Landmark Chambers


Updated PIP Guidance following UT judgment will increase social security benefits for 10,000 claimants

DATE: 03 Nov 2017

In a Written Ministerial Statement made by the Minister of State for Disabled People, Health and Work to both Houses of Parliament on 2 November 2017, the Government announced updated guidance on the assessment of claims for the Personal Independence Payment (“PIP”).

The updated guidance will reflect the recent Upper Tribunal judgment in RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP) [2017] UKUT 105 (AAC), handed down on 9 March 2017, which concerned the interpretation of the word "safely" under regulation 4 of the Personal Independence Payment Regulations 2013.

Entitlement to PIP is determined by assessment of a claimant’s ability to carry out specified daily living and mobility activities. Under regulation 4(2A), a claimant is not to be assessed as able to carry out an activity unless she or he can do so "safely".

Regulation 4(4) provides that "'safely' means in a manner unlikely to cause harm to [the claimant] or to another person, either during or after completion of the activity". The central question for the Upper Tribunal was how to approach the assessment of the likelihood of harm.

The Upper Tribunal concluded [56]:

“An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is "more likely than not". In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same applies to the assessment of a need for supervision”.

The Minister announced that the updated guidance following the judgment will “increase entitlement for a number of both new and existing claimants, largely those with conditions such as epilepsy, which affect consciousness. The Department estimates approximately 10,000 claims will benefit by £70 - £90 per week in 2022/2023”.

The Minister added:

“In the case of existing claimants the Department for Work and Pensions will undertake an exercise to go through all existing cases and identify anyone who may be entitled to more. We will then write to those people affected and all payments will be backdated to the date of the change in case law.”

The Upper Tribunal’s decision is available here.

The Written Ministerial Statement is available here.

The updated PIP Guidance is available here.

Press coverage is available here.

In the Upper Tribunal, Matthew Fraser acted pro bono for the National Deaf Children’s Society, whose appeal on behalf of a PIP claimant was allowed. The Upper Tribunal remitted the matter back to the First-Tier Tribunal for a fresh determination, which is yet to occur.