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Decision in brief

Claimant with mental health problems who, due to overwhelming psychological distress, was rarely able to leave his home and even then needed to be accompanied by his partner – uncontested evidence of claimant was that his anxiety and panic attacks prevented him from leaving home most of the time, and although formally required to attend his work office one day a week, he was often unable to do that – often cancelled health appointments if his partner could not accompany him – ‘Where the appellant rarely leaves the house at all and is only occasionally able to make familiar or unfamiliar journeys when accompanied or prompted by his partner, it is appropriate to find that mobility descriptor 1(f) applies’

Decision in brief

Tribunal erred regarding activity 1 in failing to engage with claimant’s evidence regarding her ability to chop vegetables and instead referring to her ability to use an oven – tribunal erred regarding activity 3 in failing to explain why it did not consider that the use of a reminder on telephone to take medication was not an ‘aid’ – tribunal’s view appeared to be contrary to the definition of ‘aid or appliance’ in the rules

Decision in brief

Claimant claimed and was refused personal independence payment (PIP) in 2022 – main issue was the claimant’s ability to plan and follow journeys – but at the hearing, the judge questioned the claimant about his immigration history including how and why the claimant came to the UK in 2016 – irrelevant and no clear rationale for the judge asking why the claimant came to the UK and whether he came to work here – also created the impression of bias (ie, that a fair-minded and informed observer would conclude there was a real possibility of bias) as per the test set out in Porter v Magill [2002] 2 AC 357

Decision in brief

That submission was that the claimant should be awarded points for daily living descriptors 3 and 5 and for mobility activity 2 – SSS had put these in issue, and it was not a relevant consideration that it was SSS rather than the claimant that sought to challenge the decision before the tribunal

Decision in brief

In January 2025, tribunal awarded ADP to 25 December 2025, but prior to the tribunal decision, Social Security Scotland did a supersession of the decision under appeal, making an award starting on 7 November 2024 – under section 27 of the Social Security (Scotland) Act 2018 tribunal was only able to award ADP to 6 November 2024, as the period from 7 November 2024 was covered by a different determination (subject to its own appeal rights, so the claimant was not without a remedy regarding that), even though it was actually unaware of the supersession decision

Decision in brief

Under section 71ZB of the Social Security Administration Act 1992, overpayments of new-style ESA (as well as UC and new-style ESA) are always recoverable and paragraph 6B of Schedule 3 to the Social Security Act 1998 provides there a right of appeal only about the amount of the overpayment – LP v SSWP [2018] UKUT 332 (AAC) applied and approved – tribunal erred in holding that it had jurisdiction to decide on whether the overpayment is recoverable and to consider the applicability of R (K) v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) – challenges to recovery in such cases are instead possible on judicial review, where R (K) may be considered by the court – similarly the decision of the European Court of Human Rights in Cakarevic v Croatia (Application 48921/13) (in the context of human rights challenge to recover an overpayment) was potentially relevant in a judicial review, but not on appeal to a tribunal Comment: R (K) held there was a defence against overpayment recovery based on ‘legitimate expectation’ (see ‘Overpayments and legitimate expectation’, Bulletin 293, April 2023), a concept applied in a human rights context in Cakarevic v Croatia (see ‘Overpayments: legitimate expectation, human rights style’, Bulletin 294, June 2023).

Summary

The appellant was the mother of two children in respect of whom she had been awarded child benefit. The (separated) father of the children made a competing claim, and HMRC awarded the child benefit for the children to him instead. The First-tier Tribunal allowed the mother’s appeal and reinstated the child benefit for the children to her.

Judge Markus KC allowed the father’s further appeal and held that the tribunal had breached the rules of natural justice by failing to join the father in the appeal. Further, the tribunal failed to apply the correct legal test of the priority rules for child benefit in Schedule 10 of the Social Security Contributions and Benefits Act 1992. The tribunal had made a decision based on its views about the best interests of the children’s welfare and had applied Schedule 10 at all times. Remaking the decision, Judge Markus KC held that for the purposes of section 143(1)(a) of the Act, in all the circumstances the children lived with both parents. The existence of a shared care order by a court regarding the children was relative evidence but was not in itself determinative. Under Schedule 10, none of the priority provisions applied so as to give entitlement to the mother or the father, so in the absence of a joint election by them it fell to HMRC to decide which of them was to be awarded child benefit for the children.

The relevant facts included that the mother had stated that the children could spend as much time as they wished with either parent and they spent at least every other weekend with her. The father had stated that the children stayed with him except on alternate weekends, and that the children’s school and medical records were kept with him and that the children stayed with him when ill, facts disputed by the mother. Reviewing authority on the meaning of when a child is ‘living with’ a person, the judge held that:

‘...the question of with whom a child is living at any time for the purpose of section 143(1)(a) is a question of fact to be decided on all the available relevant evidence. It is not a question of where the child spends the majority of their time. The existence of a court order or agreement between the parents as to joint living or caring arrangements is not decisive of where the children live. Such matters are relevant evidence, but they must be weighed along with all the evidence’ (paragraph 53). 

