Not finding fault: any ground revisions

A faultless procedure

Decisions about entitlement to benefits can be incorrect when they are made in only two different ways: on the facts (eg, the nature of the claimant’s limitations in the work capability assessment and which points should be scored) or on the law – eg, what the legal test is to score such points. Either the decision maker has got the facts wrong and does not understand the claimant’s true situation or the decision maker has got the law wrong and does not apply the correct rule to determine entitlement.

Of course, the reason why a decision is wrong about the facts or the law is more complicated. Mistakes about the facts may come about because the claimant does not answer a question on a form properly or because their answer is not believed. Drilling down further, not believing a claimant may be a reasonable conclusion to reach, or perverse, given the other evidence. Similarly, the decision maker can get the law wrong either due to an individual error or because the Secretary of State has an incorrect view of the law on a particular issue in general which he instructs decisions makers to apply.

Revisions

A revision of a decision is the method by which a decision maker can, with full retrospective effect, fix a decision which was incorrect when it was made. Section 9(1)(a) of the Social Security Act 1998 allows for regulations which permit revision to take place in two situations: ‘within a prescribed period or in prescribed cases or circumstances’. So, the regulations may allow a revision sought within the time limit prescribed to succeed simply on the basis the decision was incorrect: the reason why it was incorrect (for example, whether it is claimant error or official error) is irrelevant. Incorrect decisions, regardless of whose fault it is they are wrong, can thus always be fully corrected provided action is taken within the time limit.

Recently, the Court of Appeal in SSWP v Miah [2024] EWCA Civ 186 provided a clear summary:

‘28. The purpose of the power to revise conferred by those provisions is evidently that the Secretary of State should be able, to the extent permitted, to alter his original determination in any case where it does not correspond to the claimant’s correct entitlement (whether the error is in his favour or the claimant’s). As it was put by a tribunal of Social Security Commissioners chaired by HH Judge Hickinbottom (as he then was) in R(IB) 2/04, at para. 10 (2) “the decision can be revised simply on the basis that it is considered to have been wrong as at the date when it was made”. An example canvassed in argument before us is where an award of UC was too low because the claimant had failed to mention a dependent child; but in truth there could be any number of mistakes by a claimant (or the DWP) which could lead to an incorrect determination.’

It is only where a revision is sought outside the ‘prescribed period’ (ie, the time limit for a revision on ‘any grounds’, which still allows for a ‘late application’ – ie, within 13 months) that we need to consider whether the case falls within one of the specific cases where an ‘any time’ revision is still possible. That will sometimes require considering why the mistake was made.

Incorrect decisions which cannot be revised must instead be superseded (with the difference being that supersessions only take effect from some later date). Conversely, regulation 36 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (‘the D&A Regulations’) makes clear that a decision which may be revised may not be superseded.

Faulty application

CPAG has come across cases in which a claimant has, for one reason or another, not reported a particular fact on their UC claim. When a late application for an ‘any grounds’ revision is made, the DWP is refusing to revise the original decision – on the basis of an irrelevant assertion that the claimant was at fault for failing to report the circumstance in question. Instead the DWP supersedes the awarding decision, which only increases the award from some later date. So the claimant is out of pocket for the period between the date of claim and the date the supersession takes effect.

A common example of this is a claimant not reporting housing costs on the UC application form – perhaps because they are used to rent being met through housing benefit (HB) and did not realise that these costs could be met through UC, or perhaps because they were not asked the right questions. The DWP then refuses to revise the awarding decision to include a housing costs element from the start of the award, asserting that the claimant was at fault for not telling DWP about their housing costs.

Nothing has changed

Typically in these cases, the DWP maintains that the correct decision is a supersession for a ‘change of circumstances’ which the claimant has reported late.

That is wrong. A ‘circumstance’ is a set of facts (eg, liability for rent) which apply at a particular time. An incorrect description, or declaration, as to a particular fact does not change the actual existing fact or circumstance. The DWP appears to have wrongly understood ‘change of circumstance’ to mean a change in the facts that are declared rather than the correct meaning of the term – a change in the facts. There can be no supersession for a change of circumstances where the circumstances have not, in fact, changed, but have merely been mistaken.

Revision must be considered first

Under the rules, if a supersession was appropriate at all, it could only be a supersession on the ground of mistake or ignorance of fact where that mistake or ignorance was not to the advantage of the claimant. However, such a supersession is never possible if the decision can be revised (per regulation 36 of the D&A Regulations).

To determine whether an ‘any grounds’ revision is possible, the decision maker should go through the following process.

1. If the claimant has sought revision within a month, then that is within the prescribed time limit (see regulation 5).
2. If the revision is sought after that one-month period but within the next 12 months (ie, within 13 months of the decision being notified), then revision can still occur if the conditions in regulation 6 of the D&A Regulations are met. The procedural requirement here is that the claimant must ask for time to be extended, identify the incorrect decision and give a reason for applying late. The substantive requirement is that the decision maker must then consider it reasonable to extend the time and determine that special reasons meant the claimant could not have applied sooner – with longer delays needing more compelling reasons.1

In the event that a revision is, for whatever reason, refused then the claimant may appeal.

Right of appeal

Unfortunately, it is all too common for the DWP to maintain its nonsense about such cases only giving rise to supersession on the ground of change of circumstances at appeal stage. Disturbingly, CPAG has seen decisions in which tribunals too have failed to understand the position. In cases to which the mandatory reconsideration requirement at regulation 7 of the D&A Regulations applies, the right of appeal against a decision does not arise until the decision maker has ‘considered on an application whether to revise’ the decision.

If the procedural conditions for a late revision on ‘any grounds’ are met by the claimant (see point 2 above), then even if the decision maker refuses to extend time for requesting a revision, there is no bar to an appeal. That is because, if the Secretary of State decides that they cannot extend time for requesting revision and so refuses to revise, then the Secretary of State has, as confirmed by the three-judge panel in the case of R (CJ) and SG v SSWP [2018] AACR 5, still ‘considered whether to revise’ the decision. There is, therefore, a right of appeal against the decision.

The appeal proceeds against the original decision (the requirement for consideration of an application for revision before that appeal right arises does not change that). That means that the substantive regulation 6 conditions (see point 2 above) are only ever a matter for the decision maker (formally, the Secretary of State). The tribunal is not required to, and may not, make any determination regarding that requirement.

The issue is sometimes further muddied by the fact that the decision maker may not have expressly dealt with whether to revise at all when giving the decision to supersede. In such a case, the claimant will have to argue that:

• the procedural aspects of a late revision application have been met – ie, the application explained why it was late and asked for time to be extended; and
• in superseding the decision, the decision maker must be taken to have refused to revise and this is sufficient to give rise to the right of appeal against the original decision.

If that second point is wrong but the procedural conditions for a late revision application were made, then logically there must still be an undetermined application for revision pending, which it is the duty of the decision maker to determine.