[2025] UKUT 259 (AAC)

It is acknowledged that this point is raised for the first time at a late stage and risks adding further delay to proceedings which have already involved significant delay, particularly given that the Secretary of State would need fair opportunity to respond.

The power to allow amendment is a broad discretionary power, to be exercised in accordance with the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”), and on balance, permitting the new ground (if deemed arguable) would further that objective for these reasons:

The Secretary of State has filed detailed witness evidence from a senior civil servant on the justification of the absence abroad rules and provided supporting contemporaneous policy documents on those regulations. That evidence does touch on the housing benefit rules. Any further evidence required would build on that, and is limited in scope.

The Secretary of State is now recovering via deductions from ongoing benefit the overpayment which currently exists and that will not change (the deduction as things stand would be due to take place for a number of years). So further delay causes [??}, aside from the resources involved with these proceedings.

Any further delay should not be substantial. While the Appellant’s representative has certainly contributed to the delay, there has been delay on both sides in what is a complex case.

The inquisitorial nature of social security tribunal procedure extends to appeals on points of law to the Upper Tribunal. If it had become apparent that this was an arguable issue, the Upper Tribunal could in any event become obliged to deal with it.

The 2008 Rules give avoiding unnecessary formality and seeking flexibility in the proceedings. dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties. The Appellant continues to qualify for means-tested benefit and is reliant on charity assistance. Representation is outside the scope of legal aid even before the Upper Tribunal and in this case Exceptional Case Funding for counsel’s opinion was refused.

The impact of a refusal, if the underlying ground is deemed to have a realistic prospect of success, would be a risk of a s.6 HRA breach on the part of the Upper Tribunal.

It may be thought desirable for a conclusive answer on this issue which is yet (as far as we aware) to be decided by any court of record.

If the further ground might realistically succeed, it may be thought preferable to case manage to limit further delay rather than to refuse permission. The Upper Tribunal may consider that limiting any further exchange to written submissions may be sufficient to mitigate the risk of any further delay.