SF v Secretary of State for Work and Pensions

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 23 March 2004 under number SC947/24/00019 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set the decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions. DIRECTIONS

1. This case is remitted to the First-tier Tribunal for reconsideration.

2. The parties shall send to the HMCTS ASC Liverpool office as soon as possible: a) any further relevant written evidence, if there is any. b) A letter explaining whether or not an oral hearing of the application is requested.

3. If they cannot send this material within 4 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.

4. These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.   REASONS FOR DECISION Introduction

1. The Appellant (“Mr F”) seeks to challenge a decision of the First-Tier Tribunal (“the FTT”) dated 23 March 2024, striking out his case. Mr F was trying to appeal a decision of the Secretary of State for Work and Pensions (“the SSWP”), made in November 2011, that he had been overpaid Carer’s Allowance (“CA”) and Income Support (“IS”). His appeal was struck out by the District Tribunal Judge, on the basis that it was out of time, having been filed more than 13 months after the date of the decision under appeal.

2. On 20 February 2025 I granted permission to appeal the FTT decision, on two grounds. I considered that it was arguable that: a. The FTT failed to consider whether the reasons put forward by the Appellant for his delay could amount to “exceptional circumstances”. Although the FTT reminded itself, at para 3 of its decision, that it had the power to extend time beyond the “absolute” deadline of 13 months, its reasons do not seem to show that it considered using this power. They refer only to the thirteen months deadline. Was this an error of law? b. The FTT may have been under a duty to consider whether it needed to explore further the reasons for delay put forward by Mr F in his response to the Directions of 23 January 2024. He suggested in this that he had had notice of the SSWP’s decision previously but had left matters with the Probation Service. Did this raise factual questions which needed to be explored to decide whether there were “exceptional circumstances” and/or he had done all that he could to appeal?

3. On 1 May 2025, the Respondent (the SSWP) filed submissions in response to the grant of permission in which was accepted that the FTT had erred in law and that the case should be remitted back to the FTT for redetermination.

4. The Appellant was sent a copy of these submissions but has not commented further on them. Neither party has asked for an oral hearing and I am satisfied that I can decide the appeal fairly on the papers before me. There is no agreement that a decision without reasons is appropriate, so I have explained my reasons for allowing the appeal further below. Legal framework – time limits for appealing to the First-tier Tribunal

5. The usual rule is that an appeal against a decision from the SSWP should be lodged within one month of the mandatory reconsideration notice relating to the decision which is being appealed against (see rule 22(2)(d)(i) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008). However, the rules requiring an application for mandatory consideration were introduced in 2013 and took effect for relevant decisions made after 28 October 2013. Since in this case the original SSWP decision was made in November 2011 (see below), there was no need to apply for mandatory reconsideration before appealing. Instead, the time limit for lodging the appeal was one month of the SSWP’s decision (rule 22(2)(d)(ii) and Schedule 1, para 5 of these Tribunal Procedure Rules 2008).

6. The FTT has a power to extend the deadline for the lodging of an appeal, in appropriate cases, under rule 5(3). But rule 22(8)(b) makes it clear that this power may not be used to extend the deadline by more than 12 months. This gives the “absolute” deadline of 13 months. However, as the FTT in this case also recognised, there still remains a further power to extend time, in truly exceptional cases. As it said at paragraph 3 of the Decision Notice, “Appeals lodged outside the absolute time limit cannot be admitted unless there are exceptional circumstances” (underlining added).

7. This was a reference to the FTT’s duty to avoid a breach of Article 6 of the European Convention on Human Rights, which has been explained as follows: “3.3 These time limits may be extended only in very limited circumstances, under the principle in the case of Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156 (“Adesina”). However, discretion to extend time limits will only arise in exceptional circumstances and where the appellant personally has done all they can to bring the appeal timeously. The Adesina principle is likely to have extremely limited application to extend time limits in the present context, given the length of the existing periods and the existing discretions to extend them.” (PH and SM v Secretary of State for Work and Pensions (DLA) [2018] UKUT 404 (AAC); [2019] AACR 14, bold added).

8. The obligation was comprehensively analysed in GJ v SSWP (PIP) [2022] UKUT 340 (AAC). It is recognised that the exception is a very narrow one (see the test highlighted in bold in the quotation above). But in the earlier case of MZ v SSWP (UC) [2022] UKUT 292 (AAC), an appeal was allowed when the First-tier Tribunal had failed to consider whether the 13-month time limit could be extended and failed to consider whether an oral hearing should be heard to consider this issue. Factual background

9. In 2010, the Appellant was being paid Carer’s Allowance for his care of his uncle and was in receipt of Income Support. He was arrested whilst at his uncle’s house, and (according to his letters to the DWP and the FTT), left the card used to claim the payments, together with its PIN, at his uncle’s house. He was later convicted of an offence (or offences) and sentenced to prison on 5 July 2011.

10. The chronology relating to how long the Appellant was sentenced for, and where he was held subsequently, is unclear, on the basis of the papers before the Upper Tribunal. I commented on this when giving permission to appeal.

