AET v Secretary of State for Work and Pensions

Whether retrospective legislation governs an existing social-security claim depends on the proper construction of that legislation. Sections 8 and 12 of the Social Security Act 1998 cannot prevent a tribunal from applying legislation which, on its true construction, applies retrospectively to an earlier decision or pending appeal.

However, an apparently unqualified retrospective provision may be limited by other provisions in the same instrument. Here, the Bereavement Benefits (Remedial) Order 2023 retrospectively created entitlement for eligible cohabiting partners, but required a claim for that new entitlement to be made after the Order came into force. Earlier claims remained governed by the former law.

The appellant's cohabiting partner died in November 2022. They had a dependent child, but were neither married nor civil partners. Her claim for bereavement support payment was refused under the law then in force.

Following a mandatory reconsideration, the First-tier Tribunal struck out her appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. She later made a successful fresh claim after the Bereavement Benefits (Remedial) Order 2023 came into force.

Although the appeal had become academic for her estate, the Upper Tribunal determined the wider issue: whether the Order's retrospective amendments required an appeal concerning a claim made before 9 February 2023 to be decided under the amended law.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its strike-out decision was correct, although part of its reasoning was wrong.

2. Reilly v SSWP [2017] QB 657 established the relevant approach. The effect of expressly retrospective legislation on earlier decisions and pending appeals is a matter of ordinary statutory construction. Sections 8(2) and 12(8) of the Social Security Act 1998 cannot displace legislation which, properly construed, applies retrospectively.

3. Article 1(3) of the Bereavement Benefits (Remedial) Order 2023, considered alone, gave the amendments retrospective effect from 30 August 2018. But articles 3(4) to (6) and 6 qualified that effect. They treated the entitlement as one newly conferred by the Order, provided a post-commencement period for making a claim, and calculated payment periods by reference to the Order's commencement date.

4. Accordingly, the Order retrospectively created entitlement for qualifying cohabiting partners in respect of the specified earlier period, but did not permit a claim for that entitlement before 9 February 2023. A decision and appeal concerning a claim made before that date remained subject to the former eligibility rules, even if determined afterwards.

5. The First-tier Tribunal was wrong to state generally that higher-court decisions do not change the law applicable at the time of a claim. Courts ordinarily declare what the law has always been. But the declaration of incompatibility in R (Jackson) v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) did not affect the validity or continuing operation of the legislation. The appellant's original claim could therefore not succeed, and there was no reason to set aside the First-tier Tribunal's decision.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal's strike-out decision, while correcting part of its reasoning: [2025] UKUT 16 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): struck out the appeal on 23 October 2023 under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.