[2025] UKUT 249 (AAC)

The legislative scheme governing the making and alteration of benefit decisions is, for these purposes provided for in the Social Security Act 1998. Section 8 of the 1998 Act enables the Secretary of State to determine entitlement to relevant benefits. Such decisions acquire legal finality by virtue of section 17 of the 1998 Act, save where altered on appeal, revision, or supersession.

The process by which entitlement decisions may be varied is specifically prescribed. Section 9 of the 1998 Act permits the revision of a decision, generally with retrospective effect, upon application or the Secretary of State’s own initiative and within a set time frame. Of particular significance for present purposes, regulation 3(5)(a) of the 1999 Regulations expressly permits a decision to be revised at any time if it was made in consequence of official error. This is defined in regulation 1(3) of the 1999 Regulations as an error made by an officer of the Department of Social Security, not materially contributed to by anyone outside the department, and excluding errors of law only identified by later court or tribunal decisions.

Supersession is governed by section 10 and regulation 6(2) of the 1999 Regulations, arising where a change of circumstances is established. The distinction is not merely procedural: revision retrospectively corrects an error arising when the original decision was made, whereas supersession responds to a subsequent change of circumstances after the decision was made which bears on entitlement to that benefit and is not retrospective in effect.

The right of appeal against the above decisions is embedded within the 1998 Act. Section 12 confers upon the First-tier Tribunal jurisdiction to hear appeals against entitlement decisions (original or revised), supersession decisions (including a refusal to supersede), and decisions as to recoverability made under section 71 of the Social Security Administration Act 1992. Section 12(6) requires written notice of both the operative decision and the right of appeal, as further set out in regulation 28(1) of the 1999 Regulations.

The Secretary of State’s statutory power to recover overpayments, central to this appeal, is conferred by section 71(1) of the 1992 Act. Recovery is permitted where overpayment results from misrepresentation or failure to disclose material facts.