Social Security Case Law - Spring 2025

Headnote

The case clarifies that bereavement, and a “domestic emergency” are not mutually exclusive grounds for backdating New Style Jobseeker’s Allowance claims.

Background

The Appellant (PE) claimed New Style Jobseeker’s Allowance (New-Style JSA) on 8 August 2022 and requested that her claim be backdated to 18 May 2022. The basis for the request was that she had been expected to start a new job, but she was waiting on Disclosure and Barring Service (DBS) checks. A DBS check is a criminal record check that can be requested by an employer to assess the suitability of a prospective worker. The Department for Work and Pensions (DWP) rejected the backdating request on 24 August 2022.

The claimant appealed the decision and was later awarded New-Style JSA from 15 August 2022, the claimant’s initial application date plus seven waiting days.

The claimant appealed the decisions to the First-tier Tribunal (FTT), which upheld the DWP’s decision in January 2023. The FTT refused the appeal on the grounds that while a ‘domestic emergency’ can be grounds for backdating a claim up to three months, that this reason cannot be applied to a bereavement – which can only be backdated one month.
The claimant then submitted an appeal to the Upper Tribunal.

Legal Issue

The Upper Tribunal was asked to consider:

• Did the FTT address provide adequate reason and explanation for proceeding with an appeal on the papers without adequately justifying why an oral hearing was unnecessary?
• Did the FTT incorrectly interpret “domestic emergency” under Regulation 29(3)(e) of the Universal Credit, Personal Independence Payment, Jobseekers Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, by excluding bereavement as a qualifying factor for backdating?

Decision

The Upper Tribunal concluded that the FTT had erred in law by failing to properly apply the test set out in DT v SSWP (UC) [2019 UKUT 268 (AAC) and MM v SSWP (ESA) [2011] UKUT 334 (AAC) as to whether a Tribunal can proceed in a paper hearing without the need for oral interactions.

Judge Butler then looked at the issue of backdating and whether ‘domestic emergency’ and ‘bereavement’ are mutually exclusive.

Under Regulation 29(3)(e) provides that, a claim can be backdated by three months where a claimant faced a “domestic emergency” and they could not reasonably have been expected to claim earlier. In contrast, a claim is permitted to be backdated up to one month where a close relative has died, and the claimant could not reasonable be expected to make a claim earlier.

However, the Upper Tribunal held that the FTT wrongly concluded that a bereavement could not constitute a “domestic emergency,”. The UT clarified that a bereavement and a domestic emergency are not necessarily mutually exclusive and that a situation involving a bereavement could still qualify as a “domestic emergency” if it seriously disrupted the claimant’s household and required immediate attention. The Secretary of State for Work and Pensions supported the appeal, agreeing that the FTT had wrongly interpreted the legislation.

The appeal was allowed, and the case was remitted to a freshly constituted Tribunal.

Relevant Legislation

• Section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007
• Section 12(8)(b) of the Social Security Act 1998
• Regulation 29(3)(e) & 29(5)(f) of the UC, PIP, JSA & ESA (Claims and Payments) Regulations 2013
• Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, Rule 27(1)(b)

Relevant Case Law

• DT v SSWP (UC) [2019] UKUT 268 (AAC)
• MM v SSWP (ESA) [2011] UKUT 334 (AAC