[2025] UKUT 299 (AAC)

SC’s appeal

Having decided FTT1’s decision regarding SC’s appeal involved material errors of law, it is appropriate to exercise my discretion to set aside the FTT’s decision dated 28 July 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for it to be decided afresh or to remake the FTT’s decision myself.

LP asked me to remit SC’s appeal to a new First-tier Tribunal, if I decided FTT1 made an error of law. LP felt not all of the arguments SC wanted made had been put forward at the FTT hearing. She had learned a lot from the experience and would have presented SC’s case differently.

Mr Howell submitted that if the Upper Tribunal decided FTT1 had made an error or errors of law, the SSWP considered the correct approach was to re-make FTT1’s decision, rather than to remit it for redetermination.

I have taken both sets of representations into account. Applying the overriding objective in rule 2 of the UT Rules 2008, I have decided to remit SC’s appeal to be decided by a new First-tier Tribunal.

The reasons favouring remitting SC’s appeal to a new Tribunal include that LP feels there are other arguments she would wish to put forward (for example, the disability discrimination argument raised in her appeal form to the FTT). That does not mean I consider those arguments are likely to succeed. Instead, it simply acknowledges that there are other areas where SC challenged the SSWP’s decision, but they were not resolved when her appeal was decided.

SC’s FTT appeal form stated she could not access her UC journal for her first UC claim because it was closed. SC said her journal would confirm what her work coach and other DWP staff had told her about the consequences of going abroad. LP also mentioned this at the hearing. Looking at the FTT appeal bundle, while there are claim history notes (see pages 6-7 and 21 of the FTT bundle), these do not appear to contain messages exchanged between SC and her work coach. DWP would have access to SC’s full UC journal. It appears DWP may have instead produced a summary of what DWP staff say occurred instead of the actual events. Under rule 24(3)(c) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, DWP is required to provide copies of all documents relevant to the appeal in its possession. The UC journal notes and messages are arguably relevant to one of SC’s appeal grounds to the First-tier Tribunal.

A new First-tier Tribunal can consider SC’s arguments about what DWP told her and, to the extent it considers it relevant, make findings about that. Such factual findings may be relevant if SC decides to make a formal complaint to DWP and, ultimately, to pursue a complaint to the Independent Case Examiner. Addressing whether SC was given incorrect advice and the distress that this caused her, will more likely allow her to feel heard about this element of her appeal.

Finally, the Upper Tribunal is considering the meaning of regulation 11(1)(b) of the UC regulations 2013 in two other appeals, which follow on from the decision in AM. The Upper Tribunal has heard arguments from the parties in both those appeals. I cannot say this will make any difference to the outcome of SC’s appeal, because her circumstances appear to be different to those in AM. However, it would be preferable for her appeal to be dealt with by a First-tier Tribunal that can hear all the arguments, make factual findings, and apply the law as the Upper Tribunal will shortly confirm it to be.

I have made directions at pages 3 to 4 above about the rehearing of SC’s appeal. These include for her appeal not to be re-listed until the two Upper Tribunal decisions dealing with AM are published. It is open to the next Tribunal hearing SC’s appeal to make directions about whether DWP should provide copies of her full UC journal entries for the relevant period.

MJ’s appeal

FTT2’s decision did not contain material errors of law. MJ’s appeal to the Upper Tribunal is therefore dismissed.