It was clear that the children spent significant amounts of time at the mother’s house. It was unlikely that the children kept no possessions at her house, and instead likely that they kept possessions with both their mother and their father. In the light of all this, the judge concluded that the children lived with both the mother and the father. Therefore, none of the specific priority provisions in Schedule 10 applied. Accordingly, in the absence of a joint election by the parents it was for HMRC to decide entitlement (under paragraph 5 of the Schedule), a decision that was not within the tribunal’s jurisdiction.

Summary

The claimant suffered from a serious mental health condition. She was in receipt of benefits including HB. In early November 2022 she moved out of her home and into another property, in the same local authority, in early December 2022. She did not inform the local authority of either move. When the local authority found out, it suspended HB on 11 January 2023 and on 17 January wrote requiring her to provide information within a month (but without referring to the possibility of an extension). A reminder was sent, but the claimant did not reply. A month later, on 21 February 2023, the council wrote saying the HB had been stopped and notifying a recoverable overpayment. On appeal, it was argued for the claimant that the decision to stop the HB should be replaced by a closed-period supersession stopping the HB only for the period when the claimant was between the two tenancies. The First-tier Tribunal dismissed the appeal.

Judge Paines KC allowed the claimant’s further appeal, substituting a decision that the claimant’s entitlement to HB was superseded regarding the period 14 November 2022 to 5 December 2022, with the payments in that period only a recoverable overpayment. The tribunal had erred in not holding that the correct application of the law was that at the time of the decision of 21 February 2023 the decision required was a closed period supersession – ie, on the basis that (a) at that time the claimant still had an award that still in existence, (b) that the award required to be altered retrospectively by supersession but (c) by the time of the decision the claimant once again satisfied the conditions for entitlement to HB. The judge was ‘fortified’ in that conclusion by the decision of Judge Butler, considering close period supersessions, in SSWP v SC and MJ v LB Bromley [2025] UKUT 299 (AAC) (paragraphs 25–26). (The rules on migration of HB to universal credit (UC) did not arise on the facts of the present case, as the claimant had not claimed UC, and the award of HB had remained in existence rather than having terminated.)

The judge considered whether the claimant’s entitlement instead required to be terminated (ie, with no closed period supersession then possible) for failure to provide information, under regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, SI No.1002. It did not. Regulation 14 could come into play where a person has had their HB suspended under regulation 11, including at subparagraph (2)(a) because of a doubt about their entitlement and who subsequently fails to comply with an information requirement, or where their entitlement has been suspended under regulation 13 for failure to comply with an information requirement. The claimant clearly was a person referred to in regulation 13(2) – ie, a person whose benefit had first been suspended under regulation 11(2)(a). But regulation 13 requires a person subject to the information requirement to be informed of the possibility of explaining that the information does not exist or is unobtainable and of the possibility of an extension to the basic one month allowed for providing it – and in this case the local authority’s letter of 27 January did neither. It was well established that failure to give adequate notice under regulation 13 invalidated any subsequent termination under regulation 14. Therefore, there had been no valid termination of entitlement, the claimant’s award of HB remained current, and a closed-period supersession was the correct decision.

Summary

The claimant attempted to challenge six decisions made in 2007 notifying her of an intention to recover overpayments of IS. However, the First-tier Tribunal declined jurisdiction on the grounds that the DWP had failed (before issuing the recoverability decisions) first to notify the claimant that her IS was revised. The claimant’s challenge was made in 2020 (ie, a very long time after the expiry of the absolute 13-month time limit for an appeal), in the form first of a request for an ‘any time’ revision of the six recoverability decisions on the grounds of official error. The DWP’s subsequent refusal to revise was then appealed against. The tribunal declined jurisdiction as notification of a revised decision is a necessary precondition before a decision is appealable, and no such notification was made.

Judge Brewer refused the claimant’s further appeal. The tribunal had not erred. It was true, on the balance of probabilities, that the revised entitlement decision had not been notified to the claimant. By contrast, it was more likely than not that the claimant had been sent the six recoverability decisions; importantly, it was the case that those decisions all confirmed that the claimant had a right of appeal, which she did not exercise timeously following notification. The DWP’s failure to make and notify the claimant of a valid revised decision meant that the preconditions for recovery of an overpayment of IS, in section 71(5A) of the Social Security Administration Act 1992 ‘were simply not met’, and the DWP’s subsequent recovery of overpayment was ‘without lawful authority’ and an ‘official error’ as defined in regulation 1(3) of the Social Security (Decisions and Appeals) Regulations 1999 (paragraph 55).

