Appeal No. UA-2025-000597-UHC
Between:
A.P.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Ms U Ali, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC009/24/00283
Digital Case No: 1718968251587092
Tribunal Venue: Wakefield CJC (in chambers)
Hearing Date: 7 October 2024
SUMMARY OF DECISION
The Appellant sought to challenge the treatment of his housing costs in a DWP decision to supersede his award of universal credit. The DWP declined to issue a mandatory reconsideration notice (MRN), stating that a “policy issue” was involved. In the absence of a MRN, the FTT struck out the Appellant’s appeal for want of jurisdiction. The Upper Tribunal allowed the Appellant’s appeal. The only possible construction of the DWP’s conduct was that the Secretary of State had considered whether to revise the decision under challenge and had decided not to. A mandatory reconsideration had, therefore, been carried out, and the FTT should have waived the requirement to provide a MRN with the Appellant’s notice of appeal. The case was remitted for hearing of the substantive appeal by a fresh FTT.
KEYWORD NAME (Keyword Number)
34.10 Tribunal procedure and practice – tribunal jurisdiction
45.8 Universal credit – housing
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
The case is remitted to the First-tier Tribunal for consideration of the substantive appeal at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge previously involved in considering this appeal on 7 October 2024.
The Respondent is to prepare a response to (and hearing bundle for) the Appellant’s appeal against the supersession decision on his UC housing costs dated 23 April 2024, to be sent to the First-tier Tribunal within one month of the date of issue of this decision.
If the Appellant has any further written evidence to put before the tribunal, this should be sent to the First-tier Tribunal within one month of the date of issue of this decision.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
This appeal is about a decision by the First-tier Tribunal to strike out the Appellant’s appeal. This was done on the basis that the Secretary of State’s decision under challenge had not undergone a mandatory reconsideration. I find that – on a proper reading of the law and the relevant facts – the only possible conclusion was that, on the contrary, the decision under challenge had been the subject of a mandatory reconsideration. It follows the Appellant’s appeal should not have been struck out.
The Upper Tribunal’s decision in summary and what happens next
I therefore allow the Appellant’s appeal to the Upper Tribunal, an appeal which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision. The Appellant’s case on the substantive point in his appeal now needs to be heard by a new and different First-tier Tribunal.
The chronology
The essential chronology is not in dispute.
On 23 April 2024 the Department superseded the Appellant’s award of universal credit (UC), awarding £946 for the assessment period (AP) of one month running from 23 March 2024. This included the sum of £577.99 by way of the UC housing costs element.
On 2 May 2024 the Appellant requested a mandatory reconsideration of the UC supersession decision. The Department stated it was unable to revise the supersession decision due to a “policy issue”. The Appellant was not issued with a mandatory reconsideration notice (MRN).
On 21 June 2024 the Appellant appealed to the FTT. However, on 7 October 2024 the FTT decided it had no jurisdiction to hear the appeal as (at least as so it had found) the Secretary of State had not carried out a mandatory reconsideration. The FTT accordingly struck out the appeal under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685).
The background in more detail
I further summarised the background to this appeal, along with the grounds of appeal to the Upper Tribunal, in my grant of permission to appeal as follows:
The FTT has issued a Decision Notice (dated 7 October 2024) and a full Statement of Reasons (SoR dated 23 January 2025) for its decision of 7 October 2024. The FTT found that the Applicant was seeking to appeal the UC decision dated 23 April 2024. That much does not appear to be in dispute. However, the FTT struck out the Applicant’s appeal for want of jurisdiction. In short, this was apparently because – through what the FTT correctly recognised was no fault of the Applicant – the Secretary of State had not as yet undertaken a mandatory reconsideration of the UC decision in question. The request for a mandatory reconsideration had been made in time but initially not processed by the DWP as it concerned a “policy issue”. It was then belatedly registered on 10 July 2024 but had yet to be processed. The FTT explained that in the absence of a mandatory reconsideration (MR) the tribunal lacked jurisdiction. Indeed, the Applicant acknowledged that no such MR had taken place (and, so it appears, has still not taken place, even now many months later).
