[2025] UKUT 249 (AAC)

The Respondent’s starting position is that the Appellant was properly notified of both the revised entitlement decision and the subsequent recoverability decisions. Notification is said to be standard procedure following the internal decision-making process, and the internal record supports that a revision decision was made. One month after the record, the Appellant was notified of the recoverability decisions. The Respondent explains the absence of the revised entitlement decision letter by reference to document destruction policies. Correspondence between Debt Recovery and the Appellant from 2007 to 2023, as well as her involvement in criminal proceedings, support that she understood the distinction between entitlement and recovery decisions. The Respondent challenges the Appellant’s credibility in claiming no knowledge or paperwork regarding the overpayments. The Respondent also cautions against placing undue weight on the empty notification check box, as other sections of the record were also blank, where that information had been known to the decision-maker. The Respondent relies on analogous factual findings in Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 438 (AAC), at paragraphs 32 and 39.

The Respondent concedes that if the Appellant was not notified of the revised entitlement decision by written notice, this could constitute an “official error” under regulation 1(3) of the 1999 Regulations. Applying the principles from R(Anufrijeva), the Secretary of State accepts that without notification, the entitlement decision could not have legal effect and there would have been no valid basis to reduce the Appellant’s Income Support.

Consequently, if the revised entitlement decision was not notified, there is no valid appeal before the Tribunal regarding that decision. The Respondent’s submissions are twofold: either the internal record of the revision does not amount to a ‘decision’ for appeal purposes, or, if there was a valid entitlement decision, it has no legal effect until notified, consistent with the House of Lords’ approach in R(Anufrijeva).

The Secretary of State acknowledges the Tribunal’s authority to determine the validity and legal effect of the revised entitlement decision as the basis for the recoverability decisions. This stems from the statutory requirement under section 9 of the Social Security Act 1998 that a recoverability decision is only lawful if preceded by a formal revision or supersession of the underlying entitlement. The Supreme Court in R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] 2 AC 15 confirmed that overpayment recovery cannot proceed without first correcting the original award through proper procedures. Here, any invalidity in the revised entitlement decision arises from a failure to notify, not from errors in calculation or law.

On jurisdiction, the Respondent submits that the appeal rights arose from the revised and notified entitlement decision of 7 June 2007 and the recoverability decisions of 22 June and 13 September 2007, there is no right of appeal against a refusal to revise the recoverability decisions for official error (R(IS) 15/04 relied), this adjudication process is Article 6 compliant. The time limits for appealing the recoverability decisions were governed by regulations 31 and 32 of the 1999 Regulations, and the Appellant did not appeal within the prescribed time. These decisions predate the mandatory reconsideration regime, PH and SM v Secretary of State for Work and Pensions and CJ and SG are not applicable. The Tribunal Procedure Rules do not create a statutory right of appeal against a refusal to revise the recoverability decisions, nor do they apply to an appeal against decisions made in 2007, irrespective of an anytime application for revision for official error.

Alternatively, even if the Appellant was not notified of the revised entitlement decision, the Respondent submits she was aware of the recoverability decisions, which is relevant to the Adesina analysis. There are no exceptional circumstances to justify the Appellant’s fifteen-year delay in appealing the original recoverability decisions. The Appellant’s claim that she lacked awareness of her appeal rights is contradicted by documentary evidence showing proper notification of both the recoverability decisions and her appeal rights. The record confirms she received clear procedural notifications, undermining any basis for extending the time limit under Adesina principles.