But it did not follow that the tribunal had jurisdiction to consider the claimant’s much later attempt to appeal the refusal to revise. The absence of notification of the revised entitlement ‘offends against the basic tenets of legality and access to justice’ so that it is of no legal effect; the original IS decision therefore remains in full force; consequently ‘unless and until’ notification takes place there can be no appeal against it, with the result that the tribunal had no jurisdiction (paragraphs 62–66). Neither was there a right of appeal against the refusal to revise the IS recoverability decisions for official error. That there was no such right had been established by R(IS) 15/04. The claimant was not assisted by the comments of Judge Poole in PH and SM v SSWP [2018] UKUT 404 (AAC) to the effect that, in the mandatory reconsideration regime (introduced after the date of the decisions under consideration in this case), a refusal to revise for official error may give rise to appeal. Under the law in force at the time of the decisions in this case (2007), no such mechanism existed and R(IS) 15/04 was a complete answer to the question about right of appeal against a refusal to revise. But the claimant had been given a right of appeal. The judge noted that the recoverability decisions which were notified to the claimant in 2007 all carried the right of appeal. The claimant had not exercised that right within available time frames. Had such an appeal been made, ‘the absence of notification would rightly have been an issue for the tribunal to determine’ (paragraph 77).

Comment from CPAG

Despite the citation, this is a decision about IS rather than universal credit. The findings regarding the necessity for notification of a decision for it to have legal effect and for there to be a subsequent jurisdiction for a tribunal, though not new, are of general relevance. But the findings regarding right of appeal against a refusal to revise for official error must be read in the context of the pre-mandatory reconsideration scheme rules that were under consideration in PH, and so of more limited applicability.

The claimants had brought appeals following applications for an ‘any time’ revision of decisions made more than 13 months ago – respectively, an original decision refusing entitlement to personal independence payment (PIP) and a supersession decision refusing to find that the claimant had limited capability for work-related activity for employment and support allowance (ESA). The ‘any time’ revision ground relied on by the claimants was that of ‘official error’. In both cases, the Secretary of State refused to revise the decisions. The claimants were told that these refusals were ‘mandatory reconsiderations’ and they could then appeal (with the time for appealing against the decisions running from those mandatory reconsiderations). In the PIP case (TR), the tribunal considered that it had jurisdiction to hear the appeal – ie, that the claimant had the right of appeal. But it had dismissed it on the basis that it did not consider the official error, as identified in a LEAP exercise, affected the claimant’s entitlement. It did not consider the appeal on its full merits – ie, by simply reconsidering entitlement afresh. In the ESA case (GD), the tribunal considered that it did not have jurisdiction as there was no right of appeal against a refusal to revise on official error grounds; but that even if there were, it would have agreed with the Secretary of State that there was no official error in the decision. Again, there was no consideration of the appeal on its full merits.

A three-judge panel of the Upper Tribunal (Mrs Justice Heather Williams DBE, Judge West and Judge Stout) allowed the claimants’ further appeals and remitted the cases for reconsideration on their full merits as valid appeals. The tribunal in TR had correctly held that it had jurisdiction to hear the appeal. The Secretary of State’s consideration of the revision for official error constituted a mandatory reconsideration as required under regulation 7(2) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381, and the appeal had been brought within a month of that. But the tribunal had erred in restricting itself to considering whether the official error meant that the refusal of entitlement was wrong, rather than considering the claimant’s entitlement afresh on its full merits. The tribunal in GD had erred in holding that it did not have jurisdiction and in not considering that a full merits reconsideration should apply.

The Upper Tribunal decided some issues of principle regarding issues of rights of appeal in the context of mandatory reconsideration following ‘any time’ revision applications – ie, made more than 13 months after an original or supersession decision, including for ‘official error’ under regulation 9 of the Decisions and Appeals Regulations. These principles (agreed by all the parties) included that whether the First-tier Tribunal has jurisdiction ‘depends on the Secretary of State having considered an application that is in substance a request for revision that raises grounds which, if made out, would be capable of being in fact or law an official error (or other relevant “any time” ground for revision)’ (paragraph 121a). The Secretary of State provided examples, endorsed by the Upper Tribunal, of communications that would not meet that test – for example, ‘the decision was wrong’ and ‘your decision is inconsistent with the evidence’ (paragraph 116). For the tribunal, what ‘opens the door’ to an appeal is whether the Secretary of State has considered the application for an ‘any time’ revision (even if the original decision is not actually changed). If yes, there has been a mandatory reconsideration and there was a right to a full merits appeal in the usual way. Only if that had not happened would the tribunal, on appeal, first need to consider whether the application was ‘in substance’ on such a ground – eg, official error (paragraph 120). If so, again the refusal to revise gave rise to a right of appeal. But even then, it is not required that the tribunal first find that an official error has actually occurred. Further, if the tribunal does have jurisdiction, then it must deal with the appeal on its ‘full merits’ – ie, ‘must deal with the case as if it is standing in the shoes of the Secretary of State’ on the date that the original decision or, as the case may be, the supersession decision was made (paragraph 121e). In so holding, the Upper Tribunal disapproved previous authority (in particular, PH and SM v SSWP (DLA) (JSA) [2018] UKUT 404 (AAC)), which had held that the tribunal could only consider the appeal if it first decided that an official error had actually occurred.

Comment from CPAG

In obiter comments (paragraphs 80–87), the Upper Tribunal also said that where the Secretary of State has revised an original decision (eg, on official grounds) in a way that is adverse to the claimant who then appeals, the First-tier Tribunal is similarly not required first to establish that one of the any time revision grounds applied. This is contrary to R(IB) 2/04 and is very arguably wrong. See the article: Any time revision: an appealing prospect?