[2025] UKUT 299 (AAC)

The Upper Tribunal is in the unusual position of being invited to explain the legal basis for a principle or approach that has been applied since around 2000, largely without challenge by either SSWP / local authority decision-makers or by benefit claimants. The approach in question straddles existing decision-making legislation (e.g., the SS Act 1998 and Schedule 7 to the CSPSS Act 2000) and historic decision-making legislation (the Administration Act 1992).

The mechanism for making closed period supersession decisions has not previously been considered in detail. This is probably because they operate in a (mostly) benign way. They allow a benefit claimant whose entitlement has been interrupted by a temporary, fixed period of non-entitlement, to remain entitled overall to benefit without having to make a fresh claim. They prevent artificial inflation of overpayments of benefit. I use the word “artificial” to mean an overpayment that carries on increasing even when the person starts to satisfy the entitlement conditions again. A closed period supersession means the overpayment is restricted to the specific period during which the claimant did not meet the entitlement conditions. It provides both continuity and accuracy of benefit entitlement.

The ability to make a closed period supersession decision has been identified in guidance issued by the SSWP to its own decision makers (Decision Makers Guidance – “DMG”) and also to local authorities (Housing Benefit Guidance Manual and A Circulars). The SSWP also published guidance about closed period supersession decisions for UC awards, called Going abroad. That guidance was deposited in the House of Commons Library in 2022. SC referred the FTT to it in her appeal.

The reason closed period supersession decisions have become an issue in the present appeals is because given the circumstances for the claimants, it has either not been possible to make a fresh claim for the benefit that ended (for MJ) or there have been adverse consequences caused by a break in the continuity of the benefit award (for SC). Both claimants have therefore argued that a closed period supersession decision should have been made in their circumstances to maintain the benefit award they already have.

In CIB/5759/1999, a claimant was awarded invalidity benefit in 1990 on the basis he was incapable of work. In 1995, his award was transferred to become long-term incapacity benefit. In 1998, it was discovered the claimant he had been working, which he admitted in a taped interview in August 1998. An adjudication officer reviewed the decision in November 1998 and decided the claimant had been working since April 1995 and was not entitled to incapacity benefit after that point. The adjudication officer also decided the claimant had been overpaid benefit from 1995 to 1998 and this was recoverable from him. When the appeal went before a tribunal, it confirmed the SSWP’s decision and refused the appeal.

One of the appeal grounds to the Social Security and Child Support Commissioners was the tribunal should have considered the effect of a regulation transferring the claimant’s invalidity benefit award over to incapacity benefit. The transferring regulation effectively preserved treating the person as incapable of work under the earlier, more generous, exempt work regime applicable for invalidity benefit.

The adjudication officer treated the overpayments of both invalidity benefit and incapacity benefit as caused by the claimant failing to disclose a material fact relating to his entitlement to invalidity benefit (his earlier benefit). Mr Commissioner Bano decided that, as a matter of causation, the adjudication officer was entitled to treat both overpayments as having been made in consequence of the claimant failing to disclose a material fact (his work) while receiving the earlier benefit of invalidity benefit.

Mr Commissioner Bano decided, however, that when the adjudication officer made his revised decision about the claimant’s benefit entitlement up until the date his award was reviewed, this should have taken into account any matter that would have given him entitlement to incapacity benefit during the period before the review decision.

Mr Commissioner Bano acknowledged the claimant had not brought a claim for incapacity benefit and was being paid it on the basis he had been entitled to invalidity benefit before transferring across to incapacity benefit. However, in explaining the requirement to look at whether the claimant had any underlying entitlement to incapacity benefit during the period in question, Mr Commissioner Bano stated:

“…any other approach would mean the claimant would be liable to repay all the incapacity benefit which he received even if he became entitled to that benefit after the transition date, for example by giving up work permanently.” (paragraph 9 of decision)

In CIB/5170/1999, a claimant had been receiving invalidity benefit in 1976, which later became an award of long-term incapacity benefit in April 1995. The claimant started working in 1994, before he was transferred to incapacity benefit. The SSWP became aware he was working and in November 1996, appeared to make some form of review decision about his ongoing entitlement to incapacity benefit. In May 1997, the SSWP decided the claimant was not entitled to a past period of benefit and had been overpaid a recoverable overpayment.

Mr Commissioner Mesher decided that when giving a revised decision on review where benefit had actually been paid, the SSWP could not simply say the claimant had no entitlement to any incapacity benefit from April 1995 onwards without making an incapacity benefit claim. Mr Commissioner Mesher stated:

“The principle that on a review the question of entitlement must be considered in relation to each week within the period in issue must be applied in such a case as if a claim for incapacity benefit was in being. Take the following example. A recipient of invalidity benefit starts work in March 1995 and does not tell the Department. He goes on receiving invalidity benefit and moves onto incapacity benefit. He stops work completely in May 1995. This is all discovered in 1998, when the person has passed several all work tests. The Secretary of State’s submission would mean that the revised decision would be that there was no entitlement to incapacity benefit at all and that all the incapacity benefit paid down to 1998 would be recoverable as resulting from the failure to disclose. Such a result cannot possibly be accepted. There should in my example be no revision in relation to the period after the person stopped work.” (paragraph 15 of decision)

Mr Commissioner Mesher emphasised the review decision had affected retrospectively the period for which incapacity benefit had actually been paid on the authority of the award of invalidity benefit. He observed his approach was similar to Mr Commissioner Bano’s in CIB/5759/1999 (decided around three weeks earlier) and stated he agreed with Mr Commissioner Bano’s analysis.

In CIB/4090/1999, Mr Commissioner Levenson considered an appeal where a claimant had been entitled to incapacity benefit, but in relation to some of the period covered by the award, the SSWP had (later) identified that he was working. Under regulation 16 of the Social Security (Incapacity for Work) (General) Regulations 1995, a person who will be treated as capable of work on each day he works, subject to certain exceptions (for example, exempt work).

Mr Commissioner Levenson decided the adjudication officer had made an error in not putting a closing date on the effect of the decision, made after the claimant had finished doing the relevant work. He explained that regulation 16(1) can only operate in respect of periods during which a claimant is doing work to which regulation 16(1) applies and which does not come within one of the exceptions. Mr Commissioner Levenson decided that unless and until entitlement to benefit was reviewed on the other grounds, a claimant continued to be entitled to incapacity benefit during any periods when regulation 16(1) did not operate.

In CIS/2595/2003, a claimant appealed against a decision that he had to repay income support because he had failed to disclose to DWP that he was working. The claimant denied working. The tribunal dealing with his appeal decided the claimant had worked and that there were valid grounds to revoke his entitlement under regulation 16 of the Social Security (Incapacity for Work) (General) Regulations 1995. It decided a recoverable overpayment had also arisen. In its Statement of Reasons, the tribunal judge expressed uncertainty about whether regulation 16 only applied for the weeks when work was done or whether it ended a claim for benefit on the basis of incapacity.

