[2025] UKUT 332 (AAC)

Chapter 2 of the SSA 1998 makes provision for benefits decisions to be made by the Secretary of State and for appeals to the First-tier Tribunal and thereafter the Upper Tribunal. Sections 8, 9 and 10 of the SSA 1998 provide, respectively, for the Secretary of State to make decisions, revision decisions and supersession decisions. They provide (so far as relevant) as follows:

8.— Decisions by Secretary of State.

(1)

Subject to the provisions of this Chapter, it shall be for the Secretary of State—

(a)

to decide any claim for a relevant benefit;

(b)

…; and

(c)

subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment;

(d)

….

(2)

Where at any time a claim for a relevant benefit is decided by the Secretary of State—

(a)

the claim shall not be regarded as subsisting after that time; and

(b)

accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

(3)

In this Chapter “relevant benefit”, means any of the following, namely—

(a)

benefit under Parts II to V of the Contributions and Benefits Act;

…

(ba) an employment and support allowance;…

(baa) personal independence payment;

…

9.— Revision of decisions.

(1)

Any decision of the Secretary of State under section 8 above or section 10 below may be revised by the Secretary of State—

(a)

either within the prescribed period or in prescribed cases or circumstances; and

(b)

either on an application made for the purpose or on his own initiative;

and regulations may prescribe the procedure by which a decision of the Secretary of State may be so revised.

(2)

In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

(3)

Subject to subsections (4) and (5) and section 27 below, a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect.

…

(5)

Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.

(6)

Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.

10.— Decisions superseding earlier decisions.

(1)

Subject to subsection (3) below, the following, namely—

(a)

any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above; ...

(aa) any decision under this Chapter of an appeal tribunal or a Commissioner; and

(b)

any decision under this Chapter of the First-tier Tribunal or any decision of the Upper Tribunal which relates to any such decision may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.

(2)

In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

(3)

Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.

…

(5)

Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

…

(7)

In this section—

“appeal tribunal” means an appeal tribunal constituted under Chapter 1 of this Part (the functions of which have been transferred to the First-tier Tribunal);

“Commissioner” means a person appointed as a Social Security Commissioner under Schedule 4 (the functions of whom have been transferred to the Upper Tribunal), and includes a tribunal of such persons.

As can be seen, a key difference between revision and supersession is identified by sections 9(3) and 10(5). Subject to exceptions for which provision is made in the regulations (and which do not concern us in this case), a revision decision under section 9 takes effect from the date of the original section 8 decision whereas a supersession decision under section 10 only takes effect from the date the supersession request was made or was decided.

Section 12 makes provision for a right of appeal to the First-tier Tribunal against decisions of the Secretary of State under section 8 and supersession decisions under section 10, but not (directly) against revision decisions under section 9. Rather, section 12 enables the making of regulations restricting the right of appeal in respect of decisions under sections 8 and 10 to circumstances where “the Secretary of State has considered whether to revise the decision under section 9”. The relevant part of section 12 provides as follows:

12.— Appeal to First-tier Tribunal

(1)

This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which—

(a)

is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or

(b)

is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act; ...

…

(2)

In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right to appeal to the First-tier Tribunal, but nothing in this subsection shall confer a right of appeal—

(a)

in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision, or

(b)

where regulations under subsection (3A) so provide.

(3)

Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.

(3A) Regulations may provide that, in such cases or circumstances as may be prescribed, there is a right of appeal under subsection (2) in relation to a decision only if the Secretary of State has considered whether to revise the decision under section 9.

(3B) The regulations may in particular provide that that condition is met only where—

(a)

the consideration by the Secretary of State was on an application,

(b)

the Secretary of State considered issues of a specified description, or

(c)

the consideration by the Secretary of State satisfied any other condition specified in the regulations.

(3C) The references in subsections (3A) and (3B) to regulations and to the Secretary of State are subject to any enactment under or by virtue of which the functions under this Chapter are transferred to or otherwise made exercisable by a person other than the Secretary of State.

…

(6)

A person with a right of appeal under this section shall be given such notice of a decision to which this section applies and of that right as may be prescribed.

(7)

Regulations may —

(a)

make provision as to the manner in which, and the time within which, appeals are to be brought;

(b)

provide that, where in accordance with regulations under subsection (3A) there is no right of appeal against a decision, any purported appeal may be treated as an application for revision under section 9.

(8)

In deciding an appeal under this section, the First-tier Tribunal

(a)

need not consider any issue that is not raised by the appeal; and

(b)

shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

(9)

The reference in subsection (1) above to a decision under section 10 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.

Sections 13 and 14 then provide, respectively, for reviews of the decision of the First-tier Tribunal by the First-tier Tribunal on receipt of an application for permission to appeal, and for appeals to the Upper Tribunal. Section 17 provides for the finality of decisions made in accordance with the foregoing provisions:

17 Finality of decisions

(1)

Subject to the provisions of this Chapter and to any provision made by or under Chapter 2 of Part 1 of the Tribunals, Courts and Enforcement Act 2007, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

(2)

If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of—

(a)

further such decisions;

(b)

decisions made under the Child Support Act; and

(c)

decisions made under the Vaccine Damage Payments Act.

