[2025] UKUT 332 (AAC)

This issue was one of the issues that this three-judge panel was convened in order to determine, although in the event it is not a point that is strictly in issue between the parties in either TR’s or GD’s case. There are, however, cases stayed behind this case to which this issue is relevant, and the parties have made submissions on the issue. Moreover, as is apparent from the preceding section of our judgment where setting out the relevant case law necessarily included setting out the case law relevant to this topic, it is difficult to divorce this issue from the points of law that are directly in issue in the cases before us. We therefore set out our conclusions so that they may serve as a guide in future cases.

We begin with the observation that section 12(3A) of the SSA 1998 permits the making of regulations 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”. Section 12(3A) does not include the words that appear in regulation 7(2) of the D&A Regulations “considered on an application” (emphasis added). That regulation 7(2) is intra vires section 12(3A) is clear from section 12(3B) which expressly permits the regulations to provide that an application is a necessary element. The decision to limit the effects of regulation 7(2) to where the Secretary of State has considered whether or not to revise on the basis of an application does not leave claimants without a right of appeal if the Secretary of State decides to act of his own motion to revise a decision (whether on “any grounds” or “any time” grounds), because if the Secretary of State decides to revise a decision at any time, that restarts the clock for appealing to the Tribunal by virtue of section 9(5) of the SSA 1998. In such cases, the revision decision itself would be the trigger for the start of the normal one-month time limit for appealing, unless the Secretary of State stipulates in that decision that mandatory reconsideration applies so that the claimant must apply again for a revision of the revision before appealing to the Tribunal.

The cases before us are both cases in which an application of some sort was made that the parties agree to be sufficient to trigger a right of appeal. The issue of principle that we now go on to consider is whether there are any particular requirements for an application before it will trigger the right of appeal under regulation 7(2). Many of the cases that we have reviewed touched on this topic, but none of them are binding on us, although some carry more persuasive weight than others. The only decision of a superior court of relevance is the decision of the Court of Appeal in Wood. As noted above, Wood was dealing with the previous legislation in which there were no equivalents to section 12(3A), regulation 7 of the D&A Regulations or regulation 22 of the Tribunal Procedure Rules. There is nothing therefore in that decision that is binding on us in relation to this issue. However, the Court of Appeal did consider what was required in order for a decision of the Secretary of State to constitute a refusal to supersede against which an appeal would lie. Regulation 6 of the 1999 D&A Regulations was equivalent to Part 3 of the current D&A Regulations as it set out the bases on which decisions may be superseded. As we read the judgments of the Court of Appeal in that case, the Court concluded (albeit this part of their decision was obiter) that it was necessary for there to be a properly constituted application for supersession on the particular ground relied on. Rix and Dyson LJJ went no further than that, while Arden LJ in [62] tied her reasoning more specifically to the terms of regulation 6 of the 1999 Regulations as follows (the full passage we have already set out in full at [78] above):

The Court of Appeal in that decision thus identified the possibility of the Secretary of State being able simply to reject a purported application that was not advanced in good faith, and transparently on one of the prescribed grounds, or which was otherwise misconceived, and concluded that decision would not be appealable on the basis that it did not in law constitute a decision on the relevant application. However, as can be seen, Arden LJ (in particular) focused on the wording of regulation 6 itself, which provided in material part: “A decision under section 10 may be made on the Secretary of State’s … own initiative or on an application made for the purpose on the basis that the decision to be superseded … is one in respect of which … there has been a relevant change of circumstances”. Arden LJ construed this wording as giving the Secretary of State power to supersede a decision only if the Secretary of State received an application of the appropriate type. Given that regulation 6 itself did indeed on its face prescribe that an application for supersession must be made for a particular purpose, and then listed the possible grounds for supersession, it seems to us that the Court of Appeal’s decision was plainly correct as regards the legislation as it stood at that time. Although Rix and Dyson LJJ did not in their reasons focus on the precise wording of regulation 6, it seems to us that their conclusion cannot be divorced from the legislative scheme as it stood at that time.

The current legislation, however, is worded quite differently as we have noted above. The “any grounds” provision in regulation 5 simply permits the Secretary of State to revise the decision where “an application for a revision is received” within the particular period, with no specification as to type of application. The “any time” grounds for revision, such as “official error” in regulations 8 and 9 simply permit the Secretary of State to revise a decision when the particular circumstances apply. There is nothing prescribing the type of application. Likewise, as already noted, regulation 7(2) just refers non-specifically to the Secretary of State considering ”on an application” whether or not to revise the decision. Regulation 22 of the Tribunal Procedure Rules also does not specify the type of application.

