MA v Secretary of State for Work and Pensions [2025] UKUT 288 (AAC)

“The First-tier Tribunal erred in law because it looked at whether the conditions of entitlement were met at the date the claim was made and not as it was required to do, at the date it was decided. This is relevant because [the claimant] returned to the UK on 09/04/2022, a date falling after he claimed PIP but before the decision was made by the Respondent on 29/07/2022. In making this argument s12(8) Social Security Act is relied upon, together with case law (TS (by TS) v SSWP (DLA); EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC) andGE v SSWP [2017] AACR 34).”

“A person is not entitled to personal independence payment unless the person meets prescribed conditions relating to residents and presence in Great Britain.”

“Conditions relating to residents and presence in Great Britain 16. - Subject to the following provision of this Part, the prescribed conditions for the purposes of section 77(3) of the [2012 Act] as to residence and presence in Great Britain are that on any day for which C claims personal independence payment C – (a) is present in Great Britain; (b) has been present in Great Britain for a period of, or periods amounting in aggregate to, not less than 104 weeks out of the 156 weeks immediately preceding that day; (c) is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and (d) is a person – (i) who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum act 1999; or (ii) to whom, by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, section 115 of that act does not apply to the purposes of personal independence payment.” “17, - (1) Where C is temporarily absent from Great Britain, C is treated as present in Great Britain for the purposes of regulation 16(a) and (b) for the first 13 weeks of absence. (2) C is temporarily absent if, at the beginning of the period of absence, C’s absence is unlikely to exceed 52 weeks.” (i) who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum act 1999; or (ii) to whom, by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, section 115 of that act does not apply to the purposes of personal independence payment.”

“(a) in writing on a form authorised by the Secretary of State for that purpose and completed in accordance with the instructions on the form; (b) by telephone call to the telephone number specified by the Secretary of State; or (c) by receipt by the claimant of a telephone call from the Secretary of State made for the purpose of enabling a claim to personal independence payment to be made,”

“(1) subject to paragraph (4), where a claim for personal independence payment is made in accordance with regulation 11 the date on which the claim is made is – (a) in the case of the claim in writing made by means of an electronic communication in accordance with the provisions set out in Schedule 2, the date on which the claim is received at the appropriate office; (b) in the case of the claim made by telephone, the date on which a claim made by telephone is properly completed; or (c) where a person first notifies an intention to make claim and provided that a claim made in writing produced other than by means of electronic communication is properly completed and received at the appropriate office designated by the Secretary of State in that claimant’s case within one month or such longer period as the Secretary of State considers reasonable of the date of first notification, the date first notification, or the first day in respect of which the claim is made later than the above. (2) in the case of a claim which is defective by virtue of regulation 11(3) or (4) – (a) subject to sub- paragraph (b) and paragraph (4), the date of claim is to be the first date on which the defective claim is received or made but is treated as properly made in the first instance in accordance with regulation 11(6); (b) the date of claim is to be the date of first notification of an intention to make claim where a claim made by a person to paragraph (1)(c) applies is defective but is treated as properly made in the first instance in accordance with regulation 11(6).”

“In deciding an appeal under this section, the First-tier Tribunal – (a) need not consider any issue that is not raised by the appeal; and (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

'54. I accept it will sometimes be possible to say that if a claimant does not have a particular right of residence at the date of claim she probably will not have it at the date of decision either. For example, it is extremely unlikely that a claimant who does not retain worker status when she claims ESA will somehow retain it ten days later when the claim is decided. 55. However, that does not change the general principle that decision-makers can and must take into account changes in a claimant's circumstances between the date of claim and the date of the decision. 56. That principle is axiomatic and it is therefore difficult to cite direct legislative authority for it. However it is implicit in section 12(8)(b) of the Social Security Act 1998, which prevents the F-tT from considering circumstances that did not obtain at the date of the decision under appeal. It is also inherent in regulation 3(9)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) - and the equivalent provisions of the other sets of Decisions and Appeals Regulations - which prevents the Secretary of State from revising a decision under the "any grounds" power conferred by regulation 3(1) on the basis of a "relevant change of circumstances which occurred since the decision had effect". It follows that a relevant change of circumstances which occurred before the decision had effect can be taken into account on an "any grounds" revision. That, in turn, only makes sense if the original decision maker could also have taken that change into account. 57. The ability to take into account a change in circumstances that occurs between the date of a claim and the date that claim is decided cuts both ways. The claimant who has not retained worker status in the example in [54] above may have married another EU national who does retain that status during the period between claim and decision. If so, he may have acquired a right of residence as a family member from the date of the wedding. Equally, an ESA claimant with a right of residence may get better during that period and return to work, thereby losing entitlement to benefit. 58. There is no reason in law why the first of those changes of circumstances should be treated differently from the second. In all claims for benefit, whether the claimant satisfies the conditions of entitlement falls to be assessed on a daily, or sometimes weekly, basis from the earliest date covered by the claim until the date on which the claim is decided. If a claimant does not satisfy those conditions when she first claims but does satisfy them from some later date (before the date of decision) then the correct decision is to award benefit from the date on which the conditions were first satisfied. If she did satisfy the conditions at the start of the claim but ceased to do so before the claim is decided, the correct decision is to award benefit up to, but not after, the date of the change. All this is elementary and it applies in right to reside cases as it does in others.'

"(1) Where, although a person does not satisfy the requirements for entitlement to personal independence payment on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances the person will satisfy those requirements for a period beginning on a day ("the relevant day") not more than 3 months after the date on which the decision on the claim is made, the Secretary of State may award personal independence payment from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day."