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Read the full decision in [2023] AACR 1ws

Reported as [2023] AACR 1

Judicial Summary

Social Security (Personal Independence Payment) (Amendment) Regulations 2017-Personal independence payments Human Rights Article 14 - Discrimination Ultra Vires- Inadequate consultation

The two claimants in these cases, CK and JM, had type 1 diabetes and challenged the refusal of their personal independence payment (PIP) claims.

CK had an award of the highest rate of the care component of disability living allowance as a child. However, a claim for PIP after she turned 16 was refused by the Department for Work and Pensions (DWP). A subsequent appeal was dismissed by the First-tier Tribunal (F-tT) who awarded 2 points in respect of budgeting and 4 for needing help with therapy for 3.5 - 7 hours per week. Although it appeared that the F-tT had failed to apply the amendments made in 2017 by the Social Security (Personal Independence Payment) (Amendment) Regulations 2017) (2017 Regulations), it still did not score the claimant sufficient points to establish entitlement.

JM had been entitled to the daily living component of PIP at the standard rate on the basis of support needs including supervision and prompting to help manage risks of hypoglycaemia or hyperglycaemia and assistance managing an insulin infusion pump. However, following the amendment made by the 2017 Regulations in relation to Activity 3 (managing therapy or monitoring a health condition), the DWP ended his award. The F-tTupheld the decision, finding that JMs need for help managing medication had not changed but he scored fewer points than previously on account of the 2017 amendments.

Both claimants then appealed to the Upper Tribunal (UT) where their cases were listed to be heard together. The issues before the UT were whether the DWP should have consulted on the amendments made by the 2017 Regulations or, if the policy reflected by the amendments in fact existed in 2013, whether it was obliged to communicate it more effectively, whether the 2017 Regulations were ultra vires, and whether the regulations discriminated against claimants affected by the changes they introduced, in breach of their human rights.

Held, dismissing the appeals, that:

1. the DWP was not obliged to consult in relation to the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 as the changes they made reflected the original policy intention

2. amendments to managing medication criteria in Personal Independence Payment(PIP) activity 3 in 2017 were not ultra vires

3. the need to restate the original policy intention was a legitimate aim and the 2017 Regulations were a proportionate response