Official errors: officially appealable
Martin Williams considers what is needed to challenge a decision made in excess of 13 months ago that was wrong because of official error.
Introduction
In PH and SM v SSWP(DLA)(JSA) [2018] UKUT 404 (AAC) (see Bulletin 268, p12), Judge Poole holds that an appeal can be brought against a decision made in excess of 13 months ago, where that decision was incorrect because of an ‘official error’. This is an important, though limited, extension of appeal rights.
Which benefits?
The benefits concerned were disability living allowance (DLA) and jobseeker’s allowance (JSA). But the analysis in PH and SM should apply to all DWP-administered benefits and to child benefit. The reasoning in PH and SM is based in part on an analysis of the changes to legislation which introduced the requirement
that the decision maker had to have considered whether to revise a decision before that decision could be appealed (ie, the mandatory reconsideration requirement) for Secretary of State for Work and Pensions-administered benefits (child benefit rules are materially the same). PH and SM, therefore, does not apply to housing benefit decisions as there is no mandatory reconsideration requirement for that benefit.
The position for tax credits is also quite different – JI v HMRC [2013] UKUT 199 AAC, although subsequently held to be wrong on other issues, does suggest that there is a right of appeal directly against a refusal to revise for official error in any event.
When will an appeal right exist
R (CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC), reported as [2018] AACR 5, established that there would be a right of appeal against a decision even where the decision maker has refused a late application for revision against it, provided that application was made within the maximum time allowed (the usual deadline, typically of a month, plus a maximum extension of 12 further months – ie, typically 13 months from the date of the decision).
PH and SM concerns a different scenario: cases where the requestfor revision (ie, mandatory reconsideration application) is made outside the maximum allowed time. PH and SM holds that appeal rights will not arise following a refusal to revise in such cases, unless the situation is one where there is a right to have a decision revised at any time – ie, without needing to meet any deadline. That will be the case if the decision maker accepts the decision was in correct because of an ‘official error’. PH and SM addresses itself to the scenario where the decision maker refuses to accept the decision was wrong on that basis. Judge Poole holds that, in appropriate cases, the original decision can be challenged on an appeal (as long as the appeal is made within a month of the notice of refusal to revise, or such longer time as allowed under the Tribunal Procedure Rules).
Upper Tribunal judge Poole holds that for an appeal to succeed in this situation, two conditions must be met.
•Firstly, for a right of appeal to exist, the tribunal must be satisfied that the application for mandatory reconsideration of the decision appealed against was, in substance, on the basis that the decision was wrong for reason of official error (paragraph 15).
•Secondly, the tribunal, if it is to allow the appeal, must go further, and also be satisfied that the decision was in fact wrong for reason of official error (paragraph 5).
It is worth considering these two aspects separately.
Application in substance for official error revision
The emphasis here is not on the actual words which the claimant has used in the challenge to the original decision (paragraph 12). Instead it is about whether, when looking at what is said, one can see that the claimant is asserting that the original decision must have been wrong due to an official error.
For advisers assisting claimants at the mandatory reconsideration stage then, setting out as clearly as possible what the official error is said to be and how that caused the decision to be wrong will help meet that threshold.
Particularly for unrepresented claimants, then the requirement to focus on the content of the application as well as what, if anything, renders the decision incorrect seems unduly formulaic and makes appeal rights in these cases depend not just on the nature of the mistake in the original decision but also the astuteness of the claimant in identifying that issue.
Official error
‘Official error’ is defined
1 Reg 1(3) Social Security and Child Support (Decisions and Appeals) Regulations 1999, No.991; reg 2 Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381; reg 10(3) Child Benefit and Guardian’s Allowance (Decisions and Appeals) Regulations 2003, No.916 as an error made by an officer of the DWP (or HM Revenue and Customs (HMRC) in child benefit cases) acting as such, or someone acting on behalf of the DWP (HMRC in child benefit cases). The definition explicitly excludes decisions where the decision maker got the law wrong, but that has only been shown to be the case by a subsequent Upper Tribunal or court decision in another case. Many decisions are wrong, but that is not due to an official error. Note that mere disagreement with the decision (eg, that the decision maker ‘got it wrong’) is not sufficient. Examples of decisions which may be wrong due to official error include where:
•the decision maker got the law wrong even on the understanding of the law as it was at the time the decision was made;
•no rational decision maker looking at the evidence presented could possibly have made the decision;
2 CDLA/1707/2005 •the decision maker has failed to obtain some evidence which it should have been obvious was available and was needed in order to properly establish the facts;
3 Smith v SSWP (ESA) [2018] UKUT 270 (AAC) •some piece of evidence or representations which were submitted were not before the decision maker when the decision was taken due to the fault of the DWP;
•a departmental procedure was not followed and that could have altered the outcome.
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