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PIP Mobility over pension age

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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There is a fairly common misapprehension that PIP awards cannot be superseded to include or increase a mobility component except on the basis of issues which pre-date retirement.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(2) Where the original award includes an award of the mobility component and is superseded for a relevant change of circumstance which occurred after C reached the relevant age, the restrictions in paragraph (3) apply in relation to the supersession.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The point made in this case is that reg 27(2) only applies where the award “is superseded for a relevant change of circumstances”.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.

Elliot Kent
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I am returning to this as Judge Wikeley has decided I am wrong about this issue (the temerity!)

SC v SSWP (PIP) [2022] UKUT 97 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/sc-v-secretary-of-state-for-work-and-pensions-pip-2022-ukut-97-aac

My take had been that Reg 27(2) & (3) only preclude supersession to a limited extent in cases where there is a mobility award in place and where reg 23 D&A is used to supersede; therefore
(1) Supersessions under reg 26 D&A are not restricted even in cases where there is a mobility award in place, and
(2) Supersessions are not restricted at all in cases where there is no mobility award in place.

Per MH I was right about the first point - although DWP spoiled this by amending the regs.

Per SC I am wrong about the second point.

The case holds that the correct approach is to read reg 27 as a whole with the overall purpose that claimants should not be able to access the mobility component except to the extent that it was awarded before age 65 / SRP age and that reg 27(4) therefore needs to be understood as an easement of that position so that someone whose mobility improves but then worsens again has some protection from what would otherwise be the effects of the provision.

Although it is disappointing that the unrepresented claimant understandably wasn’t able to put the position more strongly, I suppose that now returns the position to how the DWP have always applied it.

mand74
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Hi All,

Jumping on this as I have been reading and re reading and just want to be sure I have understood correctly.

I have a cl, new claim for PIP 4 years ago under pension age at the time and awarded SRDL no mobility, no MR or appeal.  He believes at the time he should have been awarded mobility but is now over pension age.  He said someone else was assisting him and were waiting for COPD evidence etc then covid hit and basically didn’t seek further advice and never challenged this decision.

Am I right in reading that there is no option to supersede the decision to get mobility now even if he could somehow get evidence of mobility needs prior to pension age? 

He has other conditions now and exploring a review of DL but just want to be sure I have not missed any options re mobility.

Thanks
confused.com

Tim Saint
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Very interesting thread.

I really should be sure of this, but I am having doubts - I have always believed that you can go up or down the Daily Living Rates after pension age with no issue based on the points scored is this right?

Many thanks

Tim

Paul_Treloar_AgeUK
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Tim Saint - 25 January 2023 11:50 AM

Very interesting thread.

I really should be sure of this, but I am having doubts - I have always believed that you can go up or down the Daily Living Rates after pension age with no issue based on the points scored is this right?

Many thanks

Tim

Yes you can qualify for standard or enhanced rate of daily living after reaching SPA, to mimic what would happen if you claimed AA, but you can’t establish entitlement to mobility element after SPA, nor move from standard to enhanced mobility (although you can go the other way).

Elliot Kent
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Tim Saint - 25 January 2023 11:50 AM

I really should be sure of this, but I am having doubts - I have always believed that you can go up or down the Daily Living Rates after pension age with no issue based on the points scored is this right?

There are no restrictions on daily living changes. The restrictions on the mobility component are linked to the fact that help with mobility is not available in Attendance Allowance so its a way of preventing this being side-stepped.

mand74 - 10 January 2023 05:36 PM

Am I right in reading that there is no option to supersede the decision to get mobility now even if he could somehow get evidence of mobility needs prior to pension age?

Belatedly.

You can seek supersession to include the mobility component from a date prior to your pension age however this needs to be on the basis of a change of circumstances occurring before pension age. See reg 27(2)(a). There may be issues proving that the supersession is necessary due to a change of circumstances (as against the original decision being wrong), that it occurred prior to pension age and also that it is a timely request for the purposes of the D&A regs.

 

Va1der
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I have a client who was on DLA with ERM. Transferred to PIP after turning pension age and only got SRM. Mobility hadn’t improved and she would likely have succeeded at appeal to get ERM. But, we’re out of time for that.

I don’t see a route to get ERM now, but then I’m routinely confused by this topic.

WillH
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‘You can seek supersession to include the mobility component from a date prior to your pension age however this needs to be on the basis of a change of circumstances occurring before pension age. See reg 27(2)(a). There may be issues proving that the supersession is necessary due to a change of circumstances (as against the original decision being wrong), that it occurred prior to pension age and also that it is a timely request for the purposes of the D&A regs’

Hi Elliot,
When you say a timely request, if it is more than 13 months since the change could you still apply the D&A Regs (ie that the change should be effective from the date of notification)? I’m thinking here about a situation where you could show the supersession is due to a change of circs and that you could show that change happened before pension age.

Elliot Kent
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WillH - 24 February 2023 06:55 PM

Hi Elliot,
When you say a timely request, if it is more than 13 months since the change could you still apply the D&A Regs (ie that the change should be effective from the date of notification)? I’m thinking here about a situation where you could show the supersession is due to a change of circs and that you could show that change happened before pension age.

So we are thinking about a situation where someone has a change which would result in an increased entitlement before SRP age but they don’t tell DWP until, say, 3 years after SRP age.

Obviously, the effective date of the supersession will be after SRP age, because of the operation of the late reporting rules. But you say, well the change itself still happened before SRP age, so reg 27(2) doesn’t bite - because it refers to the date of the change, not the effective date of the supersession.

Yes I think that’s right. I think I have gone wrong somewhere in my previous reply insofar as I am suggesting that would be necessary for the effective date rather than the change itself to be pre-SRP age.

WillH
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Thanks Elliott.

This is what I would hope too. I just about understand the logic of SC - meaning that the restrictions in reg 27 do apply where there is no mobility component, but that doesn’t mean any greater restrictions apply in that situation.