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Summary

The claimant had severe back pain. His claimant’s request for ‘backdating’ (ie, extending the time for claiming) UC was refused on the basis that even though he had a disability, which was one of the circumstances in which UC could be backdated, there was not the required causal connection between the disability and the fact that he did not claim earlier. On appeal, the claimant argued that his ignorance about UC and fact that English was not his first language were relevant background factors in considering that. Rejecting his appeal, the First-tier Tribunal found that although the claimant had severe back pain and was not aware of UC or how it was claimed, and did not claim until he got help from a friend, that had nothing to do with his back pain and so it was not the case that his back pain meant that he could not reasonably have claimed earlier.

In the Upper Tribunal, Judge Grey KC held that although the tribunal had erred in adopting an ‘unduly narrow’ approach and not properly applying the approach set out in a previous decision of the Upper Tribunal in this case, on the facts the claimant nevertheless had not made out that he could not reasonably have been expected to have claimed earlier, and so his appeal against the refusal of backdating was dismissed. The judge applied the rule on ‘backdating’ UC at regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, and also had reference to the earlier decision of the Upper Tribunal in this case in CU v SSWP (UC) [2024] UKUT 32 (AAC). Regulation 26 provides that for backdating to apply, one of the specified circumstances in subparagraph (3) applies to the claimant, and that ‘as a result…the claimant could not reasonably have been expected to have made the claim earlier’.

In the first Upper Tribunal decision in this case, in remitting the case back to the First-tier Tribunal Judge Jones said that there had to be a ‘causal connection’ between the circumstance (in this case, disability) and the reasonableness of not claiming UC earlier. But he had also said that that was not to say that the claimant’s ‘wider circumstances’ do not fall to be considered in the context of what could reasonably have been expected of the claimant. Ignorance of the benefit system was a wider circumstance, but the test remained overall what was reasonably to be expected. In the present decision, Judge Grey KC reiterated that there must be a connection between the circumstance and the unreasonableness of expecting the claimant to have claimed earlier. However, the tribunal appeared to have required that causal connection to have existed before the wider circumstances could be taken into account. That was ‘to set the bar too high’ and was inconsistent with Jude Jones’s first Upper Tribunal decisions (paragraph 29). 

‘Rather,’ said Judge Grey KC, ‘whether or not the necessary causal connection between (here) the disability and the failure to make a timely claim existed had to be assessed by reference to the claimant’s circumstances as a whole, including any “background” circumstances or characteristics’ (paragraph 29).

However, on the facts the judge was unable to accept that the claimant was so incapacitated by his disability to the extent that it would have been impossible for him to have made enquiries about his benefit entitlement, and it would have been reasonable to have expected him to make those enquiries. His appeal against the DWP’s refusal to back his UC was therefore dismissed.

Comment from CPAG

This decision preserves the finding in the earlier CU v SSWP (UC) [2024] UKUT 32 (AAC) that the ‘wider circumstances’, such as lack of awareness or language difficulties, are relevant to the test of whether the claimant could reasonably be expected to have claimed earlier. But as in that decision, it remains that has to be in the context of a ‘causal connection’ between the regulation 26 circumstance (eg, disability) and the reasonableness of not claiming earlier. In the present case, if it had been accepted that the claimant’s disability meant he could not take steps to remedy his lack of knowledge of UC and language problems, the outcome would have been different.

Decision in brief

Claimant received monthly payments for surrogacy expenses for two pregnancies amounting to, respectively, £15,000 (over 10 months) and £10,500 (over seven months) – once they became known to the DWP, they were correctly treated as the claimant’s income – they had to be treated either as capital or as income – on the facts and applying the good authority of Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526 regarding the ordinary and natural meaning of the word ‘income’, the payments were correctly characterised as income – they could not be ignored as ‘reasonable expenses’ for a volunteer as (despite the wording used in the surrogacy legislation) for JSA purposes, the claimant could not be regarded as engaged in voluntary work

Comment from CPAG

This is a decision about income-based JSA and, as the judge says, 

‘it must also be remembered that the methodology for assessing income and capital is very different under the universal credit [UC] scheme to that under the arrangements for the legacy benefits such as IB-JSA.’ 

The position regarding UC is not completely clear. For UC, they would not count as earned income and are not specifically named as unearned income. But could they nevertheless count as unearned income by virtue of being taxable (and so caught by regulation 66(1)(m) of the Universal Credit Regulations 2013)? It is understood that the ‘reasonable expenses’ which the surrogacy legislation limits the payments to have not so far been regarded as taxable by HMRC. But there would seem to be no definitive answer.

