Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 001 (AAC)

Fecha: 13-Feb-2024

Must a request expressly or implicitly identify official error as a ground for revision?

Must a request expressly or implicitly identify official error as a ground for revision?

48.

Upper Tribunal Judge Poole QC (as she then was) decided in PH and SM v Secretary of State for Work and Pensions (DLA)(JSA) [2018] UKUT 404 (AAC); [2019] AACR 14 that, in cases where a request for mandatory reconsideration was made after the maximum period of 13 months from the original decision, the FTT only has jurisdiction to hear an appeal in limited categories of case – principally where the substance of the mandatory reconsideration request is official error. Furthermore, where the FTT has jurisdiction, then the claimant must comply with the limitation periods in the FTT procedural rules. Accordingly, in cases subject to mandatory reconsideration, any appeal should be brought within one month of the date of notification of the result of the mandatory reconsideration (unless an extension is granted, the maximum extension being 13 months from the date of notification of the result of the mandatory reconsideration).

49.

Judge Poole summed up her analysis as follows (the references to the relevant regulations are to those that applied in the pre-2013 regime but in substance the effect is the same now under the Decisions and Appeals Regulations 2013):

12.

The effect of this discussion is that First-tier Tribunals do not have jurisdiction to hear appeals where applications for mandatory reconsideration fall within Regulations 3(1) and 3(3) of the 1999 Regulations (any ground requests and requests about payments from the social fund in respect of maternity or funeral expenses) and they are late (ordinarily later than 13 months after the original decision of the SSWP, subject to small variations depending on the timing of written reasons). However, tribunals do have jurisdiction to hear appeals in cases where the mandatory reconsideration request is made after 13 months from the original decision in limited categories within Regulation 3(5), which include official error (as defined in Regulation 1). Accordingly, in cases where jurisdiction is in issue, First-tier Tribunals will have to consider whether a request for mandatory reconsideration is an “any ground” revision request (within Regulations 3(1) or 3(3) where jurisdictional time limits will apply) or an “any time” request (within Regulation 3(5). What is important is the substance of the request. The tribunal is not bound by parties’ classification as “any ground” or “any time”. Further, if an “any time” request advances no arguable case of official error and is spurious, there may be scope for the tribunal to find there has been no properly constituted “application to revise” for official error within the meaning of Regulation 3ZA of the 1999 Regulations, so there is no jurisdiction to hear an appeal, by application of Section 12(3A) of the 1998 Act (cp Wood v SSWP [2003] EWCA Civ 53). But in appropriate cases, tribunals will have jurisdiction to hear appeals, even if an application for mandatory reconsideration on the basis of official error was made more than 13 months after the original decision.

50.

It follows that in such circumstances the agreed effect of Judge Poole’s decision is that two features must be present in order for a right of appeal to have arisen. First, the application must be in substance an application for revision on the ground of official error. Second, the decision under challenge must actually have been made in consequence of an official error. However, it was argued on behalf of the claimant that the first of these requirements misstated the correct legal position (it was accepted that the second requirement reflected the true position). I do not propose to explore those arguments in any detail – the decision in PH and SM v SSWP (DLA)(JSA) [2018] UKUT 404 (AAC); [2019] AACR 14, being reported in the Administrative Appeals Chamber Reports (AACR), is one that commanded the broad assent of the majority of the salaried judiciary in the Chamber and so carries added precedential weight, even if not technically binding on me. It has also been followed in a broad swathe of other decisions in the Chamber (see notably e.g. DB v Secretary of State for Work and Pensions [2023] UKUT 95 (AAC)). I also bear in mind that the request for revision need not be expressed in technical language.

51.

Even making due allowances in that regard, it seems to me there is some force in Mr Anderson’s submission that the claimant’s request in the present case cannot be said to raise any issue of official error, whether explicitly or implicitly. However, I need not fully resolve that issue given the primary focus of the parties’ submissions concerned the question of whether official error had been established on the facts in relation to the decision on either the 2018 claim or the 2020 claim.