UC: claims and defects

Becoming entitled to universal credit (UC) (including on migration to UC) requires the making of a valid claim. What does it mean to make a valid claim for UC? Can a claim be defective? Could that lead to ‘claim closure?’ Simon Osborne reviews the law and practice.

The default rule is that a claim for UC must be made electronically – ie, online, by submitting a completed electronic claim form. Under regulation 8(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (‘UC Claims and Payments Regulations’),1SI 2013 No.380 (‘UC Claims and Payments Regs’) unless a telephone claim is allowed, ‘a claim for universal credit must be made by means of an electronic communication in accordance with the provisions set out in Schedule 2 and completed in accordance with any instructions given by the Secretary of State for that purpose’.

Some claimants (a significant minority, in cases of lack of access to or inability to use a computer) can instead be permitted to claim by telephone.2Reg 8(2) UC Claims and Payments Regs Although in practice an online claim form is used – that is, by the DWP rather than the claimant, who formally speaking is still making a telephone claim.

What if an online claimant partially completes the online form but takes a break and only submits the completed form later? Could there have been an earlier ‘claim’, albeit one that was defective by being incomplete? No. In GDC v SSWP (UC) [2020] UKUT 108 (AAC) (Bulletin 276, p12), the claimant had started to fill in an online claim form but took a break (of a few days) before eventually completing and submitting it, and argued that his entitlement began from the date of the earlier ‘defective claim’. Judge Wikeley held that the claim was only made when the completed form was submitted. It was not the case that an earlier ‘defective claim’ had been made when the claimant filled in just parts of the form, because at that point online submission was impossible and no claim had been made at all.

In practice, held the judge, there were three stages to making an online claim for UC: setting up an online account, gathering and inputting the data onto the online claim form, and finalising that data by pressing the ‘submit claim’ button. In effect, all three were required for an online claim to have been made. The claimant’s argument that he had made a defective claim when he entered data onto the form and then temporarily logged out of his online account was rejected. In the context of the online world of UC claims, the judge considered that when he temporarily logged out of his account, ‘he had not at that point made either a claim or a defective claim’.

Official guidance underlines the requirement that the completed online claim be ‘submitted’:

In theory, yes. In practice though, this seems more capable of applying to a telephone claim than to an online claim.

The rules do refer to ‘defective’ online claims. Regulation 8(3) of the UC Claims and Payments Regulations says: ‘A claim for universal credit made by means of an electronic communication in accordance with the provisions set out in Schedule 2 is defective if it is not completed in accordance with any instructions of the Secretary of State’. In such a case, the claimant should be informed of the defect and given a month (or longer) to meet the requirement.4Reg 8(5) and (6)(b) UC Claims and Payments Regs

However, we know from GDC that (1) an online ‘claim’ is only made when a completed online form is submitted to the official computer system, and (2) that only becomes possible when all the required fields on the form have been completed. In practice, therefore, there is no way to make a ‘defective’ online claim by submitting an incomplete form. Also, although further information or evidence might be required after the claim is made (eg, at an initial interview), the form does not require its attachment as a condition of submitting the claim. So, an online claim cannot be defective for lacking such evidence either.

Given the above, in what circumstances could an online UC claim correctly be called ‘defective’? Nobody knows for sure. In GDC, Judge Wikeley said (with reference to the wording of regulation 8(3)):

Official guidance says: ‘...due to the design of the online system, it will be difficult in practice to make an electronic defective claim for UC.’5para A2020 ADM

A claimant who has properly completed the online form and submitted it will have made a valid claim. Possibly, a claimant who has submitted a completed form but given nonsense or otherwise irrelevant answers will not have followed the Secretary of State’s instructions and so will at that point have made a defective claim. But this has not yet been addressed in caselaw or guidance.

By contrast, it seems that telephone claims, where they have been permitted, can be defective for lack of information and then corrected, although this situation has not been addressed in caselaw. Rules provide that ‘a claim made by telephone’ is only ‘properly completed’ if all the information required to determine the claim is supplied during the telephone call; if not, then (say the rules) ‘the claim is defective’. The defect can be corrected, and the claim regarded as properly made in the first instance (ie, the initial telephone call), within a month, or longer if permitted.6Reg 8(4)-(6)(a) UC Claims and Payments Regs In practice, it is not clear that the DWP will always log the date of the initial telephone call to comply with this, rather than simply requiring the claimant to start again in a subsequent call. However, an example in internal DWP guidance would seem to accept that it should:

Given that a claimant who has submitted an online claim, or completed a telephone claim, has, at least in most cases, made a valid claim for UC, on what basis might the ‘claim’ subsequently be ‘closed’ by the DWP? UC ‘claim closure’ is commonly cited in UC decisions, including in UC review exercises.

The good news is that ‘claim closure’, despite the dramatic (and non-statutory) language, is actually an entitlement decision concerning an award of UC, with mandatory reconsideration and appeal rights. The bad news is that entitlement will have been refused or ended. So an aggrieved claimant will be best advised both to challenge the ‘closure’ and make a new claim.

In PP v SSWP (UC) [2020] UKUT 109 (AAC), another decision of Judge Wikeley, the claimant had had his claim ‘closed’ for failing to book an appointment. The judge held that the claimant had made a valid online claim. The ‘claim closure’ was in fact a decision that the claimant was not then entitled to UC (and therefore ultimately capable of appeal). There was no UC entitlement rule requiring booking an appointment. Rather, the entitlement decision in this case was that the claimant failed to satisfy the financial conditions (on the somewhat slender basis that he had not attended for discussion of his self-employed income) – something that the claimant could address and possibly correct at a reconvened First-tier Tribunal.

‘Claim closure’ decisions can be encountered in the context of refusals to award UC after the claimant makes a claim, but allegedly fails to provide sufficient further (post-claim) evidence regarding entitlement conditions – eg, regarding identity or income. But although that may appear to relate to the validity of the claim, the decision is actually about the entitlement conditions (eg, concerning income), with the DWP inferring that they are not met. In such cases, claimants do not need to show that their claim was valid or explain why they did not supply the evidence. Instead, they need to show that they met the entitlement conditions – eg, by showing that their income was not too high. CPAG has produced relevant online tools regarding UC claim closure: see cpag.org.uk/welfare-rights/tools-templates/universal-credit-tools-and-templates.