DWP failure to pass claimant's PIP claim to the 'competent state' without delay

You can use this letter if all of the following apply:

• your client is resident in Great Britain but does not qualify for PIP
• the DWP has refused entitlement and said another state is competent to pay a sickness benefit
• your client does not disagree that another state is competent
• the DWP has not passed your client's claim to the competent state
• the DWP has not said there is a disagreement as to which state is competent
• your client has not been offered or paid provisional payments of PIP

When not to use

Do not use this letter if your client is eligible for PIP. Consider that receipt of a pension from another state does not mean that state becomes competent to pay sickness benefits if the claimant lives in Great Britain. Seek a mandatory reconsideration and appeal with reference to SE v Secretary of State for Work and Pensions [2024] UKUT 405 (AAC) if PIP has been refused because they receive a pension from another state.

• Section 84(2)(b) of the Welfare Reform Act 2012 provides there is no entitlement to the PIP daily living compenent where the UK is not the competent state, and that regulation (EC) No 883/2004 applies. 
• In SSWP v AK [2015] UKUT 110 (AAC); [2015] AACR 27 Judge Jacobs confirms, considering Art. 81, that when a state decides it is not competent and there is 'no evidence that is sufficient to show a difference of view between the competing member States', it must pass the claim for benefit 'without delay' to the State it believes is competent.
• If, however, SSWP has 'evidence that is sufficient to show a difference of view between the competing member States' then SSWP does not have to pass the claim to the other State and must instead pay the claimant provisional payments while the issue is resolved. 
• DWP guidance, the Decision Makers Guide confirms at Volume 2, Chapter 7, Part 2, Appendix 4 that DWP's policy where it has been decided that the UK is not the competent state for the payment of cash sickness benefits is to pass forward the claim to the competent state 'immediately', or where there is a dispute to make 'provisional' payments.
• DWP is under a duty to follow its published policies. In Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12, Lord Dyson held that: 'a decision-maker must follow his published policy ... unless there are good reasons for not doing so'. 

Information about your client:

• name
• address
• national insurance number
• date of birth

Background facts:

• family/ household/ housing
• details of disability
• date and method of PIP claim
• date of DWP decision that Britain is not the competent state to pay PIP, reason and what country is component
• effect on claimant, for example what income are they living on?

Information about the decision:

Contact with DWP including specific dates and what has been said - include quotes if possible

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

Thanks to Money Matters Money Advice Centre for sharing this template.