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Summary

The claimant reached pension age on 2 March 2022 but did not claim her state pension until 27 February 2023. That claim was disallowed on 13 March 2023, on the basis that her national insurance record showed that she did not have any qualifying years. In September 2023, HMRC recognised an error in her national insurance record and amended it to award home responsibilities protection between March 1981 and March 1997. The claimant made a second claim on 9 December 2023, stating that she wished to claim from the earliest possible date. That resulted in an award, but only from 9 December 2022, on the basis that the maximum backdating on a claim was 12 months. On appeal, the claimant requested backdating to 3 March 2022, as the reason for not qualifying from that date was official error regarding her national insurance record, and had she been awarded entitlement on her first claim she would have requested backdating to that date. Her appeal was refused, the tribunal holding that the maximum backdating possible was 12 months – ie, only to 9 December 2022.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the claimant was entitled from 2 March 2022 – ie, the date she reached pension age. The tribunal had erred in failing to consider whether the claimant had in fact applied for an any time revision of the refusal of her first claim, on the basis of official error – ie, the mistake about her national insurance record. Judge Wikeley found that the claimant’s second claim and request for backdating to the earliest possible date should have been treated as such an application. The tribunal should have found that the refusal of the first claim was revised for official error, and the decision on the  second claim substituted with a decision that the claimant was entitled with effect from 3 March 2022.

It was certainly the case that the maximum period for which a claim for state pension can be backdated is 12 months. So, had the tribunal been ‘solely and exclusively’ concerned with the second claim made on 9 December 2023, backdating of entitlement would only have been possible to 9 December 2022. But the tribunal ‘fell into error’ by failing to consider if there was any way by which the decision of 13 March 2023 refusing the claimant’s first claim could have been changed (paragraph 15). Given that in principle decisions are final, that decision could only be changed by revision or supersession. 

The judge considered that on the second claim, the decision maker had given a ‘fresh decision in respect of the whole period from 3 March 2022’, comprising a disallowance from 3 March 2022 and an award from 9 December 2022. That was an error as the refusal of the initial claim could and should have been revised for official error, with resulting entitlement from 3 March 2022. Accordingly, the question that the tribunal should have asked itself was ‘whether in all the circumstances the existing disallowance decision dated 13 March 2023 in respect of the first claim could now be revised into an award’ (paragraph 17). As submitted by the Secretary of State, that was possible on the basis of any time revision for official error under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991.

Comment from CPAG

The grant of appeal to the Upper Tribunal included that the district judge noted that the error regarding national insurance records had been brought into the public domain by the journalist Martin Lewis, and it was appropriate for the Upper Tribunal to consider the appeal ‘as the result may affect not just this appellant but many other people’. More widely, the basic legal point is that a decision (including a refusal of a claim) that is wrong because of ‘official error’ can be the subject of a revision at any time. In the present case, evidently it was accepted that the claimant’s request for maximum backdating when making her second claim should have been treated as including a request for that. For more on appeal rights and official error revision, see our article, Any time revision: an appealing prospect?.