The proposed grounds of appeal
The Applicant has set out his reasons for appealing in an annex to Form UT1 and in a subsequent additional document which is undated but was received by the Upper Tribunal on 24 April 2025 (‘Additional reasons for appeal’).
Understandably, the Applicant’s reasons for appealing are principally directed at the DWP’s conduct of this matter. In short, the DWP initially declined to carry out a MR, arguing that the matter was a “policy issue”. I have to say that it is singularly unclear what that policy issue was or is. The DWP later changed tack and accepted that a request for a MR had been lodged (and was duly registered on 10 July 2024). However, it now appears that (well after the FTT’s decision) the DWP has changed tack yet again – on 22 April 2025 the DWP entry on the Applicant’s UC journal states that “A decision is unable to be made due to policies”. However, I bear in mind that the DWP’s conduct of the case after the date of the FTT’s decision does not necessarily mean that the FTT’s decision involves any arguable error of law.
Nonetheless, I consider there is sufficient here to warrant a grant of permission to appeal. This is an inquisitorial jurisdiction, meaning that the Upper Tribunal can identify potential grounds of appeal of its own initiative. For example, there is at least a potential argument that the FTT failed to have due regard to section 12(3A) of the Social Security Act 1998 (as amended). Section 12(3A) enables regulations to make provision for a right of appeal to arise “only if the Secretary of State has considered whether to revise the decision under section 9”. Notwithstanding SoR paragraphs 18 & 19, it could be argued that, in declining to make a decision as it was “policy” to take that approach, the Secretary of State had thereby considered whether to revise the original UC decision (and had decided not to) – see by analogy R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC); [2018] AACR 5. Arguably the FTT may also have erred in law in not considering at that stage whether to waive the requirement (by operation of rule 7 of the Tribunal Procedure (FTT) (SEC) Rules 2008) that the Applicant should produce a MR Notice.
In short, there were therefore two principal grounds of appeal identified: (i) that the FTT failed to have due regard to section 12(3A) of the Social Security Act 1998 (and, by extension, had failed to consider regulation 7(2) of the Universal Credit etc (Decisions and Appeals) Regulations 2013 (SI 2013/381)); and (ii) that the FTT should have considered (under rule 7(2)(a) of the FTT’s procedural rules) whether to waive the requirement that the Appellant should produce a MRN.
The Secretary of State’s submission on the appeal
Ms U. Ali, the Secretary of State’s representative in these proceedings, in her helpful written submission, supports the Appellant’s appeal to the Upper Tribunal on both counts.
Her submission first addresses the significance of section 12(3A) (in paragraph 15 of this extract I have anonymised the DWP member of staff concerned as ‘Angela B’):
I respectfully submit the FTT have erred in law in failing to consider section 12(3A).
Section 12(3A) of the Social Security Act 1998 sets out -
‘Regulations may provide that, in such cases or circumstances as may be prescribed, there is a right of appeal under subsection (2) in relation to a decision only if the Secretary of State has considered whether to revise the decision under section 9.’
The appellant had asked for a Mandatory Reconsideration (MR) on 02/05/2024 of the supersession decision that was made on 23/04/2024. This decision was made due to a relevant change of circumstance on the housing costs and led to an increase in award. On 22/05/2024 the Decision Maker (DM) updated the journal confirming to the claimant that an ‘MR was not necessary as it was a policy issue’ (FTT bundle SSCS1 form, page 2). This is also acknowledged by the FTT in paragraph 10 in the Statement of Reasons (SOR) which states ‘In his appeal, he wrote that he requested mandatory reconsideration in May, but was told by the Department that one was not necessary as this was a policy issue’.
In Paragraph 19 of the SOR the FTT state that ‘The Tribunal did not consider this to be a refusal to carry out a mandatory reconsideration. A decision to this effect was never issued to the appellant’. The FTT concluded that they did not consider the above DM’s journal entry on 22/05/2024 to be a refusal to revise and that no decision was issued to the appellant. However, there is a further journal entry not submitted in the bundles on 04/06/2024 by [Angela B]. In brief, she explains that the inaccurate housing costs calculation about which the claimant has complained is an unfortunate but inescapable result of the framing of the legislation and suggests that the remedy is a Discretionary Housing Payment.
