Steven Ball (deceased) v The Secretary of State for Work and Pensions

Where a claimant’s report of a change may require supersession of an earlier benefit award, and that award could affect entitlement to transitional protection under a later award, the tribunal must address the report’s significance. Failure to consider that material connection may be an error of law. The tribunal should allow the decision-maker to consider revision of the later award where the earlier award is superseded. If the appealed decision is revised, the appeal lapses.

Mr Steven Ball received income-related Employment and Support Allowance (ESA), but his award did not include the Severe Disability Premium (SDP). After his mother died, he reported the change through the “Tell us Once” service. When he later claimed Universal Credit (UC), the Secretary of State for Work and Pensions refused the Transitional Severe Disability Premium Element because there had been no SDP award before migration. The First-tier Tribunal dismissed his appeal.

During Mr Ball’s appeal to the Upper Tribunal, the Secretary of State superseded the ESA award to include SDP from the date of his mother’s death until migration to UC. Mr Ball had since died, and his sister continued the appeal. The central issue was whether the First-tier Tribunal had erred in law by failing to address the significance of the report and what steps should follow, given the limits on the tribunal’s power to amend the UC award.

1. The appeal was allowed and the First-tier Tribunal’s decision was set aside. The tribunal did not make a mistake of fact: it knew that Mr Ball had reported his mother’s death through “Tell us Once” and that the Secretary of State had not treated the report as a supersession application.

2. The error was the tribunal’s failure to address the report’s potential significance. The report was highly relevant because, as the Secretary of State accepted, it notified a change of circumstances and required consideration of superseding the ESA award. If that award were superseded to include SDP, Mr Ball would qualify for transitional protection in his UC award. The tribunal’s failure to consider those implications was a failure to take account of a material factor and was unfair.

3. Under section 12(8)(b) of the Social Security Act 1998, the First-tier Tribunal could not itself award transitional protection on the basis of an ESA supersession made after the UC decision. It should have adjourned to allow the Secretary of State to consider that supersession and then to consider revising the UC award under regulation 11(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. If the UC decision were revised, the appeal would lapse under section 9(6) of the Social Security Act 1998.

4. The Upper Tribunal directed the Secretary of State to consider revising the UC award to include the Transitional Severe Disability Premium Element at the appropriate rate, and to notify the Tribunal within 28 days, giving reasons if revision was refused. If the award is revised, there will be nothing to remit or remake. The Tribunal cited R(IS) 4/04 as a similar approach.

5. The separate question whether entitlement to SDP could exist without an award was left undecided because it was no longer necessary to determine the appeal.

1. Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and directed the Secretary of State to consider revising the UC award. [2026] UKUT 352 (AAC) .
2. First-tier Tribunal (Social Entitlement Chamber): Dismissed Mr Ball’s appeal on 15 February 2023 in case SC947/22/00052.