Abdelaziz Dawod v Secretary of State for Work and Pensions & Anor

For an appeal right that depends on the Secretary of State having considered an application for revision, the statutory condition requires consideration of whether to revise. It does not require an actual or implied revision decision.

Whether that consideration occurred is a question of fact assessed on all relevant evidence. The decision-maker’s response may show that an application was considered in substance, even if it was treated as a supersession request. A tribunal cannot use its procedural set-aside power to reconsider the substance of an earlier decision.

Abdelaziz Dawod and his partner, Darahim Khair Alla, appealed decisions concerning the housing costs element of their joint universal credit award. They sought housing costs from the start of their joint claim, although the Secretary of State initially treated their later notification of rent liability as a change of circumstances and awarded housing costs only from a later assessment period.

The First-tier Tribunal dismissed the appeal and later purported to set aside that decision. The couple appealed both decisions. The central questions were whether the Secretary of State had considered an application to revise the original award, and whether the First-tier Tribunal had lawfully set aside its decision.

1. The appeal was allowed. Both First-tier Tribunal decisions involved material errors of law. The Upper Tribunal set them aside and redecided the appeal, awarding the housing costs element from 10 October 2022.
2. Under section 12(3A)–(3B) of the Social Security Act 1998 and regulation 7(2) of the Decisions and Appeals Regulations, the appeal condition is that the Secretary of State has considered, on an application, whether to revise. Parliament could have required a decision to revise or refuse revision, as it did in section 12(3D), but did not. The inquiry is whether consideration occurred in substance, not whether a formal revision decision was made. The FTT must assess all relevant evidence and decide the issue on the balance of probabilities. No particular form of consideration or statement by the decision-maker is required. A response to an application may demonstrate consideration; a complete absence of response would ordinarily make that difficult to establish. The approach was consistent with R(CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC).
3. Regulation 32 requires the DWP to consider whether a decision may be revised before considering supersession. Here, the request sought housing costs from the original claim date, and the DWP considered whether the late notification could be accepted. In substance, it considered the application to revise. The tribunal did not need to decide whether a revision decision could be implied; the post-2013 appeal condition does not depend on one.
4. The First-tier Tribunal’s set-aside decision was appealable. The exclusions in section 11(5) of the Tribunals, Courts and Enforcement Act 2007 concern set-aside decisions under section 9. The FTT had not reviewed its earlier decision under section 9 and was not satisfied that it contained an error of law. Its only other available power was rule 37 of the FTT Rules, which requires a procedural irregularity and that setting aside be in the interests of justice. Rule 37 cannot be used to have another go at the substance of a decision. There was no procedural irregularity here.
5. The Upper Tribunal and FTT were not required to decide whether to extend time for a late revision application. An appeal lies against decisions under sections 8 and 10, not a decision under section 9. The Upper Tribunal also concluded that KU v SSWP (UC) [2026] UKUT 38 (AAC) reached the correct result on the carer element but used an erroneous reasoned basis by considering extension of time.

1. Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decisions of 9 April 2024 and 30 August 2024, and redecided the appeal in favour of the claimants.
2. First-tier Tribunal (Social Security and Child Support): On 9 April 2024, confirmed an award of housing costs from 10 December 2022. On 30 August 2024, purported to set aside that decision and direct an oral rehearing. Both decisions were set aside by the Upper Tribunal.