CH and KN v Secretary of State for Work and Pensions (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus |
| Neutral Citation | [2018] UKUT 330 (AAC),[2018] UKUT 330 (AAC),[2019] AACR 11 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Personal independence payment – general,Tribunal procedure,practice - evidence,practice - statements of reasons,Markus,K |
| Date | 04 October 2018 |
| Published date | 03 November 2018 |
CH and KN v SSWP
[2019] AACR 11
1
[2019] AACR 11
(CH and KN v Secretary of State for Work and Pensions
[2018] UKUT 330 AAC))
Judge Markus QC CPIP/2386/2017
CPIP/2307/2017
4 October 2018
DLA − PIP – Transfer case − Evidence relating to previous award
The Appellants had each been in receipt of Disability Living Allowance (DLA) for a number of years. CH had
been in receipt of the Higher Rate Mobility Component and the Middle Rate Care Component of DLA. KN had
been in rec eipt of the Lower Rate Mobility Component and the Middle Rate Care Component. Pursuant to the
Personal Independence Payment (Transitional Provisions) Regulations 2013 they claimed Personal Independent
Payment (PIP). The Secretary of State decided that CH was entitled to the enhanced rate of the daily living
component of PIP but not the mobility component, and that KN was not entitled to either component of PIP. On
appeal, the First-tier Tribunal (F-tT) confirmed the Secretary of State’s decisions.
The appellants appealed to the Upper Tribunal (UT). The issues before the UT were: (1) in an appeal to the F-tT
relating to entitlement to P IP of a person who had previously been in receipt of DLA (a “transfer case”), in what
circumstances (if at all) should the F-tT obtain evidence relating to the previous award of DLA; and (2) how if a t
all do the principles in R(M)1/96 apply to the F-tT’s duty to give reasons in trans fer cases.
Held, allowing the appeal in CPIP/2307/2017 and dismissing the appeal in CPIP/2 386/2017 that:
1. the question for the First-tier Tribunal in a PIP appeal is whether the claimant qualifies for PIP in
accordance with the statutory criteria relevant to that benefit. There is no expectation of entitlement
based on a previous award, nor of adopting previous findings of fact relating to that award. However,
DLA evidence may be relevant to a PIP claim or appeal. In the light of the degree of overlap between
the tests for DLA and for PIP, and the overlap between the assessments for both benefits ( where there
was one for DLA), in many cases DLA evidence will address the same conditions and functional
difficulties as are in issue in the PIP claim and may shed light on whether any PIP tests are satisfied,
where there has been no change since the date of the DLA evidence. (paragraphs 4 5 and 46);
2. a tribunal need only consider whether to obtain DLA evidence if it has decided that it is or may be
relevant. Even i f it decides that DLA evidence would be relevant, it may determine t he appeal without
obtaining it, but it must consider hitherto do so and take into account the range of relevant
considerations. The question is whether the evidence is necessary fairly to determine the appeal.
Ultimately it is for the First-tier Tribunal to make its own judgment whether DLA evidence may be
relevant and whether to call for it in a PIP appeal. (paragraphs 59, 61 and 69 );
3. where the question whether to seek DLA, evidence has arisen and the tribunal decides to proce ed
without it, the duty on the tribunal to act judicially means that an appropriate explanation should be
given. In most cases a brief explanation will suffice (paragraph 69);
4. the principle in R(M) 1/96 will apply where there is an apparent inconsistency betwee n the PIP award
and the previous DLA award. It is for the tribunal to judge in the circumstances of the part icular case
whether there is an apparent inconsistency such that reasons are called for (paragraph s 77- 80);
5. in CH’s case, the DLA medical evidence was not included within the appeal bu ndle despite CH having
asked for it to be taken into account, Nonetheless the F-tT was entitled to proceed without it, taking into
account the age of the DLA evidence, that the F-tT had substantial and much more recent evidence and,
was satisfied that the HCP report was reliable and was broadly consistent with the m edical evidence,
and that the F-tT did not believe much of CH’s evidence. It was unrealistic to suppose that the DLA
evidence could have materially assisted the F-tT. Although there was potential inconsiste ncy between
the DLA award and PIP decision, the F-t reasons were adequate because there was nothing more it
could have said given the lack of information about the DLA award and the reasons adequately
explained any divergence from the DLA award (paragraphs 94 and 9 6).