Mr Commissioner Bano decided that a valid review and revision decision would have involved an overpayment recoverability decision being limited to the periods when the claimant was shown to be working. Mr Commissioner Bano stated the position was correctly set out by the (SSWP’s) representative in CSIS/745/2002, and a similar position had been taken in CIB/5759/1999, CIB/5170/1999 and CIB/4090/1999.

In CSIS/745/02, the SSWP revised an earlier disallowance of income support and decided a claimant was not entitled to it (from presumably an even earlier date). The SSWP decided the claimant was not entitled to income support because she was in paid employment, which she failed to disclose, and as a result there was an overpayment, which was recoverable from her.

The claimant appealed on the basis she was off work sick for a period of time during the period she was paid income support. The SSWP submitted to the tribunal that an overpayment still arose because if the claimant had told DWP she was working, her claim would have been closed down and she would have had to make a new income support claim for any period of sickness she wanted to claim. The tribunal confirmed the SSWP’s decision.

On appeal to the Social Security Commissioners, the SSWP conceded that both it, and the tribunal, had adopted the wrong approach. The SSWP’s representative relied on CIB/5759/1999 and CIB/5170/1999 and submitted:

“If, during the currency of an award, an overpayment arises because a claimant ceases to satisfy the conditions of entitlement, but later, and still within the currency of the award, he satisfies the conditions of entitlement, the disentitlement on revision or supersession is not indefinite because he has not made a new claim at the relevant time, but is instead limited to the period where the conditions of entitlement are not satisfied, unless some other ground for disentitlement arises.”

Mrs Commissioner Parker accepted this submission. She decided that if it is decided retrospectively that a claimant is not entitled to benefit during a period when it was actually paid under the authority of an award, entitlement must still be considered in relation to each week within the period in issue, as if the award still existed. She explained that even though the income support claim would have been closed down earlier if the true facts had been known (and new claims required after that point), when calculating the overpayment amount, DWP must still take account of any matter that would have entitled the claimant to IS during the period before the revision decision.

Mrs Commissioner Parker’s decision was made under the SS Act 1998. It did not address in specific terms, the fact that the cases the SSWP had relied on were made under the decision-making legislation in place before the SS Act 1998. Mrs Commissioner Parker’s decision was made before Mr Commissioner Bano’s decision in CIS/2595/2003, even though Mr Commissioner Bano made his decision under the legislation existing before the SS Act 1998.

Around 10 years later, in CIS/1305/2012, Upper Tribunal Judge Wikeley dealt with an appeal where a claimant had been receiving IS and was then taken into, and remanded in, police custody. The claimant was granted bail by the court. A few days later a DWP decision-maker decided the claimant no longer met the entitlement conditions for IS because when he was taken into police custody, he had become a “prisoner”. A First-tier Tribunal upheld DWP’s decision. Judge Wikeley decided it was wrong to do so because:

“…by the time the DWP decided the claimant was no longer a prisoner, the appropriate (and proportionate) decision would have been to apply a ‘closed period supersession’ withdrawing entitlement to income support only for the short and defined period in custody” (paragraph 3 of decision).

In CIS/1305/2012, the appellant’s representative argued that the case should have been dealt with by way of a “closed period supersession” as explained by Mr Commissioner Bano in CIS/2595/2003 (see above at paragraphs 127 to 128). Judge Wikeley explained he agreed with Mr Commissioner Bano’s analysis. He noted Mr Commissioner Bano’s decision had been taken under the decision-making regime existing before the SS Act 1998. Judge Wikeley explained that decision CSIS/745/2002 was, however, decided under the regime introduced in the SS Act 1998. Judge Wikeley then observed, at paragraph 14 of his decision:

“That approach makes obvious good sense. As the Department’s own guidance notes (Decision Makers Guide, Vol 1, ch 04, paragraph 04117): “A decision awarding benefit may be superseded for a fixed period to take account of a change of circumstances which has already come to an end. The supersession only replaces the original decision for that period.”

Judge Wikeley concluded that when a claimant notified a change of circumstances that had already ended by the time the (supersession) decision was taken, the correct way to deal with any period of non-entitlement was by a closed period supersession decision. He decided there was no requirement for a new claim where there was a fixed period of non-entitlement. Judge Wikeley decided the award should be superseded for that limited fixed period and the supersession only replaced the original decision to that extent.

Judge Wikeley’s decision was not published on the relevant Upper Tribunal website (possibly because it referred to established case law and DWP’s published guidance). As a result, it was not known about publicly although, as a party to that appeal, the SSWP had a copy of the decision.

In SSWP v NC (ESA) [2023] UKUT 124 (“NC”), Upper Tribunal Judge Rowland dealt with the situation where the SSWP had decided a benefit claimant was not entitled to employment and support allowance (“ESA”) for a past period because he had been in prison. At the time of the SSWP’s decision, NC had been released from custody. Upper Tribunal Judge Rowland explained the SSWP could (and arguably should) have made her decision about continued entitlement sooner, namely once it was realised that NC had been sentenced to a period of imprisonment lasting longer than six weeks.

Judge Rowland stated that because NC had been released by the time the decision was made, it was not correct to say he had to make a new claim to have his current entitlement determined. Judge Rowland decided that NC had an ongoing benefit award, even though the SSWP had decided to suspend payment of it. Judge Rowland stated, at paragraph 27:

“A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended. A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having been made.”

Judge Rowland did not refer to the earlier decisions by Commissioners Mesher, Bano and Parker, but the wording of his decision at paragraph 27 makes clear that he likely had in mind the principle they had established. Judge Rowland also did not refer to Judge Wikeley’s decision in CIS/1305/2012, but this is unsurprising as it had not been published.

In AK & DA v SSWP (UA-2024-000227-ULCW), another unpublished decision by the Upper Tribunal, Upper Tribunal Judge Brewer considered the SSWP’s published policy called “Going abroad”, which dealt with temporary absences abroad. This policy guidance states, at the relevant section:

“Temporary absences abroad

It is a general requirement that a claimant must be in Great Britain (GB) to be entitled to Universal Credit but there are circumstances when a person is still entitled to Universal Credit whilst temporarily being absent from GB.

Where a person does not inform Universal Credit of their temporary absence abroad until after the event, they will not be entitled for the period of absence. (Whole assessment periods only).

When Universal Credit are notified after the event and this does not fall under circumstances when 1 month can be extended, the assessment periods in question will be reduced to nil. This prevents the claimant terminating their claim and having to make a new one.

