I have a case where an Upper Tibunal decision went against the claimant. 2 months later a different Upper Tribunal Decision was made that put a new perspective on my claimants case.

Can I ask the HB office to consider superseding the claimants Upper Tribunal decision from the date of the more recent one, and would there be grounds for appeal if they refuse?

Many thanks

I am afraid that the answer is "No" and "No", but you might be able to appeal the upper tribunal decision, although that will mean going to the Court of Appeal.

You must do this within 3 months of the date of the decision and you must initially make a written application to the UT for permission to appeal.
The application must
"• identify the decision to which it relates
• identify the alleged error or errors of law in the decision, and
• state the result the party making the application is seeking"

Mon 09-Nov-09 08:41 AM by jmembery

A different view has been put forward by a colleague experienced in appeals that may give you an alternative to the Court of Appeal.
His advice is....


As I understand it, any existing decision that is affected by new precedent handed down from the UT or above absolutely can be superseded. The ground is that the original decision was based on an error as to the law but was not an official error - because at the time there was no reason to think that the "old" approach was wrong. So instead of a revision, the claimant can only benefit from a superseding decision. See Reg 7(2)(b)(i). Note that paragraph 4 of Schedule 7 to the 2000 Act allows supersession of decisions by the authority, FtT or UT - so the grounds set out in Reg 7 apply to all of those except where the context otherwise requires.

The effective date of the superseding decision is set by Reg 8(8): it takes effect from the date of the new precedent (the "relevant determination").

The only doubt I have about this is whether a subsequent decision of the UT ("UT2") is sufficient for the purposes of Reg 7(2)(b)(i) and 8(8) to show that an earlier decision of the UT ("UT1") is erroneous in point of law, as they are of equal standing.

Reg 7(2)(b)(i) & 8(8) would definitely apply where an original decision of the Council or FtT is subsequently shown to be wrong by someone else's appeal in UT2; and they would also apply where UT1 is shown to be wrong by someone else's appeal to the higher courts. But I am not sure whether UT2 automatically trumps UT1.

I dont think there are any grounds for supersession here because both UT decisions will carry the same weight if they were decided by a single judge.

It may be a different matter if the second decision was made by a Tribunal of judges, but if both decisions were made by single judges, a lower Tribunal judge or even a decision maker at an LA would be free to follow whichever decision he preferred.

I obviously dont know the details of these cases, but you cant read decisions of Commisioners and Upper Tribunal judges as if they are statutes. Each case in the Upper Tribunal is determined on its own peculiar facts, and the legal principles to be extracted from decisions are often limited