[2023] UKUT 288 (AAC)

Mr I. Hussain, the Secretary of State’s representative in these proceedings, invites the Upper Tribunal to set aside the FTT’s decision and remit the case for re-hearing. I agree that the FTT’s decision should be set aside as it involves, in part at least, an error of law. However, I can see no value in remitting the case for re-hearing by a fresh FTT, given that there are no further material facts to be found.

The most proportionate way forward is for the Upper Tribunal to re-make the FTT decision. In the absence of any proper legal basis for making a retrospective claim to IRESA, the only realistic option for the FTT was to dismiss the appeal against the Secretary of State’s decision of 10 May 2020.

The decision the FTT should have made is as follows:

I do not pretend that this is an optimal outcome. This is the least unsatisfactory solution. It is unsatisfactory in that by implication it leaves untouched a decision that was, or may well have been, taken in breach of regulation 4A. However, no fresh claim for IRESA was made at the material time and for the reasons explained above there is no mechanism by which a claim for UC can be treated in the alternative as a claim for IRESA.