When Judge Poole in PH and SM adopted the Wood approach, holding that there had to be a ”properly constituted” application to revise for official error in order to generate a right of appeal to the Tribunal, whether one that was “made out on the facts”, or which advanced an “arguable” or “not spurious” case or otherwise, she did so without addressing the difference in wording between the legislation that was before the Court of Appeal in Wood and the current legislation.

The three-judge panel of the Upper Tribunal in R (CJ) and SG v SSWP in contrast did consider in detail the wording of the present regulations and concluded, for applications within the 13-month time limit that it suffices to constitute consideration of an application by the Secretary of State if he considers the application but rejects it on the “preliminary issue” of time rather than considering it on its merits. In the course of that decision, the three-judge panel of the Upper Tribunal observed at [45] that there was nothing in section 12(3A) that required the regulations made thereunder to limit the right of appeal only to the situation where “the Secretary of State has considered [on the basis of an in-time application for revision] whether to revise the decision under section 9”. At [52], the three-judge panel observed: “This reading of regulation 3(1) in our view lends support to the common ground before us that an application for a revision is not deprived of its character of being an application for revision simply by being late.” At [53] they continued, “there is no hint that it must be an application for a revision that satisfies a time limit. Indeed, given the structure of regulation 3, that would be illogical - as a revision application may be made under regulation 3(5), which as an ’any time’ application has no time limit”. The decision of the three-judge panel in that case thus recognises that, on its face, the current legislation deals with both “any grounds” and “any time” applications for revision in the same way. The three-judge panel further recognised at [93] that the logic of its decision in that case would be that a claimant could trigger a right of appeal at any time after 13 months by making an application for revision (quoted above at [88]-[89]). Even though the panel considered that result would be contrary to the “intention of Parliament”, the three-judge panel did not let that sway them from their conclusion that their approach was correct as regards applications made before the 13-month mark.

The parties in these proceedings are in agreement that what is required to constitute an application for the purposes of regulation 7(2) is in general terms a low hurdle. They both broadly adopted the Wood and PH and SM approach. Mr Skinner for the Secretary of State, in particular, provided vivid examples in his skeleton argument of communications that he submitted “would not amount to a valid any time revision application on the basis of ‘official error’” as follows:

“i.

“The decision was wrong, please look at it again.” This is insufficiently

particularised to enable the SSWP to connect it with there being a statutory any time ground of revision.

ii.

“I now think that the decision made in 2019 to disallow my PIP claim was wrong because I know my evidence was good and so you could not have considered it properly, please look at it again.” While this appears to point to an ‘official error’, the logic is incapable of demonstrating one.

iii.

“Your decision arose from an official error because it was made on a

Wednesday, which is my unlucky day”. As above, it points to an ‘official error’, but the logic is self-evidently flawed.

iv.

“Your decision leaves me in hardship and is unjust”. Again, this cannot be logically connected with any statutory any time ground.

v.

“Your decision is inconsistent with the evidence.” This is insufficiently

particular of itself to demonstrate ‘official error’.

vi.

“Your decision has much the same effect on me as a sanction, and therefore it can be revised under regulation 14 of the [D&A] Regulations.” This is logically unconnected with the statutory grounds for an any time revision.

vii.

“Your decision arose from an official error because it is inconsistent with case law decided since your decision”. This is incapable of amounting to an ‘official error’ because it is excluded by Reg 2 of the [D&A Regulations] as “an error of law which is shown to have been such by a subsequent decision of the Upper Tribunal”.”

In the course of our deliberations, we have been concerned that, if we accept (in some form) the parties’ proposed approach, we would be reading requirements into the legislation that are simply not there on its face. It troubled us that, if we and the parties are right that on an appeal against a decision following the Secretary of State refusing to revise a decision on “any time” grounds the Tribunal exercises a full merits jurisdiction, it could be said to flow logically from that that an application for revision (whenever made) does not need itself to identify any particular ground for revision in order to constitute an application that is capable, once the Secretary of State has considered it, of triggering a right of appeal to the Tribunal. This would be because the basis on which we arrived at that decision was that the right of appeal remains a right of appeal against the original decision only (as revised or not) and the Tribunal’s jurisdiction on appeal is to stand in the shoes of the Secretary of State and to take that decision de novo on a full merits basis. As such, the grounds on which the Secretary of State is empowered to revise a decision become irrelevant on appeal as the powers of the Tribunal are not so constrained.

