[2025] UKUT 001 (AAC)

Finally, in the event that not all the decisions arose from official error, the claimant has a further alternative submission by which to ground the FTT’s jurisdiction. This submission is that there were defects in the Secretary of State’s notification of the decisions such that the claimant was nevertheless in time to apply for revision (or, in the further alternative, was entitled to bring appeals in respect of each decision without first seeking revision). In summary, Mr Williams and Mr Royston’s submission was that the one-month time limit for seeking revision was inapplicable because (a) the time limit runs only when a regulation 7 written notice is given; (b) a regulation 7 written notice “must” inform the recipient of the various matters prescribed in regulation 7(3)(a); but (c) the Secretary of State’s communications of the decisions in question did not properly inform her of the matters so prescribed in regulation 7(3)(a).

I must start with the relevant legislative provisions. Chapter 1 of Part 2 of the Decisions and Appeals Regulations 2013 is concerned with ‘Revision on any grounds’ (in contradistinction to Chapter 2, which deals with ‘Revision on specific grounds’, including regulation 9 on official error). Chapter 1 comprises three interlocking regulations; regulation 5 (revision on any grounds), regulation 6 (late application for a revision) and regulation 7 (consideration of revision before appeal).

Regulation 5(1) provides as follows (paragraph (2) sets out certain exceptions to paragraph (1) which are not relevant for present purposes):

Regulation 6 (as amended) then provides as follows:

Finally in Chapter 1, regulation 7 provides as follows:

In summary, the claimant’s submission runs as follows. Regulation 7 of the Decisions and Appeals Regulations 2013 specifies that notification of a decision where mandatory reconsideration applies must include the time limit for revision on any grounds. In particular, regulation 7(3)(a) provides that the notification must inform the claimant “of the time limit under regulation 5(1) (revision on any grounds) for making an application for a revision”. Regulation 5(1) then actually sets out a series of time limits, each depending on the particular circumstances – see regulation 5(1)(b)(i)-(iv). The last of these (regulation 5(1)(b)(iv)) is “such longer period as may be allowed under regulation 6 (late application for a revision)”. Accordingly, it is argued, the possibility under regulation 6 for an extension of the time in which to seek revision is therefore, because it is referred to in regulation 5(1), also part of what must be notified to a claimant in order to comply with regulation 7(3)(a).

The text that the decision letter (e.g. that dated 28 July 2020) actually includes is as follows:

As such, the information in the decision letter is silent about the possibility of a late application for a revision. Criticism was targeted in particular at the passage headed “You can ask us to reconsider a decision”. An individual who has missed the one month deadline (regulation 5(1)(b)(i)) and has not sought reasons (regulation 5(1)(b)(ii) or (iii)) would assume that there is no further possibility of challenge. Thus, the claimant submitted that the decision notices were not compliant with regulation 7(3)(a), and so were defective, as they failed to include the information contained in regulation 5(1)(b)(iv), which cross-referred to regulation 6. That being so, the claimant contended that the time for challenging the decisions had not started to run and so her revision application could be viewed as an any grounds application that was made in time.

The Secretary of State’s response to this submission, again in summary, runs as follows. First, regulation 7 requires that “the time limit under regulation 5(1)” should be communicated. In that context “the time limit” means precisely that, the time limit, and not the possibility of extending the time limit. The regulation 5(1) time limit is one month from the date of the notification of the original decision (in a case where reasons are not requested). Secondly, regulation 6 is headed “Late application for revision” and an application can only be viewed as being “late” by reference to the parameters specified in regulation 5(1)(b)(i)-(iii) inclusive. The extension contemplated by regulation 6 can only be understood by reference to those limits – it cannot coherently be read as encompassing regulation 5(1)(b)(iv). Thirdly, if the intention had been that the notification of the decision should also specify the circumstances in which the time limit could be extended pursuant to regulation 6, the legislation could have required as much, but the regulations did not so specify.

