Case Name: AM v SSWP (file reference UA-2022-000041-USTA)
Current Status: Listed for hearing before a 3 judge panel in the Upper Tribunal on 15 and 16 of June 2022.
This case should determine whether a claimant who does not ask for backdating when they initially make their claim of universal credit ("UC") and does not amend their claim before it is decided can nonetheless obtain backdating by later requesting a revision of the decision which only awarded UC from the day on which the claim was submitted.
AM in a young man with autism. On 13 February 2020 his parents ceased to receive child tax credit in respect of him. On 16 March 2020, AM made a claim for UC. AM was not asked on the electronic claim form when he wanted any award to be considered from (i.e. whether he wished his claim to be backdated). There was no place on the electronic claim form where he could have indicated that he did want backdating.
On 16 April 2020, the Decision Maker awarded UC from 16 March 2020. In making that decision, the Decision Maker made no enquiries as to when AM wanted his claim to commence from and did not consider whether the conditions in regulation 26 of the Universal Credit Regulations 2013 which provide the circumstances when a claim can be backdated were met.
On 23 July 2020, AM made representations that his award should have commenced from 13 February 2020. The Decision Maker refused that request on 03 August 2020 and AM appealed.
The Decision Maker argued in the response to the appeal that:
In effect, once a decision is made in respect of a claim, it no longer exists as such in law and is replaced by an award or a disallowance. A claimant can seek a revision of the award within the time scales allowed (1 month in most cases) but that revision can only affect the claim for the period decided. The revision cannot add dates to the claim that were not part of the original decision. In other words, you can change the award from the date the claim begins but you cannot backdate a claim to an earlier period by means of a revision.
If a claim has been decided, a request for backdating can only be by means of a further claim which in the case of Universal Credit, would lead to backdating being considered from the date of the second claim.
The First-tier Tribunal dismissed the appeal agreeing with that argument and held that "the Appellant's request to make a backdated claim was made late".
The First-tier Tribunal granted permission to appeal to the Upper Tribunal and the appeal was filed on 18 January 2022.
Argument for AM
AM argues that:
1. There is no requirement that a claim for UC be made in respect of a particular period.
2. As such, when a claim is presented the Decision Maker should make enquiries as to whether the conditions for a backdate are met.
3. Where the Decision Maker has not done that, the claimant is entitled to raise, in an application for revision, the fact that the conditions were met, and if it is accepted they were, is entitled to a backdate.
In short, there is no requirement to ask for backdating within the claim form (or by amending the claim before it is determined) in order to have it considered. That is particularly the case when the claim form contains no means of making such a request.
What should claimants do?
If possible a claimant should always add a note to their journal before the claim is decided asking for it to be backdated (the note is treated as an amendment of the claim and the claim is treated as if it had always included the backdate request). That avoids the problem faced by the claimant in this case.
However, it is unlikely that a claimant who has not sought advice will have done this. Where a claimant has only made a request for backdating after their claim is decided has that claim refused then they should seek to appeal against that decision (and can ask for the appeal to be stayed pending this case or argue that it should be decided favourably to them). There is more information about this issue in the article Too late for a backdate?. There is also a template submission that can be adapted for use in an appeal and a copy of the questions used in the online UC claim form in early 2020 which can be used as evidence that claimants are not asked in the claim process when they want to claim from.
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