[2025] UKUT 249 (AAC)

The Appellant submits that she was never notified of the revised entitlement decision, which she identifies as the first official error by the Secretary of State. This is supported by the absence of any decision letter in the Respondent’s records, an unticked notification box in the internal decision record, inconsistent Debt Management notes regarding recoverability, and her recollection of being told at her criminal trial that she owed no money to the DWP. Collectively, this evidence supports her claim that the revised entitlement decision was never notified to her.

It was submitted that the following legal consequences flow from the non-notification of the revised entitlement decision:

A decision affecting rights has no legal effect until it is communicated and cannot trigger legal consequences or appeal time limits (R(Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604 relied). Notification is a constitutional requirement for access to justice. Without it, her benefit to entitlement could not be lawfully altered, nor could her statutory appeal rights arise under section 12 of the Social Security Act 1998. As a result, she was deprived of her right to appeal, and judicial review is not an adequate substitute, as confirmed in R(CJ) and SG v Secretary of State for Work and Pensions [2017] UKUT 324 (AAC).

The Secretary of State’s power to recover overpayments depends on a valid, notified revised entitlement decision. Without notification, there is no lawful basis for recovery, making the recoverability decisions ultra vires and unenforceable (LL v Secretary of State for Work and Pensions [2017] UKUT 324 (AAC) relied). The initial failure to notify that the entitlement was revised irreversibly tainted the subsequent recoverability decisions (R(DN(Rwanda) v Secretary of State for the Home Department [2020] UKSC 7; [2020] AC 698 relied).

Consequently, the notification of the recoverability decisions and subsequent recovery of overpayment was ultra vires and constituted further official errors. The errors are attributable solely to the Secretary of State and fall within the definition of “official error” under regulation 1(3) of the 1999 Regulations.

This case is distinguishable from R(IS) 15/04, the Appellant was never notified of the revised entitlement decision upon which the recoverability decisions were predicated. Article 6 ECHR compliance required, in the absence of an opportunity to appeal the revised entitlement decision, a right of appeal against a refusal to revise the recoverability decisions (Wood v. v Secretary of State for Work and Pensions [2003] EWCA Civ 53 relied). This approach is reinforced by R(CJ) and SG v Secretary of State for Work and Pensions, where the Upper Tribunal held that judicial review cannot replace a statutory appeal in cases of official error, and that a merits-based appeal before the Tribunal is essential for compliance with Article 6 ECHR.

PH and SM v Secretary of State for Work and Pensions established that time for appealing a decision will run from refusal to revise for official error, even where the application for revision is made outside of the 13-month appeal window. This principle should apply equally to decisions made before the mandatory reconsideration regime. Restricting appeal rights to the mandatory reconsideration regime would allow the Secretary of State to circumvent appeal rights by refusing to revise on official error grounds and not providing a written notice under section 3ZA of the 1999 regulations. Section 9(5) of the 1998 Act should be interpreted to mirror the effect of the mandatory reconsideration legislative provisions, providing that the time to appeal runs from a decision to refuse to revise.

Alternatively, if the Tribunal finds a right of appeal only arises against the 2007 recoverability decisions, and any appeal is out of time, the Appellant submits time should be extended under Adesina v Nursing and Midwifery Council. She contends her case is exceptional: she was unaware of the revised entitlement decision and could not have known the recoverability decisions were legally invalid. Once aware, she acted promptly to challenge them. The statutory basis for appealing entitlement and recoverability decisions differs, and these factors, she submits, satisfy the Adesina threshold for admitting a late appeal in the interests of justice and to give effect to her Article 6 rights.