Key Points for Welfare Rights Officers
This decision confirms and applies Social Security Scotland v VH (2025 UT 52). Where a superseding ADP determination is made after the decision under appeal, the First-tier Tribunal’s jurisdiction is limited to the period before the new determination takes effect. The tribunal cannot award entitlement beyond that date, even if it is unaware that the superseding decision exists.
Facts
- The claimant appealed an ADP redetermination dated 8 November 2023.
- The FTS awarded ADP for five years (10 November 2022 to 10 November 2027).
- During the appeal process:
- A scheduled review took place.
- The claimant reported a change of circumstances.
- SSS made a further determination notified on 29 April 2025, effective from 28 April 2025.
- The new determination continued entitlement and set a further review date for 2028.
Upper Tribunal Decision
The appeal by SSS was allowed.
The Upper Tribunal held that:
- The review determination effective from 28 April 2025 superseded the decision under appeal.
- The FTS therefore only had jurisdiction to determine entitlement from:
- 10 November 2022 to 27 April 2025
- The FTS had no power to make an award covering any period after 27 April 2025.
- The award period was substituted with:
“The award is for a closed period from 10 November 2022 to 27 April 2025.”
Important Legal Principle
A subsequent review or superseding determination can create a closed period appeal.
Once the later determination takes effect:
- The earlier determination no longer governs entitlement.
- The FTS can only decide entitlement up to the day before the later determination begins.
- It cannot make an award extending beyond that date.
This remains true even where:
- the later determination leaves the award unchanged; and
- the tribunal was unaware that the later determination had been made.
Lessons for Representatives
1. Check for later decisions
Before any hearing, check whether:
- a scheduled review has taken place;
- a change of circumstances has been reported;
- a further ADP determination has been issued.
A later determination may significantly restrict the period under appeal.
2. Ask for the complete decision history
Where there has been a long delay between appeal submission and hearing, request:
- review decisions;
- superseding determinations;
- review correspondence; and
- current award details.
3. Closed period submissions
Where a later determination exists, representatives should be prepared for SSS to argue that the appeal concerns only a closed period.
4. Paper hearings carry greater risk
The Sheriff specifically noted that paper hearings may be more vulnerable to this issue because no presenting officer reviews the case immediately before the hearing.
Criticism and Observations
Although SSS succeeded, the Sheriff noted concerns:
- SSS initially failed to provide the relevant review decision documents.
- An earlier appeal response suggested the FTS could make an award beyond April 2025.
- That response was never corrected and was capable of misleading the tribunal.
The Sheriff considered that both SSS and the FTS must now be vigilant in identifying superseding decisions before appeals are determined.
Practical Impact for Welfare Rights Work
This case is important where:
- ADP appeals take many months to reach hearing;
- a claimant undergoes a scheduled review during the appeal;
- a claimant reports a change of circumstances while the appeal is ongoing.
In such cases:
The tribunal may only decide entitlement up to the day before the later determination takes effect.
The claimant may therefore end up with:
- an appeal concerning a historical closed period; and
- a separate current award governed by the later determination.
Takeaway
2026UT62 reinforces VH. A later ADP review or superseding determination closes the period that the tribunal can consider. Representatives should always check for subsequent decisions before a hearing, particularly where there has been a lengthy delay in listing the appeal.