For payment purposes, legislation allows a claimant to go abroad for any reason for up to 1 month. If the claimant is entitled to Universal Credit immediately before they go abroad and their absence will not exceed 1 month, they can be treated as being in GB. However, they must still satisfy their work-related requirements and meet their Claimant Commitment.”

Judge Brewer decided that the SSWP’s Going abroad policy, when correctly interpreted, was limited to retrospective closed supersession cases. She decided the language and guidance within the policy reflected the decision-making steps required where there was a closed supersession decision, which Judge Brewer observed reflected the decision in CIS/1305/2012 (Judge Wikeley’s decision).

For completeness, although it is simply setting out the SSWP’s position and is not binding in any way, the current version of the SSWP’s Decision Making Guidance (“DMG”) about this issue (Chapter 04) describes a supersession for a closed period at paragraph 04117. This states:

“A decision awarding benefit may be superseded for a fixed period to take account of a change in circumstances which has already come to an end. The supersession only replaces the original decision for that period.”

For HB, the relevant guidance includes HB/CTB Circular A6/2009 and Part C of the Housing Benefit and Council Tax Guidance (13 September 2013). The parties referred me to the first piece of guidance, but not the second (which I identified myself when making these decisions). The gov.uk website explains that the SSWP updates the Housing Benefit guidance manual frequently through Housing Benefit and Council Tax benefit ‘A circulars’.

The substance of Part C6 of the Housing Benefit and Council Tax Guidance is dated July 2009. It states, at 6.662, citing CIS/2595/2003 as authority:

“When a person notifies a change of circumstances which has already ended then the correct way of dealing with any period of non-entitlement is by way of a closed period supersession. There is no requirement for a new claim when there is a fixed period of non-entitlement. The award may be superseded for that period and the supersession only replaces the original decision to that extent.”

Paragraph 6.662 of the Guidance provides the earliest reference I have found to the phrase “closed period supersession”, which Judge Wikeley used subsequently in CIS/1305/2012.

At paragraph 6.663, the Housing Benefit Guidance states:

“Closed period supersession should not be used when an advance notification of a change can be actioned before the change takes place because the change notified in advance may not take place. If the notification cannot be actioned before the anticipated date of change then the period may be dealt with by way of a closed period supersession.”

The legislation before the Social Security Act 1998

Before the relevant provisions of the SS Act 1998 were brought into force, the power allowing the SSWP to consider whether to change an existing decision was review.

Mr Commissioner Jacobs (as he then was) explained in paragraph 19 of CIS/3655/2007 that decisions about benefit entitlement may have to be changed from time to time, for example, to correct mistakes or to update the decision to take account of changes of circumstances. The concept used for this purpose from 1948 onwards was review and only allowed on specified grounds. It provided a framework for decision-making. It also provided protection for claimants against decisions (including those awarding benefit) being changed arbitrarily.

As Mr Commissioner Jacobs also explained in paragraph 20 of his decision, the conceptual essence of review remained relatively straightforward until scrutinised by the Social Security Commissioners in the mid-late 1980s. The Commissioners undertook a more sophisticated analysis, distinguishing between review (a process of considering whether to change a decision) and revision (the change, if any were made, to a decision).

At the time when the decisions were made described at paragraphs 117 to 128 above, the power to review decisions was set out in Part II of the Social Security Administration Act 1992 (“the Administration Act 1992”). It was structured into a general power, covered by sections 25 to 29, with powers at sections 30 to 35 for the specific benefits of attendance allowance, disability living allowance and disability working allowance.

The power of review in the Administration Act 1992 allowed an adjudication officer (or the social security tribunal) to consider whether benefit decisions made under the Administration Act 1992 were correct, had always been wrong, or had initially been correct but were no longer correct based on subsequent events (including what was anticipated to happen). The third category included relevant changes of circumstances and situations where the decision was based on another decision that had itself been reviewed

More specific provisions in relation to reviewing different benefit decisions (including whether they could be reviewed in a particular way or in terms of a particular element of them), were set out in a series of regulations called the Social Security (Adjudication) Regulations. Those regulations also provided for dates on which revision decisions following a review would take effect. The final set of these adjudication regulations in force before the SS Act 1998 was introduced, was called the Social Security Adjudication Regulations 1995 (SI reference:1995/1801).

Section 60 of the Administration Act 1992 made the decision of a benefit claim final unless it could be changed by a provision in Part II (adjudication) of the Act, or by regulations made under section 58 of the Act.

I have looked at the case law described at paragraphs 117 to 128 above in the context of those legislative provisions. The fact the decisions being considered were revision decisions made following a review, simply meant they were decisions changed by the SSWP on one of the individual grounds allowing him or her to review whether a previous benefit entitlement decision was ever, or still remained, correct.

The components of the decisions were therefore:

None of the case law described the change being made as a closed period supersession. This is not surprising because the power of supersession had not yet been introduced.

In considering the legislation, I have not been able to identify a dedicated provision for making a closed period supersession type decision. This is consistent with the fact the Commissioners’ decisions described above refer to revision decisions having been made on the ground of review (setting out the ground in question) and do not describe other provisions allowing for that change to be made.

CIB/5759/1999 was the first decision referred to me that dealt with this issue but is different to a number of the other cases. The first difference is that Mr Commissioner Bano confirmed the appropriate review ground was not a relevant change of circumstances, but ignorance of a material fact. This was because the claimant had worked from before he transitioned from invalidity benefit to incapacity benefit, so his circumstances had arguably not changed.

The second difference is that when Mr Commissioner Bano remade the tribunal’s decision, the outcome was that the claimant had no entitlement to benefit during the period from when he started working, up to the date of the review decision. The period of non-entitlement was therefore closed only in the sense that it was ended by the review decision.

However, in making his decision, Mr Commissioner Bano took into account any matter that could have given the claimant entitlement to benefit in the period leading up to that review decision (irrespective of the fact there was no fresh claim for benefit during that time). This was the principle taken forward into subsequent case law, which included cases where factually, a claimant had started, once again, to meet the entitlement conditions by the date of the review decision.

The decisions described at paragraphs 117 to 128 above focused on benefits where entitlement was based on not being able to work, where the SSWP later decided the claimant was not entitled to the benefit as a result of having actually worked. I do not consider this means a closed period supersession type decision could only be made in those circumstances. It is clear the mechanism for changing the entitlement decisions was the decision-making legislation summarised at paragraph 156 above, rather than specific legislation about capacity for work.

I do not consider it matters that the case law dealt with weekly benefits, as opposed to more recent benefits that operate on a different, longer-term basis. Nor did any of the parties suggest that this was a relevant distinction to draw.

Section 8(1)(a) of the Social Security Act 1998 (“the SS Act 1998”) places a duty on the SSWP to decide a claim for a relevant benefit. Relevant benefit is defined in section 8(3). Section 8(1)(c) places a duty on the SSWP to make any decision falling to be made under a relevant enactment. That phrase is defined at section 8(4) and includes Chapter II of the SS Act 1998.

These provisions are not replicated in Schedule 7 to the Child Support Pensions and Social security Act 2000 (“CSPSS Act 2000”). Instead, section 134 of the Administration Act 1992 provides for HB to be funded and administered by a local authority.

Mr Williams and Mr Howell spent some time dealing with section 8(2). I address it in more detail below.

Once again, Mr Commissioner Jacobs’ decision in CIS/3655/2007 usefully summarises the legislative steps taken in the SS Act 1998 to reform the benefits adjudication process. Review was abolished and replaced by the twin concept of revision and supersession. Revision as defined in the SS Act 1998 should not be confused with the revision element of review in the Administration Act 1992. See paragraph 20 of CIS/3655/2007.

Section 17 of the SS Act 1998 Act confirms that a UC decision is final, subject to being changed by revision (section 9), supersession (section 10) or on appeal to a First-tier Tribunal (section 12).

Sections 9 and 10 of the SS Act 1998 do not themselves set out all the individual grounds on which a decision may be changed. Those grounds are set out in regulations dealing with decision-making, made using powers in the Administration Act 1992. The decision-making regulations relevant to UC are in the UC etc. (D&A) regulations 2013. There are equivalent regulations for the benefits administered by DWP that have been replaced by UC (the Social Security (Decisions and Appeals) regulations 1999). Sections 9 and 10 of the SS Act 1998 provide for regulations to set out the dates on which a revision or supersession takes place (“the effective date). Both sections also provide a default effective date, if no regulations have been made.

In a similar way to the SS Act 1998, Schedule 7 to the CSPSS Act 2000 provides that a HB decision is final, subject to being changed by revision (paragraph 3), supersession (paragraph 4) or appeal to a First-tier Tribunal (paragraph 6). The HB & CTB (D&A) regulations 2001 provide for the grounds on which a decision may be superseded or revised and the dates for these (as well as effective dates being provided in the HB Regulations 2006 - see, for example, part 9 of those regulations).

Section 12(1) of the SS Act 1998 confirms the right of appeal applies to a tribunal applies against a decision made under section 8 (on a claim) or section 10 (supersession). Section 12(1) includes a right of appeal against a decision revised under section 9.

Section 12(8) of the SS Act 1998 provides that in deciding an appeal, the First-tier Tribunal need not consider any issue not raised by the appeal (section 12(8)(a)) and shall not take into account any circumstances not obtaining at the time when the decision appealed against was made (section 12(8)(b)).

Paragraph 6 of Schedule 7 to the CSPSS Act 2000 makes equivalent provision for appeals against HB decisions (including decisions changing earlier decisions). See paragraph 6(1)(a) of Schedule 7. It also makes equivalent provision to section 12(8)(a) and (b) of the SS Act 1998 (see paragraph 6(9)(a) and (b)).

Just as Mr Williams and Mr Howell submitted at the hearing, I have not been able to identify provisions in the SS Act 1998 and related decision-making regulations that give a dedicated mechanism for making closed period supersession decisions. None are mentioned in the case law decided under the SS Act 1998 and described at paragraphs 129 to 142 above.

As described above for the pre-SS Act 1998 legislation, the components of the closed period supersession decisions under the SS Act 1998 and related regulations appear to be:

None of the legislative provisions describe making a supersession decision with an end date as well as a start date. Section 10(5) of the SS Act 1998 provides a default date on which a supersession decision shall take effect. This is the date on which the decision was made or the date when an application was made. It applies where the power in section 10(6) has not been used to make regulations for the supersession to take effect from some other date. Section 10(5) and (6) describe the date (singular) from which the decision takes effect. There are equivalent provisions to these in Schedule 7 to the CSPSS Act 2000.

I do not consider it makes any difference to the analysis that the SS Act 1998 distinguishes supersessions from revisions. The previous legislation only had one basis for considering changing a decision. The SS Act 1998 has two. It makes sense that the power being used in the context of the SS Act 1998 case law is supersession. Those cases involve the entitlement decision being changed with effect from a later date than when it first took effect.

As Mr Williams and Mr Howell each accepted, section 8(2) deals expressly with claims and does not apply to existing decisions. A Tribunal of Commissioners confirmed the following, in paragraphs 30 to 32 of R(I) 5/02:

I apply this authoritative analysis by the Tribunal of Commissioners in R(I)5/02. It confirms the power to supersede in section 10 of the SS Act 1998 is not affected by section 8(2) of that Act.

Section 8(1)(c) of the SS Act 1998 does, however, impose a duty on the SSWP to make any decision that could be made under Chapter II of that Act. This includes making supersession or revision decisions. Section 8(1)(c) is therefore relevant and applicable to supersession decisions.

I agree with Mr Howell that section 8(2) is relevant to making supersession decisions, although it does not impose any limits on that power. This is because section 8(2) confirms a claim no longer exists after it has been decided. As Mr Howell submitted, this must be considered in the context of the requirement in section 1 of the Administration Act 1992 that a person must make a claim for benefit (unless treated as having made a claim). Where an existing benefit award has been ended by a supersession decision, the claimant cannot remain entitled to benefit without either making a new claim, being treated as making one, or challenging (appealing) the supersession decision.

My analysis focuses on the SS Act 1998 and related legislation, to avoid discussing multiple pieces of legislation that are more or less the same to each other. The analysis should therefore be read as also applying to the equivalent provisions in the CSPSS Act 2000 and related legislation.

The power in section 10 of the SS Act 1998 to change decisions through supersession is clarified, and limited, by other legislative provisions and by case law.

A decision awarding either HB or UC creates an indefinite award (a running decision). This is confirmed for UC in regulation 36 of the UC etc. (Claims and Payments) regulations 2013. It is confirmed for HB by the removal of the previously periodic nature of a HB award from around 2004 onwards.

A decision awarding UC or HB is also a final decision, meaning it is conclusive that a person is entitled to that benefit, unless and until it is changed by revision, supersession, or through an appeal. This is confirmed by section 17 of the SS Act 1998, and by paragraph 11 of Schedule 7 to the CSPSS Act 2000.

In contrast, a supersession decision disallowing a benefit award is not a running decision. See the principles established in paragraph 13 of CIS/767/94 and in paragraph 16 of R(I)5/02. The principle established applies both to decisions disallowing an initial benefit claim and also to decisions disallowing an existing benefit award. Supersession decisions that change, and disallow, an existing award of UC or HB will therefore generally apply only within the period covered by the award decision leading up to, and including, the date of the disallowance decision.

