[2025] UKUT 016 (AAC)

The First-tier Tribunal in this case struck out the appellant’s appeal on the basis that “the decisions of the higher courts do not change the law as it was applied to a claim at the time. This means that an appeal under the old law cannot succeed. If a new claim is made, the DWP will decide entitlement to bereavement payment under the new law. This Tribunal cannot decide whether a new claim will succeed”.

The appellant in this case, through her representative, argues that the First-tier Tribunal erred in law. The appellant accepts that, by virtue of section 4(6) of the HRA 1998 the declaration of incompatibility made by Holman J in Jackson did not affect the validity, continuing operation or enforcement of the PA 2014. However, the appellant argues that the 2023 Order is on its face retrospective in effect and changed the law from 30 August 2018. On that basis, the appellant submits that, once the 2023 Order came into force on 9 February 2023, the appellant’s claim for BSP should have been dealt with after that date as if the amendments to the law made by the 2023 Order applied to it, even though the appellant’s claim for BSP was made (and first determined) before the 2023 Order came into force. The appellant accordingly submits that the First-tier Tribunal erred in law in striking out her appeal against that decision, because by the time the matter was considered by the First-tier Tribunal the 2023 Order was in force and the First-tier Tribunal should have applied it to her claim. In short, she submits that she did not need to put in a second claim for BSP after the 2023 Order came into force. Her first claim should have sufficed.

The Secretary of State disputes the appellant’s interpretation of the effect of the 2023 Order. The Secretary of State submits that, properly interpreted, the 2023 Order only changed the law for claims made after the 2023 Order came into force, notwithstanding its retrospective changes to the conditions of entitlement.

The Secretary of State refers to section 1 of the Social Security Administration Act 1992 (SSAA 1992) and section 8 of the Social Security Act 1998 (SSA 1998) which latter states at sub-paragraph (2): “Where at any time a claim for a relevant benefit is decided by the Secretary of State – (a) the claim shall not be regarded as subsisting after that time; and (b) accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.” The Secretary of State also refers to section 12(8) of the SSA 1998 which makes the same point in relation to appeals to the First-tier Tribunal: “In deciding an appeal under this section, the First-Tier Tribunal…(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”. The Secretary of State submits that, in the light of those provisions, the First-tier Tribunal cannot proceed on the basis of a “legal fiction that a (non-existent) ‘decision’ on a ‘claim’ has been taken under ‘new law’, when in fact no such claim has been made, and no such decision taken”.

The Secretary of State accepts that in principle Parliament could amend law retrospectively so as to provide explicitly that ‘new law’ did apply to an earlier decision, and refers in this regard to Reilly v SSWP [2017] QB 657 at [137], but submits that this is not what has happened in this case. The Secretary of State submits that the effect of the Remedial Order is that cohabitees with children whose partners died up to 18 months before 30 August 2018 had a a right to claim BSP only once the Remedial Order was in force on 9 February 2023 (with the amount of BSP being diminished for each month by which their partner’s death pre-dated 30 August 2018). The Secretary of State further points to the unreported, unpublished decision of Judge Ward in SD v SSWP (UA-2019-002258-BB) (13 March 2024) as a case in which the Secretary of State submits that his interpretation was accepted, albeit without argument.

The Secretary of State also suggests that claims made before 9 February 2023 by cohabiting partners would not have included evidence against which that claim could be assessed, whereas after 9 February 2023 the claim did include such evidence.

The appellant’s representative in response submits that the Secretary of State is wrong: that the appellant’s claim before 9 February 2023 was identical to her claim after 9 February 2023, that once the 2023 Order was in force both claims should have been dealt with in accordance with the same legal principles which, by dint of that Order now represented the law from 30 August 2018 onwards. The appellant submits that Reilly v SSWP makes clear that sections 8 and 12 of the SSA 1998 do not prevent claims having to be decided in accordance with retrospectively effective legislation. The appellant submits that SD v SSWP cannot be relied on by the Secretary of State given that it has not been published and was not the subject of argument.