DB v Secretary of State for Work and Pensions

In a LEAP review of a personal independence payment decision, a claimant may have jurisdiction to appeal the original decision where the request for mandatory reconsideration was, in substance, an application for revision on the ground of official error. The application need only identify an arguable error sufficiently to constitute a properly made application for an “any time” revision. The First-tier Tribunal must determine the original entitlement issue on its merits and must consider material information raised in the reconsideration request. It must assess the claimant’s circumstances at the date of the original decision.

The claimant’s 2017 PIP claim was refused. Following the decisions in MH v Secretary of State for Work and Pensions and RJ v Secretary of State for Work and Pensions, the Secretary of State reviewed the decision under the LEAP exercise but declined to revise it. The claimant requested mandatory reconsideration and referred to both decisions, his epilepsy, seizures and possible depression. The Secretary of State maintained the refusal.

The First-tier Tribunal dismissed the appeal, holding that it lacked jurisdiction because the original decision was outside the ordinary revision time limit and no official error had been established. The issue before the Upper Tribunal was whether the request was an application for revision on an “any time” ground and, if so, whether the First-tier Tribunal should have considered the original PIP decision on its merits.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law and the case was remitted to a differently constituted tribunal.
2. The LEAP review of the 2017 decision concerned revision under section 9 of the Social Security Act 1998 and regulation 9 of the D&A Regulations on the ground of official error. The claimant’s request was, in substance, an application on that ground because it asserted that the law stated in MH v Secretary of State for Work and Pensions and RJ v Secretary of State for Work and Pensions had not been applied.
3. An application for an “any time” revision is not limited to cases in which the claimant has already established official error. The claimant must identify the nature of the alleged error sufficiently to constitute a properly made application. Here, the alleged failure to apply the relevant law was clear and was arguably relevant to safety, psychological distress and the claimant’s ability to perform activities.
4. The First-tier Tribunal therefore had jurisdiction to hear an appeal against the original 2017 decision. The ordinary 13-month revision limit did not prevent that jurisdiction, because the application was an “any time” application based on official error and mandatory reconsideration had been undertaken.
5. The tribunal had to consider whether the 2017 decision correctly applied the principles in MH v Secretary of State for Work and Pensions and RJ v Secretary of State for Work and Pensions, and whether the claimant thereby qualified for either component of PIP. It also had to consider the information supplied during the 7 July 2021 telephone call and other evidence capable of shedding light on the claimant’s circumstances at the date of the 2017 decision.
6. GJ v Secretary of State for Work and Pensions was distinguishable on its facts and, insofar as it suggested that jurisdiction depended on the tribunal being satisfied that official error had in fact occurred, it was inconsistent with PH v Secretary of State for Work and Pensions, which was preferred.
7. The decision was remitted to a fresh First-tier Tribunal. The new tribunal was directed to consider the claimant’s circumstances at the time of the 22 June 2017 decision and the issues raised in the mandatory reconsideration request.

• Upper Tribunal: The appeal was allowed. The First-tier Tribunal decision of 2 February 2022 was set aside and the case was remitted to a differently constituted First-tier Tribunal.
• First-tier Tribunal (Social Entitlement Chamber): The claimant’s appeal against the LEAP-related decision was dismissed.