SB v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing before a different judge.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The appellant appeals against the First-tier Tribunal’s decision of 16 December 2024 refusing the appellant’s appeal against two decisions of the Secretary of State: (i) a decision made on 3 February 2024 that the appellant was not entitled to the Housing Costs Element (HCE) of Universal Credit (UC) for his claimed occupation of a property at 78 Regent Street, Smethwick between 18 May 2022 and 17 January 2024; and (ii) a decision made on 6 February 2024 that the appellant had as a consequence been overpaid UC totally £5,531.47.

The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 14 February 2025 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 16 April 2025. The appellant filed the notice of appeal to the Upper Tribunal on 15 May 2025 (in time).

I granted permission to appeal in a decision sent to the parties on 4 August 2025. By submissions filed on 1 September 2025 the Secretary of State indicates that the appeal is not opposed. Both parties were content for me to issue a decision on the papers without a hearing, and I was also satisfied, given the nature of the issues and the lack of dispute between the parties, that I could fairly determine the appeal on the papers.

The Upper Tribunal’s jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is limited to considering whether there are any points of law arising from a decision made by the First-tier Tribunal.

Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account relevant factors, procedural unfairness or failing to give adequate reasons for a decision.

An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the facts of the case.

These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13] and R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 WLR 2793 at [13].

In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57]. That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.

By section 11 of the Welfare Reform Act 2012 (the 2012 Act), the HCE element of UC is “an amount in respect of any liability of a claimant to make payments in respect of the accommodation they occupy as their home”. What is meant by this is defined in regulation 25 of The Universal Credit Regulations 2013/376: the payment condition (reg 25(2)), the liability condition (reg 25(3)) and the occupation condition (reg 25(4)). So far as relevant in the present case:

The Tribunal in this case expressed its conclusion on the claimant’s appeal as follows at [43]:

“I make no finding as to contrivance. I am satisfied the entitlement appeal fails because the appellant did not provide adequate verifiable documentation to support his claim for the HCE, and it is unnecessary for me to go further.”

The preceding paragraphs of the SoR recite the history of the claimant’s provision of documentation to the Secretary of State, identifying the respects in which it was unsatisfactory. In particular, in [32] the judge notes “The first inconsistency is the commencement date of the tenancy..” and, at [35] “The second inconsistency is in relation to Council tax bills.”

However, nowhere in the SoR does the Tribunal actually address the three conditions of entitlement in regulation 25. None of those conditions of entitlement necessarily require production of any particular documentation; oral evidence can be considered. It is for the Tribunal, standing ‘in the shoes’ of the Secretary of State, to decide whether, on the facts, the three conditions of entitlement are met.

The appellant had, by the time of the hearing before the First-tier Tribunal, produced documents that on their face appear to be:

I do note that the foregoing evidence was not wholly consistent with the statement the appellant is recorded as making in the December 2023 interview that he had as at December 2023 been living at Flat 46, Robert Owen House, Fulham Palace Road, London for “a year”. However, the Tribunal does not state what it made of that inconsistency or make any findings about the validity (i.e. genuineness or otherwise) of any of the documentation.

Nor does the Tribunal record what the appellant’s evidence was at the hearing about his living arrangements over the period in question, or what his explanation for any inconsistencies were. Given the Tribunal’s dissatisfaction with the documentation, it was incumbent on the Tribunal as an inquisitorial to explore the appellant’s circumstances fully with him in oral evidence, and then make findings of fact taking account of both the oral and documentary evidence.

In short, on reading the Tribunal’s SoR I am left unable to understand on what legal basis the appellant lost his appeal. The reasons are inadequate. The Tribunal did not consider that the claim was contrived, but neither did it identify whether the appellant had failed to qualify because the payment or liability or occupation conditions were not satisfied. If it did consider that he did not satisfy one or more of those conditions, the Tribunal also needed to identify in respect of what period(s) the appellant did or did not satisfy those conditions. If, as the Tribunal found, the claim was not ‘contrived’ then it seems possible, given the appellant’s documentation, that he was at the Smethwick address at least for a period. However, the Tribunal needed to decide, applying a balance of probabilities standard, whether the appellant had shown that for any particular period he satisfied the three conditions at the Smethwick address.

As the First-tier Tribunal has materially erred in law, I set its decision aside and remit the case for re-determination by a fresh Tribunal.