The Secretary of State for Work and Pensions v SV

A decision revised for a mistake of material fact is appealed as the original decision as revised, rather than as a separate revision decision. The tribunal must therefore assess entitlement by reference to the circumstances obtaining when the original decision was made.

Regulation 9(b) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 applies objectively. It is enough that the original decision rested on a mistaken material fact. It is immaterial whether the decision-maker knew of, overlooked, or could have known the later evidence. Evidence obtained later may be considered if it proves facts existing at the relevant time.

The Secretary of State had awarded SV universal credit from February 2020 after accepting evidence that she was employed and consequently had worker status for the habitual residence test. Following a later review, the Secretary of State purported to revise that award on the basis that SV had not established a qualifying right to reside.

The First-tier Tribunal held that there were no grounds to revise the original award. It treated the appeal as being against the later decision and reasoned that material contained in a witness statement prepared after that decision could not show that the original decision-maker had made a mistake.

The Secretary of State appealed. The central issues were the identity of the decision under appeal, the relevant temporal limits on the tribunal’s inquiry, and the correct application of regulation 9(b).

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. It was set aside and remitted to a differently constituted tribunal for a complete rehearing.

2. The decision of 17 August 2021 was a revision under regulation 9(b), not a freestanding appealable decision. Under sections 9 and 11 of the Social Security Act 1998, the appeal lay against the original award decision of 10 March 2020 as revised. The time for appealing ran from the revision, but that did not alter the identity of the decision appealed against.

3. Section 12(8)(b) required the tribunal to consider only circumstances obtaining when the original award was made. On the facts, the relevant period ran from the claim on 18 February 2020 to the award on 10 March 2020. Later evidence was admissible if it related to that period.

4. Regulation 9(b) turns on whether the decision was based on a mistake as to a material fact. It does not depend on the state of mind or fault of an official decision-maker. A decision may have been correct on the material then available, yet later evidence may establish that a factual finding underlying it was mistaken.

5. The witness statement was evidence, not itself a fact. At the rehearing, the tribunal had to evaluate all admissible evidence concerning the relevant period and decide whether the accepted findings about SV’s employment were mistaken material facts. If so, regulation 9(b) supplied grounds to revise the 2020 award accordingly.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): on 27 July 2022, held that there were no grounds to revise the universal-credit award made on 10 March 2020.