Decision in brief

Default position is that tribunals must hold a hearing unless the parties have consented to a decision without a hearing and the tribunal considers that it can decide the appeal without a hearing – in this case, the claimant had in her appeal form said that she could not attend a hearing in person but could join online – the tribunal had not addressed that, or attended to the fact that the notification sent to the claimant by the tribunal under the judicial case manager (JCM) software, informing her that there would be a paper hearing, failed to mention that a video hearing could be requested

Comment from CPAG

The wording of the JCM notification was ‘part of the factual matrix’ in this case and needed to have been looked at by the tribunal; the decision has been published, ‘in case it is useful to First-tier Tribunals in future cases where the wording of automatic notifications may be important to what they need to consider’.

Summary

The claimant had severe anxiety, depression, panic attacks and cognitive impairment. He was awarded the standard rate of the daily living component of adult disability payment (ADP) but was refused the mobility component, having been awarded just 4 points regarding that. He appealed to the First-tier Tribunal for Scotland (FTS) but did not attend the telephone hearing of the appeal. The tribunal continued in his absence and removed the award of the daily living component and reduced the points regarding the mobility component to zero, resulting in no award of ADP at all.

In the Upper Tribunal for Scotland, Lord Duthie allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to issue a specific warning to the claimant that his existing award was at risk, so depriving him of the chance to prepare a response or consider withdrawing his appeal. A related error concerned the tribunal’s decision to proceed with the hearing in the claimant’s absence. As submitted by Social Security Scotland, given the tribunal’s own findings about the claimant’s difficulties, fairness required adjournment when he failed to attend the hearing. The overall result was a breach of the rules of fairness.

Lord Duthie agreed with the concession of Social Security Scotland. Ordinarily, proceeding in the claimant’s absence where the tribunal is satisfied that proper notice of the hearing has been given is ‘unremarkable’; however, in this case the tribunal was aware of the claimant’s mental health problems and was considering making a less favourable decision. ‘In those circumstances,’ said Lord Duthie, ‘fairness required the FTS to give a clear warning before removing entitlement. Where a tribunal is considering a less favourable outcome, it must give sufficient notice to enable the claimant to prepare, in accordance with Article 6 ECHR and the principles of natural justice (NK v Secretary of State for Work and Pensions [2025] UKUT 363 (AAC)). That duty includes giving a specific warning identifying the descriptors or components at risk and allowing the claimant an opportunity to address them (LJ v SSWP [2017] UKUT 455 (AAC); TS v SSWP [2012] UKUT 182 (AAC)). The failure to do so constitutes an error of law’ (paragraph 6).

Comment from CPAG

The decision is notable for the application of existing authority on the need for a specific warning of a possible less favourable decision to the context of the First-tier Tribunal for Scotland. There is a body of uncontested authority from the Upper Tribunal regarding UK benefits (in particular, personal independence payment) on the subject. Apart from the decisions cited by Lord Duthie in the present decision there is also, for example, SR v SSWP [2024] UKUT 198 (AAC) and RC v SSWP [2017] UKUT 139. 

Summary

The claimant had a UC monthly assessment period (AP) running from the first day of each calendar month until the end of the month. On 20 November 2023, the claimant reported having paid £1,750 (‘the first payment’) on 1 November, regarding childcare from 30 September to 31 October. On 7 December she reported having paid a further £1,350 on 3 November (‘the second payment’) on 3 November, regarding childcare from 1 November to 30 November. She was awarded the childcare costs element for the November AP of £1,630.15 – ie, the maximum then available for one AP. The claimant challenged why she had not also been awarded the element in respect of any charges regarding the October AP – ie, paid for by the first payment. The First-tier Tribunal allowed her appeal, holding that the Secretary of State had been able to award the element for the October AP under the rule (at regulation 33(2) of the Universal Credit Regulations 2013, SI No.376, allowing for ‘late reporting’ of charges.

Judge Wikeley allowed the further appeal of the Secretary of State and substituted a decision that the original decision awarding the element for the maximum permitted amount for the November AP was reinstated. The tribunal had erred. Although it had in fact acknowledged that the Secretary of State had been ‘legally entitled’ to make the decision that it did, it had nevertheless applied a different approach, and that approach was incorrect. The essential point was that the claimant had made two payments of childcare costs charges in the same AP (ie, the November one), including the first payment. That was because regulation 34A provides that charges are attributable to the AP in which they are paid, including (per subparagraph (1)(b)) where those charges are paid ‘in respect of a previous assessment period’. The second payment was also attributable to the AP in which it was paid (ie, November) by virtue of regulation 34A(1)(a) – ie, because they were ‘charges paid in that assessment period for relevant childcare in respect of that assessment period’. Under regulation 33, the childcare charges paid, per regulation 34A, attributable to the November AP in fact been reported timeously – ie, ‘before the end of the assessment period that follows the assessment period in which they were paid’. Judge Wikeley said that ‘the problem’ with the tribunal’s approach was that in fact regulation 33 ‘cannot assist in the circumstances of this case’ (paragraph 29) – ie, they had not been reported ‘late’.

