MA v Secretary of State for Work and Pensions (ESA)

A finding that a claimant and spouse were members of the same household does not, by itself, permit an existing award of income-related ESA to be revised or superseded. That conclusion is an inference from primary facts, rather than itself a material fact. The Secretary of State must establish a statutory ground for revision or supersession, such as ignorance or mistake as to a material primary fact, official error, error of law, or a relevant change of circumstances.

In the absence of evidence to the contrary, decision makers are presumed to have performed their duties properly. Where records have been lost or destroyed and the claimant's disclosure cannot be rebutted, the Secretary of State may fail to discharge that burden.

The claimant had received income-related employment and support allowance as a single person, although he and his wife remained living in the same accommodation. The Secretary of State decided on 7 October 2014 to end the award, asserting that the couple were members of the same household.

The First-tier Tribunal dismissed the claimant's appeal on 21 May 2015. In an interim decision, the Upper Tribunal set that decision aside for legal error and found that the claimant and his wife were members of the same household. It then directed a further hearing to decide whether the Secretary of State had nevertheless established a lawful basis to revise or supersede the subsisting award.

The central issue was whether the Secretary of State could establish a ground for revision or supersession despite incomplete records of the earlier awards.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal's decision and re-made it by allowing the claimant's appeal against the Secretary of State's decision of 7 October 2014.

2. The subsisting decision requiring revision or supersession was the decision notified on 17 September 2013, which awarded ESA with the support component. The asserted change of circumstances was not made out. The parties' living arrangements had remained materially the same since 2009–10.

3. The conclusion that spouses are members of the same household is an inference of fact. It is not itself a primary material fact. A later tribunal's different conclusion on that issue therefore does not establish that the earlier decision maker was ignorant of, or mistaken about, a material fact. Nor did it establish an error of law.

4. The Secretary of State had to establish a recognised statutory ground for revision or supersession under the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It remained possible that the earlier decision makers knew the relevant primary facts, addressed the living-together issue, and reached a permissible evaluative conclusion different from that reached by the Upper Tribunal.

5. In the absence of contrary evidence, decision makers were presumed to have carried out their duties properly. The available documents showed that the Department had addressed the issue in 2010. Lost or destroyed records did not automatically justify an adverse inference, but they prevented the Secretary of State from rebutting the claimant's assertion of full disclosure and reinforced the conclusion that the statutory burden had not been discharged.

6. Although the claimant and his wife were members of the same household, the Secretary of State had not established a ground to revise or supersede the ESA award. The tribunal added, obiter, that a future supersession would appear unavailable unless a relevant change of circumstances occurred.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant's appeal, set aside the First-tier Tribunal decision as wrong in law, and re-made the decision in the claimant's favour.
• First-tier Tribunal: dismissed the claimant's appeal on 21 May 2015 against the Secretary of State's decision of 7 October 2014.