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1
2025UT29
Ref: UTS/AS/25/0011
DECISION OF
Lady Poole
IN AN APPEAL IN THE CASE OF
Social Security Scotland
Appellant
- and -
AM
Respondent
FTS/SSC/AE/24/00873
Representation
For the appellant: Social Security Scotland
For the respondent: no appearance
8 May 2025
DECISION
The appeal is allowed. The decision of the First-tier Tribunal for Scotland dated 16 October 2024
is quashed. The decision is re-made in the same terms, except that:
(i)
Paragraph 2 is substituted as follows:
"The appellant is entitled to the enhanced rate of the daily living component and the
standard rate of the mobility component with effect from 20 September 2022.
The appellant's award of Adult Disability Payment is for a fixed period until 20
September 2028".
(ii)
The third sentence of paragraph 22 is deleted.
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REASONS FOR DECISION
Summary
1.
This is an appeal about the correct start date for an award of Adult Disability Payment
("ADP"). The context is an award of personal independent payment ("PIP") which was
transferred to ADP. That transfer from PIP to ADP was triggered by a report of a change
of circumstances. The change had occurred over 13 months before it was reported. The
decision finds that in this case the correct date for commencement of payments at a higher
rate was the date on which the claimant notified the change in circumstances to the
Department of Work and Pensions ("DWP"), 20 September 2022.
2.
The appeal is the latest in a series of appeals brought by Social Security Scotland ("SSS")
in the Upper Tribunal for Scotland ("UTS"), where the First-tier Tribunal for Scotland
("FTS") has erred in its approach to dates for the period of awards of ADP that it has made
The cases demonstrate that commencement dates for awards are not a matter of discretion
for the FTS, but regulated by legislation. Examples of different provisions governing
commencement dates of ADP awards, including where a higher rate is awarded, are
regulations 35, 45, and 46, and paragraphs 12 of part 3 and 15H of part 3A of schedule 2, of
the Disability Assistance for Working Age People (Scotland) Regulations 2022 (SSI 2022/54)
("the ADP Regulations"). The need for these types of appeals to the UTS may reduce once
SSS, in appeals before the FTS, provides submissions identifying key dates, the particular
legal provisions applicable, and SSS's suggestion about the correct commencement date for
an award (SSS v JS 2025 UT 27 paragraphs 17-19). But that would not have obviated the
need for this particular appeal, in which SSS suggested the correct commencement date to
the FTS. The FTS, in error of law, did not properly apply the governing legal provisions
when selecting an alternative commencement date.
Background
3.
AM suffers from multiple sclerosis. She was in receipt of PIP. On 20 September 2022 AM
told the DWP, which administers PIP, about a change of circumstances. That report
initiated a process of transfer of AM's PIP award to ADP, as a consequence of devolution
of certain disability benefits to Scotland. On 22 September 2022 AM was informed by SSS,
which administers ADP, that her award would be transferred from PIP to ADP.
4.
Following that transfer, AM's entitlement to ADP began on 30 December 2022. Initially the
award was in line with AM's previous PIP award, so that she received both daily living
and mobility components at the standard rate. SSS sent out a "review pack" to AM, as a
result of which she submitted a further change of circumstances form to SSS, dated 27
3
February 2023 and received by SSS on 2 March 2023. She gave 23 November 2010 as the
date of the change of circumstances, when she had fallen and broken her ankle, leading to
her needing a zimmer, and a decline in other abilities. SSS reviewed AM's application in
the light of the reported change of circumstances, but considered that the appropriate
award remained the standard rate for both components.
5.
AM appealed to the FTS. The FTS decided that AM was entitled to an award of ADP at a
higher rate. On 16 October 2024, the FTS issued its decision finding that AM was entitled
to the daily living component of ADP at the enhanced rate and the mobility component at
the standard rate, for a period of 6 years. The start date the FTS selected was 27 February
2023, which appeared to the FTS "a more accurate start date" than the commencement date
SSS had suggested of 20 September 2022. 27 February 2023 was the date of the signature
of the change of circumstances form AM had submitted to SSS, and 20 September 2022 was
the date AM had reported a change of circumstances to the DWP which had triggered the
transfer to ADP.
