Worley v SSWP [2019] EWCA Civ 15

The Court of Appeal has upheld the judgment of the Upper Tribunal (TW v SSWP (PIP) (human rights law – article 14 (non-discrimination) [2017] UKUT 25 (AAC) that the Transitional Provisions which govern the process for transferring persons in receipt of Disability Living Allowance (DLA) over to Personal Independence Payment (PIP) are lawful and do not breach Article 14 of the European Convention on Human Rights.

The Appellant was a person in receipt of DLA who was migrated through the transitional scheme to determine her entitlement to PIP. Following assessment she was awarded more by way of PIP than she had previously received in DLA. Under the transitional scheme she was unable to backdate her PIP award to the date of her notional PIP claim, whereas a person with similar disabilities, claiming PIP for the first time, would have received the PIP award from an earlier date. She complained that there was discrimination on grounds of disability and other status under Article 14 ECHR.

Some 2 million DLA claimants will be required to migrate to PIP under the transitional arrangements. The government’s evidence was that the reason for not backdating PIP awards to the date of claim was in order to protect the significant numbers of persons who would be worse off under PIP than under DLA (PIP losers). That imposed a significant cost, of extending payment of DLA for a longer period than would otherwise be due, so as to provide a cushion to people who would otherwise fall off a “cliff-edge” following assessment for PIP. The government’s evidence was that to extend that protection to PIP losers, whilst backdating PIP winners, would have a cost of some £700 million.

The Court of Appeal accepted the Secretary of State’s argument that the scheme was lawful, and that the need to protect claimants as a whole from the cliff-edge of the risk of immediate loss of benefits justified the application of a different rule to DLA recipients than to new PIP claimants. It accepted that in those circumstances the scheme as a whole treated existing DLA claimants fairly when compared with new PIP claimants and held that, in so far as there was discrimination on grounds relating to disability that was justified.

Tim Buley acted for the Secretary of State.

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