[2025] UKUT 332 (AAC)

We do recognise that our approach significantly weakens the strength of the time limits both for seeking revision and for bringing appeals as it means that a claimant can in principle generate a right of appeal against an original decision or supersession decision a long time after that decision was taken and well outside the time limits provided in the legislation. However, that is a consequence that the Secretary of State recognises and accepts, and we do not consider that consequence provides grounds for straining to give the legislation anything other than the interpretation that appears to us to be correct applying ordinary principles of statutory interpretation.

We observe that the effect of our approach is in fact merely to create greater parity between appeal rights where the Secretary of State refuses to revise his decision following an application and appeal rights where he does revise his decision (whether following an application or on his own initiative). By section 9(5) of the SSA 1998, if the Secretary of State revises a decision, then “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”. A claimant thus gains a fresh right to appeal to the Tribunal either directly in response to that revision decision or, if the Secretary of State so stipulates in that decision, following mandatory reconsideration of the same. It could be said that, if the legislature had wished to achieve the result that we consider it has, it could simply have amended section 9(5) to provide that a refusal to revise and a revision were to be treated in the same way for the purpose of appeal rights. We do not, however, consider that the fact that a similar result could have been achieved by a simpler method means that our reading of the legislation is wrong. There is no general principle of statutory interpretation to that effect. There is a presumption against redundancy, but our interpretation does not render section 9(5) redundant; section 9(5) deals with revisions, whilst the provisions we are concerned with deal with refusals to revise.

Further, the consequences of our decision may not be that significant in practice for the following reasons:

We do note, however, that our approach has implications for the effect of section 27 of the SSA 1998 which may be counter-intuitive. Section 27 prevents the Secretary of State from revising or superseding a decision on the basis of a judgment of the Upper Tribunal or higher courts that post-dated the Secretary of State’s original decision. As GD’s case is an appeal against a supersession decision, section 27 will accordingly ‘bite’ on his appeal so as to limit the grounds on which his appeal may succeed. If we are right in our approach on this appeal, however, section 27 will not ‘bite’ on TR’s case as it is a late appeal against a section 8 decision. The Tribunal is on her appeal exercising a de novo jurisdiction so it seems to us that it will need to decide her appeal by reference to the law as it stood at the date of the original decision, i.e. by reference to the legislation as it stood at that date, but taking into account any changes in understanding as to how the law works as a result of a subsequent judicial decision. We have not, however, in this appeal examined with the parties in any detail the effect of section 27 and any issue as to the application of section 27 in appeals such as these will need to be considered in a subsequent case. The potential consequences of section 27 not ‘biting’ in such cases may be mitigated to some extent by the fact that the definition of “official error” in regulation 2 excludes “any error of law which is shown to have been such by a subsequent [appellate] decision”. As we set out further below, an application for revision that raises that as its only ground will not in our judgment constitute a valid “any time” application for revision and so will not trigger a new right of appeal. However, we recognise that the implications of our decision that an appeal to the Tribunal in “any time” revision cases is a full merits appeal means that, provided a claimant can surmount the initial jurisdictional hurdle of making a valid “any time” application for revision, their case on appeal will (on the basis of the law as we have concluded it to be in this case) need to be dealt with by reference to case law as it stands as at the date that the Tribunal is considering the appeal.