[2025] UKUT 332 (AAC)

Wood concerned a supersession decision. The Court of Appeal held that, as the Secretary of State could only supersede a decision on one of the grounds prescribed in the legislation, on appeal to the Tribunal against a supersession decision, the Tribunal needed to consider whether one of the grounds for supersession was established and, if not, the decision could not be changed. The Court of Appeal further confirmed (although this part of their decision was obiter: see Rix LJ at [55])that a claimant has a right of appeal to the Tribunal under section 12 against a supersession decision made by the Secretary of State under section 10 of the SSA 1998, whether the decision resulted in a change to the original decision or not.

In the course of discussion of that latter point, the Court of Appeal considered what was required of the application or the decision in order to trigger the right of appeal. As already mentioned, it is important to note that at that time the provision for the right of appeal was simply that in section 12(1), i.e. that the right of appeal applied in respect of “any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above)”. There was no wording in the legislation such as we now have in regulation 7 of the D&A Regulations limiting the right of appeal to: “only if the Secretary of State has considered on an application whether to revise the decision under section 9 of that Act”. The only complicating factor for the Court of Appeal in Wood was whether the definition in section 12(9) of the reference in section 12(1) to “a decision under section 10 above” being “a decision superseding any such decision”, coupled with regulation 31(2)(b) being drafted by reference to decisions that supersede (and not refusals to supersede), meant that only decisions that actually resulted in a change to the original decision could be appealed. That question the majority of the Court of Appeal answered in the negative, holding that decisions refusing to supersede counted as supersession decisions and could be appealed. We are not concerned with that aspect of their decision in this case.

What the Court of Appeal said about what was needed to trigger a right of appeal is, however, relevant to these appeals. Rix LJ (who was in the minority on the supersessions issue) at [24] summarised the Secretary of State’s position in that case as being that a right of appeal lay from every decision on an application for supersession save for those applications that are so hopeless that they “[do] not even amount to an application properly so called”.

Rix LJ went on at [45]-[47] to consider passages from Hansard. At [48] he explained why he found the materials in the main to be unhelpful, but at [49] and [53] he concluded (albeit, strictly obiter as he indicates) that he accepted the Secretary of State’s submission on this issue:-

Dyson LJ at [75] agreed that there needed to be a “properly constituted” application for supersession on the particular ground. Arden LJ held similarly at [62], albeit that her reasoning focused more closely on the wording of the legislation itself: