[2025] UKUT 332 (AAC)

The next decision in time is Judge Jacobs’ decision in YA v SSWP [2022] UKUT 143 (AAC). Like TR’s case in these proceedings, YA concerned an appeal as a result of the MH LEAP exercise. By the time the appeal was before the Tribunal RJ had also been decided. The appeal in the Upper Tribunal was a supported appeal and the judgment does not detail the full underlying facts of the case. For present purposes, it suffices to say that Judge Jacobs accepted the submission of the Secretary of State that the Tribunal in that case had erred in law because it had on appeal, following the Secretary of State’s decision on the LEAP exercise, dealt with the appeal as if it was an appeal only against a decision of 2019, when in fact the Secretary of State’s decision on the LEAP exercise had refused to revise two previous decision, one in 2017 and one in 2019. Purportedly applying PH and SM, the case was remitted to the Tribunal to reconsider the case as an appeal against the 2017 decision.

Next is a decision of Judge Hemingway in JN v SSWP (UA-2022-000051-PIP). This was another appeal arising out of the MH/RJ LEAP exercise. The Tribunal had regarded itself as limited only to considering whether the original decision was in error in the light of the subsequent decisions in MH and RJ. The Secretary of State apparently agreed that the Tribunal had erred in that respect, and so did Judge Hemingway. Without referring to any of the authorities that we have set out above, he concluded at [16] that a Tribunal, “when considering on appeal a decision made as a consequence of a review in light of the decisions in MH and RJ, is not restricted to simply considering whether the decision under challenge ought to have been different as a result of what was said in those decisions of the Upper Tribunal. Other appellate authorities may be considered. The F-tT was simply standing in the shoes of the original decision-maker who had made the decision under appeal, and this required it reach its own decision on all matters before it whether of fact or law”. Thus, it appears that Judge Hemingway’s reading of the legislation, apparently free of authority, was the same reading at which we have arrived on this appeal.

Next is GJ v SSWP (PIP) [2022] UKUT 340 (AAC), a decision of Judge Wikeley. This was another appeal arising out of the MH/RJ LEAP exercise. Judge Wikeley referred with approval to Judge Poole’s analysis of the law in PH and SM: see [34]. The First-tier Tribunal in the decision under appeal in that case had directed itself that it needed to be satisfied that there was an official error or other ground for an “any time” revision before it could consider the appeal on its merits. It directed itself that it was not sufficient if the claimant had raised an arguable case of official error: see [37]. Judge Wikeley held that the First-tier Tribunal’s self-direction in this respect was correct and dismissed the appeal on that ground: see [38]-[39]. Judge Wikeley thus applied Judge Poole’s decision in PH and SM as he understood it to be, without adding any further reasoning. It does not appear that he heard submissions on the correctness or otherwise of this aspect of Judge Poole’s analysis. We consider his decision to be flawed for the same reasons that we have already set out above in relation to PH and SM. Judge Wikeley went on to consider whether the Tribunal had taken the correct approach to the Adesina principle in asking itself whether it should extend time for appealing the original 2017 decision in that case well beyond the original 13-month time limit and, as we have previously noted, questioned whether the Adesina principle could properly apply in this area. We do not need to concern ourselves on this appeal with that aspect of his decision.

DB v SSWP (PIP) [2023] UKUT 95 (AAC) is a decision of Deputy Judge Ovey. This was another case arising out of the MH/RJ LEAP exercise. The First-tier Tribunal in that case had concluded that it could not consider an appeal against the original decision on its merits because it was not satisfied that there had been official error in that decision. Judge Ovey referred to both PH and SM and GJ. She noted at [77] that there was an inconsistency between Judge Wikeley’s decision in GJ and Judge Poole’s decision in PH and SM because Judge Wikeley had proceeded on the basis that a Tribunal needed to be satisfied there was an official error in the original decision in order to have jurisdiction, whereas Judge Ovey’s reading of PH and SM (which she preferred to GJ)was that all that was required for the claimant to have a right of appeal to the Tribunal “on the merits of the issues raised by the application for revision” was for the Secretary of State to have “considered a properly constituted application for revision on an ‘any time’ ground”. As we have noted above, it is not wholly clear that PH and SM was to the effect that Judge Ovey understood it to be, but in any event we note that Judge Ovey essentially shared the view that we have reached in these proceedings that, on an appeal in such cases, the Tribunal is considering an appeal against the original decision on its full merits. As we read Judge Ovey’s reference to “the merits of the issues raised by the application for revision” (at [77]), this is just a reference to section 12(8)(b) of the SSA 1998 and, as such, her view accords with our own that, although in principle a late appeal of this sort is a full merits appeal in the same way as a ‘standard’ appeal, a late appeal (in the same way, in fact, as a ‘standard’ appeal) does not automatically lead to a full review of the merits of the original decision because the Tribunal only needs to consider the issues actually raised by the claimant on appeal.

