Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 332 (AAC)

Fecha: 21-Jul-2025

“Any grounds” revision requests and appeals

51.

However, by section 12(3A) of the SSA 1998 and regulation 7(2) of the D&A Regulations, if the benefits decision includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for revision, then the right of appeal cannot be exercised unless “the Secretary of State has considered on an application whether to revise the decision under section 9 of [the SSA 1998]”. That, as already noted, is the “mandatory reconsideration” requirement. This, therefore, is the first jurisdictional requirement that must be fulfilled before the First-tier Tribunal will have jurisdiction to hear an appeal. In a ‘standard’ case, the request for revision will be a request for a revision on “any grounds” under regulation 5 of the D&A Regulations. As such, the application must be made within one month of the date of notification of the original decision, or the Secretary of State may extend that time limit under regulation 6, but only if the application is made within 12 months of the latest date when it should have been received: see regulation 6(3)(c). As such, the maximum extension in ‘standard’ cases is 13 months after the original decision.

52.

The second jurisdictional requirement in respect of an appeal to the First-tier Tribunal that is of relevance to the present cases is that as to time limits. Those are set by regulation 22 of the Tribunal Procedure Rules. Time limits in cases to which mandatory reconsideration apply run from the date of the mandatory reconsideration decision. The normal time limit under regulation 22(2)(d) is one month, but that may be extended under rule 5(3)(a) (the general power to extend time) and unless it is extended the Tribunal must not admit the notice of appeal (regulation 22(6)(b)).

53.

By regulation 22(8)(a), where an appeal is not made within the primary one-month time limit, it will be treated as having been made in time, unless the Tribunal directs otherwise, if it is made within 12 months of the primary one-month time limit, provided that neither the Secretary of State or any other respondent object. However, by regulation 22(8)(b), the time for bringing the appeal may not be extended under rule 5(3)(a) by more than 12 months. Accordingly, so far as the face of the legislation is concerned, the maximum time within which an appeal may be brought is 13 months from the date of the mandatory reconsideration decision. Nonetheless, it may be that time can be further extended “in exceptional circumstances” where the appellant “personally has done all he can to bring [the appeal] timeously” on the basis of what is often referred to as “the Adesina principle”: see Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 at [15] per Maurice Kay LJ, followed by Fordham J in Rakoczy v General Medical Council [2022] EWHC 890 (Admin). (Although we note that in one of the decisions the parties have relied on in these proceedings, GJ v Secretary of State for Work and Pensions [2022] UKUT 340 (AAC), Judge Wikeley at [61] and [71] expressed some doubt as to whether the Adesina principle could ever properly apply in this context. This is not, however, a legal issue that concerns us in this case.)

54.

In the case of what we call a ‘standard’ benefits decision under section 8, and on the face of the legislation, the latest that an appeal to the Tribunal may be commenced would be 26 months after the original benefits decision (i.e. maximum 13 months from the date of decision to apply for mandatory reconsideration and maximum 13 months from the date of mandatory reconsideration to appeal to the Tribunal). In such cases, and although the legislation does not include any express powers setting out the jurisdiction of the First-tier Tribunal on appeal, it is well established that the First-tier Tribunal ‘stands in the shoes’ of, and has the same powers as, the Secretary of State (see R (IB) 2/04 at [12]-[25]) and decides the claimant’s case afresh by reference to the circumstances as they were at the time when the decision appealed against was made (see section 12(8)(b) of the SSA 1998). It is worth setting out what the Tribunal of Commissioners said in R (IB) 2/04 about the nature of the Tribunal’s jurisdiction. (We return to the other aspects of this case further below.):

13.

The following features of an appeal to an appeal tribunal are in our judgment clear.

14.