The specific grounds allowing for a decision to be superseded and changed are set out in the relevant decision-making regulations. See, for example, regulation 23(1)(a) of the UC etc. (D & A) regulations 2013. Regulation 23(1)(a) allows a decision to be superseded for a relevant change of circumstances but only where there has been a relevant change. A change of circumstances can only be relevant to an existing award of benefit if it changes the award in some way (for example, by bringing it to an end).

Regulation 23(1)(a) only authorises a benefit award to be changed to the extent that the relevant change of circumstances applies. It does not provide a legal ground to change the benefit award for any periods of time when the change of circumstances is not present. There must be a legal ground allowing for the change and there must also be the factual circumstances to support that change being made.

This allows, and indeed requires, the decision-maker to look at all the period of time covered by the benefit award. The decision-maker must identify whether there are periods of time when the claimant meets the entitlement conditions as well as those where they do not. The benefit award cannot be changed during the periods of time when the claimant meets the entitlement conditions. Doing so would change the award outside the scope of the supersession ground and also breach the finality of the award decision.

This moves the analysis away from an argument it is unfair to fix claimants with artificial overpayments generated after they start to meet entitlement conditions again. It becomes an analysis where a claimant who has been paid under the authority of a benefit decision can only have that entitlement changed in the specific way permitted by the supersession ground and the circumstances in which it can properly be applied.

As explained by the majority of the Court of Appeal in Wood, (a) a supersession decision alters and replaces an existing decision, (b) the ground for supersession specified in the regulations must be satisfied before the power to supersede can be used, and (c) the existing decision can only be altered in a way that follows from what has been established. See paragraphs 23, 34 and 42 of that decision. As Mr Howell put it, the outcome decision must flow from the supersession ground relied upon.

If the supersession decision identifies past periods of non-entitlement, followed by the claimant meeting the entitlement conditions once more, it will alter and change the benefit award decision by modifying past entitlement to reflect this. However, the overall benefit award will remain a running decision and continue to apply into the future.

This analysis moves the situation away from one where closed period supersession decisions are justified by it being impractical or inconvenient to require a new benefit claim to be made, or because a new claim could not go back far enough to cover the whole period after entitlement was interrupted. It becomes an analysis where a new benefit claim cannot be made because there is (and remains) an ongoing benefit award that cannot be ended legally or factually by the supersession ground but can be modified by that ground for a fixed period of time.

If, however, a supersession decision is made disallowing an existing award of benefit, the decision will alter the indefinite award of benefit, turning it into a time-limited benefit award. This, together with the fact that a UC or HB supersession decision is not a running decision, explains why the supersession decision cannot be superseded for a later change of circumstances. The later change of circumstances is not relevant to the supersession decision, because that decision ceased to have effect after it changed and ended the benefit award.

This combination of legislative provisions and case law, explains how a closed period supersession is made. Drawing on these, the mechanism is that, at the time the supersession decision is made:

This analysis would also work with the legislation before the SS Act 1998 and CSPSS Act 2000, in terms of a review ground allowing the SSWP to consider whether to revise an otherwise final benefit award decision. It is consistent with the relevant case law for both sets of legislation.

None of the parties suggested an analysis in the specific terms I have reached. I have, however, relied on a number of Mr Howell’s and Mr Williams’ arguments in reaching it. Having identified this analysis, I consider the mechanism is consistent with, and contained within, the existing legislative framework. It is also compatible with the legislative framework previously applicable.

It is therefore not necessary to imply legislative provisions into the relevant legislation for UC and for HB to allow a closed period supersession decision to be made. All the architecture required to allow it to be made is already present, as a result of the legislation and the case law dealing with how supersession decisions operate.

I have also compared my analysis to the guidance issued by DWP, including for housing benefit. That guidance is not binding. However, it draws on Mr Commissioner Bano’s decision in CIS/2595/2003, which in turn drew on several other Commissioners’ decisions, summarised above. For what it is worth, my analysis does not obviously conflict with the guidance provided by DWP.

I have applied the analysis explained at paragraphs 183 to 198 above to Mr Williams’ arguments.

Mr Williams’ written skeleton argument submitted that a closed period supersession decision involves a pair of supersession decisions. At the hearing, Mr Williams very fairly acknowledged there were several difficulties with that argument (see paragraph 62 above). I agree those difficulties apply. I consider the following difficulty also applies. It incorporates some of the arguments Mr Howell put forward.

Making a closed period supersession using a pair of supersession decisions would involve three decisions. Decision A (awarding HB or UC) would be superseded by decision B (claimant does not meet entitlement conditions). Decision C would then in turn supersede decision B (claimant once again meets the entitlement conditions) and restore the benefit award.

Until decision B is made, decision A is a final decision operating as an indefinite award. As soon as decision B is made, it alters the award decision (decision A) and creates a new mixed decision where decision A is changed from applying indefinitely, to a time-limited award that ends. Once decision B is made, the award will cease to exist. Section 8(2)(a) of the SS Act 1998 confirms the claim that led that benefit award also no longer exists. The claimant must therefore make a new benefit claim to become entitled to benefit once more.

Mr Williams’ skeleton argument argued at paragraph 20 that the better analysis was that decision B and decision C would be made at the same time and promulgated together. The skeleton argument stated this meant there would never be a moment within the decision-making process where the award was completely extinguished. It did not, however, explain how the two decisions could be made and given at the same time.

The skeleton argument confirmed the legal ground for making each supersession decision would be that there had been a relevant change of circumstances. However, decision B (claimant does not meet entitlement conditions) would have to be made before decision C (claimant once again meets entitlement conditions). Decision C only represents a relevant change of circumstances to those addressed by decision B.

If decision B is not made before decision C, the only decision available to be changed through supersession is decision A. Decision C cannot change decision A because both decisions involve circumstances where the claimant meets the entitlement conditions for benefit. Legally and factually, there is no relevant change of circumstances (even an anticipated one) that would allow decision C to change decision A.

Decision C therefore would require decision B to have been made first, to be able to identify a set of circumstances that decision C can operate against. Once decision B has been made, however, the circumstances in paragraph 203 apply, the award ends and a new claim must be made.

For the reasons set out above, I do not consider the pair of supersession decisions argument is viable.

At the hearing, Mr Williams argued that closed period supersession decisions are made using a single supersession decision. Decision A awards a claimant UC or HB for an indefinite period. Decision B is the supersession decision changing decision A. The relevant change of circumstances is that the claimant is not going to meet the entitlement conditions for a fixed and known period of time. Mr Williams argued that if this is identified as the relevant change of circumstances, the supersession (giving non-entitlement) only operates for that fixed period.

