Too late for a backdate?

Please be aware that welfare rights law and guidance change frequently. Older articles may be out of date.

Rosie Mears and Martin Williams consider whether a request for universal credit (UC) for an earlier period is required before a claim is decided in order for backdating to be considered.

Example

The claimant was in hospital and so did not claim UC on time. The DWP has refused to backdate the claim for three weeks because the claimant did not ask the DWP to do so until after the first assessment period had finished. The mandatory reconsideration decision letter states the backdate request was treated as a new claim for UC and the DWP could not consider the time in hospital because it was more than a month ago.

In such a case, the decision maker is not disputing whether or not the claimant meets one of the limited exceptions for extending the time to claim (‘backdating’) prescribed by regulation 26(3) of the Universal Credit etc. (Claims and Payments) Regulations 2013. Instead, the decision maker is arguing (in so far as any actual argument is being made) that the law prevents it from considering the backdating request at all.

The DWP position

This position relies upon some assumptions that are worth considering more closely.

First assumption: a claim must be made in respect of a period and therefore there must be an express statement that the claim is for a particular earlier period if backdating is required.
Second assumption: without such a statement, then the claim is assumed to be prospective only. This is despite the failure of the UC online claims process to provide a space where a person can state when s/he wants to claim from.

It is from those assumptions that the decision maker’s position flows as follows.

A claim can be amended at any time before a decision is made on it and therefore be treated as if made in the amended form when it is decided (regulation 30). For UC, the first decision on the claim is usually made one month after the claim was submitted – ie, the first payment statement on the journal is the initial decision which gives an award of UC.
The decision maker’s position is, therefore, if the claimant did not request for the claim to be considered from an earlier period by that date, then there was no claim for the period in question to be decided. The fact that the online form does not ask when claimants might want to claim from is ignored.
Claimants cannot, when seeking a revision (or appeal) of that decision, seek to add a request for backdating, as this would be to take account of a circumstance not obtaining at the time of the decision (prohibited by regulation 5(2)(a) of the Universal Credit etc. (Decisions and Appeals) Regulations 2013 (‘D&A Regs’) for an ‘any grounds’ revision and by section 12(8)(b) of the Social Security Act 1998 for an appeal).
As such, the request for backdating is to be treated as a new claim from when it is made, and as the maximum backdate request is only a one-month period (for which the claimant has already been awarded UC), this means it will inevitably fail.

Why backdating should apply

However, it is arguable that the first assumption above is wrong.

While it is a general requirement for entitlement to UC that a claim for it is made in the manner and within the time specified (section 1(1)(a) and (4)(za) of the Social Security Administration Act 1992), that does not amount to a requirement that the claim expressly states the period in respect of which it is intended to be made. Nor do the rules on the manner in which a claim must be made require this to be stated (see GDC v SSWP (UC) [2020] 108 UKUT (AAC) – effectively, the manner of claim is the online form and a procedurally correct claim is made if the claimant answers the questions asked on the online form).
Regulation 26, which is the rule that allows for what is known as ‘backdating’ (but is actually a rule that extends forward the time for claiming when a claim is made late), also does not require that a claim is expressly made for a past period.
The authority relied upon for the assumption that a claim must contain an express statement as to the period for which it is made is R(SB)9/84 – an old Tribunal of Social Security Commissioners case. However, the comments in that case were an aside rather than necessary to the reasoning in the decision and so are not binding. In any event, the case can be distinguished. It is clear from paragraph 11 that what motivated the tribunal in that case to arrive at the position that a request for backdating was required was the specific wording of the old provisions for backdating supplementary benefit. The wording in regulation 26 is quite different. While in that case the supplementary benefit form did not expressly ask whether a claimant wanted backdating, with a written form a claimant could in any event write that in. More importantly on that final point, it is quite possible there would be a different approach to an argument seeking to prevent consideration of an earlier period where the claim form did not ask a relevant question if decided today. If this argument is right, then such decisions can simply be revised on any grounds.

However, even if the first assumption is correct, and a claim is always made in respect of a specific period, then it may be possible to challenge the second assumption – ie, that the claim is to be regarded as prospective only absent some indication to the contrary. There is arguably nothing in the UC online claim which would provide a basis for inferring that is what a claimant intends.

If the decision was made on the basis of official error, then there is nothing to prevent a claimant, on applying for revision, asking for a new circumstance (that s/he wants the claim to be backdated) to be taken into account. That is because revisions under regulation 9 of the D&A Regs are not subject to that limitation. The official error could be on the basis that either (1) the failure of the claim form to ask the relevant question was such an error (MB v Christchurch BC (HB) [2014] UKUT 201 (AAC), reported as [2014] AACR 39), or (2) the decision maker should have asked the claimant what period s/he wanted to claim for before deciding the claim, in accordance with Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, which establishes that officials must take reasonable steps to inform themselves of relevant information before deciding a question.

What should advisers do?

In light of this, advisers assisting claimants with backdating should:

if possible, ensure requests for backdates are made before the claim is decided; or
failing that, should seek revisions and appeals based on the arguments above. Ultimately, authority from the Upper Tribunal may be needed in order to clarify the position.

CPAG is happy to take enquiries or receive information from advisers about this issue, both for our research and campaigning and in developing legal arguments. Please email the Upper Tribunal Project at [email protected].

We have prepared a template which sets out draft grounds of appeal in such cases. This, once edited with your client’s details along with this UC question set and the two cases linked to above can then be submitted to the Tribunal in similar cases - please do get in touch about such cases (particularly if the appeal is dismissed or it is successful and the DWP appeal but we would also like to know about cases which succeed and the DWP do not appeal).