[2025] UKUT 249 (AAC)

Appeal No. UA-2024-000003-USTA

RULE 14 Order:

Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is prohibited for any person to disclose or publish any matter likely to lead members of the public to identify the Appellant in these proceedings.

Between:

AS

Appellant

- v -

Secretary of State for the Department of Work and Pensions

Respondent

Before: Upper Tribunal Judge Brewer

Mode of hearing: Oral Hearing by video-link

Representation:

Appellant: Mr Paul Stockton, Citizen’s Advice Bureau

Respondent: Ms Jackie McArthur (counsel)

On appeal from

Tribunal: First-tier Tribunal (Social Entitlement Chamber)

Tribunal Case No: SC242/23/02976

Tribunal Venue: Fox Court (in person)

Decision Date: 16 October 2023

SUMMARY OF DECISION

The Respondent failed to notify the Appellant that her entitlement to Income Support was revised prior to pursuing recovery of alleged overpayments. Each step: revision of entitlement, notification of revised decision and recovery served as a statutory precondition for the next; failure to satisfy the statutory pre-conditions in section 71(5A) of the Social Security Administration Act 1992 deprived the Respondent of lawful authority to recover the overpayments (LL v Secretary of State for Work and Pensions [2017] UKUT 324 (AAC) considered). The above acts constituted official errors under regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The Respondent did notify the Appellant of the decisions to recover overpayment pursuant to section 71 of the 1992 Act (the “recoverability decisions”).

The First-tier Tribunal Judge correctly held that there was no jurisdiction to consider an appeal against either the unnotified revised entitlement decision or the 2007 recoverability decisions. This is because: (i) notification of a revised decision is a necessary precondition before a decision is appealable (section 12(1) of the Social Security Act 1998, and sections 8 and 17 considered), and no such notification was made; (ii) section 12 of the 1998 Act does not confer a right of appeal against a refusal to revise, nor is it necessary to interpret it as doing so to ensure compliance with Article 6 of the European Convention of Human Rights (the Convention) (see R(IS)15/04; section 3(1) of the Human Rights Act 1998; Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53; Secretary of State for Business and Trade v Mercer [2024] UKSC 12); (iii) section 9(5) of the Social Security Act 1998 is confined to decisions which have in fact been revised, and cannot be extended to include refusals to revise (obiter observation at paragraph 13 of PH and SM v Department of Work and Pensions [2018] UKUT 404 not followed; R(IS) 15/04 applied); and (iv) the Appellant was notified of the 2007 recoverability decisions and had, but did not exercise, a right of appeal within the statutory time-limit against those decisions. The facts of this case do not justify any extension of the statutory appeal time-limit (Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 considered).

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION