GJ v Secretary of State for Work and Pensions

A refusal to make an any-time revision of a social-security decision for official error carries no direct right of appeal. Jurisdiction depends on establishing that official error was in fact made. A general disagreement with the original benefit decision does not suffice.

An appeal against the original decision remains subject to the statutory 13-month long-stop. The Adesina principle permits departure from an apparently absolute limit only where this is required for compatibility with Article 6. It is confined to truly exceptional circumstances in which refusal would impair the essence of access to a tribunal. The claimant must also have done all that they reasonably could to appeal in time.

The appellant’s 2017 claim for Personal Independence Payment was refused. He sought mandatory reconsideration but did not appeal. In 2020, the Department reconsidered the 2017 decision in a LEAP exercise prompted by MH v Secretary of State for Work and Pensions, [2016] UKUT 531 (AAC), and RJ, GMcL and CS v SSWP, [2017] UKUT 105 (AAC). It found no official error and declined to revise the decision.

The First-tier Tribunal held that the 2020 decision was a refusal to revise, over which it had no jurisdiction. It also held that a challenge to the original decision was outside the 13-month limit and that the Adesina exception was not engaged. The appellant appealed, contending that entitlement should date from 2017 and that the result denied equal access to justice.

1. Appeal dismissed. The First-tier Tribunal made no material error of law in holding that it lacked jurisdiction.

2. The 2020 LEAP exercise reconsidered the 2017 refusal only to determine whether it could be revised at any time for official error under the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. The Tribunal was required to find official error, rather than merely an arguable case of error, before jurisdiction could arise. It was entitled to find none. The evidence did not show the safety issue required for RJ, GMcL and CS v SSWP, and the evidence concerning journey planning did not establish an error under MH v Secretary of State for Work and Pensions.

3. The resulting decision was a refusal to revise, not a supersession. There is no direct appeal against such a refusal. The only possible route was a late challenge to the original 2017 decision, which was well outside the 13-month limit.

4. The Article 6 qualification derived from Adesina v Nursing and Midwifery Council is exceptionally narrow. It applies only where enforcing the limit would impair the essence of the statutory right of access to a tribunal, taking account of the legitimate aim and proportionality of the restriction. The practical guidance that the appellant must personally have done all that they reasonably could to appeal in time is not a freestanding statutory test, but strongly indicates the rare cases in which Article 6 requires an extension.

5. The appellant had been given information about reconsideration and appeal rights, and had received advice from his MP while still in time. The First-tier Tribunal was entitled to find that he had not done all that he could to appeal timeously and that the circumstances were not truly exceptional. The 13-month limit was not disproportionate.

6. Different outcomes for claimants whose decisions fall at different points in the development of case law do not, without more, establish unequal access to justice. The rules apply equally; their effect depends on the facts and procedural history of each case.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal’s conclusion that it had no jurisdiction.
• First-tier Tribunal (Social Entitlement Chamber): dismissed, in substance struck out, the appellant’s appeal because the LEAP decision was a refusal to revise and a challenge to the 2017 decision was out of time.