BM v The Secretary of State for Work and Pensions

A decision of the First-tier Tribunal may be changed only through an available statutory route. Where the decision to be superseded is itself a tribunal decision, supersession must be based on a relevant change of circumstances or on ignorance of, or a mistake as to, a material fact. A fact is material only if it could make a difference to the outcome. Circumstances arising after the effective date of the original entitlement decision cannot ordinarily establish that the earlier tribunal decision was mistaken. A tribunal must identify the statutory ground relied upon, give adequate reasons, and provide fair notice if it considers a different ground from that advanced by the Secretary of State. Failure to do so is a material error of law.

The appellant received Disability Living Allowance following an earlier First-tier Tribunal decision dated 31 August 2011. The Secretary of State later purported to supersede that decision with effect from the same date, alleging that the earlier tribunal had been ignorant of the appellant’s work at that time. A resulting overpayment of £41,090.15 was held recoverable.

The First-tier Tribunal upheld both decisions. On appeal, the Upper Tribunal considered whether the tribunal had identified and lawfully applied an available supersession ground, whether it had provided adequate reasons and fair notice, and whether work undertaken in August 2011 could be material to an entitlement decision concerned with circumstances up to 17 February 2010.

1. Appeals allowed. The First-tier Tribunal’s decisions were based on material errors of law and were set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. The earlier First-tier Tribunal decision remained final because it had not been set aside on appeal. The only available statutory route for changing it was supersession under section 10(1)(b) of the Social Security Act 1998. Revision under section 9(1) could not be used for that purpose.
3. The tribunal failed to establish clearly whether the Secretary of State’s case relied on a relevant change of circumstances or on ignorance of, or mistake as to, a material fact. Its reasons did not explain the statutory basis on which the earlier tribunal decision was superseded. That failure was itself a material error of law.
4. If the tribunal intended to decide the appeal on a different supersession ground from that advanced by the Secretary of State, fairness required it to give the unrepresented appellant sufficient notice and, if necessary, an adjournment. The tribunal did not do so.
5. The alleged work undertaken on 31 August 2011 could not rationally be a material fact for the earlier tribunal’s decision. Under section 12(8)(b) of the Social Security Act 1998, the earlier appeal concerned circumstances relevant to the entitlement decision dated 17 February 2010. The 2011 tribunal was not deciding entitlement as at 31 August 2011. Further, its reasons did not show that it had relied on the appellant’s alleged work at that later date.
6. The Upper Tribunal redecided the first-instance appeals by setting aside the Secretary of State’s decisions of 23 and 28 March 2018. Without a lawful supersession decision, no overpayment arose and there was nothing recoverable under section 71 of the Social Security Administration Act 1992. The Secretary of State remained free to pursue a fresh supersession decision on a proper legal and evidential basis.

• Upper Tribunal (Administrative Appeals Chamber): appeals allowed; the First-tier Tribunal decisions of 5 December 2019 were set aside for material errors of law and the Secretary of State’s decisions were set aside.
• First-tier Tribunal (Social Entitlement Chamber): upheld the Secretary of State’s supersession decision removing the appellant’s DLA entitlement and the associated recoverable overpayment decision.