[2025] UKUT 249 (AAC)

On 29 May 2007, the Respondent’s decision maker recorded in an internal document, reasons for revising the Appellant’s entitlement to Income Support. On 7 June 2007, in the same document, the same decision-maker confirmed that a revised entitlement decision had been made pursuant to Section 9 of the Social Security Act 1998. The Appellant maintains that she had no recollection of receiving this decision and there is no record of the decision, said to have been notified to the Appellant, only an internal record which left blank the section on notification.

As an aside, although it is immaterial to jurisdiction, for accuracy of terminology, I observe that the decision maker identified only specific periods during which the Appellant either had no entitlement or a reduced entitlement to Income Support. The decision maker referred to these as closed periods that required the entitlement to be superseded, adopting that language. Accordingly, the internal record of the 7 June 2007 suggests that the decision on entitlement was superseded for certain closed periods under section 10 of the 1998 Act, rather than revised under section 9. The need to clarify this distinction was emphasised in R(IB) 2/04 at paragraphs 53 to 55. However, for the purposes of this appeal, nothing turns on whether the 7 June 2007 decision was a revision or a supersession decision, it does not affect my analysis of jurisdiction (see paragraph 6(5) of LL).

The record of the reasons for revising (or superseding) the entitlement decision is contained in the internal record headed ‘Entitlement Decision’. It documented the changes in circumstances as periods where the Appellant’s capital exceeding prescribed limits because of a loan or receipt of rental income.

Despite the comprehensive internal record detailing reasoning and outcome, the section to record customer notification was left blank. No evidence in the internal documentation confirms that the Appellant was notified of the revised entitlement decision, and there is no record of the notified decision itself, diverging from other contemporaneous decision letters (such as the recoverability decisions), which were retained and disclosed to the Appellant years later.

Furthermore, while the Respondent submitted that notification could be inferred based on standard procedures and the existence of subsequent recoverability notices, there remains no direct evidence of such notification to the Appellant regarding the revised entitlement decision. Practice, as recognised in LL, required both an internal record and a clear notification to the claimant, with the internal document being structured to capture both. In this instance, the failure to complete the notification section, in an otherwise comprehensive document, is significant.

The Respondent submitted that, even absent a notification of revised entitlement letter, it was reasonable to infer that notification was given because retention policies could explain missing documents. However, the Appellant identified that several other documents from the time, including the above detailed internal record and recoverability decisions, were retained and later disclosed, undermining this submission when other important contemporaneous documents survived document retention policies in this case.

I observe that the Appellant’s actions, as reflected in debt management records, indicate that she never denied being subject to recovery actions but rather consistently maintained, after her acquittal in the criminal trial, that she did not owe the debts in question. She engaged and provided documentation to support her position. Telephone records relied upon by the Respondent, when placed in the broader context of communications between the Appellant and the Department, do not undermine her credibility does not suggest she denied knowledge of the overpayments sought.

Considering the totality of the evidence, including the incomplete internal notification record and the absence of the revised entitlement notification letter, and the Appellant’s evidence on notification, which has remained consistent, I am satisfied on the balance of probabilities that she was not notified of the revised entitlement decision.