However, on further reflection, we are satisfied that it is necessary for the application to raise in substance a request for revision that is capable of being in fact or law an official error (or other relevant “any time” ground for revision), albeit that it need not raise an arguable case. This is because of the terms of regulation 6 of the D&A Regulations and because of what the three-judge panel said in R (CJ) and SG v SSWP about it evidently not being “the intention of Parliament” to enable claimants to generate a right of appeal by making an “any grounds” application for revision outside the 13-month time limit. Although we would point out that the provisions that contain the crucial detail in relation to the grounds for revision and the operation of the time limits are all in regulations and not in the primary legislation, so that what is relevant is not the intention of Parliament but that of the Parliamentary draftsperson, we do agree with the three-judge panel in R (CJ) and SG that this cannot have been the intended effect of the regulations. If it was, it would render largely nugatory the detailed provision as to the various grounds on which the Secretary of State may revise a decision, as well as regulation 6 with its strict conditions on the circumstances in which time can be extended for an “any grounds” revision. While it may be that the regulations simply failed to capture the legislative intent, we consider that, if the “any time” revision regulations are read together in context with regulation 6, the three-judge panel in R (CJ) and SG were right in their [52] footnote that an application for revision on “any grounds” under regulation 5 will not be valid if it is brought after the 13-month point. It must follow that, in order for an application for revision brought after that point to be valid so as to trigger the right of appeal under the time limits provisions, the application must in substance be an application on one of the specific “any time” grounds as, if it is in substance an “any grounds” application for revision, it will in our judgment not be valid for the reasons that the three-judge panel in R (CJ) and SG suggested.

Although the role of the parts of the regulations dealing with revision and time limits is significantly reduced as a result of the decision we have made about the Tribunal’s jurisdiction on appeal being a “full merits” jurisdiction, we do therefore consider that they remain relevant to the limited extent that, in order to trigger a late right of appeal to the Tribunal, an application must raise in substance one of those grounds on a basis that, if made out, would be capable of being in fact or law an official error or other “any time” ground for revision. The application does not, however, have to be arguable in order to trigger a right of appeal. There is nothing in the legislation to indicate such a threshold is required, and to hold otherwise would in our judgment be inconsistent with the decision of the three-judge panel in R (CJ) and SG that an application made within the initial 13-month period is not deprived of the character of being an application just because it is out of time. We add that it seems to us that Mr Skinner’s list of applications that would not constitute valid “any time” applications for revision (set out at [115] above) provides an appropriate guide that may assist Tribunals in adjudicating on this issue.

Further, we observe that, so far as the Tribunal is concerned, what opens the door to an appeal is not (or not necessarily) the form of the application, but whether the Secretary of State has considered that application. If the Secretary of State has considered the application as if it is an application for revision of the decision, that is likely to be the end of the matter so far as the Tribunal is concerned, having regard to regulation 7(2) of the D&A Regulations and regulation 22 of the Tribunal Procedure Rules. In these circumstances the Tribunal should simply proceed to deal with the appeal as it would any other. It will only be in what are likely to be the relatively rare cases that the Secretary of State has either not responded to the application at all or has regarded the application as being an “any grounds” application for revision outside the 13-month period, and rejected it on that basis, that the Tribunal will need to consider whether the Secretary of State has properly construed that application or not. If the Secretary of State has regarded the application as not being an “any grounds” application, and the Secretary of State’s reading of the application is right, the appeal should be dismissed for lack of jurisdiction. If the Tribunal decides that, properly construed, the application is an “any grounds” application, the appeal should be admitted, provided (of course) that the appeal has been made within time applying regulation 22 of the Tribunal Procedure Rules and there are no other grounds for striking it out. If the Secretary of State has not responded to the application at all, so that it cannot be said that the Secretary of State has “considered on an application whether to revise” the decision, then the Tribunal will not have jurisdiction unless and until the Secretary of State has considered the application. The First-tier Tribunal may wish to consider staying any such case and issuing directions to allow the Secretary of State time to consider his position.