Finally, we come to two more decisions of Judge Wikeley. In CW v SSWP (PIP) [2023] UKUT 297 (AAC) Judge Wikeley was dealing with another appeal arising out of LEAP exercises. The First-tier Tribunal had held that it was not able to deal with the appeal as a full merits appeal against the original decision because its jurisdiction was limited to the issues raised by the potential official error. Judge Wikeley agreed with the Secretary of State that the Tribunal had erred in this respect because the Secretary of State’s decision on the revision application “could properly be construed as a decision given on a non-hopeless application for an any-time official error revision of [the original decision]” and accordingly the Tribunal had full jurisdiction over the merits: see [40]-[43]. Judge Wikeley acknowledged that there was still some uncertainty in the case law on this issue (see [41]) but did not consider he needed to resolve that in this case. In essence, he followed the approach taken by Judge Ovey in DB which, as we have noted, rejected the approach that he had taken in GJ and may or may not have been in accordance with what Judge Poole decided in PH and SM.

The last decision is SSWP v TR [2025] UKUT 001 (AAC). This was a complicated case involving attempts by a claimant to challenge three different decisions of the Secretary of State. The case arose out of LEAP exercises. We do not need to get into the detail of the case for our purposes. In general terms, it is a reminder of the importance in complex cases of the Tribunal considering very carefully the correspondence that has passed between a claimant and the Secretary of State in order to identify what applications were made and what decisions were taken. So far as the specific matters with which we are concerned, however, the first point to note is that at [36] and [42] Judge Wikeley relied on PH and SM to hold that two of the claimant’s applications for revision were not ‘valid’ applications because they were in substance made on an “any grounds” basis but after the expiry of the primary 13-month period for making such an application so that only “any time” grounds for revision were available to her. At [39] and [42], Judge Wikeley applied the same logic to construe another request for revision by the claimant as relating only to her 2017 claim because that was the only claim affected by the LEAP exercise, i.e. Judge Wikeley proceeded on the basis (as he had in GJ) that unless official error was established in relation to a decision there was no means of challenging it late.

That he proceeded on this basis is clear also from [44] where he explained that, from that point in the decision onwards, he was considering the appeal on the alternative basis that, as submitted by the claimant, the claimant “had lodged a valid in-time appeal against all three PIP decisions …”. He stated: “lest I am mistaken as to my primary finding, I proceed to consider the position on that same basis. This requires consideration of the claimant’s submission that any such requests were in time as the DWP’s decisions in question arose from ‘official error’”. Judge Wikeley then went on at [48]ff to consider whether a request for revision must expressly or implicitly identify official error as a ground for revision. At [49] he quoted from [12] of Judge Poole’s decision in PH and SM and at [50] he continued:

Judge Wikeley indicated that he did not need to resolve the dispute between the parties in that case as to whether the application needed in substance to be an application for revision on ground of official error. However, as can be seen, he proceeded on the basis, apparently agreed by the parties, that it was necessary for the decision under challenge actually to have been made in consequence of official error in order for the Tribunal to have jurisdiction over the appeal on a full merits basis. For the reasons we have set out above, we consider that approach to have been erroneous.

Finally, Judge Wikeley dealt in TR with a further point, which is raised also in GD’scase in these proceedings, as to whether the Secretary of State’s standard wording giving notice of the requirement to apply for mandatory reconsideration before appealing to the Tribunal, satisfies the requirements for such a notice in regulation 7(3)(a) of the D&A Regulations in terms of informing the claimant of the time limit for making such a request. Judge Wikeley decided that it did and that it suffices that the Secretary of State gives notice of the primary one-month time limit and does not provide details of the bases on which time may be extended. An appeal to the Court of Appeal against Judge Wikeley’s decision in TR was commenced, but (we understand) is not proceeding.