AS v Secretary of State for the Department of Work and Pensions

Recovery of benefit overpayments requires a valid revised or superseded entitlement decision and prior notification of that decision. These are statutory preconditions, not procedural formalities. Without notification, the entitlement alteration has no legal effect and recovery is unlawful. The failure is an official error under the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

There is no statutory appeal against a refusal to revise a pre-mandatory-reconsideration decision for official error. Section 9(5) of the Social Security Act 1998 does not reset the appeal period from the refusal to revise. A claimant who was notified of the recoverability decision must challenge it within the applicable statutory period. An extension of time remains exceptional.

The Appellant had received Income Support. In 2007 the Respondent recorded a decision revising or superseding her entitlement and subsequently issued six recoverability decisions. The Upper Tribunal found that the Appellant was not notified of the antecedent entitlement decision, but was notified of the recoverability decisions and did not appeal them within the statutory period.

In 2020 she sought an anytime revision for official error. The Respondent refused and the First-tier Tribunal declined jurisdiction over the resulting late appeal. The appeal concerned the legal effect of the missing notification, whether a refusal to revise was appealable, whether section 9(5) reset time, and whether time should be extended.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law.
2. The internal record showed a determination to revise or supersede entitlement, but the Appellant was not notified of that decision. Notification was an absolute precondition to the decision acquiring appealable status under section 12 of the Social Security Act 1998. The original entitlement decision therefore remained legally effective, and the Tribunal had no jurisdiction to entertain an appeal against the unnotified alteration.
3. Section 71(5A) of the Social Security Administration Act 1992 required both an antecedent revised or superseded entitlement decision and notification of it before recovery could lawfully proceed. The failure to satisfy those conditions vitiated the recovery process and constituted official error under regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
4. There were separate appeal rights against the entitlement decision and the recoverability decisions. The Appellant had been notified of the recoverability decisions and could have raised the missing notification, and the resulting unlawfulness of recovery, in a merits appeal under section 12(4). Section 12 did not confer an appeal against refusal to revise for official error.
5. The reasoning in R(IS) 15/04 was applied. The pre-2013 scheme remained compatible with Article 6. Judicial review was available against refusal to revise. Wood v Secretary of State for Work and Pensions was confined to the materially different context of refusal to supersede.
6. The obiter observation in paragraph 13 of PH and SM v Secretary of State for Work and Pensions could not be extended to pre-mandatory-reconsideration decisions. Section 9(5) applied where a decision was actually revised and did not reset time from a refusal to revise.
7. The appeal period ran from notification of the 2007 recoverability decisions. Applying Adesina v Nursing and Midwifery Council, the fifteen-year delay, awareness of the allegations and contact with the Citizens Advice Bureau did not establish exceptional circumstances. Official error alone did not justify extending time.

• Upper Tribunal (Administrative Appeals Chamber): [2025] UKUT 249 (AAC) dismissed the appeal and held that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal (Social Entitlement Chamber): on 16 October 2023, declined jurisdiction to hear the late appeal against the 2007 recoverability decisions.