No requirement to request backdating before a claim to universal credit determined

AM v SSWP (UC) [2022] UKUT 242 (AAC); Abdul Miah (by his litigation friend Mashuq Miah) (Respondent) v SSWP [2024] EWCA Civ 186
Judgment of the Upper Tribunal three judge panel was given on 01 September 2022. The Secretary of State applied for permission to appeal to the Court of Appeal on 24 November 2022. The SSWP's appeal was dismissed by the Court of Appeal on 01 March 2024.

Read the Upper Tribunal judgment

Read the Court of Appeal judgment

Overview

The Upper Tribunal and Court of Appeal judgments in this case hold that 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. There is therefore no need for a claimant to have made a request for backdating at the claim stage in order for it to be considered.

Background facts

AM is 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, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 ("UC etc. (C&P) Regs") 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 order for backdating to be considered the claim form must state that backdating was requested or the claim must be amended to include such a request before it is decided. If no request for backdating had been made before the claim was decided any such request that was made later would in effect count only as a new claim for benefit made from that date and the maximum period of backdating would run from when the request was made. As the request in this case was made more than one month after the original claim, even if AM met the conditions for backdating, it could not generate any entitlement prior to when his award had commenced.

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 directions were given for a 3-judge panel to consider that appeal.

Upper Tribunal judgment

The Upper Tribunal's decision was given on 01 September 2022. The Upper Tribunal held that there was, and could be, no requirement for a claimant to state in their universal credit claim the period in respect of which it was made (i.e. whether "backdating" was requested) in order to allow backdating to be considered. Rather, the question of whether a claimant came within the rules so as to allow their claim to commence from an earlier date (regulation 26 of the UC etc. (C&P) Regs) was simply an issue for the Decision Maker to determine like any other (such as for example whether the claimant had housing costs or not). That being the case, a claimant who does not request backdating before their claim is decided but who later realises that they may meet the conditions to have their award backdated can seek revision (mandatory reconsideration) of the decision making the award and argue that the start date of that award should run from an earlier date.

Court of Appeal judgment

On 01 March 2024, the Court of Appeal gave a judgment which dismissed the Secretary of State's appeal against the Upper Tribunal's decision. The Court of Appeal agreed with the Upper Tribunal that the start date of a claim could be challenged on revision, even where the claimant had not expressly asked for backdating before the claim had been decided. The Court of Appeal were also strongly critical of the Government's failure to design the universal credit claim form to ensure that those who might be eligible for backdating could indicate that on the claim form. The Court said:

35. It is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated. I dare say, although we were given no figures, that the proportion of claimants entitled to backdating is quite small. But the absolute numbers will still be significant, and they are by definition people who could not reasonably have been expected to make their claim earlier and some of whom are specially vulnerable as a result of ill-health or disability; many will not have ready access to advice. Not all will have focused on the question of the date from which their entitlement will start; but even where they have, they may be unaware of, or uncertain about, the entitlement to backdate, and if the point is not raised as part of the online process they may well not pursue it. Even if they try to do so, the “Journal route” can hardly be described as obvious: inventive or well-advised claimants might take it, but it will certainly not occur to everyone. 

[...]

39. [...] I hope that the Court’s concern on this aspect will be drawn to the attention of the Secretary of State.

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 should ensure that the question of whether to backdate the claim is considered when the claim is being decided.

However, it is unlikely that a claimant who has not sought advice at an early stage will have done this. Where a claimant has only made a request for backdating after their claim is decided then that request should be treated by the Decision Maker as a request for mandatory reconsideration. Any refusal to backdate is a refusal to revise and gives rise to a right of appeal. Claimants can rely upon AM v SSWP to establish that this is the case and that, provided they meet the conditions for backdating (e.g. could not reasonably be expected to claim earlier as a result of a disability) are entitled to succeed in that appeal.

The DWP did not stay decision making on other cases which raise the same issue, whilst their application for permission to appeal to the Court of Appeal was pending and have instead issued guidance to apply the decision (ADM Memo 03/23). New guidance will presumably now be issued.

Comment from CPAG

CPAG's view remains that the DWP should urgently amend the online claim form for universal credit so that it asks claimants whether they would like their claim to commence from an earlier date. If you are advising a claimant who could have obtained backdating under reg 26, but was unable to ask for it at the claim stage, please do get in touch with CPAG at [email protected] 

Tom Royston of Garden Court North was instructed by CPAG on behalf of AM before the Upper Tribunal. Tom and Tom de la Mare KC of Blackstone Chambers were instructed in the Court of Appeal.