[2025] UKUT 249 (AAC)

The next issue is whether there exists a right of appeal under section 12(1) of the 1998 Act against the Secretary of State's refusal to revise the recoverability decisions for official error, particularly when read alongside section 9(5) of the 1998 Act and with due regard to Article 6 of the Convention; applying a human rights compliant interpretation pursuant to section 3(1) of the HRA.

R(Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 confirms that the proper approach to interpretation of statute is to first apply common law principles of statutory construction, turning to section 3(1) of the HRA only so far as is necessary to secure compatibility with Convention rights. The approach in Ghaidan v Godin-Mendoza [2004] UKHL 30 provides latitude to "read in" or "read down" statutory words for compatibility, provided that the legislative purpose is not contradicted or reversed (see also Secretary of State for Business and Trade v Mercer).

The material statutory provisions in this appeal are sections 9 and 12 of the Social Security Act 1998. Section 9 establishes, inter alia, the power and process for revision. It further provides in subsection (5) that, for time limits to appeal purposes, the decision is treated as made on the date of the revised decision. Section 12 sets out which species of decision can be appealed to the First-tier Tribunal.

The Appellant did not submit, nor could it plausibly have been argued, that common law statutory interpretation principles enabled a reading of the above sections as conferring a right of appeal against a decision refusing to revise an earlier decision (see analysis in R(IS)15/04 at [29]). Instead, the Appellant invites the Upper Tribunal to interpret, pursuant to section 3(1) of the HRA, section 9(5) and section 12(1) of the 1998 Act as conferring a right of appeal against a refusal to revise a decision for official error, in order to give effect to the Appellant’s Article 6 Convention rights.

The adjudication process as it applies to a refusal to revise for official error and its compliance with Article 6 of the Convention has already been analysed at length by the Tribunal of Commissioners in R(IS) 15/04, Commissioners which included the then Chief of Commissioners. The Commissioners considered whether section 3(1) HRA required section 12(1) to be construed as conferring a right of appeal against a refusal to revise a decision for official error, so as to give effect to Article 6 of the Convention. The submission was dismissed, following careful analysis of the statutory architecture then in force.

It was common ground in R(IS)15/04 that, under the statutory scheme, a decision under section 9 either to revise or not to revise is not itself an "appealable decision"; the decision susceptible to appeal is the decision as either revised or unrevised. Regulation 31(2) of the 1999 Regulations allowed for an extension of time in cases of “any ground” revision under regulation 3(1) or (3), but not for a refusal to revise for official error under regulation 3(5)(a) (an “any time” revision).

The Commissioners did accept that a refusal to revise for official error is a determination of a claimant's "civil right" within Article 6. There was, however, no necessary requirement for a standalone right of appeal against a refusal to revise. Instead, the Commissioners concluded that the procedural safeguards embedded in the legislative scheme: the opportunity for a full appeal against the original decision within time, and recourse to judicial review if required were considered sufficient to satisfy Article 6. The Commissioners observing that judicial review filled the remedial gap for claimants discovering official errors after the expiry of the appeal window, thereby maintaining access to justice.

The Appellant submits that her circumstances are distinguishable from those considered in R(IS) 15/04. She contends that she was deprived of the right to appeal the revised entitlement decision which formed the foundation for the later recoverability decisions, and that, as a result, she was denied the critical procedural safeguard relied upon by the Commissioners in that case. The Appellant draws support from the reasoning of the Upper Tribunal in CJ and SG.

I do not accept this submission. In her correspondence with the Respondent and again in her grounds of appeal before the Upper Tribunal, the Appellant claimed that the Secretary of State misconstrued her letter of 12 November 2020 as a request to revise the entitlement decision for official error. She maintains that her representations to revise for official error were in fact aimed at what she described as an official error in seeking recovery where no entitlement decision had been properly issued in the first place. Regardless of this distinction, the central point advanced by the Respondent remains: at the material time, the Appellant was notified of the later recoverability decisions and, upon being so notified, had a clear statutory right of appeal which she did not exercise.

I am satisfied, for the reasons set out above, that the Appellant did receive notification of the recoverability decisions issued on 22 June and 13 September 2007. The debt management records indicate that, during the period when an appeal could have been lodged, the Appellant contacted the Citizens Advice Bureau specifically about the overpayments in question. She had a right, under section 12(4) of the Social Security Act 1998, to appeal those decisions within 13 months of notification, yet did not take up this opportunity. Had she appealed within the statutory time limit, it would have fallen to the tribunal to consider, as part of its assessment, whether the legal requirements for recovery, including the necessity of notification in respect of the revised entitlement decision, had been met. This is consistent with the approach adopted by Judge Fordham KC in LL v Secretary of State for Work and Pensions, which makes clear that a failure to notify a claimant of a revised entitlement decision renders the subsequent recoverability decision(s) unlawful. Thus, non-notification would have constituted a material and determinative issue in any full merits appeal against the recoverability decisions. Moreover, as noted by the Commissioners in R(IS)15/04, where official error is established, a claimant is entitled, not simply as a matter of discretion, to a revision of any decision which has disadvantaged them.

In these circumstances, I do not accept that the Appellant had been deprived of a full merits appeal. The lack of notification of the revised entitlement decision was inextricably connected to the lawfulness of the recoverability decisions themselves, against which the Appellant indisputably had a right of appeal. She accordingly had the protection of a full rehearing on the merits of the recoverability decisions before the First-tier Tribunal, which she ultimately did not pursue; had she done so, the absence of notification would rightly have been an issue for the tribunal to determine.

Further, in 2020 the Appellant sought revision of the 2007 recoverability decisions on grounds of official error pursuant to regulation 3(5)(a) of the 1999 Regulations. Any refusal by the Secretary of State to revise those decisions is a determination susceptible to judicial review.

The Appellant relies upon the Court of Appeal judgment in Wood v Secretary of State for Work and Pensions, to support the submission, that a right of appeal should be conferred against a refusal to revise. In Wood the primary concern was the absence of an appeal against a refusal to supersede, rather than a refusal to revise. The Respondent having accepted in that appeal that the lack of an appeal against the refusal to supersede breached Article 6 of the Convention.

The distinction between revision and supersession in this context is material. Revision corrects an error in the original decision with retrospective application; supersession concerns a process where new or changed facts arise only after the entitlement decision which may require that decision to be replaced (see Arden LJ’s (as she then was) analysis in Wood set out at [83] below). The factual basis for revision can be considered on appeal against the original decision; the same cannot be said about facts giving rise to an application for supersession, because the change of circumstances arise only post decision. In the latter case, section 12(8) of the 1998 Act applies, and precludes consideration by the tribunal.

Further, it is notable that critical to the Court of Appeal’s analysis in Wood was the purpose behind the statutory amendment to section 12(9) viz supersession. Rix LJ (with whom Dyson LJ agreed) observed at paragraph 47:

Arden LJ (as she then was), adopted a different approach, stating:

There was no equivalent rationale or proposed statutory amendment in the context of revision akin to section 12(9) of the 1998 Act. I am satisfied that the rationale of the Court of Appeal cannot be read across to import an appeal right against a refusal to revise a decision into section 12(1) of the 1998 Act. In the circumstances, the ratio and analysis in Wood does not assist the Appellant.