Social Security Case Law - Spring 2024

Headnote

Appeal of DfC decision that the Applicant was not entitled to PIP as he did not attend for assessment and failed to establish good reasons for his non-attendance.  The Department must prove certain matters to the satisfaction of the Tribunal before it determines an appeal including establishing the fact of sending the claimant written notice of the date, time and place of the consultation.

Background

The Applicant made a valid claim for PIP which was accepted.  The Applicant was invited to attend a face to face assessment but cancelled this appointment and requested a home assessment.  Several further appointments were offered, but the Applicant was unable to attend, and it was accepted that the Applicant had ‘good reason’ for non-attendance.  The Applicant was referred for a further assessment and did not attend.  A case manager decided that the Applicant was not entitled to PIP as he failed to attend the assessment and failed to provide good reason for non-attendance.

Legal Issue

Whether the Department proved certain matters to the satisfaction of the Tribunal before it determined the appeal. These include establishing the fact of sending the claimant written notice of the date, time and place of the consultation (or notice by electronic communication that the claimant had agreed to accept); establishing that it was sent at least 7 days in advance (or if shorter that the claimant consented to this); and establishing that the notice included clear and unambiguous language informing that claimant that attendance was mandatory and that non-attendance would result in disallowance.

Relevant Legislation

Regulation 9 and 10 of the Personal Independence Payment Regulations (NI) 2016 provide for the consultation assessment and the consequence of any failure to attend:

9. – (1) Where it falls to be determined whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities, C may be required to do either or both of the following –

(a) attend for and participate in a consultation in person;

(b) participate in a consultation by telephone.

(2) Subject to paragraph (3), where C fails without good reason to attend for or participate in a consultation referred to in paragraph (1), a negative determination must be made.

(3) Paragraph (2) does not apply unless—

(a) written notice of the date, time and, where applicable, place for the consultation is sent to C at least 7 days in advance; or

(b) C agrees, whether in writing or otherwise, to accept a shorter period of notice of those matters.

(4) In paragraph (3), reference to written notice includes notice sent by electronic communication where C has agreed to accept correspondence in that way and “electronic communication” has the meaning given in section 4(1) of the Electronic Communications Act (Northern Ireland) 2001.

(5) In this regulation, a reference to consultation is to a consultation with a person approved by the Department.

10. The matters to be taken into account in determining whether C has good reason under regulation … 9(2) include—

(a) C’s state of health at the relevant time; and

(b) the nature of any disability that C has.

Relevant Case Law

• SY v SSWP [2017] UKUT 363: the tribunal must make a decision on evidence, rather than on the generalised assertions of a history of non-compliance made by the [Department];
• MB v SSWP [2018] UKUT 213: a copy of the relevant appointment letter or of a standard form must be placed before the tribunal by the [Department];
• IR v SSWP [2019] UKUT 374: the letter inviting the claimant to an examination must use the language of clear and unambiguous mandatory requirement;
• PPE v SSWP [2020] UKUT 59: (an ESA decision on parallel provisions to the effect that) the tribunal file must contain a copy of the letter sent or a standard form and evidence that a letter in that form had been generated by the computer system and dispatched.

Decision

The Department had not provided the Tribunal with copies of the letters scheduling the Applicant’s appointment (or previous appointments).  Applying the principles of IR v SSWP to the fact of non-provision of the letters scheduling assessments, the Commissioner accepted that the Tribunal had made an error of law.  The Applicant’s appeal was allowed, and the Tribunal’s decision was set aside.