I agree with Mr Howell that the relevant change of circumstances allowing MJ and SC’s UC or HB award to be superseded, was not that they would be abroad for a fixed period, but the fact that the length and circumstances of their absences meant they could not be treated as still present in Great Britain (or have their absences disregarded).

This was a relevant change because it meant each claimant no longer met a condition of entitlement to their benefit. It did not matter that they would, or might, meet that entitlement condition again at a future point. Nor did it matter that the future point was more clearly identifiable in their cases than a claimant who goes abroad and does not know when they will return.

Applying the principles established in Wood, what Mr Williams argued for as the outcome decision - a current period of non-entitlement followed by a future period of entitlement - would not flow from the supersession ground on which he relied. The supersession ground of relevant change of circumstances therefore does not authorise changing MJ and SC’s benefit awards in the way Mr Williams argued.

Mr Williams did not argue that any other supersession ground applied to SC and MJ. The written appeal grounds for MJ argued that her award should have been superseded using an anticipated change of circumstances. I deal with that below. Turning to the remaining supersession grounds available under the applicable legislation, I have considered them but decided they are not relevant to SC and MJ’s situations.

At the times that the individual decision-makers superseded SC and MJ’s individual benefit awards, the relevant change of circumstances was that each claimant no longer met the entitlement condition of being present in Great Britain. The outcome decision that flowed from this change of circumstances was that each claimant was not entitled to benefit. Making that supersession decision altered the indefinite benefit award, turning it into a time-limited award that came to an end.

By reason of section 8(2)(a) of the SS Act 1998 (and paragraph 11 of Schedule 7 to the CSPSS Act 2000), once their benefit award ended, neither SC nor MJ could be entitled to benefit without making a fresh claim. Since the supersession decision disallowing and ending the award did not operate indefinitely, MJ and SC could, in principle, make a new claim for benefit.

The reason SC and MJ have argued for a different outcome is the practical effects they experience through being required to make a fresh claim. In SC’s circumstances, this would restart the clock for her UC limited capability for work assessment. In MJ’s circumstances, it prevents her being able to make a fresh claim for HB, because UC is now the applicable income-related benefit where MJ lives. HB cannot be claimed where a claimant can instead claim UC.

Without wishing to diminish the fact these situations present considerable difficulties for SC and for MJ, the difficulties are practical ones rather than conceptual legal difficulties with the mechanism of supersession. The supersession ground of relevant change of circumstances does not allow SC or MJ’s benefit award to be changed in the way they contend it should be.

I have checked my analysis with my analysis about closed period supersessions generally. I am satisfied they are consistent and apply the same principles. They produce different outcomes because at the supersession date, SC and MJ did not meet the conditions of entitlement to their benefit and that was the relevant change of circumstances allowing each benefit award to be changed.

One of MJ’s appeal grounds in her UT1 form to the Upper Tribunal was that the power to supersede for an anticipated change of circumstances, would allow a supersession decision to be made reducing / removing entitlement for the period where one anticipated change will end entitlement, and the second one will restore it. This was argued under regulation 7(2)(a)(ii) of the HB & CTB (D & A) regulations 2001.

At the hearing, Mr Williams confirmed he was not arguing that the power to supersede for an anticipated change of circumstances in regulation 7(2)(a)(ii) would allow a closed period supersession to be made.

For the avoidance of doubt, regulation 7(2)(a)(ii) does not operate to allow a closed period supersession decision to be made. It faces the same difficulty as the arguments Mr Williams made at the hearing regarding supersession for a relevant change of circumstances that has already occurred.

As explained above, analysing the single supersession decision argument, decision A is that a claimant meets the entitlement conditions for HB. The relevant change of circumstances allowing decision B to be made is that the claimant no longer meets the conditions of entitlement. The relevant change of circumstances is not the length of that non-entitlement, but the fact it has occurred.

In MJ’s case, the power in regulation 7(2)(a)(ii) would only authorise a supersession decision to be made where: (a) the change of circumstances was relevant, and (b) it had not yet happened but was anticipated to happen. However, MJ could not satisfy either requirement. At the date LB Bromley made its supersession decision, MJ’s circumstances had already changed because she no longer met an entitlement condition due to her planned absence from Great Britain. The only change of circumstances relevant to changing her existing HB award was that MJ no longer met that entitlement condition. This change would be one where regulation 7(2)(a)(i) was applicable (i.e., that there had been a relevant change of circumstances).

MJ’s written appeal ground about regulation 7(2)(a)(ii) did not argue that the closed period supersession would involve a pair of supersession decisions. However, to be able to rely on the anticipated change that MJ would meet the entitlement conditions once more, there would need to be some form of intervening supersession decision (decision B) that she no longer met all the entitlement conditions for HB. Once decision B had been made, decision C could operate against it. Decision C would be able to identify a relevant change of circumstances (namely that MJ would meet the entitlement conditions once again) and this change would be anticipated rather than something that had already happened. This would theoretically satisfy the requirements of regulation 7(2)(a)(ii).

As explained above at paragraph 203, applying the pair of supersession decisions analysis, once decision B is made, it would end MJ’s HB award. Under paragraph 2 of Schedule 7 to the CSPSS Act 1998, MJ could not be entitled to benefit again without making a new claim for it.

The same difficulties would apply in trying to use the power to supersede SC’s UC award for an anticipated change of circumstances (regulation 23(1)(b) of the UC etc. (D&A) regulations 2013).

I have considered whether paragraph 6.663 of the Housing Benefit guidance is relevant to the analysis about using the anticipated change of circumstances supersession ground in MJ and SC’s situation. See paragraph 147 above. The first sentence of paragraph 6.663 does not make grammatical sense. It suggests an advance notification of a change can be actioned by a decision but then suggests that the change notified in advance may not occur. Paragraph 6.663 then suggests a closed period supersession can be made after the anticipated date of change. It does not explain the mechanism for this or what the consequences will be.

Due to its imprecise language and lack of explanation, I have not found this paragraph of the Housing Benefit guidance useful in deciding these appeals. In any event, it is not binding in any way.

The answer is no. At the date, the relevant decision-maker superseded the benefit award in question, neither claimant met an entitlement condition for it, due to their planned absence from Great Britain. This was a relevant change of circumstances that authorised and justified each benefit award being superseded. The outcome decision that flowed from that change of circumstances was that each claimant was no longer entitled to the benefit in question. Once that supersession decision was made, it ended the benefit award. At this point, SC and MJ needed to make a new claim to benefit to be entitled to it once more.

