[2025] UKUT 249 (AAC)

I find that the Respondent did not make a final decision to revise or supersede the Appellant’s entitlement to Income Support before moving to recover sums alleged to have been overpaid. The documentation demonstrates an absence of notification to the Appellant of any revised entitlement decision in advance of the recoverability decisions of June and September 2007.

The failure to make and notify the Appellant of a valid revised or superseded decision vitiated the subsequent step of seeking recovery. The statutory preconditions in section 71(5A) of the 1992 Act were simply not met. The Respondent’s recovery of overpayment was, therefore, without lawful authority and amounted to official error, as defined in regulation 1(3) of the 1999 Regulations.

The fact that each step: revised entitlement decision, notification, recovery serves as a statutory precondition for the next is not a mere formality. Together, they form the “architecture of legality”, ensuring that the claimant’s rights are properly protected and that state authority is exercised only within lawful bounds. The legal obligation upon the Secretary of State to notify the claimant of any revised or superseded entitlement decision before embarking upon recovery is not an optional standard, but a statutory imperative. Failure to observe it vitiates the foundation for recovery, and such disregard constitutes official error of the most basic kind. 

However, it does not follow that the First-tier Tribunal or Upper Tribunal has jurisdiction to do more than make the above factual findings and apply these to a decision whether to extend time for appealing the recoverability decisions, applying the principles in Adesina.