[2025] UKUT 332 (AAC)

Now we turn to R (IB) 2/04, decided two months earlier. In R (IB) 2/04 the Tribunal of Commissioners considered four joined appeals. The issues for the Commissioners focused on supersession decisions, but the Tribunal of Commissioners made a number of observations about revision decisions in the course of their judgment. At [38]-[40], having referred to section 12(1) of the SSA 1998 and regulation 31 of the 1999 Decisions and Appeals Regulations, the Commissioners said this:

In the present appeals, Mr Royston in his skeleton argument on behalf of GD, having set out his client’s position in terms that broadly accord with the law as we have found it to be in this judgment, made this point:

This subsidiary argument of Mr Royston’s has troubled us in our post-hearing deliberations. We are conscious that we did not hear full argument on this point, and that the point does not directly arise for decision in this case so that what we have to say about this submission is necessarily obiter. However, we consider that we need to address the point because it seems to us that Mr Royston’s submission cannot be correct if we are right on the conclusions we have reached on the issues that did directly arise for decision in this case. This is because, if an appeal brought against a refusal to revise for official error must be dealt with on its full merits as an appeal against the original decision for the reasons we set out in this judgment, the same approach must apply regardless of whether the revision decision left the claimant in the same position or better or worse off. To hold otherwise gives a claimant a right of appeal against the revision decision itself that Parliament decided they should not have. As we have observed, the function of the revision decision in the statutory scheme, so far as the right of appeal to the Tribunal is concerned, has always been only to trigger the time limit for the purposes of exercising the right of appeal to the Tribunal against the original decision. That was the position both under the regime prior to the WRA 2012 and it still is, the differences being that now it is, if the Secretary of State chooses so to stipulate, mandatory for the Secretary of State to have considered revising the decision before the right of appeal arises, and the provisions in relation to time limits have also changed somewhat. Even though section 9(5) SSA 1998 provides that, where the Secretary of State revises a decision, the date of the revision is to be treated as the date of the decision for the purposes of time limits, it does not provide that the appeal becomes an appeal against the revision decision rather than the original decision (as revised). In accordance with well-established principles, the Tribunal on appeal then stands in the shoes of the original decision-maker and exercises the Secretary of State’s original decision-making powers afresh. It seems to us that, in accordance with R (IS) 15/04, any challenge to the Secretary of State’s power to revise the decision would have to be brought by way of judicial review.

We acknowledge that the Tribunal of Commissioners in R (IB) 2/04 at [39] thought differently, but they did so on the basis of the reasoning of the Court of Appeal in Wood which concerned supersession decisions not revision decisions, and (as is apparent from [39] of R (IB) 2/04) the point was common ground between counsel in that case and not therefore argued. Further, the Tribunal of Commissioners in R (IB) 2/04 acknowledged in [39] that they would in R (IS) 15/04 be considering the question of whether there is a right of appeal against a revision decision, and it appears from [39] that the common ground between counsel in that case was in fact only common ground “if and to the extent that a claimant is able to appeal against a decision refusing to revise for official error” – we underline to emphasise what appears to have been the significant caveat on counsel’s agreement. As the same Tribunal panel went on in R (IS) 15/04 to decide that there is no right of appeal against a refusal to revise and that such a decision could only be challenged by way of judicial review, it seems to us that what they said about the Tribunal’s jurisdiction on appeals against revision decisions in R (IB) 2/04 must be regarded as per incuriam.

