IS v Secretary of State for Work and Pensions

Where a later claim for the same benefit has been determined with effect from a date falling within the period under appeal, the earlier tribunal cannot make an overlapping entitlement decision. Subject to exceptional circumstances, its jurisdiction ends on the day before the later decision’s effective date.

An error in the earlier tribunal’s reasoning is not material where admissible later evidence establishes that the outcome and period of the award were necessarily correct. A court may admit such evidence where it was unavailable at the earlier hearing, is likely to affect the result, is credible, and admission is just and fair under the procedural rules.

The appellant’s first claim for Personal Independence Payment was refused by the Secretary of State. The First-tier Tribunal allowed his appeal and awarded the standard daily living component from 12 April 2021 to 28 July 2022. It held that a further claim, made on 29 July 2022, had been negatively determined.

The appellant appealed, contending that there was insufficient evidence of a second claim or decision and that an uncompleted telephone claim was defective under regulation 11(4) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013. During the Upper Tribunal appeal, the Secretary of State produced later evidence showing that the second claim had been completed, considered and refused with effect from 29 July 2022. The central issue was whether that evidence meant that any alleged error by the First-tier Tribunal was immaterial.

1. Appeal dismissed. The Upper Tribunal admitted the subsequent evidence. It could not have been obtained for the First-tier Tribunal hearing because it concerned later events. It was credible, material to the result, and its admission was just and fair under rules 2 and 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

2. The evidence established beyond dispute that the appellant completed the second claim in November 2023 and that the Secretary of State refused entitlement to either component of PIP from 29 July 2022 in February 2024, confirmed on mandatory reconsideration in May 2024.

3. The Tribunal applied the principle explained in GG v SSWP (PIP) [2019] UKUT 318 (AAC). Decisions concerning entitlement to the same benefit must not overlap. Where a tribunal is deciding an earlier claim and a later decision has effect for the same period, its jurisdiction normally ends immediately before the effective date of the later decision.

4. Accordingly, any arguable shortcomings in the First-tier Tribunal’s evidence or reasoning about the July 2022 telephone claim and the September 2022 negative determination could not affect the outcome. The first award could not extend beyond 28 July 2022 once the later refusal had effect from 29 July 2022.

5. The Tribunal expressly reserved the proper construction of regulation 11(4), including when a telephone claim is properly completed rather than defective. That issue was not determinative and should be decided in a case where it is material.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal’s decision involved no material error of law.
• First-tier Tribunal (Social Entitlement Chamber): on 13 March 2023 allowed the appeal against the original refusal and awarded the standard daily living component from 12 April 2021 to 28 July 2022.
• First-tier Tribunal: a District Tribunal Judge refused permission to appeal to the Upper Tribunal on 21 August 2023. Upper Tribunal Judge Rupert Jones subsequently granted permission on two grounds on 28 May 2024.