The Secretary of State for Work and Pensions v SC

A closed period supersession preserves an existing award while modifying it for a fixed period of past non-entitlement. It requires an ongoing, final award; a valid supersession ground; facts supporting that ground; and an outcome that flows from it. It cannot preserve an award where, when the decision is made, the claimant does not satisfy a condition of entitlement. Nor can an anticipated future change be used to create a prospective closed period supersession in those circumstances. A supersession disallowing an award is not itself a running decision, so the claimant generally needs a fresh claim. A closed period supersession does not create a nil award of universal credit. Incorrect advice and practical hardship do not, on these facts, make exercising the statutory supersession power an abuse.

SC received universal credit and notified the Secretary of State that she intended to remain in Canada for nearly seven weeks. Her award was superseded while she was abroad because she no longer satisfied the Great Britain residence condition. The First-tier Tribunal allowed her appeal, referring inconsistently to suspension and a nil award.

MJ received housing benefit and notified the London Borough of Bromley that she intended to be absent in Brazil for nearly five weeks. Bromley superseded her award from the date of departure. The First-tier Tribunal dismissed her appeal.

The appeals were heard together because they raised whether universal credit or housing benefit could be prospectively superseded for a fixed future period of non-entitlement, with entitlement then restored.

1. Common issue. A closed period supersession is available where, when the decision is made, there is a valid running award; the award is final but capable of supersession; a statutory supersession ground and supporting facts exist; the outcome flows from that ground; benefit was paid under the award; and the decision modifies the award for a fixed period while leaving other entitlement intact. This mechanism is contained in the legislation and case law and does not require an implied power: Wood v SSWP [2003] EWCA Civ 53 and CIS/1305/2012.
2. A decision disallowing an existing universal credit or housing benefit award is not a running decision. Where the claimant does not satisfy an entitlement condition at the decision date, the relevant change is the present failure to satisfy that condition. The resulting disallowance ends the award. The claimant cannot preserve it by characterising the absence as a known fixed period or by relying on an anticipated later return.
3. Neither regulation 23(1)(b) of the UC decisions and appeals regulations nor regulation 7(2)(a)(ii) of the housing benefit decisions and appeals regulations permits a prospective closed period supersession in these circumstances. The proposed outcome would not flow from the supersession ground.
4. A closed period supersession changes an existing award to include a period of non-entitlement. It does not create a nil award of universal credit. FTT1 therefore erred in law by treating the guidance as authorising a nil award and by failing to explain how such an award was authorised by the legislation.
5. The supersession power is discretionary, but its exercise was not an abuse of power. Incorrect advice and serious practical consequences did not outweigh the public interest in paying only entitlement required by statute: R(I)1/07. Suspension was unavailable once the decision-makers were satisfied that the Great Britain condition was not met.
6. SC’s appeal was allowed. FTT1’s decision was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and remitted to a fresh tribunal. MJ’s appeal was dismissed because FTT2 made no material error of law.

• Upper Tribunal (Administrative Appeals Chamber) — SC’s First-tier Tribunal decision dated 28 July 2023 set aside and remitted for rehearing by a fresh tribunal under section 12(2) of the Tribunals, Courts and Enforcement Act 2007. MJ’s appeal from the First-tier Tribunal decision dated 8 November 2023 dismissed.
• First-tier Tribunal (Social Entitlement Chamber) — FTT1 allowed SC’s appeal and directed a suspension or nil-award outcome. FTT2 dismissed MJ’s appeal and confirmed the termination of housing benefit from 19 March 2023.