[2025] UKUT 332 (AAC)

In the present case, however, we are not concerned with ‘standard’ decisions or appeals therefrom. We are concerned with requests for revision made by claimants outside those maximum ‘standard’ time limits. We are concerned with requests for revision on “any time” grounds, in particular on grounds of “official error” under regulation 9 of the D&A Regulations. Such requests may, self-evidently, be made at any time after the original decision, including many years after, as is the situation in the present appeals. If the Secretary of State on considering such a request agrees that there is an official error, the original decision will be revised accordingly with retrospective effect to the date of the original decision (in accordance with regulation 21 of the D&A Regulations). If the Secretary of State does not agree there is an official error, the request for revision will be refused. That decision, being a decision on a revision, does not attract a right of appeal under section 12 of the SSA 1998; the right of appeal remains in principle a right of appeal against the original decision.

As happened in GD’s case, this decision on the application for an “any time” grounds revision can itself count as a “mandatory reconsideration” for the purposes of regulation 22 of the Tribunal Procedure Rules. As already noted, “mandatory reconsideration” is not a term used in the social security legislation itself, but it is effectively defined for the purposes of regulation 22 of the Tribunal Procedure Rules by regulation 22(9), which states that “mandatory reconsideration applies where the notice of the decision being challenged includes a statement to the effect that there is a right of appeal in relation to the decision only if the decision-maker has considered an application for the revision, reversal, review or reconsideration (as the case may be) of the decision being challenged”. “Mandatory reconsideration” is thus defined as applying where the Secretary of State has, as permitted by section 12(3A) of the SSA 1998 and regulation 7(2) of the D&A Regulations, restricted the right of appeal against an original decision so that it only becomes available where the decision-maker has “considered on an application whether to revise the decision”.

None of the legislative provisions expressly limits the type of application for revision, or consideration of revision, only to applications for revision on “any grounds” under regulation 5, so that in principle, on the face of the legislation, an “any time” application for revision can equally count as a “mandatory reconsideration” for the purposes of the time limits for applying to the First-tier Tribunal. The appeal must then be filed with the Tribunal within one month of that decision or, at the latest, within 13 months as permitted by regulation 22(8). In fact, in these proceedings, TR filed in time on that basis and GD filed his appeal slightly over one month after the decision of the Secretary of State of 5 January 2023 refusing to revise the original 19 April 2018 decision.

In TR’s case, however, the sequence was slightly different, as the Secretary of State’s decision of 5 August 2022 refusing to revise the original 26 May 2017 decision itself contained a statement informing TR that if she disagreed with the decision she could seek mandatory reconsideration. Although the letter did not say so in terms, it used the standard mandatory reconsideration notice, so that on its face it appears in legal terms to be an invitation to make a ‘standard’ “any grounds” application for revision under regulation 5 within one month of the decision of 5 August 2022. However, formally, so far as the legislation is concerned, a revision under section 9 of the SSA 1998 can only be a revision of an original decision under section 8 or a supersession decision under section 10. As such, this cannot have been an invitation to make an “any grounds” application for revision under regulation 5 because it was outside the maximum 13 months from the original decision date permitted by that regulation. So far as the legislation is concerned, therefore, it could only have been an invitation to make a further “any time” application for revision. In practice, that was how TR and the Secretary of State dealt with it and the appellant then appealed to the Tribunal within one month of receiving the mandatory reconsideration notice on 27 September 2022.

As the right of appeal in both TR’s and GD’s cases remained a right of appeal against the original 2017 and 2018 decisions in each of their cases, as a matter of principle and applying the legislation without reference to previous case law, the First-tier Tribunal once seised of the appeal would simply proceed to consider the appeal on its full merits in the same way as a ‘standard’ appeal brought after a ‘standard’ “any grounds” mandatory reconsideration decision under regulation 5. On the face of the legislation, it seems to us (and the parties agree) that it cannot be right that the Tribunal’s jurisdiction on such an appeal is limited to considering whether the Secretary of State was right to conclude there was no “official error”, or that it is only if “official error” is established that the original decision can be reconsidered on its full merits. That is because the function in the legislative scheme of the Secretary of State’s decision on the application to revise for official error is simply to re-trigger the right of appeal against the original decision. There is no right of appeal against the decision not to revise; the appeal lies only against the original decision, and it is well established that on such an appeal the Tribunal stands in the shoes of the decision-maker at the time of the original decision and exercises the original decision-making power de novo.