6.
SSS appealed the decision of the FTS to the UTS. SSS does not dispute entitlement to a
higher award, but submits that on the correct application of the governing law, AM was
entitled to disability assistance at that higher rate from the earlier date of 20 September
2022. Permission to appeal to the UTS was granted by the FTS on 16 January 2025.
7.
The case is determined by the UTS on the papers. AM did not exercise her right to provide
a reply to the notice of appeal, nor did she request an oral hearing. SSS submitted that the
appeal could be determined without an oral hearing, having provided a notice of appeal
and a further reply dated 2 May 2025. There is sufficient information before the UTS to be
able to determine the appeal justly and fairly.
Governing law
8.
Migration of PIP awards to ADP is primarily governed by the ADP Regulations, and in
particular part 3 of schedule 2. In essence, PIP award holders are issued with a notice of
an impending transfer to ADP under paragraph 8 of part 3 of schedule 2 ("transfer notice").
SSS then makes a transfer determination of entitlement to ADP, without the need for an
application. The transfer determination is ordinarily in line with the previous PIP award.
PIP then stops, with ADP commencing on the next day, on dates specified by SSS.
9.
If a PIP claimant living in Scotland reports a change of circumstances to the DWP before a
transfer notice has been received as part of the overall process of migration, that may
trigger a bespoke transfer from PIP to ADP. A transfer notice is issued, followed by a
transfer determination, but then the report of the change of circumstances must also be
dealt with. Under paragraph 12 of part 3 of schedule 2 of the ADP Regulations, as soon as
reasonably practicable after the transfer determination, SSS must make a further
4
determination called a review determination, taking into account the change of
circumstances. Paragraph 12(1), as in force at the date of the decision of the FTS (following
its amendment by the Disability Assistance (Miscellaneous Amendment) (Scotland)
Regulations 2023), provides:
"(1) The Scottish Ministers must make a determination of an individual's
entitlement to Adult Disability Payment (the "review determination"), without
receiving an application, where--
(a) the individual, before a determination under paragraph 9(1) (the
"transfer determination") is made, reported a change of circumstances to
the Secretary of State for Work and Pensions, which had not been taken into
account for the individual's entitlement to Personal Independence Payment,
(b)the Scottish Ministers have made a transfer determination, and
(c)the individual has not requested a re-determination under section 41 of
the 2018 Act, or appealed under section 46 of the 2018 Act, in relation to the
transfer determination.
(2) The review determination is to be made as soon as reasonably practicable after
the transfer determination".
10.
If, on a review determination, SSS considers that criteria are met for a higher award of ADP,
the commencement date of the higher rate is governed by paragraph 12(4) of part 3 of
schedule 2 of the ADP Regulations which provides (bold added):
"(4) Where a transferring individual's entitlement to ADP is determined in the
review determination to be at a higher rate than the transfer determination,
entitlement will begin -
(a) if the individual notifies the change--
(i) within one month of the change occurring, the date when the
individual first satisfies the requirements for a higher rate of
the daily living or mobility component,
(ii) within more than one month but not more than 13 months of
the change occurring, the date when the individual first satisfies the
requirements for a higher rate of the daily living or mobility
component, but only if the Scottish Ministers consider that the
individual had good reason for not notifying the change within one
month, (iii) in any other case, from the date of notification of the
change..."
11.
Because the application of paragraph 12 of part 3 of schedule 2 of the ADP Regulations may
result in an individual becoming entitled to higher disability assistance payments at a time
5
PIP was still in payment, provision is made for the claimant to receive arrears (paragraph
12(6) of part 3 of schedule 2 to the ADP Regulations).
"(6) Where an individual has previously received PIP or ADP for a period
and a review determination is subsequently made that the same individual
is entitled to ADP at a higher rate for that period by virtue of this paragraph,
that individual will be entitled to the difference between the value of
entitlement to ADP under the review determination and the value of PIP or
ADP to which that individual was previously entitled for that period."
