Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 332 (AAC)

Fecha: 21-Jul-2025

CJ and SG v SSWP

CJ and SG v SSWP

88.

We now turn to the more recent case law. R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC) is another three-judge panel decision, this time of Charles J, Judge Wikeley and Judge Wright, which was reported at [2018] AACR 5. That case was concerned with the situation where a claimant fails to seek mandatory reconsideration within the primary one-month time limit of the original decision, and does seek mandatory reconsideration within the maximum extension permitted of 13 months, but the Secretary of State refuses to extend time. It was argued by the Secretary of State in that case that in those circumstances a claimant’s only recourse was to seek judicial review of the Secretary of State’s refusal to extend time, while the claimants argued that the Secretary of State’s refusal to extend time was itself a decision considering an application to revise and thus sufficient to trigger the right of appeal to the Tribunal having regard to the provisions of the 1999 D & A Regulations, which were the relevant regulations in those cases. Regulation 3ZA of those regulations includes the same provision as regulation 7 of the D&A Regulations with which we are concerned in this case so that, where the Secretary of State has so stipulated in the original decision, “a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act”. The three-judge panel found in favour of the claimants, holding that a decision by the Secretary of State refusing to extend time for mandatory reconsideration was itself a consideration by the Secretary of State on an application as to whether to revise the decision under section 9 so as to trigger the right of appeal. The Upper Tribunal observed (at [88]) that their interpretation accorded with what the Secretary of State had identified in that case as the Parliamentary purpose of enabling the Secretary of State to have “the first opportunity to consider the correctness of the decision, including any new material which is often submitted on an appeal, and thereby prevent the need for the case to progress to appeal”, while at the same time maintaining claimants’ access to the Tribunal in a jurisdiction where, as a result of vulnerability, many claimants have difficulty complying with time limits.

89.

The three-judge panel in CJ and SG did, however, include the following in a footnote to their [52] in the passage where they addressed what was required in order to trigger the right of appeal to the Tribunal:

Although it was not the subject of any real argument before us and did not arise on the facts of either of the two cases, we consider that the maximum extension of time “as may be allowed under regulation 4”, per

regulation 3(1)(b)(iv) of the 1999 Regulations, may provide the basis for

holding that a revision request made after the maximum period of 13 months does not constitute “an application for revision” under regulations

3(1)(b) or 3ZA(2) of the 1999 Regulations, and so does not fall within Section 12(3A) of the 1998 Act.

90.

The three-judge panel returned to this point in the concluding section of their judgment. At [90]-[94] they indicated that they were satisfied their decision in that case was right as regards applications for revision made within 13 months even though they recognised that, if they followed the logic of their decision through to applications for revision brought after the initial 13 months, it would result in a claimant being able to trigger a late right of appeal at any time, a result that they considered could not have been intended by Parliament:

90.

We acknowledge that, as with initial claims and appeals to the F-tT, Parliament would have intended time limits being set for a revision of the original decision on the merits (a mandatory reconsideration) but in our view an intention to rule out a full merits appeal on the basis that an extension of time was not granted under the 1999 Regulations would frustrate the essential and driving purposes set out in the previous paragraph. To avoid this result we have concluded that on their true interpretation the MR regime under the 1998 Act and the 1999 Regulations is that any refusal to revise an application for MR made under the 1999 Regulations triggers the right to appeal to the F-tT.

91.

We acknowledge that different issues arise on the non-extendable 13 month period (which is mirrored by the F-tT Rules). In our view, the likelihood of there being many cases in which a claimant applies near the end of that period or after it and so sets time running again after that length of time is small.

92.

We recognise that in the case of an application made outside the 13 month period it may be said that an application for a revision within regulation 3ZA (2) has not been made (and see further our footnote 1 to paragraph 52 above). This issue did not arise on the facts of either of the cases before us and was not the subject of any detailed argument. So it is for another day.

93.

However, in our assessment of the overall statutory scheme we have considered whether our conclusion is undermined if an outside 13 month application is an application for revision. On that hypothesis we have decided that a conclusion that Parliament would not have intended that a claimant could start time for an appeal to the F-tT running again by making such an application for revision does not mean that applications made late but within the non-extendable 13 month period that are refused or not considered on the merits of the claim for benefit because time is not extended do not trigger a right of appeal.

94.

We have reached this view because we have concluded that this consequence does not undermine our analysis founded on what will inevitably be the far greater number of late applications that are made before the expiry of the outside 13 month time limit.