I appreciate this outcome involves a complicated analysis. I also appreciate it will disappoint SC and MJ greatly that the closed period supersession mechanism does not provide the power to preserve their underlying awards with a fixed period of non-entitlement, to overcome the circumstances in which they found themselves. I am, however, satisfied the relevant legislation and case law supports the analysis I have set out above.

This was Mr Williams’ secondary argument if his principal argument on closed period supersession decisions failed.

The power to supersede in section 10 of the SS Act 1998 and in paragraph 4 of Schedule 7 to the CSPSS Act 2000 is expressed as “may”, not “must”. As explained in CIS/6249/1999 and in R(I)1/07, it provides a power, not an obligation, to supersede.

SC and MJ each say they were given incorrect advice about the effect of being abroad on their benefit entitlement. I describe this as their position, rather than as fact, because neither FTT1 nor FTT2 made any factual findings about what SC or MJ were told. The primary role of the First-tier Tribunal is to find facts, the primary role of the Upper Tribunal is to consider points and issues of law based on those factual findings.

I acknowledge the importance to SC and to MJ of having recognition that they were given incorrect information about their benefit entitlement if they went abroad and that they relied on that information and advice.

Having considered the decisions in CIS/6249/1999 and R(I)1/07, I have decided the correct approach to take in the appeals before me is that set out by Mrs Commissioner Brown in R(I)1/07. She gave her decision with the benefit of having considered Mr Commissioner Mesher’s earlier decision in CIS/6249/1999. Her decision is a reported decision, denoted by the “R” in its title. This means that it was considered by, and agreed with in broad terms, by the majority of the other Social Security Commissioners in post around the time it was made.

The factual circumstances in R(I)1/07 are similar to the specific situation described by each of SC and MJ. In R(I)1/07, the claimant was given wrong advice by DWP staff member, and relied on it, meaning he did not take a necessary step at the relevant time. Having considered those circumstances, and Mr Commissioner Mesher’s decision in CIS/6249/1999, Mrs Commissioner Brown acknowledged the decision-maker has a discretion whether to supersede or not. She stated at paragraph 21:

“It can hardly, however, be said to be an abuse of power for that discretion to be exercised so as to put a correct decision in place….This is not a matter of practice or policy or of a promise made. It is a matter of entitlement or non-entitlement according to statutory provisions”.

Mrs Commissioner Brown decided the decision made in CIS/6249/1999 should not apply to her case because the circumstances were different. She concluded that any unfairness in DWP applying its statutory powers to change an earlier incorrect decision was not so extreme that it outweighed the public interest in ensuring the correct amount of benefit entitlement was reached for the claimant in question. Mrs Commissioner Brown explained the claimant could not have a legitimate expectation to be entitled to benefit where he did not meet entitlement conditions for it.

Applying that principle to SC and to MJ, at the date the relevant decision-maker looked at making their decision for each claimant, neither claimant met all the necessary entitlement conditions for their benefit. To delay making the supersession decisions in question would have involved a conscious decision to pay each claimant benefit the decision-maker knew they were no longer entitled to receive. Even if a later decision could be made that those claimants had been overpaid benefit, this would not guarantee that the money would be repaid. Recovering it would have potentially adverse consequences for the claimants. In SC’s case, it would be recovered from her ongoing UC award, leaving her less money to live on while that happened.

In these circumstances, it cannot be said that the circumstances that: (a) SC and MJ had been given incorrect advice about their position and (b) they would face difficult consequences of the fact they would have to make a fresh claim for benefit, was so extreme that it outweighed public interest in ensuring that SC and MJ were paid their correct entitlement to benefit.

I recognise the outcome decisions made for SC and for MJ has caused each of them difficult consequences. They have lost entitlement to a benefit (or continuity of that benefit), from which they cannot recover simply by claiming it again. In each case, there has also been a gap in any entitlement to benefit. The consequences of these are substantial for SC and for MJ.

However, I agree with Mr Howell that these consequences flow from the policy choices Parliament has made. For MJ, they flow from the policy choices made in the regulations it made about entitlement to HB in circumstances where a claim to UC can be made.

For SC, they flow from the policy choices Parliament made when it legislated for the date of entitlement to the LCWRA element of UC. Parliament did deal with the situation where a limited capability for work assessment is started, but not completed before a claim ends. However, to have their LCWRA element timed back to their first UC claim rather than their subsequent one, a claimant must meet the conditions in regulation 28(3), (4) or (5) of the UC regulations 2013. Very unfortunately, SC did not meet any of those conditions. Parliament did not legislate to cover her specific circumstances.

In NC, a decision-maker delayed for a lengthy period in making their supersession decision about NC, and as a result, the only supersession decision that could properly be made about him was a closed supersession decision. Mr Williams argued this left NC better off than MJ and SC, is the very definition of capricious and arbitrary, and should be avoided.

I agree with Mr Howell that it is an example of something having gone wrong in the decision-making process the SSWP applied to NC. It is not an example of the decision-making that was applied to MJ and to SC, producing its own set of capricious or arbitrary results.

As Mr Howell submitted, it is generally up to a public authority to decide about managing its case load, including when to make its decisions. Arguing that the decision-maker should have acted more slowly, and delayed making the supersession decision that naturally fell to be made once a claimant did not meet the benefit entitlement conditions, cuts across the broad margin of respect given to public authorities to decide when to make their decisions.

SC argued that a UC claimant who fails to notify DWP that they have gone abroad appears to be rewarded for not disclosing that information and treated more favourably than a claimant who notifies DWP about the change. In my assessment, the difference in outcome does not come from favourable treatment being given to the non-notifying claimant. It comes from whether the person meets the entitlement condition at the date the SSWP decision-maker makes their supersession decision. Nor is the non-notifying claimant necessarily better off. They will have been overpaid benefit, which will be recoverable from them, at a rate that DWP chooses to recover. Depending on the circumstances, DWP may decide to apply an additional £50 civil penalty for the failure to disclose the change in circumstances. In some instances, DWP might decide to prosecute that claimant for a criminal offence.

LP made the powerful point on behalf of SC that “Who do I ask then (if not DWP)?”. I accept the force of this. A claimant applies for benefit, believing that DWP and its staff will know the correct approach to take, and will give them accurate advice. DWP staff are much more familiar with benefit rules than many claimants. The starting point is that a person cannot create an entitlement to benefit they do not have through being given incorrect advice by DWP. Instead, where DWP gives incorrect advice, which a claimant relies on to their disadvantage, the claimant can make a complaint, which should be investigated and may result in a compensatory payment being made. If a claimant remains unhappy with the outcome of their complaint, they can complain to the Independent Case Examiner, who will look again at their complaint.

I do not consider the circumstances for either MJ or SC made it an abuse of the supersession power for the relevant decision-maker to make the relevant supersession decision at the time that they did. It was consistent with the exercise of that discretionary power for the decision-maker to act, rather than wait until each claimant returned home (and which would fix them with the consequences of an overpayment).