The appellant undoubtedly applied for a revision of the supersession from 23/03/2024, but had the Secretary of State "considered" that application, as the MR requirement in regulation 7(2) of the Decisions and Appeals Regulations requires? The answer is surely ‘yes’. As R(IB) 2/04 points out at [8]: ‘neither the Act nor any regulation specifies any particular form in which decisions must be made.’ Whether a given act constitutes a refusal to revise is a matter of substance.
Paragraph 43 of R(CJ) and SG v SSWP [2017] UKUT 324 (AAC), [2018] AACR 5 states –
‘The condition in section 12(3A) does not specify how the Secretary of State is to consider “whether to revise the decision under section 9”… The key words in our judgement are those that define the condition precedent that the “only if” refers to, namely “the Secretary of State has considered whether to revise the decision under section 9”. The introductory word “only” emphasises the need for that condition precedent to be satisfied but does not do more’.
More precisely: has the Secretary of State looked at a request to change a decision and said 'no' to it? Framed in this way, it seems beyond doubt that the Secretary of State did refuse the application for revision to the appellant (perhaps many times over). If nothing else, Angela B’s message on 4 June 2024 is an unequivocal statement that no change to the benefit awarded can be made in response to the arguments and concerns the claimant had raised. No later than then, therefore, the MR requirements of regulation 7(2) were fully and finally completed. What did and did not happen in 2025 could not change this.
The journal entry made by Angela B on 4 June 2024, referred to in the Secretary of State’s submission to the Upper Tribunal, was not in the (limited) papers put before the FTT. That entry read as follows:
Your rent is declared on your claim declaration as weekly and your social landlord has confirmed this as a weekly amount. We just convert it to a monthly amount as your Universal Credit is paid monthly. This is usually the case. Universal Credit current policy is as follows:
Universal Credit always converts weekly amounts to monthly sums using 52 weeks. The issue of there being 53 rent charging days in a year is relevant only for Universal Credit (UC) claimants who have their rent charged on a weekly basis and have 53 charging periods in a calendar year.
UC claimants in the Social Rented Sector are typically charged rent weekly every Monday and so in a typical year their 12 monthly UC payments will align with the 52 charging periods. Every six years, or five if including a leap year, they will have 53 charging periods. In 2024 there will be 53 of these periods with the 53rd rent payment occurring on the final day of the calendar year. 53 charging periods will not apply in all UC claims and some claimants will not have a 53 charging period year during the life of their benefit claim.
We have considered alternative options for those with weekly tenancies, but each have their own limitations and disadvantages for claimants. The matter occurs because weekly charging periods can never be accurately aligned with monthly periods. Tenants of social housing providers are used to managing varying outgoings every month depending on whether four or five rent payments are due – not just during a year in which there are 53 charging periods.
Discretionary Housing Payments can be paid to those entitled to Housing Benefit or the housing element of Universal Credit who face a shortfall in meeting their housing costs. Since 2011, the government has provided nearly £1.7 billion in Discretionary Housing Payments to local authorities. As this is the policy we process claims by, we cannot change this for you unfortunately. However, you do have the right to make a complaint about this policy, and you can do so as follows:
On the https://Gov.UK (opens in new tab) website, you
can search for "about government policy of law" where you can complete an online form to provide information on the legislation or policy that you disagree with. Alternatively, you can also write to: Ministerial Correspondence Team Caxton House Tothill Street London SW1H 9NA I do appreciate your frustration on this matter, however, as stated we are unable to change the policy. Therefore unfortunately I cannot enter into any further discussion regarding this with you. We have to process your claim in line with current policy.
Ms Ali’s submission then deals with the rule 7(2)(a) point in the following terms:
Moving on to the second ground of the appeal, I submit the FTT have erred in law in failing to consider Rule 7(2)(a) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
The claimant did not provide the MRN as it was not issued by the Secretary of State. In paragraph 16 of the SOR the FTT make reference to Rule 22(4)(a) which states -
‘(4) The appellant must provide with the notice of appeal—
a copy of—
the notice of the result of mandatory reconsideration, in any social security and child support case to which mandatory reconsideration applies;’
However, the FTT have the power to waive requirements as per Rule 7(2)(a) which states –
‘(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
waiving the requirement;’
The FtT should have considered which course of action to take considering the overriding objective of Rule (2)(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 which states –
‘2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly’
From reading the SOR it appears that the FTT have failed to consider waiving the requirement for the MRN and if they did consider it they have failed to explain this. South Bucks District Council v Porter (No 2) [2004] UKHL 33 states:
‘The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved’.
