PIP Mobility over pension age

Elliott (& everyone!) just to come back to SC

I’m still concerned about paras 52 and 53 of the judgment. What is your take on those?

To say that reg 27(4) must mean that where it does not apply there can be no supersession at all to include the mobility component after pension age is a problem (para 53).

That would mean that someone with no mobility award whose needs got worse before pension age can never get it unless the effective date of the supersession is before pension age.

I don’t follow the reading of reg 27(4) here because that sub para seems to me to be saying the restrictions in (2) and (3) apply where there has been a previous mobility component award, rather than to mean there can be no new mobility component.

So again, it makes sense if those restrictions also apply to new mobility component awards but does not seem to say these cannot be made on a supersession.

What do you think?

I had a proper read of SC - I’ll admit to having just skimmed it before and its implications do seem a little broader than I had understood.

Judge Wikeley seems to be saying is that the purpose of reg 27(4) is to confer an advantage on people who do not currently have a mobility award but can link back to one. If the point of reg 27(4) is to confer an advantage, then we have to work backwards to what the position would be for someone who is not entitled to the mobility component but can’t link back to a previous award, so doesn’t have that advantage.  The position that we reach is that someone in that position must be prevented from accessing a mobility award by reference to the general effect of s.83 WRA. That then accords with the legislative intent is and also corresponds with how reg 26 works.

I have trouble with this reasoning. It seems to disregard the terms of reg 27(1) in particular. The effect of reg 27(1) is that - subject only to reg 27(2) - supersession and revision of existing PIP awards can take place notwithstanding s.83. Reg 27(1) needs to operate in SC so that the decision to supersede and continue the award of SRDL is valid. If reg 27(1) operates to negate s.83 insofar as it concerns that part of the supersession, then on what basis is it said that s.83 nonetheless prevents mobility being awarded?

The answer in SC is essentially that there is an implied limitation on the operation of reg 27(1) which can be drawn from reg 27(4). However, reg 27(1) is drafted as being subject only to reg 27(2); not to reg 27(2) and (4). Reg 27(4) is not a distinct exception and just places a gloss on reg 27(2) to the effect that certain persons who don’t fall within its terms will be treated as though they do due to a linked mobility award. On that reading, it confers a disadvantage on claimants to whom it applies.

I think SC probably gets the legislative intent correct but I am not convinced the reasoning squares with the actual wording of the provision. It seems to be reading in an implied limitation to the general power under reg 27(1) but the basis for reading in that limitation seems shaky. We’re also left asking what exactly the terms of that limitation are. For example, does it apply in relation to a supersession which is to have an effective date before the relevant age?

Thanks Elliott for this very considered reply.

I share your reservations for similar reasons. I read reg 27(4) as only relevant within the context of the rest of the regulation, so that linked awards are subject to the limitations in (2) & (3).

I don’t think it follows that (4) also restricts the wider provision of reg 27(1) as an exception to s83 so that only if there is already a mobility component, or a linked award which had one, can the component be included on supersession.

But, reading all the explanatory memos (including to the 2020 amendments), I do see what you mean about that being the policy intent.

For a claimant in England/Wales then I’d probably say that anyone wanting to add the mobility component after pension age for a change of circumstances before pension age would have a fight on their hands & probably have to go to UT themselves….

I don’t disagree with the outcome of SC (and that what the claimant should have done was challenge the decision which took away her mobility component), but on a case with different facts (where deterioration was before pension age), it still seems worth a try.