Social Security Case Law - Spring 2024

Headnote

Claim for Universal Credit.  A request for backdating can be treated as a request for revision under Section 9 of the SSA 1998 in circumstances where the original claim has already been determined.

Background

The Applicant was born in 2000 and has a severe learning disability.  The Applicant had previously been entitled to child tax credit and when he reached the age of 20, his father applied for Universal Credit on his behalf on the 19/03/2020.  The Applicant was awarded Universal Credit on the 19/04/20.  The Applicant requested that his Universal Credit award be backdated for a period of one month.   The general rule is that a claim for Universal Credit cannot be made for a period starting earlier than the date that it is submitted.  However, under Regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, as a result of a number of specified circumstances, including disability, an Applicant cannot reasonable have been expected to make the claim earlier than they did, the Secretary of State is required to allow them to claim for a period of one month before the date of claim (backdating provision).

The Applicant’s request for backdating was refused for reasons given that the Secretary of State was not empowered to backdate once a decision had been made on the original claim.  The Applicant appealed to the FfT which was unsuccessful.

The Applicant appealed to the Upper Tribunal which found in his favour and remitted the case for a determination of whether on the particular facts of his case the requirement of the backdating provisions were satisfied.

Legal Issue

Whether the period covered by a claim for Universal Credit is a ‘constitutive part’ of the claim so that it cannot be altered, by revision or appeal, once a determination has been made.

Relevant Legislation

The procedure for making benefit claims:

• Social Security Administration Act 1992, Section 1(1)
• Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013

The making of decisions about such claims (including the power of revision and the right to appeal):

• Social Security Act 1998
• Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013

Decision

The Court of Appeal dismissed the Secretary of State’s appeal.  At paragraph 35, the Court of Appeal states:

‘It is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated. I dare say, although we were given no figures, that the proportion of claimants entitled to backdating is quite small. But the absolute numbers will still be significant, and they are by definition people who could not reasonably have been expected to make their claim earlier and some of whom are specially vulnerable as a result of ill-health or disability; many will not have ready access to advice. Not all will have focused on the question of the date from which their entitlement will start; but even where they have, they may be unaware of, or uncertain about, the entitlement to backdate, and if the point is not raised as part of the online process they may well not pursue it. Even if they try to do so, the “Journal route” can hardly be described as obvious: inventive or well-advised claimants might take it, but it will certainly not occur to everyone.’

The Court of Appeal then considered if there was a requirement for a request for backdating to be made before a Universal Credit claim had been determined.  The Court of Appeal found that a request for backdating can be treated as a request for revision under Section 9 of the SSA 1998 in circumstances where the original claim has already been determined under Section 8 of the SSA 1998.  The Court of Appeal found that paragraph 26(2) of the C&P Regulations which permits backdating by up to a month is not limited by its words, context or purpose to cases where the claim remains undetermined (and amenable to amendment): it applies equally to cases where a claim has been determined but revision of that claim is now sought.  At paragraphs 50 and 51, the Court held:

‘The foundation of Mr Brown’s case is section 1 (1) of the SSAA 1992. That provides, as he submits, that entitlement to a benefit is conditional on the making of a claim for that benefit: there is no problem about that in the present case since the Claimant made a claim for UC. It also provides that entitlement depends on the claim being made in the manner and – which is what matters in this case – “within the time” prescribed by the relevant regulations. The natural reading of that provision is to my mind simply that if a person makes a claim outside the time prescribed by the regulations they will not be entitled to benefit. It does not in my view follow that a question about whether a claim has in fact been made in time (or, for that matter, in the prescribed manner) cannot be determined like any other issue going to entitlement – that is, in accordance with the ordinary procedures governing the determination of claims, including procedures relating to revision and appeal. If such a question were treated as outside the scope of the claim, and thus of any determination, the result would be surprising: to take the example of appeal, it would to my mind be contrary to ordinary procedural expectations if there were no right of appeal against a patently erroneous determination by the Secretary of State that a claim was out of time. 

In the case of a claim for UC the question whether it is in time will only arise in the context of a claim in respect of a past period, and it will depend, in accordance with regulation 26 (2) of the C&P Regulations, on a decision by the Secretary of State about whether the specified conditions are satisfied. But I do not think that can affect the correct construction of section 1 (1), which is not concerned only with UC. If the Secretary of State decides that the specified conditions are not satisfied, the claimant will not be entitled to the benefit for the past period; but there is no reason why that decision should not be treated simply as part of the determination of the claim, and subject, like the determination itself, to the procedures for revision and appeal.’