Case Law Article: Upper Tribunal Decision Highlights Importance of Correctly Applying Regulation 9(b) in Universal Credit Appeals

Citation: [2023] UKUT 279 (AAC)
Judgment on

Introduction

The case of The Secretary of State for Work and Pensions v SV is a decision by Upper Tribunal Judge Jacobs, which delves into the process of revising a decision on the award of universal credit due to a mistake of material fact. The primary focus is on the correct method for the First-tier Tribunal to apply when a decision made by the Secretary of State is challenged on the grounds of a mistake related to a claimant’s employment status and right to reside, which are crucial determinants for an award of Universal Credit.

Key Facts

SV, a Bulgarian national, claimed universal credit on 18 February 2020. By 10 March 2020, the Secretary of State decided SV was entitled to the award based on evidence suggesting her employment was “genuine and effective”. The evidence included documentation from Nadmir Ltd. However, upon review in May 2021 and subsequent investigation, the Secretary of State determined SV had not satisfied the habitual residence test (HRT) and revoked her award.

SV pursued a mandatory reconsideration, which was refused, and then lodged an appeal with the First-tier Tribunal. The appeal was improperly treated against the decision of 17 August 2021 rather than the revised decision dated 10 March 2020. Furthermore, the tribunal’s use of T. Wilson’s witness statement regarding Nadmir Ltd. indicated a misunderstanding of the regulation 9(b) applicable for a revision of decisions based on mistaken facts.

Key legal principles involved in the case pertain to the processes of revising and appealing decisions concerning the award of universal credit under sections 8, 9, and 12 of the Social Security Act 1998, section 4(1)(c) of the Welfare Reform Act 2012, and Regulation 9 of the Universal Credit Regulations 2013.

The appeal hinged on the interpretation of Regulation 9(b) of the 2013 Regulations, which allows for a decision to be revised if it was “made in ignorance of, or was based on a mistake as to, some material fact.” The pivotal misunderstanding by the First-tier Tribunal was that for Regulation 9(b) to be applicable, the mistake had to be known or in the contemplation of the decision-maker at the time. However, the correct legal principle is that a decision can be revised if it was based on a mistaken fact, irrespective of the decision-maker’s state of mind and irrespective of when the evidence, revealing the mistake, became available.

Moreover, the relevance of evidence in relation to the timing of the decision under section 12(8)(b) is another crucial principle, as it restricts the tribunal to only take into account circumstances that existed at the time the decision appealed against was made.

Outcomes

The tribunal’s decision that SV’s initial award of Universal Credit should not be revised was set aside due to the legal mistakes made in its approach. The case has been remitted to the tribunal for rehearing by a differently constituted panel, with the instruction to consider the whole of the evidence available that is relevant to the time of the claim, including the evidence provided by SV, the witness statement, and any additional information. The tribunal must assess whether the new evidence unearths a mistake of material fact concerning SV’s employment status with Nadmir Ltd during the relevant period.

Conclusion

In summary, The Secretary of State for Work and Pensions v SV [2023] UKUT 279 (AAC) is instructive on several aspects, particularly the proper application of Regulation 9(b) for revision of a decision based on material fact, the extent to which evidence should inform the revision process, and the temporal limitations on the evidence that a tribunal may consider in such appeals. The misunderstanding of these principles by the First-tier Tribunal underpinned the error in law, leading to the setting aside of its decision and the direction for a rehearing. The case underscores the distinction between the process of decision-making and the factual basis upon which decisions are made under the purview of welfare benefits law in the UK.

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