassessed and is appealing the new decision.

I want to argue that in the new appeal, he isn’t caught by reg 27 because the supersession decision wasn’t based on a change of circumstances, but on the medical assessment ground. His mobility problem isn’t new in any case. I also want to argue he isn’t caught by 26 either, because this isn’t a new claim: the DWP decided to supersede before his award expired so he is now free to go for enhanced mobility.

Any thoughts welcome….

Remember that regs 25-27 PIP are permissive - you want to argue that they do apply.

Reg 27(1) PIP Regs permits a supersession of any PIP award - but that is subject to reg 27(2)-(4).

The cumulative effect of regs 27(2)-(4) in your client’s case is that a supersession based on a change of circumstances which occurred post-pension age could not be made which awards ERM for the first time.

However using the medical evidence ground under reg 26 D&A avoids that restriction entirely, so the default rule in reg 27(1) i.e. that any supersession is permitted, applies.

So yes you can argue for ERM.

The fact that the claimant happened to have been awarded ERM in the past is completely irrelevant to the reasoning in paragraphs 15-23 of MH.

Mr Finch
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Thanks Elliot, very helpful info.

Charles
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Regulations have been laid today to close this loophole, effective from 30 November.