As such, if the UT Judge accepts my submission that the FTT have erred in law on the above, I invite them to set aside the decision and remit the appeal for rehearing by a freshly constituted FTT.
For completeness, I should add that the Appellant has made several further observations by way of reply, but they go to the merits of the substantive dispute and so need not be explored at this stage.
In short, I agree with the analysis of the Secretary of State’s representative in her written submission supporting the appeal to the Upper Tribunal.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.
I therefore remit (or send back) the original case for hearing by a new tribunal, which must make a fresh decision. The FTT is the appropriate forum for the further fact-finding which is needed before the actual issue in the case can be addressed.
The actual issue in the case
The Secretary of State’s representative in these proceedings has helpfully provided a copy of an extract from the Appellant’s UC journal for the period from 2 May 2024 to 4 June 2024. This had not been provided to the FTT. It sheds light on the “policy issue” at the centre of this dispute. The first three exchanges in a sequence of communications about the Appellant’s housing costs are recorded as follows.
First, on 2 May 2024 the Appellant added a note to his UC journal to the effect that “I wish to notify the DWP that I would like to make a mandatory reconsideration for this month's (April) universal credit housing element.”
Second, on 4 May 2024 the DWP responded with its own journal entry as follows:
I have looked at your housing and can see that your landlord confirmed that your rent is £168.02 per week and that you have 4 rent free weeks per year. As universal credit is paid on a calendar month basis please see below how your housing element is calculated. £168.02 x 48 divided by 12=£672.08, this is the maximum amount of housing element we can issue, however you also have a bedroom that is not occupied so universal credit would not pay for the this room, so there is a deduction due to having a spare bedroom. You have mentioned a mandatory reconsideration, we would not be able to raise this as the way your housing costs are calculated is set out by the government and is not something we can change as this is policy.
Third, on 5 May 2024 the Appellant replied as follows:
Thank you for your reply to my request. The calculation you outline is claimed to be Government policy or should you mean the legislation. The current legislation for how to calculate the amount of rent to award is as follows: Universal Credit Regulations 2013 Schedule 4 Part 3 Paragraph 7 Link to above: (https://www.legislation.gov.uk/uksi/2013/376/schedule/4/ paragraph/7) What is been disputed and why I need to raise a mandatory reconsideration is quite simply the DWP has not applied this regulation correctly. In your and the original calculation it uses the instructions set out in 7(2) of the above regulation, equivalent monthly rent. Whereas the correct instructions that should be applied are set out in 7(1), as the monthly rent is known by way of being notified by my journal well in advance of the calculation.
The remaining journal entries (at least as far as they are relevant) seem to be the Appellant and various DWP staff simply re-stating their respective positions on the correct method of calculating the claimant’s housing costs for the month of April 2024. As the Appellant observed in his entry on 9 May 2024, “we are just going around in circles at the moment”. The entries conclude with the response by Angela B on 4 June 2024, referred to above.
The Appellant’s substantive appeal therefore turns on the proper construction of paragraph 7 of Schedule 4 to the Universal Credit Regulations 2013 (SI 2013/376). This provides as follows (as amended):
Relevant payments calculated monthly
—(1) Where any relevant payment is to be taken into account under paragraph 6, the amount of that payment is to be calculated as a monthly amount.
Where the period in respect of which a renter is liable to make a relevant payment is not a month, an amount is to be calculated as the monthly equivalent, so for example—
weekly payments are multiplied by 52 and divided by 12;
(aa) two-weekly payments are multiplied by 26 and divided by 12;
four-weekly payments are multiplied by 13 and divided by 12;
three-monthly payments are multiplied by 4 and divided by 12; and
annual payments are divided by 12.
