Martin Williams reviews the test for obtaining backdating of a universal credit (UC) claim and considers a recent judgment of the Upper Tribunal on backdating UC.
The backdating test
Regulation 26 of the UC Claims and Payments Regulations
1The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, No.380 sets out the rules allowing an award of UC to start prior to the date on which it is claimed. This is commonly referred to as ‘backdating’.
2Advisers and claimants also often talk about ‘backdating’ elements of an award (for example, obtaining the disabled child element from the date of award of disability living allowance to the child might be referred to in that way). That is a separate issue probably best referred to as the law does by talking about the date from which a supersession is effective and not using the ‘backdating’ language which is apt to further confuse the legal powers at issue. Without backdating, a UC award begins only from the date the electronic claim is submitted.
Under regulation 26(2), it is mandatory for the decision maker to backdate the award, by a maximum of a month, where a claimant could not reasonably have been expected to claim earlier because s/he fell within one of the circumstances for backdating, as set out in paragraph 26(3). It is important to recognise that this rule sets up a twofold test, both limbs of which must be satisfied (and by both members of a couple in a joint claim case – see paragraph 26(4)):
•firstly, the claimant fell within one of the paragraph (3) circumstances; and
•secondly, the claimant falling within that circumstance must have meant it was not reasonably possible for the claimant to claim earlier.
The paragraph (3) categories can be summarised as follows:
•the claimant was previously getting jobseeker’s allowance, employment and support allowance, income support, a tax credit or housing benefit and was not sent notification that entitlement had ceased until after it had done so;
•the claimant has a disability, or has provided medical evidence to show s/he had an illness which prevented making a claim;
•the claimant was unable to make a claim online as ‘the official computer system was inoperative’;
•a UC claim for a couple is refused, or an award is ended, as one does not accept a claimant commitment but then they split up and the person who did accept her/his claimant commitment makes a new claim as a single person.
Separately, from those rules, paragraph (5) also sets up a different rule where the claimant (or, for a joint claim, either claimant) had previously had an award of UC which ended within the last six months. Where the person who had the award had continued to meet the basic condition then her/his award will commence from the start of the assessment period in which s/he claims.
The decision in AM v SSWP
As explained in the legal section at p11, in this decision a three-judge panel of the Upper Tribunal held on 1 September 2022 that there is no need for any request for backdating (express or implied) to be made on the claim form in order for it to be considered. Neither is it required that the request be made before the claim is decided. Given that the UC electronic claim form does not ask whether a claimant wants backdating or would meet the conditions for backdating if s/he does want it to be considered, and that decision makers do not appear to be instructed to establish whether the conditions are met, it is likely that many claimants will miss out on backdating despite the fact they meet the test in regulation 26.
AM revision requests
AM establishes that such claimants can raise the request for backdating in a request for mandatory reconsideration of the decision awarding UC (typically that decision is the first payment notification on their journal). Any claimant who does this within a month of the date on which s/he is notified that UC has been awarded without backdating can argue that the decision is wrong because the start date is incorrect, as the backdating test was met. New evidence of her/his ill health or disability etc. can be provided as part of the request. Claimants who miss the one-month deadline but ask for revision within 13 months of the decision and give a reason why they did not apply earlier should also have those requests admitted and considered.
An adviser who spots that a claimant could have obtained backdating but the award was made more than 13 months ago may wish to consider making an application for revision of that decision on the grounds of ‘official error’. The error would be that the officer of the DWP who designed the online claim form made a mistake in omitting to ask questions relevant to whether the award could be backdated and that the decision maker compounded that mistake by not making her/his own enquiries. MB v Christchurch BC (HB) [2014] UKUT 201 (AAC) (Bulletin 241, p14) held that a mistake in a claim form which neglected to ask relevant questions could constitute an ‘official error’. The application of that to UC backdating on a revision for official error is yet to be tested.
Anti-test case issues?
However, it also needs to be considered whether the ‘anti-test case’ rule would prevent anyone getting backdating for a period prior to 1 September 2022 – ie, the date when AM was decided. That will be the case if section 27 of the Social Security Act 1998 applies to AM. That is because subsection (3) of section 27 would then stop AM being relied upon to generate entitlement to benefit for any period prior to when it was decided.
Arguably, however, the anti-test case rule is not engaged.
1Section 27(1) provides that the anti-test case rule only applies where the effect of the Upper Tribunal decision at issue (ie, AM in this case) is that ‘the adjudicating authority’s decision out of which the appeal arose’ was wrong in law.
2‘Adjudicating authority’ is defined in subsection (7) and, applied to AM, would refer to the decision maker’s decision in that case (rather than that of the First-tier Tribunal).
3The decision maker in AM who decided AM’s claim for UC was not found to have erred in law by the Upper Tribunal. Rather the Upper Tribunal found that the decision maker who later refused to revise that decision (on the ground that the claim needed to expressly state a request for backdating and this could not be raised for the first time at revision), was the one who had erred in law.
4But the decision out of which the appeal in AM arose was not this refusal of revision, but the original decision. Strictly speaking, the right of appeal lies against the original decision and the appeal right exists once revision has been refused.
5So there is no ruling by the Upper Tribunal that the original decision in AM’s case was in error of law, and arguably therefore, section 27 does not bite.
If that is right, then advisers should be able to assist claimants to get backdating of UC even if the decisions awarding them UC were made several years ago. But this point has not yet been tested.
The government’s appeal
On 24 November 2022, the Secretary of State sought permission to appeal to the Court of Appeal. While that application, and any subsequent onward appeal, is pending, then decision makers do not need to apply the judgment and can ‘stockpile’ cases where this is an issue (section 25 of the Social Security Act 1998). If, however, a case is in the First-tier Tribunal, then the tribunal can apply AM, unless the Secretary of State has served a notice under section 26. Such notices require a tribunal either to refer the case to the decision maker (who could then stockpile it), or for the tribunal to stay the case or decide it as if the onward appeal in AM had been allowed (at which point it can later be superseded should the state’s appeal in AM be dismissed). Section 26 notices are however rarely issued, so it is hoped the usual situation will prevail and tribunals will be free to apply AM. Of course, a tribunal could use its powers to stay such an appeal of its own volition, but advisers should argue that it is better to decide the case in accordance with AM: the relatively short periods of entitlement at issue, the long delays to cases that waiting for the appeal in s would cause and the availability of an onward appeal for the Secretary of State arguably all make it fair and just not to stay such cases.
The need to fix the electronic claim form
While claimants assisted by astute welfare rights advisers may therefore, eventually, be able to obtain the backdating to which they were entitled, it is likely that the issue will never be spotted for many people who should have had their claims backdated. Arguably, the Secretary of State has a legal duty to ensure that reasonable enquiries are made to establish whether those conditions are met before deciding UC claims (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014). Systematically failing to discharge that duty through failing to ask relevant questions is arguably unlawful. CPAG is interested in a case it which this can be tested.