Social security appeal rights strengthened by major appeal court decision
24 October 2025
The Upper Tribunal sat exceptionally as a panel of three judges because of the importance of the case. Credit: Gordon Bell / Shutterstock.
The Upper Tribunal has released a ground-breaking judgment which will strengthen social security appeal rights, following an appeal by ‘GD’, who was represented pro bono by Garden Court North’s Tom Royston.
In TR and GD v Secretary of State for Work and Pensions (3 Judge Panel) [2025] UKUT 332 (AAC) (6 October 2025), the Upper Tribunal establishes that where claimants challenge a benefits decision on “official error” grounds (for which there is no time limit), the tribunal can allow an appeal even if “official error” is not ultimately established. The judgment considerably enhances the ability of benefits claimants to hold inaccurate government decision-making to account.
TR and GD had both challenged benefit entitlement decisions, which were several years old. The tribunals which heard their appeals decided that neither case involved “official error”, decided that both appeals had been brought too late, and dismissed the appeals.
In that respect, the First-Tier Tribunal decisions were consistent with the Upper Tribunal decision of PH and SM v Secretary of State for Work and Pensions [2018] UKUT 404, which suggested tribunals must be satisfied that official error has actually been established before considering the merits of an appeal.
The Upper Tribunal, sitting (exceptionally, because of the importance of the case) as a panel of three judges, rejects the analysis in PH and SM. It decides:
- A request to revise a decision on the ground of official error (often called a ‘mandatory reconsideration’ request) has no time limit. A request can be made at any time after that decision is made, and once it has been considered by the DWP, a right of appeal to the tribunal will arise;
- it is not necessary for official error to be made out, or even ‘arguable’, for an ‘any time’ appeal to be entertained by the tribunal. It is enough for the challenge to be ‘on a basis that, if made out, would be capable of being in fact or law an official error or other “any time” ground for revision’ [119].
- where such a challenge is made, the tribunal must conduct the appeal on a ‘full merits’ basis, which means it should allow the appeal if it thinks the original decision was wrong, whether or not it was affected by official error [121(e)].
This result follows from the way in which the original social security decision-making legislation interacts with the newer rules on ‘mandatory reconsideration’.
In future, when advising a claimant who is too late to pursue an ordinary appeal against an adverse decision, it will be critical to consider whether the decision in question can be challenged on official error grounds. If so, that will in principle open up the ability to pursue a full merits appeal, even where the official error grounds do not ultimately succeed.
Tom Royston acted pro bono for the appellant GD, instructed by Child Poverty Action Group.
This information note is not to be relied on as legal advice.
For further information, please contact Alex Blair, Communications Manager at Garden Court North Chambers: ablair@gcnchambers.co.uk