First, the appeal is general, i.e. it is an appeal on fact and law. This was common ground between the parties to the appeals before us, and has been universally accepted since the introduction of the statutory scheme. Indeed, the appeal tribunal is designed to be a superior fact finding body, and is able to investigate the facts in greater depth than usually occurs before the decision-maker. The composition of appeal tribunals (with one or two members in addition to the legally qualified chairman, where considered appropriate by the legislature) is designed to enable them most effectively to make the necessary findings of fact. Unlike the decision-maker, appeal tribunals hear oral evidence where necessary. In the light of the fact that the initial decision is made by the Secretary of State (i.e. a person patently lacking in independence) and of the limited scope for the claimant to make representations to the Secretary of State, nothing less than such a superior fact finding body would be sufficient to comply with Article 6 of the European Convention on Human Rights (“the Convention”). We return to this point below.

15.

Second, and as a consequence of the first feature to which we have referred, the appeal tribunal’s jurisdiction is not limited to affirming or alternatively setting aside the decision under appeal. If, having made its own findings of fact, it considers the decision to be wrong, it has power to make the decision on the claim which it considers the Secretary of State ought to have made on the basis of the facts which it has found. In cases where the appeal tribunal makes a different decision from that made by the Secretary of State, the appeal tribunal’s decision simply replaces that of the Secretary of State - and it is at least arguable that this is also the case where the appeal tribunal confirms the Secretary of State’s decision and dismisses the appeal (see, for example, the decision of the Tribunal of Commissioners in R(I) 9/63).

16.

The fact that even the most basic powers of an appeal tribunal have to be inferred from the nature of the appeal has two important consequences.

17.

First, contrary to Miss Lieven’s submission for the Secretary of State, in determining the powers of an appeal tribunal, it is in our judgment proper to consider the nature and operation of the system of adjudication and appeal in force before the 1998 legislation, as relevant to what can properly be regarded as inherent in or implied by the provision of a right of appeal in the 1998 Act.

18.

Second, we find generally unpersuasive the emphasis placed by both Mr Drabble and Miss Lieven (albeit to different ends) on the fact that the 1998 legislation expressly gives particular powers only to the Secretary of State and not to appeal tribunals. We acknowledge that this has also been regarded as important by some Commissioners in a number of individual decisions. However, as indicated above, no powers of decision whatsoever are expressly given to appeal tribunals. It is accepted by both Counsel - and, indeed, it is universally accepted - that appeal tribunals have some powers of decision, such as to substitute the proper decision on a claim in allowing an appeal against an initial decision on the claim. Since these powers must be found by a process of implication, in our view the absence of express statutory powers for an appeal tribunal in any particular instance can have little, if any, significance.

Appeal by way of rehearing

19.

There is considerable authority that, prior to the 1998 legislation, an appeal was by way of complete rehearing, and as to what such a rehearing entailed in the context of benefits. …

25.

In our judgment, that approach to the nature of an appeal as a rehearing, which is how it was understood in the social security context before the 1998 Act changes, is to be applied to the current adjudication and appeal structure, subject only to express legislative limitations on its extent. Taking the simple case of an appeal against a decision on an initial claim, in our view the appeal tribunal has power to consider any issue and make any decision on the claim which the decision-maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim. As to the nature of an appeal to a tribunal, we therefore agree with the position stated by Mr Commissioner Jacobs in paragraphs 11 and 12 of CH/1229/2002.

26.

… in CDLA/5196/2001, Mr Commissioner Rowland recorded the Secretary of State as submitting that “notwithstanding the fact that the Secretary of State had not given the correct decision or decisions, the tribunal were entitled to give whatever decisions should have been given by the Secretary of State” (paragraph 14). We consider that the approach advocated by the Secretary of State in those cases is correct.

55.

The position is different for supersession decisions, in respect of which it is well established, and not in doubt on this appeal, that on an appeal against a supersession decision (as revised or not) the Tribunal must approach the appeal as if it is ‘standing in the shoes’ of the Secretary of State making that supersession decision, and must decide first whether a ground for supersession is established before considering the case on its “full merits”: see Wood v SSWP [2003] EWCA Civ 53, a case to which we return below.