[2025] UKUT 168 (AAC)

The FTT heard the appeal on 8 December 2023. In its Decision Notice of that date the FTT allowed the claimant’s appeal, set aside the Secretary of State’s decision of 17 August 2022 and replaced it with a decision that the claimant was entitled to his state pension from his 66^th birthday rather than his 67^th birthday.

The legal basis for the FTT’s decision, as expressed in the Decision Notice, was that the FTT applied regulation 3(4) of the Social Security and Child Support Decisions and Appeals Regulations 1999 to correct the 20 August 2022 error in the claim form (as from when the claimant wished to claim his state pension from), to the date of 20 August 2021. The FTT said that regulation 3(4) allowed for an error that has been made to be revised at any time by the Secretary of State.

The Secretary of State sought the reasons for the FTT’s decision and these were provided in early January 2024. The FTT’s reasoning differs from that given in its Decision Notice. It is worth setting out the relevant parts of that reasoning in full.

“10 This statement would venture to suggest this is an unusual set of circumstances. It is not in issue [the claimant] has claimed within the requisite prescribed time limit of 12 months as set out in Schedule 4 of the Social Security (Claims and Payments) Regulations 1987. It is important to emphasise at this juncture that this is not in issue as far as the [Secretary of State] is concerned. Indeed in their response they acknowledge in paragraph 21 of their Response that if [the claimant] had on 17/08/2022 said that he wanted payment from 20/08/2021 this would have been effected. However they then say further on in the same paragraph in another bullet point that once a determination is made, that decision is final and as such that any change requests cannot be accepted.

11 The Tribunal though does not accept the [Secretary of State]’s “determination” submission. That is not to say that the [Secretary of State] was not legally entitled to take at face value exactly what [the claimant] had put on his claim form, with a start date of 20/08/2022, evidently they were so entitled, but they were not duty bound to do so. That is the important distinction this statement wants to emphasise.

12 This “determination” [Secretary of State] submission is analogous to the Universal Credit date of claim cases they have contested where they submit that once a determination had been made, that date of claim cannot be changed. The Upper Tribunal disagreed, stating in terms that such matters as a date of claim should be investigated either as part of the initial claim process or on mandatory reconsideration or appeal. Furthermore whilst this is still the subject of further challenge, in the meantime Decision Makers have been issued with guidance to follow the Upper Tribunal’s decision.

13 Evidently [the claimant] has claimed his pension not UC but this statement contends that pension claims should also be subject to the same scrutiny as UC when claims are made. In [the claimant]’s case he had applied just before his 67^th birthday. That raised surely the possibility he might want to claim it from his 66^th birthday, and whilst the [Secretary of State] was entitled to take his claim at face value of a date of claim of 20/08/2022, to repeat they were not duty bound to do so. Whilst not wishing to stereotype or generalise, it is surely the case that many claimants approaching or of state pension age may not be particularly comfortable with making any kind of benefit claims, let alone information technology. A simple check with [the claimant] would have sufficed, that he did indeed want to defer his pension until his 67th birthday. It would then have become apparent this was not the case. It is also interesting to note the haste in which the [Secretary of State’s] decision was made. The bundle refers to a date of claim of 17/08/2022 and a decision of the same date. Whilst of course it is important to deal with claims in an expeditious fashion, deciding a claim on the same date as it was submitted allows little if any room for a proper consideration of the contents of a claim.

14 This statement acknowledges that in its decision notice referencing Regulation 3(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 referring to “errors”, arises in connection with occupational pensions as opposed to a state pension. That same Regulation, however allows a decision to be put right on any grounds under such circumstances including where an application is made by the claimant. Again this statement accepts that this should normally be done within a month but Regulation 3(1)(iv) provides that it can be for such longer period as may be allowed under Regulation 4. Regulation 4 includes such provisions where an application has merit and is submitted within a maximum period of 13 months. This statement contends [the claimant’s] circumstances fall squarely within such provisions.

15 In conclusion, this statement appreciates the [Secretary of State] has not acted incorrectly in so far as all they have done is taken [the claimant]’s claim at face value. This statement however contends three salient issues: first they had a choice to investigate the claim prior to it reaching its decision; second that it would surely be good practice to do so; and third that in any event, there is still a legal mechanism to revise their original decision in such circumstances as this appeal. [The claimant] wanted to claim his pension from 20/08/2021 his 66^th birthday, but unfortunately he put down 2022 rather than 2021 because he made an error. That error should however have been checked. His pension claim can now be amended, he understands this will mean he loses his additional extra circa £11 weekly and that this will need to be removed and offset against his “backdated” payment but that is all this appellant wants, a backdated payment from his 66^th birthday, from when he has always wanted to claim his pension.

Accordingly the appeal is allowed.”