[2025] UKUT 332 (AAC)

The three-judge panel’s footnote to [52] was considered by Judge Poole in the subsequent case of PH and SM v SSWP (DLA) (JSA) [2018] UKUT 404 (AAC). The decision in PH and SM was also reported (at [2019] AACR 14). In accordance with the Upper Tribunal’s reporting practice at the time, it is thus (like the CJ decision) a decision that commanded the broad assent of the majority of the salaried judiciary in the Chamber and so we treat it as carrying added precedential weight, although it is not binding on us.

PH and SM concerned the situation where a claimant makes a request for mandatory reconsideration more than 13 months after the Secretary of State’s original decision. Judge Poole concluded that in PH’s case (see her summary at [4]) the Tribunal did not have jurisdiction to consider the appeal where the application for mandatory reconsideration had been made outside the maximum 13-month time limit for applying to the Secretary of State on “any grounds” under regulation 5. In contrast, in SM’s case, where the application for mandatory reconsideration expressly alleged official error, Judge Poole considered (as she put it in [5] of her decision) that the Tribunal would have had jurisdiction to determine the appeal “on its merits” if the claimant had applied to the Tribunal within one month of the mandatory reconsideration decision, but as the claimant had applied outside that time limit, the Tribunal would only have jurisdiction if it considered it appropriate to extend time applying the provisions of the Tribunal Procedure Rules. It was agreed between the parties in that case that on appeal the Tribunal would need to decide whether or not there was “official error” in the original decision of the Secretary of State and so Judge Poole remitted the appeal to the First-tier Tribunal for reconsideration on the basis that the First-tier Tribunal should consider, first, whether the original decision was officially in error; secondly, if it was, whether time should be extended; and, thirdly, if both those conditions were satisfied, whether the appeal should be allowed on its merits.

We observe immediately that the first issue that Judge Poole identified for the Tribunal to consider on remission – i.e. whether the original decision involved an official error – was a point on which there had been no argument. It was based on agreement between the parties and, we suspect, on what appears to have been a misunderstanding that has been widespread following the decisions in Wood, R (IB) 2/04 and R (IS) 15/04, that appeals in cases where there has been an application for revision on grounds of official error are to be treated in the same way as appeals against supersession decisions. We therefore disagree with this aspect of Judge Poole’s decision in PH and SM.

In the course of her judgement, Judge Poole at [11] also addressed the footnote to [52] of CJ set out above and concluded (without discussing the reasoning of the three-judge panel in this respect) that it was correct so far as “any ground” revisions were concerned, i.e. that it was correct that an “any ground” application for revision made more than 13 months after the original decision would not be ‘valid’ and thus would not trigger a right of appeal. However, she considered that it was not correct so far as “any time” revision applications were concerned. She went on at [12] to hold that the jurisdiction of the First-tier Tribunal to hear an appeal where the application for revision was made after the 13-month period would therefore depend on whether the application was in substance an “any ground” request or an “any time” request. She further stated that “if an ‘any time’ request advances no arguable case of official error and is spurious, there may be scope for the tribunal to find there has been no properly constituted ‘application to revise’ for official error within the meaning of regulation 3ZA of the 1999 Child Support Decisions and Appeals Regulations so that there was no jurisdiction to hear an appeal, by application of section 12(3A) of the [SSA 1998]”. She referred to the Court of Appeal’s decision in Wood as authority for that proposition.

Judge Poole’s decision on this point rejected the Secretary of State’s position in that case; as recorded at [14]-[15], the Secretary of State’s practice, where an application was made more than 13 months after the original decision, was to consider whether there had been an “official error” even if that was not raised by the claimant. Judge Poole considered the Secretary of State’s approach was wrongly collapsing the distinction between “any grounds” and “any time” applications for revision.

It is not, however, entirely clear from Judge Poole’s decision what she considered was necessary for an “any time” application for revision to have been valid so as to open up the Tribunal’s jurisdiction. At [5] she suggested that jurisdiction depends on official error being “made out on the facts” (and in remitting the appeal she gave directions to the Tribunal to that effect at [5.1]), but at [12] she said that “what is important is the substance of the request” and indicated that it was for the Tribunal to decide whether the application advances an “arguable case” for official error or is “not spurious”. At [15] she said that what matters is whether the application raises what is “in substance” an “any time” ground for revision as distinct from an “any ground” application.

We return to this issue below when discussing what is necessary for an application to trigger the right of appeal.

On the other hand, in PH and SM, Judge Poole also rejected (at [19]-[21]) the Secretary of State’s argument that sought to restrict the time limit provisions in regulation 22 of the Tribunal Procedure Rules so as to preclude any appeal made more than 13 months after the original decision. Judge Poole rejected the Secretary of State’s submissions in that respect, holding that the legislation should be given the meaning it has on its face so that the time limit starts to run from the date of the revision decision. We agree with Judge Poole in this respect for the reasons we have explained above. We add this. At [19] of her decision, Judge Poole observed:

We acknowledge that the effect of our decision on this appeal is, now with the Secretary of State’s agreement, to create what Judge Poole described as a “potentially chaotic situation … where appeal rights may be manufactured by claimants many years after a decision has been taken, simply by requesting mandatory reconsideration…”. However, in common with Judge Poole, we consider that this is indeed the proper interpretation of the legislation and the Secretary of State has also now reached that view. As we have already observed at [67] above, we do not consider the ‘potential chaos’ is likely to be very significant because each claimant is still only permitted to exercise their right to appeal against the original decision once, and our approach is consonant with the purpose of the mandatory reconsideration provisions in that it in principle permits the Secretary of State always to have the first opportunity to consider any grounds for revising a decision (or superseding a decision) before the claimant proceeds to the Tribunal.