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Summary

The claimant attempted to challenge six decisions made in 2007 notifying her of an intention to recover overpayments of IS. However, the First-tier Tribunal declined jurisdiction on the grounds that the DWP had failed (before issuing the recoverability decisions) first to notify the claimant that her IS was revised. The claimant’s challenge was made in 2020 (ie, a very long time after the expiry of the absolute 13-month time limit for an appeal), in the form first of a request for an ‘any time’ revision of the six recoverability decisions on the grounds of official error. The DWP’s subsequent refusal to revise was then appealed against. The tribunal declined jurisdiction as notification of a revised decision is a necessary precondition before a decision is appealable, and no such notification was made.

Judge Brewer refused the claimant’s further appeal. The tribunal had not erred. It was true, on the balance of probabilities, that the revised entitlement decision had not been notified to the claimant. By contrast, it was more likely than not that the claimant had been sent the six recoverability decisions; importantly, it was the case that those decisions all confirmed that the claimant had a right of appeal, which she did not exercise timeously following notification. The DWP’s failure to make and notify the claimant of a valid revised decision meant that the preconditions for recovery of an overpayment of IS, in section 71(5A) of the Social Security Administration Act 1992 ‘were simply not met’, and the DWP’s subsequent recovery of overpayment was ‘without lawful authority’ and an ‘official error’ as defined in regulation 1(3) of the Social Security (Decisions and Appeals) Regulations 1999 (paragraph 55).

But it did not follow that the tribunal had jurisdiction to consider the claimant’s much later attempt to appeal the refusal to revise. The absence of notification of the revised entitlement ‘offends against the basic tenets of legality and access to justice’ so that it is of no legal effect; the original IS decision therefore remains in full force; consequently ‘unless and until’ notification takes place there can be no appeal against it, with the result that the tribunal had no jurisdiction (paragraphs 62–66). Neither was there a right of appeal against the refusal to revise the IS recoverability decisions for official error. That there was no such right had been established by R(IS) 15/04. The claimant was not assisted by the comments of Judge Poole in PH and SM v SSWP [2018] UKUT 404 (AAC) to the effect that, in the mandatory reconsideration regime (introduced after the date of the decisions under consideration in this case), a refusal to revise for official error may give rise to appeal. Under the law in force at the time of the decisions in this case (2007), no such mechanism existed and R(IS) 15/04 was a complete answer to the question about right of appeal against a refusal to revise. But the claimant had been given a right of appeal. The judge noted that the recoverability decisions which were notified to the claimant in 2007 all carried the right of appeal. The claimant had not exercised that right within available time frames. Had such an appeal been made, ‘the absence of notification would rightly have been an issue for the tribunal to determine’ (paragraph 77).

Comment from CPAG

Despite the citation, this is a decision about IS rather than universal credit. The findings regarding the necessity for notification of a decision for it to have legal effect and for there to be a subsequent jurisdiction for a tribunal, though not new, are of general relevance. But the findings regarding right of appeal against a refusal to revise for official error must be read in the context of the pre-mandatory reconsideration scheme rules that were under consideration in PH, and so of more limited applicability.

Summary

The appellant was the mother of two children in respect of whom she had been awarded child benefit. The (separated) father of the children made a competing claim, and HMRC awarded the child benefit for the children to him instead. The First-tier Tribunal allowed the mother’s appeal and reinstated the child benefit for the children to her.

Judge Markus KC allowed the father’s further appeal and held that the tribunal had breached the rules of natural justice by failing to join the father in the appeal. Further, the tribunal failed to apply the correct legal test of the priority rules for child benefit in Schedule 10 of the Social Security Contributions and Benefits Act 1992. The tribunal had made a decision based on its views about the best interests of the children’s welfare and had applied Schedule 10 at all times. Remaking the decision, Judge Markus KC held that for the purposes of section 143(1)(a) of the Act, in all the circumstances the children lived with both parents. The existence of a shared care order by a court regarding the children was relative evidence but was not in itself determinative. Under Schedule 10, none of the priority provisions applied so as to give entitlement to the mother or the father, so in the absence of a joint election by them it fell to HMRC to decide which of them was to be awarded child benefit for the children.

The relevant facts included that the mother had stated that the children could spend as much time as they wished with either parent and they spent at least every other weekend with her. The father had stated that the children stayed with him except on alternate weekends, and that the children’s school and medical records were kept with him and that the children stayed with him when ill, facts disputed by the mother. Reviewing authority on the meaning of when a child is ‘living with’ a person, the judge held that:

‘...the question of with whom a child is living at any time for the purpose of section 143(1)(a) is a question of fact to be decided on all the available relevant evidence. It is not a question of where the child spends the majority of their time. The existence of a court order or agreement between the parents as to joint living or caring arrangements is not decisive of where the children live. Such matters are relevant evidence, but they must be weighed along with all the evidence’ (paragraph 53). 

It was clear that the children spent significant amounts of time at the mother’s house. It was unlikely that the children kept no possessions at her house, and instead likely that they kept possessions with both their mother and their father. In the light of all this, the judge concluded that the children lived with both the mother and the father. Therefore, none of the specific priority provisions in Schedule 10 applied. Accordingly, in the absence of a joint election by the parents it was for HMRC to decide entitlement (under paragraph 5 of the Schedule), a decision that was not within the tribunal’s jurisdiction.

Decision in brief

Under section 71ZB of the Social Security Administration Act 1992, overpayments of new-style ESA (as well as UC and new-style ESA) are always recoverable and paragraph 6B of Schedule 3 to the Social Security Act 1998 provides there a right of appeal only about the amount of the overpayment – LP v SSWP [2018] UKUT 332 (AAC) applied and approved – tribunal erred in holding that it had jurisdiction to decide on whether the overpayment is recoverable and to consider the applicability of R (K) v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) – challenges to recovery in such cases are instead possible on judicial review, where R (K) may be considered by the court – similarly the decision of the European Court of Human Rights in Cakarevic v Croatia (Application 48921/13) (in the context of human rights challenge to recover an overpayment) was potentially relevant in a judicial review, but not on appeal to a tribunal Comment: R (K) held there was a defence against overpayment recovery based on ‘legitimate expectation’ (see ‘Overpayments and legitimate expectation’, Bulletin 293, April 2023), a concept applied in a human rights context in Cakarevic v Croatia (see ‘Overpayments: legitimate expectation, human rights style’, Bulletin 294, June 2023).

Decision in brief

In January 2025, tribunal awarded ADP to 25 December 2025, but prior to the tribunal decision, Social Security Scotland did a supersession of the decision under appeal, making an award starting on 7 November 2024 – under section 27 of the Social Security (Scotland) Act 2018 tribunal was only able to award ADP to 6 November 2024, as the period from 7 November 2024 was covered by a different determination (subject to its own appeal rights, so the claimant was not without a remedy regarding that), even though it was actually unaware of the supersession decision

Decision in brief

That submission was that the claimant should be awarded points for daily living descriptors 3 and 5 and for mobility activity 2 – SSS had put these in issue, and it was not a relevant consideration that it was SSS rather than the claimant that sought to challenge the decision before the tribunal

Decision in brief

Claimant claimed and was refused personal independence payment (PIP) in 2022 – main issue was the claimant’s ability to plan and follow journeys – but at the hearing, the judge questioned the claimant about his immigration history including how and why the claimant came to the UK in 2016 – irrelevant and no clear rationale for the judge asking why the claimant came to the UK and whether he came to work here – also created the impression of bias (ie, that a fair-minded and informed observer would conclude there was a real possibility of bias) as per the test set out in Porter v Magill [2002] 2 AC 357

Decision in brief

Tribunal erred regarding activity 1 in failing to engage with claimant’s evidence regarding her ability to chop vegetables and instead referring to her ability to use an oven – tribunal erred regarding activity 3 in failing to explain why it did not consider that the use of a reminder on telephone to take medication was not an ‘aid’ – tribunal’s view appeared to be contrary to the definition of ‘aid or appliance’ in the rules

Decision in brief

Claimant with mental health problems who, due to overwhelming psychological distress, was rarely able to leave his home and even then needed to be accompanied by his partner – uncontested evidence of claimant was that his anxiety and panic attacks prevented him from leaving home most of the time, and although formally required to attend his work office one day a week, he was often unable to do that – often cancelled health appointments if his partner could not accompany him – ‘Where the appellant rarely leaves the house at all and is only occasionally able to make familiar or unfamiliar journeys when accompanied or prompted by his partner, it is appropriate to find that mobility descriptor 1(f) applies’

Decision in brief

Fairness and justness – breach of rule 24(5) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008

Decision in brief

The wording of the activity is to be interpreted as meaning that it is about only one activity (ie, of navigating and maintaining safety taken together} – the ‘maintaining safety’ element is not restricted to descriptor 8(b) (‘cannot safely complete a hazardous task...’) which is the only descriptor specifically referring – other descriptors (eg, descriptor 8a ‘unable to navigate around familiar surroundings...’) must also be applied with maintaining safety in mind – so that the claimant in this case who had a hearing impairment, might satisfy descriptor 8(a) on the basis that his inability to hear sometimes led him to collide with cyclists and scooter riders on pavements

The claimant was refused PIP. The First-tier Tribunal (FTT) upheld that refusal. In its reasons, the tribunal said that medical evidence lacked ‘detailed objective substantiation of the disabling functional effects claimed by the appellant across the PIP assessment activities’. It also referred to observations it made of the claimant at the hearing, which were that he ‘did not exhibit indicators of disability’. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in three ways: (1) it seemed that the tribunal may have failed to consider whether medical evidence (in the form of an MRI scan) which post-dated the decision may nevertheless have been relevant at the date of the decision under appeal; (2) the tribunal wrongly rejected the medical evidence it did have on the basis that it did not make specific reference to the PIP activities; (3) it was not clear whether the tribunal had given the claimant the opportunity to comment on its observations of him at the hearing: that was an error of law ‘both in terms of the FTT’s failure to afford the appellant this opportunity and, given the written reasons are silent on this point, to provide adequate reasons of how it dealt with this issue’ (paragraph 25). 

Regarding error (1), the tribunal seemed to have had in mind section 12(8(b) of the Social Security Act 1998, which provides that a tribunal shall not consider ‘any circumstances not obtaining at the time the decision was made’. But, as pointed out in several decisions including R(DLA) 2/01 and R(DLA) 3/01, that refers only to post-decision ‘circumstances’, not to post-decision evidence which might nevertheless be evidence of circumstances at the relevant time. Regarding error (2), most medical reports do not make specific reference to the PIP activities. To consider such evidence as automatically inadequate or unpersuasive was so unfair as to be ‘contrary to natural justice’ and breach the claimant’s human right to a fair hearing (paragraph 20), as well as to constrain the tribunal in its task of ‘holistically considering and properly weighing all the evidence’ (paragraph 21). Rather, it was for the tribunal to make its own findings. 

Regarding error (3) and the tribunal’s observations of the claimant, the judge noted the principles adumbrated by Judge Poole QC (as she was then) in CC v SSWP (ESA) [2019] UKUT 14 (AAC) and said: ‘It is important to remember the hearing usually takes places some months after the date of the decision and is in effect a “snapshot” of an appellant’s presentation on that particular day over a relatively short space of time. Attaching weight to “on-the-day observations” should therefore be approached with caution by the FTT. It is crucial the tribunal affords the appellant the opportunity to comment on observations it may have made otherwise unfairness to the appellant can result. I note the decision of Upper Tribunal Judge LT Parker In CSPIP/45/2016 on this issue specifically paragraph 7: “Notwithstanding a tribunal is entitled to take observations into account, this is always subject to its overriding duty to provide a fair hearing; this will usually mean allowing a claimant to comment on such observations before any final adjudication is made”’ (paragraph 24). 

Comment from CPAG

Regarding whether a tribunal’s observations of the claimant should be put to them at the hearing, although this decision approvingly notes CC v SSWP (ESA) (which emphasised that this will be a matter of fairness in the context of the case but by no means automatically required), it is arguably more assertive than that decision in endorsing the view that this will ‘usually’ mean giving the claimant the chance to comment.

Summary

The claimant was considered by the local authority to have been overpaid housing benefit between 2014 and 2018. She had reported that her son had moved out of the property in 2014 (and so no non-dependant deductions had been made since then), but the local authority became aware of evidence that the son still used the property as a correspondence address and concluded that he had in fact continued to live there. The claimant appealed. The First-tier Tribunal asked the claimant to provide evidence about her son’s alleged residence elsewhere including council tax bills or oral evidence from the son. The claimant instead provided several letters which repeated her claims but focused on her belief that she was being persecuted by the local authority. 

The tribunal dismissed her appeal, making an adverse inference from the claimant’s failure to respond to what it considered to be its straightforward requests for evidence. The claimant applied for a set-aside of the decision, on the basis of witness evidence from the son and neighbours and (for the first time) a submission that the claimant had lacked mental capacity to respond to the tribunal, backed up with evidence from a consultant psychiatrist. The set-aside application was refused. A subsequent late appeal against the original decision of the tribunal (not the refusal of the set-aside) was eventually dismissed by the Upper Tribunal, which held that tribunals were well used to dealing with litigants with compromised cognitive abilities, that the tribunal had at all times acted fairly, and that the psychiatrist’s report had not established that the claimant lacked capacity at the time of the tribunal. The Upper Tribunal refused the claimant permission to appeal. 

The Court of Appeal granted the claimant permission to appeal, allowed the appeal and remitted the issue of the son’s place of residence during the period of the alleged overpayment to the First-tier Tribunal to be reheard in the light of the evidence now available. There had been a mistake of fact leading to an error by way procedural unfairness, which the Upper Tribunal (in not properly assessing the detail of the psychiatrist’s report) had not identified. That the mistake of the First-tier Tribunal was revealed by fresh (ie, post-decision) evidence was not a barrier as (per the principles in Ladd v Marshall [1954] 1 WLR 1489) the evidence was objective and uncontentious, the mistake was not the fault of the claimant or their representative and the mistake had caused unfairness. Giving the lead judgment in a unanimous decision, Lord Justice Stuart Smith noted that both the First-tier and the Upper Tribunal are required by their rules to adopt a flexible approach in order to achieve a just result and that, ‘... where a litigant in tribunal proceedings is found to have lacked capacity (or to have been compromised in their ability to participate fully in the proceedings) after the event, it may be relatively easy to conclude that there has been a mistake of fact’ (paragraph 47). Further, there may be cases ‘... where even a specialist tribunal judge will not be alerted to the difficulties that the litigant is facing. Where that is recognised at a later date, either on a set aside application or on an appeal, the full extent of the tribunal’s powers is available, up to and including setting aside or allowing the appeal, to ensure that the final outcome is fair’ (paragraph 48). This was such a case. The mistake of fact (not the fault of the claimant) was that the tribunal had considered the claimant to have capacity, when the psychiatrist’s report, properly assessed, showed that the claimant was suffering from a severe mental disorder at the time of the hearing that adversely affected her ability to participate fully in the proceedings (including in responding to evidence requests). That was something not appreciated by the tribunal and so led to an error of law by way of ‘material procedural unfairness’ (paragraph 64). The Upper Tribunal had wrongly considered that the psychiatrist’s report had not shown that. 

Comment from CPAG

Fresh (ie, post-decision) evidence and arguments will not usually permit a tribunal decision to be overturned. But this case is an example of the limited exception to that, provided by the Ladd v Marshall principles. It is also worth noting that in this case the court was dealing with a very late appeal against the tribunal’s decision and would seem to have been primarily concerned with the error of law in that decision, rather than an appeal against the refusal to set the decision aside. But clearly it considered that – for the same reason – that was wrong too.