[2025] UKUT 330 (AAC)

The FTT has issued a Decision Notice (dated 7 October 2024) and a full Statement of Reasons (SoR dated 23 January 2025) for its decision of 7 October 2024. The FTT found that the Applicant was seeking to appeal the UC decision dated 23 April 2024. That much does not appear to be in dispute. However, the FTT struck out the Applicant’s appeal for want of jurisdiction. In short, this was apparently because – through what the FTT correctly recognised was no fault of the Applicant – the Secretary of State had not as yet undertaken a mandatory reconsideration of the UC decision in question. The request for a mandatory reconsideration had been made in time but initially not processed by the DWP as it concerned a “policy issue”. It was then belatedly registered on 10 July 2024 but had yet to be processed. The FTT explained that in the absence of a mandatory reconsideration (MR) the tribunal lacked jurisdiction. Indeed, the Applicant acknowledged that no such MR had taken place (and, so it appears, has still not taken place, even now many months later).

The proposed grounds of appeal

The Applicant has set out his reasons for appealing in an annex to Form UT1 and in a subsequent additional document which is undated but was received by the Upper Tribunal on 24 April 2025 (‘Additional reasons for appeal’).

Understandably, the Applicant’s reasons for appealing are principally directed at the DWP’s conduct of this matter. In short, the DWP initially declined to carry out a MR, arguing that the matter was a “policy issue”. I have to say that it is singularly unclear what that policy issue was or is. The DWP later changed tack and accepted that a request for a MR had been lodged (and was duly registered on 10 July 2024). However, it now appears that (well after the FTT’s decision) the DWP has changed tack yet again – on 22 April 2025 the DWP entry on the Applicant’s UC journal states that “A decision is unable to be made due to policies”. However, I bear in mind that the DWP’s conduct of the case after the date of the FTT’s decision does not necessarily mean that the FTT’s decision involves any arguable error of law.

Nonetheless, I consider there is sufficient here to warrant a grant of permission to appeal. This is an inquisitorial jurisdiction, meaning that the Upper Tribunal can identify potential grounds of appeal of its own initiative. For example, there is at least a potential argument that the FTT failed to have due regard to section 12(3A) of the Social Security Act 1998 (as amended). Section 12(3A) enables regulations to make provision for a right of appeal to arise “only if the Secretary of State has considered whether to revise the decision under section 9”. Notwithstanding SoR paragraphs 18 & 19, it could be argued that, in declining to make a decision as it was “policy” to take that approach, the Secretary of State had thereby considered whether to revise the original UC decision (and had decided not to) – see by analogy R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC); [2018] AACR 5. Arguably the FTT may also have erred in law in not considering at that stage whether to waive the requirement (by operation of rule 7 of the Tribunal Procedure (FTT) (SEC) Rules 2008) that the Applicant should produce a MR Notice.