[2025] UKUT 249 (AAC)

First, the Appellant contends for the purposes of calculating the appeal time limits, that time running from the ‘decision being challenged’ (wording of schedule 1(5)(a) of the Tribunal Procedure Rules), properly construed, encompasses a decision refusing to revise for official error, thereby aligning with the expansive reading of section 9(5) of the 1998 Act, posited by Judge Poole KC in PH and SM.

First, Judge Poole KC’s observation of the reading of section 9(5), was obiter. Notably the Upper Tribunal in R(CJ) and SG at paragraph 63, made plain that they were concerned with materially different statutory provisions than that considered in R(IS)15/04, making the point that the circumstances arising under the mandatory reconsideration regime did not present the same issues as that considered by the Tribunal of Commissioners.

Second, the Appellant does not advance a submission that orthodox common law statutory construction requires section 9(5) or schedule 1(5)(a) to be read as re-setting the appeal time-limit to operate from the date of a refusal to revise for official error. The authoritative analysis in R(IS) 15/04, as well as guidance on statutory interpretation from Uber BV v Aslam [2021] UKSC 5 (especially Lord Leggatt JSC at paragraph 70), reinforce the conclusion that section 9(5) of the 1998 Act’s intended purpose and the plain reading of ‘where a decision is revised under this section…’ does not extend to a decision to refuse to revise for official error.

Therefore, to sustain the interpretation submitted, the Appellant must establish that ‘where a decision is revised’ in section 9(5) and the ‘decision being challenged’ in paragraph 5(a) of Schedule 1 should be read as extending to a decision refusing to revise is both necessary and permissible under section 3(1) of the HRA 1998 to give effect to the Appellant’s Article 6 rights. For the reasons already rehearsed, including those examined in R(IS)15/04 I do not consider that such a reading is necessary to ensure compatibility with the Convention.

The disparity between the time-restarting effect for claimants who seek revision for official error under the mandatory reconsideration regime and those whose appealable decisions predate that regime does not, without more, render the earlier scheme incompatible with Article 6. It has been held by the Tribunal of Commissioners in R(IS)15/04 that the pre-2013 scheme was Article 6 compliant, and I find no reason to depart from that conclusion.

The argument that the Appellant was unfairly deprived of a right of appeal is not borne out by the evidence. The documentary record demonstrates that the Appellant was notified of the 2007 recoverability decisions and, upon that notification, acquired a statutory right of appeal under section 12(4) of the 1998 Act, which was not exercised within the available timeframes. Accordingly, this is not a case where judicial review constituted the only mechanism for redress. Crucially, in any such appeal, the tribunal would have been required to evaluate, as a matter of substance, the lawfulness of the notification of the revised entitlement decision, and any failure in notification would have vitiated the recoverability action, as established in LL. In the circumstances, it is not necessary to interpret section 9(5) of the 1998 Act to give the effect advanced in PH and SM to ensure compatibility with Convention rights.

The legislative time limits for appealing recoverability decisions are those that applied at the time of notification of such decisions. Legal certainty requires that the right to appeal and its associated time limit are determined by the law in force when the appealable decision is notified unless Parliament has provided otherwise. At the relevant time, no mechanism existed permitting an extension of time to appeal a refusal to revise for official error. The applicable time limit for appeals against the 2007 recoverability decisions remained that prescribed by regulation 31 of the 1999 Regulations: one month from notice of the original decision, subject to an extension up to a total of 13 months.