Having sketched out the parameters of the debate, I now turn to examine the more detailed submissions on the construction of regulations 5 to 7 inclusive.

The starting point for Mr Royston’s submissions is his assertion that regulation 5(1)(b) identifies four separate and distinct time limits for making an application for a revision, each applicable to different factual circumstances. I am not persuaded that this premise is correct. Rather, regulation 5(1)(b) specifies a primary or default one-month time limit (regulation 5(1)(b)(i)), which is then subject to modification in prescribed situations where reasons have been requested (regulation 5(1)(b)(ii) and (iii), both of which are tied back into paragraph (i)), and which is also subject to a potential extension (regulation 5(1)(b)(iv)). The very notion of a time limit connotes a pre-determined and defined period of time, whether that be e.g. 28 days, one month or 12 or 13 months. However, the criteria set out in regulation 6 are such that the period in question may be of any length up to a further 12 months (see regulation 6(3)(c)). To take an entirely random example, it could be 277 days. Or 278 days – or 279 days and so on. Regulation 5(1)(b)(iv) is therefore better seen conceptually as an individualised discretionary extension to an existing default time limit rather than as a separate and freestanding time limit in its own right. Mr Royston makes several further submissions which I find to be less than compelling.

First, Mr Royston relies on section 6 of the Interpretation Act 1978, which provides that words in the singular include the plural and vice versa (unless the contrary intention is evident). The reference to the regulation 5(1) “time limit” in the singular in regulation 7(3)(a) should therefore be read, he says, as a reference to time limits in the plural. However, this submission does not address the conceptual distinction between a time limit and an extension to a time limit.

Secondly, it is argued that even if the reference to a time limit is in the singular, in the case of any given individual there can only be one applicable time limit, dependent upon their particular factual circumstances. Moreover, regulation 6 is part of the mechanism for determining whether the time limit is set by reference to regulation 5(1)(b)(iv). This too fails to pay sufficient regard to the distinction between a time limit and an extension to a time limit.

Thirdly, the submission is made that the Secretary of State’s construction fails to inform claimants of their relevant procedural rights. There is necessarily a judgement call to be made as to the extent of the information provided in decision letters as to potential further courses of action. That judgement call has to balance the competing demands of clarity and comprehensiveness. The decision letters now under challenge give clear and specific guidance about the basic time limit beyond which any extension would be discretionary in any event.

Fourthly, Mr Royston contends that if the legislator had wished to refer in regulation 7(3)(a) specifically and only to regulation 5(1)(b)(i), rather than to regulation 5(1) more generally, then they could have done so. The proper inference was that the global reference to regulation 5(1) was meant to cover all the heads in regulation 5(1)(b). I consider this argument is outweighed by the factors discussed in the following paragraph.

As a matter of statutory construction, the submissions of Mr Anderson are the more persuasive. He accepts that regulation 7 requires the communication of the time limit in regulation 5(1). In doing so, the Secretary of State correctly identifies the important conceptual distinction between a time limit and an extension to that time limit. Reading regulations 5, 6 and 7 together, as they must be, what is extended under regulation 6 is the time limit specified in regulation 5(1). Furthermore, the reference to regulation 5(1) in regulation 6(1) cannot include regulation 5(1)(b)(iv) as it would be otherwise entirely circular. In addition, there is no reason to think that the references to regulation 5(1) in both regulation 6(1) and regulation 7(3)(a) are used in a different sense; rather, one would expect the same term to carry the same meaning wherever it appears. The Secretary of State’s submissions garner further support from the heading to regulation 6 – the expression “late application” in the heading must be understood as meaning late by reference to the time limit specified in regulation 5.The heading to the regulation provides part of the context for the process of interpretation (see R v Montila [2004] UKHL 50 at [34] and KL v Secretary of State for Work and Pensions (JSA) [2022] UKUT 270 (AAC) at [15]), albeit that headings may not always be reliable (Ipswich Borough Council v TD and SSWP (HB) [2024] UKUT 118 (AAC)). All in all, I am satisfied that, on a plain reading of the legislative language, regulation 7(3)(a) requires communication of the primary one month time limit in regulation 5(1) and not the possibility of a discretionary extension to that time limit under regulation 6.

