DS v Secretary of State for Work and Pensions (PIP): [2016] UKUT 538 (AAC); [2017] AACR 19

Upper Tribunal Administrative Appeals Chamber decision by Judge Mesher on 2 December 2016.

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 20 December 2016
• Last updated: 21 June 2017 — See all updates

• Categories: Personal independence payment – general and Revisions, supersessions and reviews
• Sub-categories: Revisions, supersessions and reviews - supersession: general
• Judges: Mesher, J
• Decision date: 2 December 2016

Read the full decision in [2017] AACR 19ws

Judicial Summary

Supersession – decision on appeal must make findings on ground on which supersession decision made and date from which it properly took effect

In July 2013 the claimant, following a consultation with a health care professional (HCP), was awarded personal independence payment (PIP) on the basis that he met various descriptors. The award was subsequently reviewed and, following a further HCP consultation, the Secretary of State decided that the claimant was no longer eligible for PIP from June 2015, on the basis that no descriptors were satisfied. The claimant appealed to the First-tier Tribunal (F tT), arguing that his condition had either not improved or had worsened. One member of the panel was a registered medical practitioner in accordance with the Senior President of Tribunals’ practice statement. The F-tT upheld the Secretary of State’s decision and the claimant appealed to the Upper Tribunal (UT), arguing that the medically qualified member had been an unsuitable person to sit on the tribunal because he did not have a licence to practise following a warning for inappropriate conduct. Among the issues before the UT were whether the member had been a registered medical practitioner under the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 and whether the tribunal had dealt adequately with the supersession of the existing PIP award. Held, allowing the appeal, that:

1. the 2008 Order (as amended) defined “registered medical practitioner” as “a fully registered person within the meaning of the Medical Act 1983 whether or not they hold a licence to practise under that Act”, and therefore it was irrelevant to qualification for appointment to a tribunal whether the person had a licence to practise, provided that they were fully registered (paragraphs 9 to 11);

2. a tribunal considering an appeal against a supersession decision must identify a ground of supersession under the legislation, a factual basis for the superseding decision and the date from which that decision was effective. In doing so all grounds of supersession could apply in so far as the conditions they contain are made out, without any artificial rules to try to make them mutually exclusive: SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) distinguished (paragraphs 14 to 15);

3. the F-tT erred in law; among other things its decision was incoherent and inconsistent – it gave two different effective dates for the superseding decision, it failed to deal with the supersession issue including the earlier medical evidence and the claimant’s submission that his condition had not improved, and its reasons for its decision did not meet the required standard: R(M) 1/96 (paragraphs 16 to 20).

The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with his directions.

Published 20 December 2016
Last updated 21 June 2017 + show all updates

1. 21 June 2017

   Reported as [2017] AACR 19

2. 20 December 2016

   First published.