TR & Anor v Secretary of State for Work and Pensions (ESA)

Where a claimant applies more than 13 months after a benefit decision for revision on an “any time” ground, an appeal right arises if the Secretary of State has considered an application which, properly construed, raises a ground capable in fact or law of constituting official error or another relevant ground.

The application need not establish an arguable case. If the application is validly considered, the ordinary appeal time limit runs from notice of the revision decision. The First-tier Tribunal then hears an appeal against the original decision on a full merits and de novo basis. It must consider only issues raised by the appeal and circumstances existing when the original decision was made. An appeal against a supersession decision remains subject to the statutory grounds for supersession.

TR and GD appealed against separate First-tier Tribunal decisions concerning late applications for revision of benefit decisions.

TR’s application followed a Personal Independence Payment LEAP exercise concerning MH v Secretary of State for Work and Pensions and RJ v Secretary of State for Work and Pensions. The First-tier Tribunal considered only whether those decisions affected her entitlement.

GD sought revision of an Employment and Support Allowance supersession decision on alleged official-error grounds. The First-tier Tribunal treated the appeal as out of time and did not determine the underlying entitlement.

The Upper Tribunal considered the jurisdictional requirements for late “any time” revision applications and the scope of an appeal following the Secretary of State’s revision decision.

1. Appeals allowed. Both First-tier Tribunal decisions involved errors of law. They were set aside and both cases were remitted to fresh tribunals for oral rehearings.
2. For an application made more than 13 months after an original or supersession decision, the application must, in substance, request revision on an “any time” ground. It must raise a ground which, if made out, could constitute official error or another relevant ground for revision. It need not establish an arguable case. A purported late “any grounds” application does not trigger jurisdiction.
3. If the Secretary of State has considered such an application, the appeal time limit under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 applies. The primary one-month period runs from the date on which notice of the revision decision was sent. The maximum ordinary extension is 13 months.
4. The appeal remains an appeal against the original decision, rather than an appeal against the refusal to revise. For an original decision under section 8 of the Social Security Act 1998, the First-tier Tribunal has full merits and de novo jurisdiction. It stands in the shoes of the Secretary of State at the date of the original decision. Under section 12(8)(a), it need not consider issues not raised by the appeal, and under section 12(8)(b) it must use the circumstances existing at the relevant date.
5. For an appeal against a supersession decision under section 10, the Tribunal also proceeds on a full merits and de novo basis, but remains subject to the legislative grounds and consequences governing supersession. The approach applies whether the Secretary of State refuses revision, revises only partly or, obiter, revises adversely to the claimant.
6. If the Secretary of State has not considered the application, the First-tier Tribunal lacks jurisdiction at that stage and may stay the appeal to enable consideration. If the application was improperly construed as an “any grounds” application, the appeal must be struck out under rule 8(2)(a).
7. In TR’s case, the Tribunal had jurisdiction but failed to conduct the required full merits appeal. In GD’s case, the appeal was remitted against the supersession decision, with the First-tier Tribunal also to consider the notice and time-limit issue.

• Upper Tribunal (Administrative Appeals Chamber): Appeals allowed. The First-tier Tribunal decisions dated 11 October 2023 and 28 June 2023 were set aside and the cases were remitted to fresh tribunals.
• First-tier Tribunal (Social Entitlement Chamber): TR’s appeal was dismissed after consideration limited to the effect of the LEAP authorities. GD’s appeal was refused as out of time and was not determined on its full merits.