Universal credit claims ‘closed’ due to failure to establish identity: Do you even know who I am?

Introduction

The misleading expression that the DWP has ‘closed’ a claim is apt to confuse and (although still widely used by the DWP) should be avoided by advisers.1 As pointed out in PP v SSWP (UC) [2020] UKUT 109 (AAC), paragraphs 7–8, the DWP continues to use this terminology despite the Upper Tribunal having highlighted the problems with that.

To avoid confusion, it helps to make clear that this article is concerned only with cases where a decision maker refuses to make an award in respect of a claim for UC (that is, makes a decision under section 8(1)(a) of the Social Security Act 1998, rejecting a claim), specifically on the ground that the claimant has not proved their identity. The legal arguments available in such cases are different to cases where the decision maker ends or removes entirely an existing award – that is, a decision on supersession under section 10 or revision under section 9.

PHC v SSWP

PHC v SSWP (UC) [2024] UKUT 340 (AAC) is a helpful Upper Tribunal decision by Judge Wikeley, which considers the correct legal basis for refusing a UC claim and clarifies the grounds available to challenge such decisions.

The individual facts in the case are somewhat peculiar. While a new claim was awaiting determination, the claimant put a note on her journal which amended the details of her claim to state she had changed her name. The DWP said she failed to provide proof of her identity at an appointment shortly after that. A month or so later, the claimant was asked to upload proof of her identity (and that of her children) to her UC online account. The claimant replied, stating she had uploaded evidence relating to a deed poll changing her name. The DWP denied it received such a document and ‘closed’ the claim due to ‘failure to provide evidence’. The First-tier Tribunal dismissed the appeal on the basis that the DWP was entitled to request evidence, and where that was not provided, the DWP was ‘entitled to terminate the claim’.

When the claimant appealed to the Upper Tribunal, the Secretary of State (‘SSWP’), having completely failed to properly consider her legal powers at any earlier stage of the case, and having succeeded in misleading the tribunal about those powers, finally provided a helpful submission which considered different potential legal routes to refusing a claim where a claimant failed to prove their identity and explained which one is correct. The rehearsal and consideration of these submissions by Judge Wikeley in PHC is a useful read for any adviser who wants to improve their understanding of social security decision making – and vital authority if representing a claimant challenging a decision rejecting a claim on grounds they have failed to prove their identity.

The correct basis for refusal

The eventual conclusion of PHC is that a claimant who has failed to prove their identity has failed to satisfy the ‘national insurance number (NINO) requirement’ in section 1(1A)-(1B) of the Social Security Administration Act 1992. Specifically, in most cases that will be because they have not provided information or evidence enabling their NINO to be ascertained (section 1(1B)(a)(ii))). The UC claim process does not ask a claimant to state a NINO but where one was stated, perhaps on the journal, the issue would become that they had not provided evidence to establish they were the person to whom that number had been allocated – section 1(1B)(a)(i).

As complying with that requirement is a condition of entitlement (see section 1(1A)), then the claim can be refused on the basis the condition is not met.

What that means for challenging decisions

The position of the SSWP before the Upper Tribunal, which the Upper Tribunal accepted, was that, in an appeal against a refusal of a claim on that basis, it was open to the claimant simply to present evidence of their identity at that stage. The SSWP did not consider that a failure to meet the evidence requirement in section 1(1B) at the date of decision was fatal to a claimant’s appeal under section 12(8)(b) of the Social Security Act 1998. The SSWP took that approach on the basis that section 12(8)(b) does not prohibit evidence produced after the decision from being considered so long as it is relevant to circumstances at the date of decision (R(DLA) 3/01 at paragraph 58) – obviously, identities don’t change, so effectively all evidence of identity will be relevant whenever provided.

This means that advisers helping claimants challenge such decisions simply need to assist them to gather and present evidence of their identity, and provided that is satisfactory, this should mean the appeal is allowed.

The DWP Memo on the judgment, Advice for Decision Making ADM 03/25, at paragraph 17, makes the useful point that because the Upper Tribunal adopted the SSWP submissions in deciding the case, it is not a relevant test case to which the anti-test case rules apply. Claimants whose claims were refused prior to the judgment and are out of time for seeking an any grounds revision may therefore be able to rely on official error revision where they can show the SSWP did not follow the approach in the judgment.

Incorrect reasons for refusal

The decision in PHC makes absolutely clear that the following will not be a legal basis for refusing a claim where claimant has failed to prove identity.

• Termination under regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013: the procedures for suspending benefit where information is required and then terminating it when information not provided apply only where there is an existing award of benefit.
• Failure to comply with regulations 37 or 38 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 information requirement in respect of a claim or award: regulation 38 does not apply as it applies only where there is an award. Regulation 37 might apply but cases such as R(IS) 4/93 and R(H) 3/05 firmly establish that where there is a breach of the duty to provide information under such a rule, the consequence is simply that the decision maker may decide the claim on the evidence held – the failure to provide information does not in and of itself provide a separate ground for refusal (leaving a claimant free to challenge that decision by later providing the evidence).
• Failure to make claim in the approved manner: the claimant is not asked to prove their identity in order to make and submit a valid electronic claim and so it cannot be said they have failed to claim in the approved manner. The Upper Tribunal also agrees with the SSWP that stating a false name would not in itself be grounds for refusal (provided the actual person making the claim was entitled).