[2023] UKUT 288 (AAC)

The claimant has made multiple written submissions seeking to resist the Secretary of State’s appeal and so to uphold the FTT’s decision. His primary arguments are two-fold.

First, the claimant argues that he was mis-advised by Jobcentre staff, who he says wrongly informed him in December 2019 that he could not claim IRESA and so would have to claim UC. However, assuming that account is correct (and there is no reason to doubt it and anecdotally every reason to believe it), such misinformation does not in and of itself render the DWP’s subsequent decision to make an award of UC ineffective. If the claimant can show a financial loss caused by the DWP’s failure to apply the SDP Gateway, it may amount to grounds for seeking an ex gratia payment of compensation for maladministration. However, tribunals have no jurisdiction over such matters.

Secondly, the claimant submits that the doctrine of ultra vires applies. He argues that as the DWP acted in contravention of regulation 4A in processing his UC claim (which the Secretary of State concedes was the case), then the decision that followed was void ab initio and so a nullity. This argument fares no better for several reasons. First, the decision-maker was acting within their legal powers when tasked with deciding the claim for UC – the fact that they may have made a legal error in doing so does not render the decision void as such. It simply leaves it open to the possibility of revision for official error, but no such steps have been taken in this case. Secondly, the logical consequence of the claimant’s argument is that the sums of UC paid under the award would arguably be recoverable from the claimant, a plainly unattractive prospect. Thirdly, the effect of the FTT’s direction was to require the Secretary of State to do something for which there was indeed no statutory authority – namely to entertain a claim for, and make an award of, IRESA – on the facts as they stood.

It follows that the FTT erred in law when it directed the Secretary of State to treat the claimant’s UC claim as a claim for IRESA.