Application of governing law in this case
12.
The outcome of this appeal is a happy one for AM, as she is likely to become entitled to
arrears under paragraph 12(6) of part 3 of schedule 2 to the ADP Regulations. That is
because her entitlement to a higher rate should have commenced earlier than the FTS
decided.
13.
AM reported a change of circumstances to the DWP on 20 September 2022. The
administrative processes for transfers of PIP to ADP between the DWP and SSS do not
include the DWP providing a copy of the change of circumstances information. Instead,
SSS sent out a "review pack" to AM. In response, AM completed a change of circumstances
form, signed it on 27 February 2023, and it was received by SSS on 2 March 2023. It is
possible that in some cases it might be necessary to ascertain what was reported to the
DWP, because the governing provisions aim to ensure claimants receive what they are
entitled to, rather than found entitlement if conditions of entitlement are not satisfied.
However, in this case there is no dispute that the relevant change is as documented in the
form received by SSS on 2 March 2023, which was before the FTS. That document reported
the change as happening on 23 November 2010.
14.
The report to the DWP on 20 September 2022 was over 13 months after the reported change
had occurred (stated by AM in her form to be 23 November 2010). As a result, paragraph
12(4)(a)(iii) of part 3 of schedule 2 to the ADP Regulations applied to govern when
entitlement began. Entitlement to the higher rate of ADP found by the FTS to be due began
"from the date of notification of the change".
15.
The FTS may have assumed this meant notification to SSS. But, while paragraph
12(4)(a)(iii) of part 3 of schedule 2 to the ADP Regulations does not specify who must be
notified of the change, when read in context, it is clear it is referring to the date of
notification to the DWP, not any subsequent notification to SSS. The conditions for
entitlement to PIP and ADP are broadly similar. Paragraph 12 aims to set out the
arrangements between DWP and SSS for the proper operation of the transfer process from
PIP to ADP where there has been a change of circumstances. It specifies which public body
6
will make a decision about a reported change of circumstances, and put it into effect. If an
individual is entitled to a higher award as a result of a reported change of circumstances,
it would be unfair for a period of entitlement to be lost due to time taken up by
administrative processes to effect a transfer from PIP to ADP. The process under paragraph
12 starts with a report of a change of circumstances to the DWP (paragraph 12(1)(a)). The
rest of the provisions in paragraph 12 follow on from that starting point, and regulate its
consequences. The word "reported" rather than "notified" is used in paragraph 12(1)(a).
But read in context, the reference to "notification of the change" in paragraph 12(4)(a)(iii)
means the notification or report to the DWP of the change of circumstances under 12(1)(a).
16.
Accordingly, the date of notification of the change in AM's case was 20 September 2022,
the date she notified the DWP of the change of circumstances. That is the date on which,
applying the ADP Regulations to the facts of this particular case, entitlement to a higher
rate began.
Outcome
17.
The FTS erred in law by failing to apply the provisions of paragraph 12(4)(a)(iii) of part 3
of schedule 2 of the ADP Regulations to determine the start date of the higher rate of
entitlement it found to be due. However, no further fact finding is necessary to be able to
apply the governing legal provisions correctly. In those circumstances, the appropriate
disposal of this appeal is to quash the decision of the FTS of 16 October 2024, and re-make
it in the terms set out at the beginning of this decision (section 47 of the Tribunals (Scotland)
Act 2014). The decision in its re-made form reflects the correct commencement date of the
higher rate of disability assistance to which the FTS found AM entitled.
Lady Poole
A party to this case who is aggrieved by this decision may seek permission to appeal to the Court of Session
on a point of law only. A party who wishes to appeal must seek permission to do so from the Upper Tribunal
within 30 days of the date on which this decision was sent to him or her. Any such request for permission
must be in writing and must (a) identify the decision of the Upper Tribunal to which it relates, (b) identify
the alleged error or errors of law in the decision and (c) state in terms of section 50(4) of the Tribunals
(Scotland) Act 2014 what important point of principle or practice would be raised or what other compelling
reason there is for allowing a further appeal to proceed.
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