'Backdating' and managed migration to UC

Introduction

The managed migration process, by which people with a current award of legacy benefits and tax credits will see those awards end and be invited to claim UC instead, is now well underway. The transfer to UC is not automatic. That requires a claim for UC and an award (although the ending of the legacy benefit/tax credit award does not). The managed migration rules do not include separate provisions about claims. For example, they do not treat a person as having made a claim for UC, even if their legacy benefit and tax credits have been ended. Neither do they impose a general bar on the application of the usual UC claims and payments rules. Most of those rules, including regarding ‘backdating’ on a claim, would therefore seem to be capable of applying in the managed migration process.

However, there is a specific provision disapplying the ‘backdating’ rule in one particular circumstance. Also, the wording of the backdating rule would seem to mean that, at least as a matter of straightforward interpretation, it will not allow transitional protection to be awarded where the claim itself is made too late. Therefore, consideration of that wording, and what little the managed migration rules do say about its application, is required. Before that, however, a word needs to be said about some internal official guidance.

Note: at time of writing, the outcome of the Secretary of State’s appeal against the decision of the Upper Tribunal in AM v SSWP (UC) [2022] UKUT 242 (AAC) (Bulletin 291, p12) was awaited. The main issue for the Court of Appeal was whether backdating must be requested before the initial decision on entitlement, or (as held by the Upper Tribunal) whether it could still be requested after that point, on revision.

Guidance

Internal guidance to decision makers considering transitional protection in managed migration cases clearly instructs them to attend to backdating issues: ‘Before completing a transitional protection calculation, you must have considered backdating the universal credit claim and applied this where needed.’1

Further internal guidance on backdating is referred to, but to what extent this will prompt, in practice, the kind of considerations set out below (which are based on what the law says) is not entirely clear.

The ‘backdating’ rule

This rule is contained at regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (the ‘Claims and Payments Regulations’).2 The wording does not refer to ‘backdating’ but rather to ‘extending the time for claiming’ UC, in the light of the basic provision that a claim must be made on the ‘first day of the period in respect of which’ it is made. This somewhat convoluted drafting means, in effect, that in UC ‘backdating’ on a claim is really the backdating of the day an award may begin, rather than backdating the date of the claim itself. In even more convoluted wording, the maximum period of this backdating is, strictly speaking, based on the creation of a backdated UC monthly assessment period. It is required that specified circumstances, for example disability, mean that the claim could not reasonably have been made earlier.

It remains acceptable shorthand, in common usage and in the name of plain language, to speak of backdating UC on a claim for a maximum of one month. In the context of managed migration, however, the fact that it is the commencement of the award that is backdated rather than the date of the claim itself would appear to be important regarding transitional protection. This will be explored further below. Firstly, however, it is helpful to consider what, if anything, the managed migration rules have to say about backdating.

Managed migration rules

Most of the relevant rules are contained in the Universal Credit (Transitional Provisions) Regulations 2014 (the ‘TP Regulations’)3 specifically at regulations 44 to 62. Generally speaking, these rules have little to say about claims, and nothing at all about how claims should be made or the date on which claims are regarded as having been made. The result is that, generally speaking, the main rules about claims (ie, in the Claims and Payments Regulations) will apply, including the backdating provision. But there is more that needs to be said here.

Backdating – an exception

The managed migration rules specifically rule out the backdating rule at regulation 26 in one circumstance. This is where the claimant, having become a ‘notified person’ subject to the managed migration process, has not claimed UC by their ‘deadline day’ (ie, the day on which the legacy benefit and tax credit awards end), but does make the UC claim on or before their ‘final deadline’ – ie, the day by which a claim must be made in order for transitional protection to apply. In that specific circumstance, regulation 46(3) of the TP Regulations provides that ‘notwithstanding anything in regulation 26 of the Claims and Payments Regulations...the award is to commence on the deadline day’. So, in this circumstance, even if the claimant could, or could not, make out grounds for ‘backdating’ UC to before the deadline day, the award will begin on that day. It is worth noting that this is the only specific managed migration circumstance in which backdating under regulation 26 is ruled out. So, for example, a claimant subject to managed migration who decides to make their UC claim before their deadline day could at least in theory attempt to backdate their UC award for up to a month (although, if successful, entitlement to legacy benefits and tax credits would also cease from that earlier date4).

It would also appear that a claimant who does not claim UC until after their final deadline could, if the regulation 26 grounds were made out, backdate their UC award, including potentially (bearing in mind the one-month maximum period) to a date before the final deadline. But, as we will see below, it would appear that even then the final deadline itself would be regarded as missed, so transitional protection would not apply.

Backdating and transitional protection

Straightforwardly, it would seem that where the claim is actually made after the final deadline, backdating of UC under regulation 26 is not capable of securing transitional protection. This is because of the wording (referred to above) of regulation 26 – specifically the fact that it does not actually backdate the date of the claim and instead effectively backdates the commencement of the award. The interaction of this with the rules in the TP Regulations leads to the problem.

The fundamental context here concerns when the claimant has made a ‘qualifying claim’ under the managed migration rules. Only ‘qualifying claims’ can be eligible for transitional protection. The basic rule, at regulation 48 of the TP Regulations, is that a qualifying claim is made ‘where the claim is made on or before the final deadline’. The reference to the date on which ‘the claim is made’ would seem, as a matter of straightforward statutory interpretation, to refer to the specific date on which the claim itself is submitted, and not to any earlier date from which the UC award on that claim may, under regulation 26, begin. In short, here the fact that regulation 26 backdates the award rather than the claim itself would seem to exclude it from establishing the claim as a ‘qualifying claim’.

Because of that, regarding transitional protection it would also seem to be immaterial (again as a matter of straightforward interpretation) that a person who claims after the final deadline could potentially use regulation 26 to backdate the start of their UC award to before that date. Even though the award might then begin before the final deadline, because the claim itself was made after that date it would seem that transitional protection could not apply.

Something wrong?

The ‘backdating’ rule for UC therefore has a somewhat complex relationship to the managed migration rules. On the one hand, there is no general bar on the rule applying. So, a claimant claiming before their deadline day, or after both that day and their final deadline, could if they wished attempt to use it to backdate the start of their UC award.

On the other hand, there is a specific rule preventing the backdating rule applying where the claim is made after the deadline day but on or before the final deadline. That the award must commence on the deadline day in that circumstance is perhaps not surprising.

But it would also seem, at least as a matter of statutory interpretation, that backdating could not turn a claim made after the final deadline into a ‘qualifying claim’ and, moreover, could therefore not result in the claimant qualifying for transitional protection. It is not yet completely clear if that is the intended result; but early signs are that it is.

Some may consider it perverse that an award that begins before the final deadline, even though as a result of backdating, could not be eligible for transitional protection. It is surely relevant here that backdating is only possible in limited circumstances where the claimant could not reasonably have claimed earlier – for example, because of disability. Other possible circumstances include where the UC online claim system is inoperative. Denial of transitional protection in such circumstances might give rise to questions about discrimination or irrationality. CPAG is interested in these questions.