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Supersessions

A decision on an award can be superseded if –

  • there has been a change of circumstances since the original decision was made; or
  • following an assessment by a health care professional; or
  • you failed to return a questionnaire or attend an assessment consultation.

Legislation

The rules relating to supersessions are in regulations.

Regulation 23(1) of the Decisions and Appeals regulations provides that a decision can be superseded where –

  1. there has been a relevant change of circumstances since the decision to be superseded had effect…; or
  2. it is expected that a relevant change of circumstances will occur.

Regulations 26(1)(a) of the Decisions and Appeals regulations provides that a PIP decision may be superseded where the DWP has –

  1. received medical evidence from a healthcare professional or other person approved by the Secretary of State.

Regulation 26(2) of the Decisions and Appeals regulations provides the power to supersede a decision after failures to return a questionnaire or to attend an assessment consultation. -

(2) The decision awarding personal independence payment may be superseded where there has been a negative determination.

Negative determination is defined in section 80(5) and (6) of the Welfare Reform Act 2012 as meaning ‘a determination that a person does not meet’ the PIP disability conditions.

Regulation 8(3) of the main PIP regulations provides for making a negative determination for failures to provide information or evidence -

(3) Where [the claimant] fails without good reason to comply with the request referred to in paragraph (1) [for information or evidence], a negative determination in relation to the component to which the failure related must be made.

Regulation 9(2) of the main PIP regulations provides for making a negative determination for failures to attend an assessment consultation -

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

NB -  regulation 11 of the main PIP regulations enables the Secretary of State to determine afresh whether a claimant continues to meet the disability conditions for PIP at any time and for any reason (but grounds for supersession are still required following that determination) -

11.  Where it has been determined that [the claimant] has limited ability or severely limited ability to carry out either or both daily living activities or mobility activities, the Secretary of State may, for any reason and at any time, determine afresh in accordance with regulation 4 whether [the claimant] continues to have such limited ability or severely limited ability.

Sources:

  • Regulation 23 and regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI.No.381/2013), and regulation 23 and regulation 26 of SR.No.221/2016 in Northern Ireland.
  • Section 80 of the Welfare Reform Act 2012, and article 85 of the Welfare Reform (Northern Ireland) Order 2015 in Northern Ireland includes the definition of ‘negative determination’.
  • Regulations 8, 9 and 11 of the Social Security (Personal Independence Payment) Regulations 2013 (SI.No.377/2013), and regulations 8, 9 and 11 of SR.No.217/2016 in Northern Ireland.

NB - in Scotland, adult disability payment is replacing personal independence payment and the rules relating to unscheduled reviews are found in regulation 48 of the Disability Assistance for Working Age People (Scotland) Regulations 2022 (SSI.No.54/2022).

See also Social Security Scotland's guidance Unscheduled reviews for Adult Disability Payment.

Case law

Commentary: The Upper Tribunal has established clear ground rules for tribunals on the requirement to identify grounds of supersession. In [2016] UKUT 538 (AAC)  (reported as [2017] AACR 19), Judge Mesher holds that a tribunal 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. A number of other Upper Tribunal decisions support this approach including [2016] UKUT 481 (AAC), [2017] UKUT 37 (AAC) and [2017] UKUT 231 (AAC). Tribunals must also take care in how they go about identifying a supersession ground, as set out by Judge Jacobs in [2019] UKUT 82 (AAC), by making findings of fact before deciding what ground applies.

In the case of planned reviews, Judge Mesher confirms, in [2016] UKUT 537 (AAC), that reviews can be initiated for any reason under PIP Regulation 11 but there is still a requirement to identify supersession grounds if the awarding decision is changed. | Add commentary or suggest an edit.