[2025] UKUT 337 (AAC)

An appeal to the Upper Tribunal lies only on “any point of law arising from a decision” of the FTT (section 11(1) Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal may only give permission to appeal if there is a realistic prospect of an appeal succeeding, unless there is exceptionally some other good reason to do so: see by analogy Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. It follows that simply disagreeing with the FTT’s conclusions on the facts or with the overall outcome is not itself a point of law, however unreasonable or wrong a dissatisfied party may think the decision was. Moreover, it is not the Upper Tribunal’s role to “set the appeal tribunal to rights by teaching them how to do their job of weighing the evidence” (Fryer-Kelsey v Secretary of State [2005] EWCA Civ 511, reported as R(IB) 6/05, at paragraph [25]). So, put shortly, an appeal to the Upper Tribunal on a point of law is not an opportunity to re-argue the case on its facts.

The LA argues that the delay in processing the claimant’s reported change of circumstances did not amount to an “official error” within regulation 100(2) of the Housing Benefit Regulations 2006 (SI 2006/213). In support of that submission, the LA rely on CH/858/2006, stating that the Social Security Commissioner held there that a 26-day delay in processing a change was not unreasonable and did not amount to an official error.

The LA further argue that the delay in processing the claimant’s reported change of circumstances “occurred during a period of exceptional operational pressure. It coincided with the end of the financial year during which this authority was receiving bulk data updates from the DWP and HMC including tax credits renewals, uprating and Real Time Information (RTI). In addition, Luton was subject to the rollout of Universal Credit locally. Staffing resources were limited due to the UC rollout as resources were being diverted and the volume of incoming changes exceeded normal processing capacity.”

This excuse has echoes of the reasons that the LA gave for the outrageous delay in submitting the claimant’s original appeal to the FTT and for seeking an extension of time in the instant proceedings. Leaving that aside, there are at least three proposed difficulties with these grounds of appeal.

First, it does not appear from the FTT appeal bundle that the LA ran the argument at first instance based on CH/858/2006,which it now seeks to run on appeal.

Second, the grounds of appeal are in essence an attempt to re-argue the factual merits of the appeal as to whether there was an official error by the LA.

Third, and in any event, although the LA’s decision was taken on 4 April 2019 at the end of the financial year, the FTT found as a fact that the claimant’s childcare costs had ceased on 1 December 2018 and she had notified the change to the LA on 2 December 2018 (SoR paragraph [9]). The FTT also found that she had notified the change on at least four further occasions (SoR paragraph [10]).