SS v Secretary of State for Work and Pensions

For a disadvantageous supersession of a disability benefit decision to take retrospective effect under regulation 7(2)(c)(ii), the tribunal must make reasoned findings on each statutory condition. The safeguard is an exception to the general rule and must be applied strictly.

A claimant must have known, or reasonably have been expected to know, that they were required proactively to notify the change. They need not also have known the legal source or precise regulatory basis of that requirement. The tribunal must assess all relevant evidence; evidence of what the claimant was told has no automatic priority.

SS v Secretary of State for Work and Pensions concerned a decision that the appellant had not been entitled to Disability Living Allowance between 5 November 2014 and 26 October 2016, with an asserted recoverable overpayment. The First-tier Tribunal dismissed the appellant’s appeal on 7 June 2022.

Permission to appeal was limited to the date from which entitlement to Disability Living Allowance ceased. The Secretary of State invited the Upper Tribunal to allow the appeal. The central issue was whether the First-tier Tribunal had adequately applied regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 when selecting the effective date of a disadvantageous supersession.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the appeal was remitted for a complete rehearing before a differently constituted tribunal.
2. Regulation 7(2)(c)(ii) is an exception to the general protection against retrospective disadvantageous changes to disability-benefit awards. Its conditions must therefore be construed carefully and applied strictly. The tribunal must analyse the evidence and make reasoned findings on each condition of the regulation.
3. The condition that the claimant knew, or could reasonably have been expected to know, that the change should have been notified means that the claimant knew, or ought reasonably to have known, that proactive notification was required. Knowledge that notification would be prudent, desirable, or might be requested is insufficient.
4. However, the regulation does not require the claimant to know that the requirement was a legal one, still less that it arose under particular regulations. It is the claimant’s knowledge of an obligation to notify, rather than knowledge of its legal origin, which matters.
5. The First-tier Tribunal had not undertaken the required exercise. It was unclear whether it had considered the regulation at all, and its brief acceptance of 5 November 2014 did not disclose why that date met the statutory conditions. At the rehearing, the fresh tribunal must consider all relevant evidence. Evidence of what the claimant was told may be important, but is not inherently privileged over other evidence.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the matter for a fresh oral rehearing before a new panel: [2024] UKUT 327 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): on 7 June 2022 dismissed the appellant’s appeal against the Disability Living Allowance and related decisions.