We observe that the effect of the legislation on its face is thus that a claimant may over time gain multiple opportunities to appeal the same decision, because (in cases where the original decision (or supersession decision) contained a statement that mandatory reconsideration applies) a fresh right of appeal will be triggered every time the Secretary of State “has considered on an application whether to revise the decision under section 9 of [the SSA 1998]”. On the face of the legislation, that includes an application to revise on any basis, whether on “any grounds” under regulation 5, or on “any time” grounds under Chapter 2 of Part 2 to the D&A Regulations.

At first blush, that conclusion might seem odd, and raised the spectre in our minds prior to the hearing in this matter of ‘abuse of process’ as a result of a claimant potentially being able to bring multiple appeals in relation to the same decision. However, having raised that point with the parties at the hearing, we agree with them that this is not in fact the consequence of our conclusion. That is because a decision on an application to revise only gives rise to a right to appeal. A claimant may or may not choose to exercise that right. If they do not choose to exercise that right (as TR chose not to when her first right of appeal arose in 2017), they may trigger a further right of appeal by making a further application for revision. However, if they do choose to exercise their right of appeal, and the First-tier Tribunal makes a decision on that appeal, then the Tribunal’s decision replaces the Secretary of State’s decision and is “final” by virtue of section 17 of the SSA 1998. It cannot thereafter be revised by the Secretary of State under any circumstances because section 9 of the SSA 1998 does not give the Secretary of State power to revise any decisions other than his own. The Tribunal’s decision may be superseded by the Secretary of State in the limited circumstances permitted by regulation 31 of the D&A Regulations, but in that case, the supersession decision would itself attract a fresh right of appeal under the legislation; it would not re-open the door to a further appeal against the original decision. Accordingly, while a claimant may over time acquire multiple rights to appeal the same decision, they may only exercise that right once.

We also recognise that our approach leaves the Tribunal in the position, on an appeal triggered by a refusal to revise after the 13-month point on grounds of official error (or other “any time” ground), of enjoying greater powers on appeal than the Secretary of State had at the time of taking the decision whether or not to revise (when the Secretary of State could only revise or not on one of the “any time” grounds). However, that, it seems to us, is the logical consequence of Parliament not having provided for an appeal against the revision decision and only having provided for an appeal against the original decision or supersession decision. It is also the logical consequence of the parties’ agreed position in this case as to the full merits nature of the Tribunal’s jurisdiction on an appeal following a refusal to revise for official error.

Our reasoning is supported by the legislative history. Before the introduction of mandatory reconsideration, there was a right of appeal to the Tribunal directly against the original decision or supersession decision and it was well established that the jurisdiction of the Tribunal on that appeal was to take that decision again de novo; the Tribunal’s jurisdiction was not to consider whether the decision could or should be revised on any of the grounds on which the legislation permitted the Secretary of State to revise the decision. There is equally no doubt that the introduction of mandatory reconsideration through “any grounds” revisions did not change (or, at least, was not intended to change) the nature of the Tribunal’s jurisdiction on appeal, which remained an appeal against the original decision or supersession decision. The legislative changes made to introduce mandatory reconsideration were only addressed to introducing that process as a necessary step before appealing; no changes were made to the underlying appeal rights. As we have set out above, the function of a decision whether or not to revise on “any time” grounds in the legislative scheme is the same as a decision whether or not to revise on “any grounds”: both simply trigger a right of appeal against the original decision. As such, the Tribunal’s jurisdiction on such an appeal is in our judgment the same regardless of when it is brought. There is nothing in the legislation to suggest otherwise.