KU v The Secretary of State for Work and Pensions

Where a claimant says that an original Universal Credit decision was wrong on the facts existing when it was made, the application concerns revision, not supersession. The applicable provision for extending time is regulation 6 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. Regulation 36, including its exclusion of ignorance or misunderstanding of the law, applies to late notification of changes of circumstances and cannot govern a revision application.

Ignorance or misunderstanding of the law may therefore be relevant to whether special circumstances made a late revision application impracticable. A hearing is unfair where repeated interruptions, failure to engage with submissions, concentration on irrelevant issues and failure to raise the decisive issue deprive a representative of a fair opportunity to present the case.

The appellant and his partner made a joint claim for Universal Credit. Their disabled child received the highest-rate care component of Disability Living Allowance. Although both adults provided substantial care, the claim identified the partner as the carer and the award did not include the carer element for the appellant.

The appellant notified the Secretary of State in November 2023 and sought an any grounds revision of the original award. The Secretary of State and the First-tier Tribunal treated the matter as a late supersession application and applied regulation 36. The First-tier Tribunal dismissed the appeal, relying in particular on regulation 36(7)(b).

The Upper Tribunal considered whether the matter was revision or supersession, whether time should be extended under regulation 6, and whether the First-tier Tribunal hearing had been procedurally fair.

1. Appeal allowed. The First-tier Tribunal’s decision of 19 September 2024 was set aside for error of law. The Upper Tribunal remade the decision, extended time for the revision application to 2 November 2023 and revised the Universal Credit award to include the carer element from 18 June 2023.
2. The appellant’s case was that the original award was incorrect on the facts existing when it was made. It therefore required consideration as a revision under regulation 5 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. Under regulation 32, a decision which may be revised may not be superseded, and revision must be considered before supersession.
3. The applicable late-application provision was regulation 6. Regulation 36 concerns extending time to notify a change of circumstances for the purposes of supersession. Its regulation 36(7)(b) restriction, preventing account being taken of ignorance or misunderstanding of the law, had no equivalent in regulation 6. The First-tier Tribunal therefore applied the wrong legal test and excluded matters which it was entitled to consider.
4. Regulation 5 provides for revision on any grounds. An error by the Secretary of State in the original decision is not required. The approach in Miah v Secretary of State for Work and Pensions [2024] EWCA Civ 186 and [2024] 1 WLR 3012 supported that conclusion.
5. The hearing was also unfair. The judge repeatedly interrupted the appellant’s representative, persisted in an incorrect understanding of regulation 5, failed adequately to engage with submissions on special circumstances and did not put to the representative the regulation 36(7)(b) issue on which the decision ultimately turned.
6. The Upper Tribunal remade the decision because the delay was relatively short, the caring and family circumstances were substantial and undisputed, and the evidence established that the appellant had provided at least 35 hours’ care from the beginning of the award. It was reasonable to extend time and special circumstances made it impracticable to apply earlier.

• First-tier Tribunal (Social Entitlement Chamber): on 19 September 2024, dismissed the appellant’s appeal against the refusal to revise the Universal Credit award.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade the decision.