11. On 16 November 2011, the SSWP decided that the Appellant had been overpaid Carers Allowance (“CA”) and Income Support (“IS”). According to the papers supplied by the DWP to the FTT, the decision against which the Appellant is seeking to appeal was sent to him on 17 November 2011. There is a computer-generated letter at p2 of the FTT bundle which is dated 24 November 2011, referring to an overpayment decision made on 16 November 2011, and attaching a schedule showing that the payments of CA to be reclaimed related to a period of imprisonment from 22 November 2010 to 5 June 2011.

12. But it is not clear from these records, first, where any communication about an overpayment was actually sent by the DWP; and, second, where Mr F was at the time. Whilst some investigations were made in the Upper Tribunal proceedings as a result of Case Management Directions from Upper Tribunal Judge Jacobs, there is a conflict of evidence as to whether or not he was in custody at the date of the decision, for example.

13. The Appellant eventually asked the SSWP for mandatory reconsideration of both the CA and IS decisions on 22 May 2023, i.e. some 12 years or more after the decisions had been made. His application was later passed by the SSWP to the FTT, to be treated as an appeal. It has been treated as an appeal lodged with the FTT on 22 May 2023 (see the FTT’s Decision Notice).

14. A Directions Notice was sent by the FTT on 23 January 2024, inviting him to explain why the appeal was so late. He explained that he did not appeal the decision earlier because either: c. He was unaware of the decision until recently notified of it (FTT bundle p13, application for mandatory reconsideration); or d. His position, including the benefits he received, were known by the DWP at the time of his sentence of imprisonment. Then: “For months and months I didn’t receive any correspondence, then later on while I was serving my sentence I received a letter from the DWP which I handed to my then probation officer who assured me that it would be dealt with. So I then of course thought the matter was closed.” (letter to the FTT, 6 February 2024).

15. Having received this letter, the FTT decided that the appeal must be struck out, saying: “[5] The Appellant has made representations but has failed to demonstrate that the appeal was lodged within the absolute time limit. [6] As the appeal was lodged more than thirteen months after the date of the decision appealed against it is outside the Jurisdiction of the Tribunal and cannot be admitted.” Analysis

16. Against that background I consider, and the SSWP agrees, that the decision to strike out the case must be set aside, essentially for the two reasons identified when granting permission.

17. The first reason is that, although it is apparent that the FTT did have the case law from Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156 in mind (it is referenced at paragraph 3 of the Statement of Reasons), it is not clear that the FTT considered whether there were exceptional circumstances in this case, and it did not make findings on this issue. As the SSWP comments “Whether exceptional circumstances were in play in this case at all does not seem to have been considered by the FTT.”

18. More generally, I agree with the SSWP that: “The FTT have failed to show that they have considered the circumstances that prevented the appellant from making an application to appeal timeously. The reasoning for their late appeal can be found at pages 13 and 16 of the FTT bundle. The appellant stated that they were in prison when the overpayment decision was made, they were not aware of this decision until the Secretary of State wrote to the appellant. It is unclear from the limited documents in the FTT bundle when the decision on the overpayment was made and sent to the appellant.”

19. In relation to this lack of clarity, the second ground on which permission to appeal was granted related to the absence of attempts – if necessary by holding an oral hearing – to clarify the underlying facts or to seek further information about the Appellant’s knowledge of the decision (see MZ v SSWP (UC)[2022] UKUT 292 (AAC) at paragraph 8).

20. Again, I accept the SSWP’s submissions: “It is vague from the decision notice whether the FTT considered whether to hold an oral hearing or felt they had enough evidence to determine that the FTT could not extend the time limit to admit the appeal. From the limited reasoning provided by the FTT, we would have to assume that they have not considered this in this case at hand. The FTT may have benefitted by holding an oral hearing and gathering further evidence from both the appellant and the Secretary of State onwhen the overpayment decision letters were received and create an accurate timeline of the facts of the case.”

21. Regrettably, creating an accurate timeline now may well be difficult. The SSWP has stated that “The Secretary of State can not confirm where the overpayment decision letter was sent to, unfortunately due to the passage of time departmental records have since been removed.”

22. However, it seems to me that it was an error of law not to consider whether or not to make an attempt to clarify the facts and, if so, whether or not hold an oral hearing. Conclusion

23. For these reasons, the decision will be set aside and the case remitted to the First-tier Tribunal for further consideration and decision-making.

24. The Appellant should be aware that the fact that he has succeeded in the Upper Tribunal on a point of law does not mean that he will necessarily succeed in persuading the First-tier Tribunal to extend the time for appeal, on further consideration of the facts. The discretion to extend time for appealing, after 13 months has passed, is only to be exercised in exceptional circumstances. Whether or not those existed is the issue which the FTT will be considering afresh. The burden of establishing that the circumstances were exceptional and that he did all he could to appeal in time will rest on the Appellant. Eleanor Grey KC Judge of the Upper Tribunal Authorised by the Judge for issue on 10 September 2025