In R (IB) 2/04 the Tribunal went on to hold at [49]-[55] that a tribunal on an appeal against a supersession decision has power to substitute a revision decision, and that a Tribunal on an appeal against a revision decision has power to substitute a supersession decision. However, in R (IS) 15/04 at [78] the Tribunal rowed back from that, holding that a Tribunal was not permitted to substitute a revision decision on an appeal against a supersession decision as that would be allowing ‘by the back door’ an appeal against a revision decision, which in that case the Secretary of State had expressly refused to make. The Tribunal did, however, consider that “It would have been a different matter if the Secretary of State had not made a decision (whether express or implied) on the issue of revision for official error”, but the basis for the Commissioners’ view in that respect was not explained. In JA v Secretary of State for Work and Pensions (DLA) [2014] UKUT 0044 (AAC) at [17] Judge Rowland observed that, if he had needed to decide whether a Tribunal on appeal against a supersession decision could substitute a revision decision, he would likely have referred the case to the Chamber President to consider whether a three-judge panel might be convened to resolve it. Unfortunately, this is not an issue that arises on this appeal either and we have not heard argument from the parties about it, but we record for completeness that it is apparent from what the Tribunal of Commissioners themselves said in [78] of R (IS) 15/04 that they recognised that at least a portion of what they had said in R (IB) 2/04 was incorrect.

At [88]-[97] of R (IB) 2/04 the Commissioners went on to consider the powers of an appeal tribunal to make a decision less favourable to a claimant on an appeal against a supersession decision. The Commissioners decided that, applying section 12(8)(a) of the SSA 1998, and assuming that the possibility of such an adverse decision is “an issue not raised by the appeal” because the claimant would not be seeking an adverse decision, the tribunal was not bound to consider making an adverse decision. However, it was open to the Tribunal to do so, provided it acted fairly. In this respect, there is no doubt that R (IB) 2/04 remains good law, and it seems to us that this is an important principle to bear in mind as it is this that provides some measure of safeguard for the interests of claimants as a result of an appeal to the Tribunal following a refusal to revise for official error in principle opening up the whole claim for reconsideration on its merits.

This principle would not, however, assist a claimant in cases where it is the Secretary of State, whether on the claimant’s application or on his own initiative, who decides to revise a decision for official error in a way that is adverse to the claimant. In such cases, in the light of R (IS) 15/04, the claimant in our judgment has two options: (i) the claimant may apply for judicial review of the revision decision in order to argue that no ground for revision arose; or (ii) the claimant may appeal to the Tribunal, in which case the Tribunal will not deal with the question of whether the decision to revise was itself lawful, but will consider the claim afresh on its merits. While it might seem surprising in principle that a claimant may by that route end up (in substance) with the original decision on their benefits claim being revised retrospectively by the Tribunal in a way that could not lawfully be achieved by the Secretary of State exercising his powers of revision under the legislation, as we have explained above, that is the consequence of Parliament having provided for the right of appeal to lie against the original decision (or the original decision as revised) rather than against the revision decision itself. Further, if the decision is revised adversely to the claimant that will be (or should be) because the claimant was not in fact entitled to the benefit. As such, the interpretation at which we have arrived is consonant with the general principle that the benefits system “is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled” (see R (IB) 2/04 at [32]).

We acknowledge that GD’s representatives, in response to the draft of this decision that was circulated to parties, identified four recent decisions in which the Upper Tribunal has, consistent with [39] of R (IB) 2/04, proceeded as if it is necessary for the First-tier Tribunal on an appeal against a decision where the Secretary of State has revised the decision adversely to the claimant to decide whether a ground for revision had been established. Those decisions are decisions of single judges of the Upper Tribunal: MS v SSWP (DLA and PIP) [2021] UKUT 41 (AAC) (Judge Wright), SSWP v SV [2023] UKUT 279 (AAC) (Judge Jacobs), RA v SSWP (UC) [2024] UKUT 207 (AAC) (Judge Wikeley) and ED v SSWP [2020] UKUT 352 (AAC) (Judge Perez). It is suggested that they would be binding on a First-tier Tribunal as to the approach to be taken on such appeals. However, in none of those cases was there any argument as to whether [39] of R (IB) 2/04 was right as to what it said about appeals in such cases. The Upper Tribunal in each case merely proceeds on the assumption that it is. As such, they do not constitute binding authority on the point: see R v Brent London Borough Council, Housing Benefit Review Board (2001) 33 HLR 79at [33]-[39]. Nor do they persuade us that there is any error in our reasoning in this case.