CH and KN v SSWP
[2019] AACR 11
2
6. in KN’s case, there was a clear potential overlap between the test for the lower rate of the mobility
component of DLA and PIP mobility descriptor 1d. Given the complexity of KN’s health issues and
that KN had challenge the HCP’s assessment, the DLA award may have shed li ght on the issues and the
F-tT should have considered whether to obtain it (paragraph 105-106).
The Judge gave guidance as to the application of the relevant p rinciples, set aside the F-tT decision in KN’s case,
and remitted that case to another Tribunal for fresh consideration.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The appeal in CPIP/2386/2017 is dismissed.
The appeal in CPIP/2307/2017 is allowed. Under section 12(2)(a) and (b)(i) of the
Tribunals Courts and Enforcement Act 2017, the decision of the First-tier Tribunal
dated 26 May 2017 under case number SC246/17/00082 is set aside and the case is
remitted to be reconsidered by a fresh tribunal in accordance with the following
directions.
Directions
1. This case is remitted to the First-tier Tribunal for reconsideration at an oral
hearing.
2. The members of the First-tier Tribunal which reconsiders the case should not be
the same as those who made the decision which has been set aside.
3. The parties should send to the relevant HMCTS office within one month of the
issue of this decision, any further evidence upon which they wish to rely. This
should include the medical evidence in the Secretary of State’s possession relating
to the previous DLA award or, alternatively, a written explanation as to why it
has not been provided.
4. The new First-tier Tribunal is not bound in any way by the decision of the
previous tribunal. It will not be limited to the evidence and submissions before
the previous tribunal. It will consider all aspects of the case entirely afresh and it
may reach the same or a different conclusion to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Judge in
the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
1. The Appellants had each been in receipt of disability living allowance (‘DLA’) for a
number of years. CH had been in receipt of the higher rate mobility component (‘HRMC’)
and the middle rate care component (‘MRCC’) of DLA. KN had been in receipt of the lower
rate mobility component (‘LRMC’) and the MRCC. Pursuant to the Personal Independence
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TK v Secretary of State for Work and Pensions (PIP)
...50. I do not agree with Mr Royston that, in accordance with my decision in CH and KN v Secretary of State for Work and Pensions [2018] UKUT 330 (AAC) at paragraphs 77-85, the FTT was required to explain its conclusion regarding 15 TK v Secretary of State for Work and Pensions (PIP) [2020] U......
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JB v Secretary of State for Work and Pensions (PIP)
...about the DWP’s duty to disclose relevant medical evidence from previous disability claims (see generally CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC)). I am sure the Registrar’s actions were done from the best of motives, i.e. thinking it would be helpful to both the FTT and the parties to......
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FJ v Secretary of State for Work and Pensions (PIP)
...for Work and Pensions (ESA) [2015] UKUT 670 (AAC); [2016] AACR 24 and CH and KN v Secretary of State for Work and Pensions (PIP) [2018] UKUT 330 (AAC)). As Upper Tribunal Judge Hemingway observed in AH v Secretary of State for Work and Pensions (DLA) [2016] UKUT 558 (AAC) (at paragraph 16),......
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SM v Secretary of State for Work and Pensions (PIP)
...the legal tests for the two different benefits do differ. Following what was said by the Upper Tribunal in CH and KN v SSWP (PIP): [2018] UKUT 330 (AAC); [2019] AACR 11, I would conclude that, in this case, the FtT was required, as a component of its overall duty to give adequate reasons fo......
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