Where a renter is liable for relevant payments under arrangements that provide for one or more rent free periods, subject to sub-paragraph (3A), the monthly equivalent is to be calculated over 12 months by reference to the total number of relevant payments which the renter is liable to make in that 12 month period.
(3A) Where sub-paragraph (3) applies and the relevant payments in question are—
weekly payments, the total number of weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—
52 ― RFP;
two-weekly payments, the total number of two-weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—
26 ― RFP;
four-weekly payments, the total number of four-weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—
13 ― RFP;
where “RFP” is the number of rent free periods in the 12 month period in question.
“Rent free period” means any period in respect of which the renter has no liability to make one or more of the relevant payments which are to be taken into account under paragraph 6.
In summary, it appears that the Appellant’s case is that he falls within paragraph 7(1), whereas the Department’s argument is that he is covered by paragraph 7(2) (and, so far as is necessary, paragraphs 7(3), (3A) and (4)). However, for the purpose of the present proceedings I need not resolve that issue, not least as the relevant facts still need to be found and I have not had the benefit of full argument on the point at issue. I simply make two observations in that context.
The first is that it may be necessary to distinguish between (a) the period of time in respect of which there is a liability under the tenancy to make rental payments (e.g. weekly or monthly) and (b) the practical arrangements that are put in place to meet that liability. Thus, for example, a tenant may be contractually liable to pay rent weekly but (e.g. for reasons of convenience) that liability may be discharged according to a monthly schedule of payments.
The second is that the new FTT to which the appeal is being remitted may also find assistance in the decision of the High Court in R (Caine) v Secretary of State for Work and Pensions [2020] EWHC 2482 (Admin). In that case Mr Justice Julian Knowles rejected a challenge to the statutory formulae for converting weekly to monthly amounts.
What happens next: the new First-tier Tribunal
There will therefore need to be a hearing of the Appellant’s substantive appeal about the amount of his housing costs before a new First-tier Tribunal. The only possible reading of the law as applied to the facts of this case is that the challenge to the UC supersession decision had been the subject of a mandatory reconsideration, albeit that a MRN was not issued. As such, that requirement should have been waived by the FTT in the circumstances of this case. The Secretary of State must now prepare a response to the Appellant’s appeal against the decision of 23 April 2024 and a hearing bundle. The new Tribunal must review all the relevant evidence, make appropriate findings of fact and apply the relevant legislation.
Conclusion
I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal to the Upper Tribunal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Coda
The DWP’s initial response to the Appellant’s mandatory reconsideration request included the following assertion:
You have mentioned a mandatory reconsideration, we would not be able to raise this as the way your housing costs are calculated is set out by the government and is not something we can change as this is policy.
As noted above, the DWP’s final response (by Angela B) to the Appellant’s repeated attempts to obtain a MRN contained the following passage:
As this is the policy we process claims by, we cannot change this for you unfortunately. However, you do have the right to make a complaint about this policy … you can complete an online form to provide information on the legislation or policy that you disagree with … I do appreciate your frustration on this matter, however, as stated we are unable to change the policy. Therefore unfortunately I cannot enter into any further discussion regarding this with you. We have to process your claim in line with current policy.
Such statements by DWP officials are, to put it mildly, concerning. They display a worrying ignorance of the principles underpinning the system of adjudication for social security benefits. They also indicate a woeful lack of understanding of the role of the rule of law more generally. Claimants’ entitlements to social security benefits are ultimately determined by legislation and not (directly at least) by Government or departmental policy. As the Appellant noted in his response to the DWP, “The calculation you outline is claimed to be Government policy or should you mean the legislation.”
The Appellant may be right about the proper construction and application of paragraph 7 of Schedule 4 to the Universal Credit Regulations 2013 (SI 2013/376) to the circumstances of his case. He may be wrong about it. What is indisputable is that he has effectively been denied the right of access to an independent tribunal to determine that question for the best part of the past 18 months. The Appellant in this case has shown remarkable persistence and resilience to maintain his challenge. It is acutely concerning that many other claimants would have given up in the face of the Department’s stalling and thereby been at risk of potential injustice.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 2 October 2025