[2025] UKUT 299 (AAC)

SC and MJ each had a continuing award of benefit, meaning it would continue for as long as they continued to meet the entitlement conditions. Some of the parties described these as a “running decision”, meaning a decision that has continuing effect because it carries on running after it is made.

The entitlement conditions for UC and HB each require a person to be in Great Britain. However, they also allow a person to be temporarily absent from Great Britain and to remain entitled to the benefit. A person must meet specific requirements about the length of their absence and / or the reasons for it.

DWP decided that SC’s absence from Great Britain was not one where she continued to meet the conditions of entitlement for UC. LB Bromley made an equivalent decision for MJ in respect of her entitlement to HB.

A decision to award UC or HB is final unless and until it is changed validly by another type of decision. The decisions that can change an existing benefit award include called supersessions and revisions. The differences between supersessions and revisions include the dates from which they take effect, the reasons for the change being made and how (and when) they can be challenged. A benefit award can also be changed validly by appealing to a First-tier Tribunal.

A revision will (in most circumstances) change an earlier decision from the date that the earlier decision took effect. A supersession will change an earlier decision (but from a later date than a revision). A supersession may, but does not necessarily, change a decision from the date the supersession decision was made.

Where an existing benefit award is superseded or revised and comes to an end, depending on the effective date of the decision changing the award, the person may find they have been overpaid benefit, and that the public authority asks for it to be repaid.

Some of the earlier case law referred to by the parties refers to a “review ground” for looking at whether to change an entitlement decision through revision and that this type of decision would be a “review decision”. This is a reference to the ground of review, which existed before the SS Act 1998 was brought into force. The SS Act 1998 replaced the power of review when it introduced the powers to supersede decisions or to revise them.

Since around 2000, a number of decisions, initially by the Social Security and Child Support Commissioners, and later by the Upper Tribunal, have confirmed that where the SSWP discovers a benefit claimant did not meet the entitlement conditions for a fixed past period of time, the claimant’s entitlement can be superseded and changed (removed) for the fixed past period of time. Some of the later case law, and DWP guidance, has described this type of decision has been described as a “closed period supersession”. The phrase means the decision has superseded (changed) benefit entitlement, but for a closed period that contains a start point and an end point.

In a number of cases, the closed period supersession decision has been made at a time when the person meets the entitlement conditions once again. If so, the change in entitlement created by the closed period supersession is time-limited and does not prevent the person remaining entitled to their benefit on an ongoing basis.

This case law has confirmed it is possible to have a closed period supersession where the fixed period occurred in the past and, at the time that the SSWP makes the supersession decision changing a person’s entitlement, the person meets all the entitlement conditions for the benefit. Mr Williams and Mr Howell described this as a “retrospective closed period supersession”.

The common legal issue for SC and MJ relates to how closed period supersessions operate and whether one can operate into the future for a fixed period of time. This is relevant to SC and MJ because at the date of the decisions ending their benefit awards, they did not meet the entitlement conditions for their benefit due to the length of time they would be absent from Great Britain.

In the circumstances applicable to SC and to MJ, a closed period supersession decision would need to operate on a future looking basis, meaning the decision would provide for a period of non-entitlement stretching into the future, but with a definite end point, after which benefit entitlement resumes. During the hearing, Mr Williams and Mr Howell described this as a “prospectiveclosed period supersession”.