Social Security Case Law - Autumn 2024

Headnote

The correct language for mobility activity one and the inclusion of ‘psychological distress’ under reasons a claimant “cannot”.

Background

The applicant had a previous Disability Living Allowance Award at the middle rate of the care component from March 2006. However, following Welfare Reform (NI) Act 2015, he made a claim for Personal Independence Payment in April 2017. The applicant submitted their application (May 2017) alongside a factual report from his GP and attended a consultation with a healthcare professional (June 2017). It was determined that the claimant was unsuccessful and did not satisfy either the requirements for the daily living component or mobility component of PIP. This remained unchanged via mandatory reconsideration and the claimant progressed their appeal to the tribunal where they were unsuccessful.

The claimant then made a late application to the Commissioner that was accepted for special reasons under Regulation 9(3) of the Social Security Commissioners (Procedure) Regulations (NI) 1999. However, proceedings were stayed pending the outcome of the Law Centre Test case in HH v Department for Communities [2024] NI Com 8. The appellant in this case was also represented by Law Centre NI.

Legal Issue

The tribunal had misdirected itself by failing to apply the proper account of the GB decision in the case of MH v Secretary of State for Work and Pensions [2016] UKUT 531, which clarified the rules surrounding psychological distress and PIP. Additionally, the Commissioner was tasked to determine the relevant legislation under activity one of the mobility component of PIP, ‘Planning and following journeys’, with specific reference to the wording either being “Cannot” or “For reasons other than psychological distress, cannot”.

Relevant Legislation

• Article 82, Welfare Reform (NI) Order 2015
• Regulation 2(4), The Personal Independence Payment (Amendments) Regulations (NI) 2017
• Regulations 2 and 3 of the Personal Independence Payment (Amendment) Regulations (NI) 2018
• Section 6(1) of the Human Rights Act 1998
• Article 15(8)(b) of the Social Security (NI) Order 1998

Relevant Case Law

• HH v Department for Communities [2024] NI Com 8
• MH v Secretary of State for Work and Pensions [2016] UKUT 531
• RF and others v Secretary of State for Work and Pensions [2017] EWHC 3375

Decision

The Commissioner referenced the decision in HH v DfC where it was held that a tribunal had an obligation under Section 6(1) of the Human rights Act to disapply regulation 2(4) of the 2017 Regulations. Therefore, the original language of the legislation should be adopted for the time period between 20 April 2017 and 15 June 2018 as appeared in the 2016 Regulations. This means that the legislation should be interpreted to include psychological issues under mobility activity one, the words “Cannot”. As the parties were in agreement that the legislation is interpreted in light of the decision in HH v DfC, the Commissioner has set aside the decision and referred the matter to a newly constituted tribunal for determination.