Court of Appeal holds that rules delaying PIP award in transfer from DLA cases are not discriminatory

Worley v The Secretary of State for Works And Pensions

In a new judgment, the Court of Appeal has ruled that the 28-day rule that sets the date of PIP entitlement for DLA transfer claimants is not discriminatory and cannot be interpreted to enable backdating of awards to the date of a change of circumstances for those entitled to higher PIP awards.

In explaining the Court’s decision, Senior President of Tribunals is Sir Ernest Ryder says:

“In my judgment the Secretary of State has objectively justified the difference in treatment that is provided for in the Regulations. The appellant submits that cliff-edge protection offered to 'transfer claimants' who are entitled to less money under PIP than DLA (PIP losers) cannot be used to justify the treatment of the claimant because she was a PIP winner.

I am not persuaded by this submission. The Transfer Provisions Regulations apply to all DLA entitled persons whether they be PIP winners or PIP losers. It is correct that at the end of the process PIP winners are left worse off financially than they would be if their entitlement was backdated. However, as the Secretary of State submits, the cliff-edge justification is not just about the end of the process. It is about providing certainty to all claimants, whether or not they are ultimately winners or losers, about their income for the assessment period.

Moreover, the appellant submits that those who notify the Secretary of State of a change of circumstances do not need cliff-edge protection, whether they are PIP winners or losers, because their change in factual circumstances should lead them to reasonably anticipate a change in benefit entitlement.

This, as the Secretary of State notes, is only true if, for DLA entitled persons who notify a change of circumstances, the dominant relevant factor in whether their benefit entitlement will go up or down is that their factual circumstances have altered.

PIP made major changes to the criteria governing the award of benefit. It could be the change of law or the change of factual circumstances that affect the benefit awarded. Even for DLA entitled persons who notify a change of circumstances there is a need to provide certainty by providing cliff-edge protection.

Accordingly, I agree that the Secretary of State had a legitimate aim in treating DLA entitled persons who notify a change of circumstances differently to new PIP claimants, who are not already in receipt of a benefit.”