In ‘final observations’, Judge Wikeley acknowledged that the ‘net result’ was that the claimant was denied the childcare costs element in respect of most of her childcare charges for the October. That is simply because, as the tribunal had observed, the claimant had claimed two months’ worth of childcare costs in the same AP. For Judge Wikeley, that was however the correct result under the rules. The judge noted that the policy objective behind the 2019 amendments to regulation 33, officially described as intended to help households with children, giving people more confidence that they will receive the support they need in work, ‘is hardly well served by the outcome of the present appeal’ (paragraph 37). His decision was therefore reached ‘with some regret’ (paragraph 38).

Comment from CPAG

The outcome is a clear warning about potential outcomes of paying two lots of childcare charges in the same AP, even where one of the payments is regarding childcare actually provided in a previous AP. In addition to the judge’s observations about how regulation 33 defines what is ‘late reporting’ of charges, it should be borne in mind that even if they are indeed reported late, attribution of them to a particular AP is still subject to the provisions of regulation 34A.

Summary

The claimants had a joint claim for UC, made in June 2023. One claimant (A), who eventually became the appellant, was in full-time work; his partner (P) had limited capability for work-related activity (LCWRA). They had joint caring responsibilities for their severely disabled child. On the claim form, however, they declared that P alone was the child’s carer for more than 35 hours a week (even though that was not actually the case). The UC was awarded but included only the LCWRA element (in respect of P), and not the carer element, as P could not also be entitled to that. In November 2023, claimant A notified that in fact he was also a carer for 35 hours a week and was elected as the main carer but had not previously understood that was possible under the rules. The DWP treated that as a late notified change of circumstances and the element for him was only awarded from November. Although A explicitly referred to a late revision in his mandatory reconsideration request, both the DWP and the First-tier Tribunal continued to apply supersession rules for a late notified change of circumstance. As, under those rules, ignorance or misunderstanding of the law could not be taken into account, the carer element could not be backdated to the start of the award.

Judge Markus KC allowed A’s further appeal and substituted a decision that the carer element should be included from the start of the award. On the facts, a late revision of the failure to include the carer element in respect of A was the correct decision, with the effect that the element was to be included from that point, rather than a later date. The tribunal had wrongly focused on regulation 36 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (‘the D&A Regulations’). That provides for the effective dates of supersessions for changes of circumstance, where the change has been notified late. It was true that subparagraph (7)(b) of regulation 36 provides that, in considering whether in effect to backdate the effective date, no account must be taken of ignorance or confusion regarding the law.

But, as Judge Markus QC said, applying regulation 36 of the D&A Regulations had been part of ‘a great deal of muddle’ by the DWP and tribunal (paragraph 27). The decision before the tribunal called, on the facts, for consideration of a revision rather than a supersession. A decision that could be revised could not, per regulation 32, be superseded instead. Claimant A’s case had (with the aid of his representative) consistently been that the original UC award should, on the actual facts, always have included the carer element for him. As, said the judge, A ‘had advanced a factual case indicating that the initial award was incorrect from the outset’, that called for consideration of whether the award should be revised under regulation 5 of the D&A Regulations, and (per the Court of Appeal decision in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186 (reported as [2024] 1 WLR 3012), revision on that ground was possible simply on the basis that it was wrong when it was made. The tribunal had apparently thought at some point that revision was in play, but when considering an extension of time, wrongly applied regulation 36, rather than regulation 6 which is the provision regarding late applications for revision. Judge Markus said: ‘This was fundamentally in error. As I have explained, this was a case in which the appellant had notified the respondent that the facts as reported in the UC claim were incorrect and was seeking a decision based on the correct facts from the outset. This was an application for a revision’ (paragraph 37). It was true that regulation 6 required the Secretary of State to be satisfied that it was reasonable to allow the late application – but there was no bar to taking ignorance or misunderstanding of the law into account. On the facts, which included the lack of information in the online UC claim form, claimant A’s misunderstanding of the law regarding the carer element, the stress involved in caring for the child and P’s own health problems, and adopting the ‘common sense’ approach in the official guidance for decision makers (ADM, paragraph A3055), the judge substituted a decision that an extension of time to allow a late revision was appropriate. Consequently, the carer element was to be included from the outset of the award (paragraphs 48–66).

Comment from CPAG

This decision does not break new legal ground, but it is a helpful corrective to the ‘muddle’ that still seems to afflict decision making regarding late revisions. The claimant was well represented in this case, and it is disappointing that the First-tier Tribunal was unmoved. Put shortly, where a revision is possible (ie, for incorrectness), including as here where a claimant is within the 13-month time limit for a late application on any grounds, a revision must be carried out and not a supersession.