There is a power to suspend the payment of UC. See regulation 44 of the UC etc. (D&A) regulations 2013. The power is available for UC in a range of situations, including where a question arises about whether the entitlement conditions are met. A suspension power is available in similar situations for HB. The situations allowing benefit to be suspended are largely about where there is a doubt whether a person is entitled to benefit. They are not available where the decision-maker is satisfied the person is not entitled to benefit.

At the time the supersession decisions were made, it was clear that MJ and SC no longer met the entitlement condition of being present in Great Britain. I do not consider any of the grounds for suspending UC or HB would have applied as an alternative to making a supersession decision at that point.

In its Decision Notice dated 28 July 2023, FTT1 decided that SC’s UC award should have been suspended from the first date of the assessment period in which she left Great Britain. FTT1 failed to make clear findings about SC and address whether (and if so, how) SC’s circumstances fell within the terms in which the suspension power could be used. Furthermore, FTT1’s Statement of Reasons did not refer to suspending SC’s UC award, so does not provide adequate reasoning to explain its decision notice dated 28 July 2023 on this issue. These were material errors of law.

This issue only applies to SC. MJ accepted that as soon as she went abroad, her entitlement to HB ended because she would be abroad for longer than the temporary absence provisions for HB allowed.

Section 4(1)(c) of the WR Act 2012 makes it a basic condition of entitlement to UC that a person is in Great Britain. The starting point is that all claimants must physically be present in Great Britain to be entitled to UC. However, section 4(5)(a) and (b) allows Parliament to make regulations providing for a claimant to be treated as present in Great Britain, or to set out circumstances in which their absence from Great Britain is disregarded. That regulation-making power was used to make regulation 11 of the UC regulations 2013, which disregards a temporary absence from Great Britain in specific circumstances.

The only parts of regulation 11 that could apply to SC’s circumstances were those in regulation 11(1)(a) and (b). She had to satisfy both (a) and (b). As Mr Howell acknowledged, SC met the requirement in regulation 11(1)(a) of being entitled to UC immediately before she went abroad. In terms of satisfying regulation 11(1)(b), the only provision that could apply to SC was regulation 11(1)(b)(i).

Regulation 11(1)(b)(i) contains two elements – that the absence is not expected to exceed one month, and that the absence does not in fact exceed a month. Mr Howell argued these are cumulative requirements and SC had to meet them both to satisfy regulation 11(1)(b) and to have her temporary absence from Great Britain disregarded.

Because SC always intended to go to Canada for longer than a month, it appears she could not satisfy the first element in regulation 11(1)(b)(i) to have her temporary absence from Great Britain disregarded. This would mean SC stopped meeting the entitlement condition of being in Great Britain once she was no longer in the country.

In AM v SSWP [2024] UKUT 137 (AAC), Upper Tribunal Judge Church decided that a claimant who intended to go abroad for three weeks but ended up staying for more than a month (due to COVID-19 travel restrictions), was entitled to have part of his absence from Great Britain disregarded. This meant AM remained entitled to UC for a period of time after he went abroad. Judge Church made his decision on the basis that AM’s circumstances changed once he was abroad. At first consideration, the decision in AM would not clearly apply to SC. It does not appear SC’s circumstances changed after she went abroad, and the evidence suggests she had always intended to go abroad for longer than the one-month period.

Since hearing these appeals, I have been made aware that the Upper Tribunal is considering two appeals about how regulation 11(1)(b) of the UC regulations should be interpreted and applied across different assessment periods, where a change of circumstances takes place during the absence. The appeals are UA-2023-001431-USTA (AA v SSWP) and KK v SSWP (UC) [2025] UKUT 259 (AAC). I understand the decisions will shortly be issued and published. I understand those appeals follow on from the circumstances in AM and are therefore likely to involve different circumstances to SC’s. I deal further with this point at paragraphs 285 to 286 below.

FTT1 did not refer to nil awards of UC in its Decision Notice dated 28 July 2023. However, at paragraphs 9 to 11 of its Statement of Reasons dated 10 December 2023, FTT1 referred to nil awards of UC. FTT1 stated that the Going Abroad guidance confirmed nil awards are permissible for keeping a claim alive and that it had experience of the SSWP making a nil award decision for UC where it knew or expected a claimant would become eligible for a paying award again soon.

Some benefits allow a claimant to have an underlying entitlement to the benefit at a time when it is not payable. This is sometimes described as a “nil award”, meaning the continuity of benefit entitlement is preserved while nothing is paid to the claimant.

In Ipswich BC v (1) TD & (2) SSWP [2024] UKUT 117 (AAC), Upper Tribunal Judge Wright confirmed it is not possible to have a have a nil award of, or nil entitlement to, UC where a claimant fails to meet the financial conditions for it in section 5(1)(b) of the WR Act 2012 and regulation 17 of the UC regulations 2013 (see paragraphs 3 and 37 of that decision).

Mr Howell placed substantial reliance on the decision in Ipswich. In my assessment, what Upper Tribunal Judge Wright stated at paragraphs 3 and 37 of his decision, was addressed directly at the financial condition of entitlement to UC, which required entitlement to be dependent on being awarded at least one penny of it. The situation for SC is different, because the issue in her appeal is whether she met a different condition of entitlement to UC instead.

FTT1 stated the DWP’s Going Abroad guidance described making a nil award of UC. This statement was incorrect. Firstly, the guidance was clearly addressing a retrospective closed period supersession decision, which was not the situation faced by SC. See paragraph 3 under the heading “Temporary absence” of that guidance, which explained the position applied where DWP was notified of the absence after the person came back to Great Britain.

Secondly, the legal mechanism for making a closed period supersession decision would not create a nil award of UC. Instead, it alters and changes an existing benefit award to provide for a closed period of non-entitlement within that award, but which continues, overall, as an indefinite award of benefit. This is the position irrespective of what DWP might have stated in the guidance, which is not binding. Furthermore, the wording in the guidance about reducing an assessment period to nil is not tantamount to stating a nil award of UC has been made.

Having referred to the Going Abroad guidance and stating it was aware of the SSWP making nil award decisions, FTT1 did not explain how the UC legislation allowed a claimant to have a nil award of UC at a time that the person did not meet the condition of entitlement in section 4(1)(c) of the WR Act 2012. FTT1 therefore made an error of law by misdirecting itself in law about whether a nil award of UC could be made. FTT1 did not explain what its experience of other nil award decisions involved. Nor did it explain how they could be made within the UC legislation. FTT1 therefore failed to provide adequate reasoning to support this part of its decision. These were material errors of law.