The final provision of the Act that we need to mention is section 27, which is often referred to as ‘the anti-test case provision’. It provides in material part as follows:-

The effect of section 27, as explained by Underhill LJ in Secretary of State for Work and Pensions v Reilly [2016] EWCA Civ 413, [2017] QB 657 is: “In bare outline, and at the risk of some oversimplification, … that, where the Upper Tribunal or a court considering an appeal relating to a claim under social security legislation holds that a provision of such legislation has a different effect from that on the basis of which the DWP had proceeded previously, the law as thereby established will for most purposes take effect only from the date of that decision: in other words, the usual rule that the decision of the court establishes what the law has always been does not apply.”

The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013(SI 2013/381) (“the D&A Regulations”) are made under various provisions of the SSA 1998.

Part 2 of the D&A Regulations deals with revision. Chapter 1 deals with “Revision on any grounds”. Regulation 5 provides:

Regulation 6 makes provision in respect of applications for “any grounds” revisions made outside the one-month time limit set in regulation 5(1):

Regulation 7 also falls within Chapter 1 of the Regulations. It makes provision, as permitted by section 12(3A) of the SSA 1998, restricting a person’s right of appeal under section 12(2) of that Act against the Secretary of State’s decision on certain benefits claims, so that it only arises once the Secretary of State has considered on an application whether or not to revise the original decision. Regulation 7 is thus the legislative basis of what is better known as “mandatory reconsideration” (a term not used in the SSA 1998 or the D&A Regulations, which use only the term “revision”). Regulation 7 provides as follows:-

Chapter 2 of Part 2 to the D&A Regulations makes provision for “Revision on specific grounds”. Unlike the “any grounds” revisions dealt with in Chapter 1 of Part 2, “specific grounds” revisions are not subject to any time limit. Regulation 8 provides:

Revisions under Chapter 2 are thus commonly referred to as revisions on “any time” grounds and we will adopt that terminology in this decision. The ground that is of particular relevance in this case is revision for “official error, mistake etc”, which is provided for in regulation 9 as follows:-

“Official error” is defined in regulation 2 as follows:-

“official error” means an error made by –

(a)

an officer of the Department of Work and Pensions or HMRC acting as such which was not caused or materially contributed to by any person

outside the Department or HMRC;

(b)

a person employed by, and acting on behalf of, a designated authority which was not caused or materially contributed to by any person outside that authority,

but excludes any error of law which is shown to have been such by a subsequent decision of the Upper Tribunal, or of the [High Court, Court of Appeal or Supreme Court].

This is not the place for an exposition of the law on what constitutes “official error”, but we remind ourselves that Mr Commissioner Howell QC referred to “the kind of ‘mistake’ envisaged by the wording used in this regulation, which is a ‘clear and obvious’ error of fact or law made by some officer on the facts disclosed to him, or which he had reason to believe were relevant” (R(H) 2/04 at [13]).

We further note that, as Deputy Judge Ovey explained so clearly in DB v SSWP [2023] UKUT 95 (AAC) at [37]-[39] (a decision to which we return below for other reasons), the definition of official error needs to be read together with section 27 of the SSA 1998, so that the effect of the definition of official error is that a decision cannot be shown to be in official error just because a subsequent decision of the Upper Tribunal or courts establishes a different legal approach or test. In the two appeals before us, we are not concerned with this point, however, because GD’s case does not rely on any such change in legislation or case law, and the original decision in TR’s case was taken before the decisions in MH and RJ on which the LEAP exercise was based.

Regulation 20 purports to set out the procedure for making an application for a revision, but in fact includes nothing that is prescriptive, just certain powers enabling the Secretary of State to do various things, including (sub-section (1)) treating an application for supersession as an application for revision, or (sub-section (3)) obtaining further evidence from the applicant.

Regulation 21 provides that:

Part 3 of the D&A Regulations makes provision in relation to supersession decisions as permitted by section 10 of the SSA 1998. We are not in this case concerned with any of the detailed provision in relation to supersession decisions. We remind ourselves that, by regulations 20(1) and 33(1), an application for revision may be treated by the Secretary of State as an application for supersession and vice versa.

Part 7 of the D&A Regulations makes additional provision in relation to appeals. Regulation 51 sets out the obligation on the Secretary of State to give written notice of decision and the right to appeal:-

Regulation 52 makes provision in relation to appeals against decisions which have been revised. Section 9(6) of the SSA 1998 (set out above) provides that a claimant’s right to appeal lapses where a decision is revised, save in prescribed circumstances. Regulation 52(1)(b) prescribes that the right to appeal “does not lapse where the decision of the Secretary of State as revised is not more advantageous to the appellant than the decision before it was revised”. Regulation 52(2) provides that, in such cases, “the appeal must be treated as though it had been brought against the decision as revised”.

The time limits for bringing appeals are not dealt with in the D&A Regulations, but in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) (“the Tribunal Procedure Rules”). Regulation 22 provides:-