Secretary of State for Work and Pensions v DS

A claimant’s clear election of the date from which state-pension entitlement is to begin is a constitutive part of the claim. A claim may be amended only before it is determined. Once determined, it ceases to subsist under Social Security Act 1998, and neither revision nor an appeal may be used to substitute a different election made after the decision.

The statutory scheme leaves the choice between deferred entitlement with increments and a timely backdated claim to the claimant. Where the claim clearly states the chosen date, the Secretary of State need not investigate whether the claimant intended another date. The general duty to obtain sufficient information does not require unreasonable or disproportionate enquiries.

The claimant reached state-pension age on 20 August 2021 but made an online claim on 17 August 2022. He clearly entered 20 August 2022 as the date from which he wished to receive the pension. The Secretary of State awarded pension from that date, including increments for one year of deferred entitlement.

The claimant had intended to claim from 20 August 2021 and, had he entered that date, would have received arrears under the backdating provisions. The First-tier Tribunal allowed his appeal and substituted the earlier date. The Secretary of State appealed, contending that the mistake could not be rectified after the claim had been decided and that no duty required further enquiries.

1. Appeal allowed. The First-tier Tribunal erred in changing the commencement date of entitlement. Its decision was set aside and the claimant’s appeal against the Secretary of State’s decision was dismissed.

2. Entitlement to state pension depends on a claim. Under regulation 5(1) of the Social Security (Claims and Payments) Regulations 1987, a claim may be amended only before determination. Once the Secretary of State determined the claim, it no longer subsisted by virtue of section 8(2)(a) of the Social Security Act 1998. The claimant could therefore not amend the date stated in it.

3. The claimant’s stated date was clear and unambiguous. It lawfully gave effect to his election to defer entitlement for a year, attracting the increased weekly pension under section 17 of the Pensions Act 2014. The statutory scheme deliberately leaves that choice to the claimant, whose personal financial, health and employment circumstances determine whether deferred increments or a backdated award are preferable.

4. Neither revision nor an appeal could convert the clear election into a different, later-expressed election. The tribunal had to decide entitlement on the facts and claim existing when the Secretary of State decided the claim. SSWP v Miah [2024] EWCA Civ 186 concerned whether a universal-credit claim was timely where the relevant date was uncertain; it did not assist where the state-pension claimant had clearly identified the commencement date.

5. The Secretary of State had asked a sufficient question to establish entitlement. In the absence of a feature giving reasonable cause for inquiry, a clear answer did not trigger a duty to investigate whether the claimant meant to choose another date. Requiring iterative checks of all such claims would be unreasonable and disproportionate.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal in Secretary of State for Work and Pensions v DS [2025] UKUT 168 (AAC), set aside the First-tier Tribunal’s decision, and remade it by dismissing the claimant’s appeal.
• First-tier Tribunal (Social Entitlement Chamber): On 8 December 2023, allowed the claimant’s appeal and held that entitlement to state pension began on 20 August 2021.