The last shot in Mr Williams and Mr Royston’s collective locker was to argue (somewhat belatedly) that the Secretary of State’s construction of regulation 7(3)(a) was incompatible with the claimant’s ECHR Article 6 rights.

Article 6 of the ECHR provides that “in the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. In outline, the claimant’s submission runs as follows. Access to the FTT is regulated in part by regulation 7, which must therefore be compliant with Article 6. That, in turn, requires a practical and effective right of access to the tribunal (Bellet v France, Application No.23805/94 at §38). Moreover, the route to an independent tribunal, including the time limits for bringing a challenge at every stage, must be communicated in a way which is clear (de Geouffre de la Pradelle v France, Application No.12964/87 at §34).

In my judgement there are two principal difficulties with these submissions.

The first is that Article 6 is only engaged where there is a genuine and serious dispute relating to a civil right. Notably, the outcome of the proceedings in question must be directly decisive for the right in question (Regner v Czech Republic Application No.35289/11 at §99). Plainly, therefore, Article 6 applies to the appeal before the FTT and the Upper Tribunal alike. Equally, however, it does not apply to the Secretary of State’s decision-making processes, whether at the stage of the claim determination or during any revision thereof. Mr Royston submitted that this reading was inconsistent with the analysis of the Upper Tribunal in R (CJ) and SG v Secretary of State for Work and Pensions [2017] UKUT 324 (AAC); [2018] AACR 5 and that of the High Court in R (Connor) v Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin). Neither objection withstands close scrutiny. As to the former, Mr Royston relied on the passage in the judgment of the Upper Tribunal at paragraphs 64-69, where the three judge panel reminded itself of the overlap between ECHR Article 6 and common law fairness as part of the backdrop to the process of statutory construction. However, that decision, whilst plainly authority for the proposition that clear language is needed to remove or interfere with existing rights of appeal, does not take Mr Royston’s argument any further. As to the latter, Mr Royston noted that the requirement to undertake mandatory reconsideration without provision for interim payment of benefit had been adjudged to be a disproportionate interference with the right of access to the FTT in the context of ESA appeals. In the absence of any discussion as to how Article 6 applied to the process of mandatory reconsideration, this authority likewise takes the claimant’s case no further forward.

The second difficulty with the attempt to invoke Article 6 is that in any event the claimant was not denied access to a relevant tribunal in any meaningful sense. The applicable test is that any restriction on such access “must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired” (de Geouffre de la Pradelle v France, Application No.12964/87 at §28). This is necessarily a fact-sensitive assessment – and the present circumstances are a long way removed from the almost Kafkaesque complexity of the factual situation in de la Pradelle, in which the Strasbourg Court noted “the extreme complexity of the positive law” involved (at §33). In that context Mr Royston laid great emphasis on what he described as the extremely short time limits under regulations 5 to 7 which, he argued, compared very unfavourably with those operating elsewhere in the civil justice system, not least given that those individuals most likely to be affected will typically be vulnerable and lacking representation. The answer to that specific submission lies in Judge Poole’s decision in PH and SM v Secretary of State for Work and Pensions (DLA)(JSA) [2018] UKUT 404 (AAC); [2019] AACR 14 at paragraph 6. The Strasbourg Court in de la Pradelle ruled that “the applicant was entitled to expect a coherent system that would achieve a fair balance between the authorities’ interests and his own; in particular, he should have had a clear, practical and effective opportunity to challenge an administrative act” (at §34). Taken in the round, that test was met here.

In summary, therefore, I reject the claimant’s submission that the Secretary of State’s communications of the decisions did not inform her of the matters prescribed in regulation 7(3)(a). That being so, I need not consider the further submissions that were made before me as to whether or not the claimant experienced any prejudice as a result of the notification issue.