SP v Secretary of State for Work and Pensions

The case is remitted to the First-tier Tribunal.

The new First-tier Tribunal hearing the appeal shall consider all issues relating to the Appellant’s challenge to the decision made by the Secretary of State on 5 September 2022.

A copy of this decision shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal.

This appeal relates to the Respondent’s decision made on 5 September 2022 that, due to the Appellant having received student finance for the year 2021-2022, it had made an overpayment of Universal Credit which the Appellant was liable to repay (the “5 September Decision”). On 7 June 2023, 14 June 2023 and 17 June 2023 the Appellant requested a mandatory reconsideration of the 5 September Decision but was informed that she was unable to request a mandatory reconsideration by reason of her request being made more than one month after the 5 September Decision. The Appellant lodged an appeal with the First-tier Tribunal but on 26 March 2024 Judge Atkinson struck the proceedings out on the basis that the Appellant had not been through the mandatory reconsideration process (the “FtT Decision”).

The Appellant sought permission to appeal to the Upper Tribunal from the First-tier Tribunal but her application was refused. She then exercised her right to appeal to the Upper Tribunal for permission to appeal.

The matter came before me and I granted permission to appeal. I invited the Respondent to make a submission on the appeal.

Ms Coleman, on behalf of the Respondent, acknowledged that there had been errors in the processing of the Appellant’s application for mandatory reconsideration, and explained that the 14 June 2023 request for mandatory reconsideration had since been accepted, and a mandatory reconsideration carried out (albeit that the decision on reconsideration was unchanged). She noted that there had since been a revision of the 5 September Decision, with a decrease in the amount of the overpayment. Ms Coleman indicated that the Respondent supported the appeal and invited me to set the FtT Decision aside and remit the matter to the First-tier Tribunal.

Mr Power, on behalf of the Appellant, pointed out that the situation risked the Appellant being required to engage in two sets of appeals to the First-tier Tribunal: one relating to the original 5 September Decision and another in respect of the revised decision resulting from the reconsideration that Ms Coleman reports has now taken place. He invited me to Direct that the new tribunal should consider all issues relating to the Appellant’s challenge to the 5 September Decision.

Section 12(3A) of the Social Security Act 1998 and Regulation 3ZA(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provide for a right of appeal “only if the Secretary of State has considered whether to revise the decision under section 9”. However, this provision was considered by a three-judge panel of the Upper Tribunal in R (CJ) and SG v SSWP [2017] UKUT 324. The issue in those appeals was that a request for a mandatory reconsideration had been made later (more than one month but less than 13 months after the decision under appeal) whether the consequence of the delay was to extinguish the right of appeal. The Upper Tribunal decided that it did not. Therefore, if a mandatory reconsideration request is made outside one month but within 13 months from the date of the original decision, the appellant still has a right of appeal.

The First-tier Tribunal should have registered the appeal as valid on the basis that the Secretary of State had been given the opportunity to carry out a mandatory reconsideration and had declined to do so. It should not have struck out the appeal.

I am satisfied that the First-tier Tribunal made a material error of law when it struck out the appeal.

It is appropriate to exercise my discretion to set aside the FtT Decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and to remit the matter to the First-tier Tribunal so that it can determine the appeal.