[2025] UKUT 332 (AAC)

GD’s case is concerned with his entitlement to Employment Support Allowance (“ESA”) under section 2(5) of the Welfare Reform Act 2007 (“WRA 2007”) and the Employment and Support Allowance Regulations 2008 (“ESA Regulations”).

The underlying decision of the Secretary of State challenged in GD’s case was a supersession decision made on 19 April 2018. The Secretary of State decided that GD had Limited Capability for Work (“LCW”), but he was not accepted as having Limited Capability for Work-Related Activity (“LCWRA”) and so was not placed in the support group.

Although we do not have the decision letter in question, it is common ground that the Secretary of State’s decision contained a statement to the effect that there was a right of appeal in relation to the decision only if the Secretary of State had first considered an application for its revision. However, GD did not make a request for mandatory reconsideration until 31 March 2022. In that letter he specifically requested an “any time revision” of the April 2018 decision on the basis of “official error”. He explained that the “official error” was an error of law in that the decision maker had based the decision that he did not have LCWRA on the view of the Healthcare Practitioner that there would not be a substantial risk to the appellant’s physical or mental health if he were to undertake “appropriate, tailored work related activity”. GD argued that this meant that the decision-maker considered that work-related activity that was not appropriate or tailored would create a substantial risk and thus that he should have been treated as LCWRA.

On 5 January 2023 the Secretary of State informed GD that the April 2018 decision had been reconsidered but not revised on the basis that the Secretary of State did not consider there had been an official error in it. The decision letter stated that it was a “Mandatory Reconsideration Notice” and informed the appellant of his right to appeal to the First-tier Tribunal, which he did on 7 February 2023.

The Secretary of State in response to the appeal did not object to the admission of the appeal on the ground that it was made more than one month after the 5 January 2023 mandatory reconsideration decision, but did submit that the application for mandatory reconsideration had been made out of time, that there was no official error in the April 2018 decision and that accordingly the Tribunal should dismiss the appeal. The Secretary of State relied on IM v SSWP (ESA) [2014] UKUT 412 (AAC), [2015] AACR 10, which the Secretary of State submitted had been properly applied by the decision-maker.

The Tribunal hearing took place by telephone on 28 June 2023. GD represented himself. The decision notice was issued on the same day and a Statement of Reasons was issued on 3 November 2023.

The Tribunal took as its starting point that, as a result of sections 9 and 12 of the SSA 1998, GD did not have a right of appeal against the Secretary of State’s decision of 5 January 2023 refusing to revise the April 2018 decision.

The Tribunal then noted that the appellant was now “some years too late” to exercise a right of appeal against the April 2018 decision. It directed itself that it had only limited discretion to extend time beyond the period of 13 months from the original decision, and only if a refusal to extend time would give rise to a breach of Article 6 of the European Convention on Human Rights (“ECHR”). The Tribunal referred in this respect to a number of cases, including Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818. The Tribunal was not satisfied that the 13-month time limit could be extended by such a significant further period. It therefore refused to admit the appeal.

The Tribunal also added that, even if the appeal were valid, it would have accepted the submission of the Secretary of State that there was no official error in the decision. As with TR’s case, the Tribunal did not go on to consider the appellant’s appeal on its ‘full merits’.