[2025] UKUT 131 (AAC)

The genesis of the 22 July letter remains something of a mystery. On the face of it, it appears to be a decision letter reporting a decision made on behalf of the Secretary of State under section 10 of the Social Security Act 1998 to supersede an earlier decision of the Secretary of State, but District Tribunal Judge Ly didn’t have to take the 22 July letter at face value. He had to evaluate the evidence for himself and make findings based on the evidence as he assessed it. That is precisely what he did. He explained his thinking in this regard in §18 of the decision notice:

“[…] Given [the claimant] had not asked for a review (whether that be a request for revision or supersession) of her PIP award, and there was no record, or obvious reason why the Secretary of State would have taken such action on her own initiative, the Tribunal’s view was that the only rational conclusion, based on the evidence before it, was that the 22/07/21 letter was issued in error.”

The finding that the letter was issued in error was open to the judge on the evidence before him. There is no basis for the Upper Tribunal to interfere with that element of his decision making.

Having made that finding of fact, the judge decided that there was not, therefore, any decision made under section 8 or section 10 of the Social Security Act 1998. That finding follows inexorably from his first finding, and it too was clearly open to him.

Having found that there was no decision made under section 8 or section 10 of the Social Security Act 1998, the judge was then bound to conclude that he lacked jurisdiction to consider the appeal and to strike the proceedings out under rule 8(2)(a) of the FtT Rules.

Further, even had the judge found that the 22 July letter evidenced a decision made on behalf of the Secretary of State on the claimant’s entitlement, he would still have been bound to strike out the proceedings.

CIS/4/2003 concerned a refusal by the Secretary of State to revise a previous decision under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999), which provides for revision of a decision of the Secretary of State which was made under section 8 or 10 of the Social Security Act 1998 and which arose from an official error. In that appeal the panel of Social Security Commissioners decided that there was no right of appeal against such a decision not to revise, and the decision which the Secretary of State had refused to revise was, under section 17 of the Social Security Act 1998, “final”.

In R (CS) 5/09, a case which concerned a refusal by the Secretary of State to vary the calculation of a non-resident parent’s liability to child support, Judge Jacobs rejected the argument that it was necessary to infer a right to appeal against a decision not to revise under the Child Support Act 1991, because the legislation provides for an appeal against the original decision, “and that is sufficient to include the original decision when a decision has been made not to revise it” (see §16). The same principal applies here.

Turning again to the facts of this case, even were it accepted that a decision maker had reached a decision in the terms described in the 22 July letter, that decision simply confirms every element of the extension decision made on 7 November 2020. It is a decision neither to revise nor to supersede the extension decision. In other words, to leave the extension decision in place exactly as it was. As such, the only decision against which a right of appeal lay was the extension decision, and that was not the decision under appeal in the proceedings before the Tribunal.