Secretary of State for Work and Pensions v SPL

Before an overpayment of benefit may be recovered under section 71(5A) of the Social Security Administration Act 1992, the benefit award must first have been validly revised or superseded, and the claimant must have been notified of that entitlement decision. Where the First-tier Tribunal finds that the Secretary of State has not proved notification, the Upper Tribunal will not interfere if the finding was open to the tribunal on the evidence and involved no material error of law.

The Secretary of State decided that the claimant had been overpaid income-related employment and support allowance between August 2017 and August 2020 after a change in household circumstances affected entitlement to the severe disability premium. The First-tier Tribunal initially dismissed the claimant’s appeal. After the Upper Tribunal allowed a further appeal and directed a rehearing, a fresh First-tier Tribunal allowed the appeal, finding that the Secretary of State had not proved that a valid supersession decision had been made and issued.

The Secretary of State appealed, arguing that a supersession decision had been made and notified. The central issue was whether the First-tier Tribunal had materially erred in finding that proper notification had not been established.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision involved no material error of law.
2. Section 71(5A) of the Social Security Administration Act 1992 requires a valid entitlement decision revising or superseding the benefit award before an overpayment can be recovered. Where recovery depends on a supersession, that decision must also have been notified to the claimant. Judge Wikeley treated the analysis in LL v Secretary of State for Work and Pensions [2013] UKUT 208 (AAC) as confirming both requirements.
3. The First-tier Tribunal’s reference to the decision not being “made and issued” was read in context. Its findings and reasoning focused on whether the claimant had been properly notified. The bundle contained no copy of the supersession decision, and the presenting officer could not identify the terms of the alleged change-of-circumstances letter. The tribunal was entitled to find that the Secretary of State had not proved proper notification.
4. That finding was open on the evidence. The Secretary of State’s challenge amounted to a reargument of the factual merits, and there was no prospect of establishing irrationality or perversity. As no recoverable overpayment was established, no civil penalty could be imposed.
5. The First-tier Tribunal’s refusal to adjourn so the Secretary of State could obtain further material was within the band of reasonable case-management decisions, given the time the appeal had been outstanding and the opportunity to prepare the case. Under section 11 of the Tribunals, Courts and Enforcement Act 2007, the appeal was dismissed.

1. Upper Tribunal (Administrative Appeals Chamber): Dismissed the Secretary of State’s appeal from the First-tier Tribunal’s February 2025 decision. [2026] UKUT 294 (AAC) .
2. First-tier Tribunal (Social Security and Child Support): In February 2025, allowed the claimant’s remitted appeal, finding that the Secretary of State had not proved a valid supersession decision had been made and issued.
3. Upper Tribunal (Administrative Appeals Chamber): In January 2024, allowed the claimant’s further appeal from the March 2022 First-tier Tribunal decision and directed a rehearing.
4. First-tier Tribunal (Social Security and Child Support): In March 2022, dismissed the claimant’s original appeal against the overpayment decision.