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Decision in brief

This was not ‘incurring relevant childcare charges’ for the purpose of regulation 28 of the Housing Benefit Regulations 2006, as childcare was not being provided – the claimant was therefore not entitled to the income disregard for childcare costs in HB

Comment from CPAG

This very short decision makes no reference to the decision in Carmarthenshire County Council v LT [2022] UKUT 224 (AAC), in which it was held that the mere fact of cessation of childcare provision on each and every day (which had also happened during lockdown in that case) was not necessarily fatal to entitlement to childcare costs under regulation 28. It is not necessarily in conflict with it, but very arguably that decision is to be preferred as a fuller treatment of the issue.

Decision in brief

Need for help in controlling diet and eating habits – accepted (including by Secretary of State and in official guidance) that a problem with overeating as well as undereating could (if sufficiently linked to physical or mental condition) be capable of scoring points for a need for ‘prompting’ regarding taking nutrition – this was not in conflict with the decision in MM and BJ v SSWP [2016] UKUT 490 (AAC), which was instead concerned with holding that the quality of what was being eaten or with personal choices about diet was not relevant for Activity 2.

Decision in brief

Tribunal wrongly classified the BAHA as a cochlear implant – but Upper Tribunal judge also said: ‘My understanding is that cochlear implants comprise both an implanted device and an external detachable element (the microphone and processor). If that is right, and both the internal and external parts need to be operational for the implant to work, then a cochlear implant should presumably be treated in the same way as a BAHA for present purposes’ (paragraph 10)

Comment from CPAG

It would be extraordinary for a BAHA not to be regarded as an aid or appliance. But this decision also indicates that so should cochlear implants, at least to the extent that they involve detachable elements, although that part of the decision is presumably obiter (and so not formally binding).

Decision in brief

Counting two (or more) payments of wages in the same assessment period as received in that assessment period not irrational and unlawful – Court of Appeal decision in Pantellerisco (regarding four- weekly wage cycle) applied – the court’s earlier decision in Johnson (regarding irrationality and unlawfulness) applied only in respect of monthly wage cycles and so this case fell to be distinguished from it.

Summary

The claimant had third-party deductions (‘TPDs’) made from her income-related employment and support allowance (ESA) in respect of fuel and water debts. On application for judicial review, she challenged the lawfulness of the Secretary of State’s written guidance in the Decision Maker’s Guide and in a related overview document about such deductions, which she claimed led to decisions to make the deductions in an unlawful way. The statutory rules on the deductions (which were not the subject of the claimant’s challenge) were in regulation 37 and Schedule 9 of the Social Security (Claims and Payments) Regulations 1987, SI No.1968. This is a distinct scheme from that that applies to universal credit. 

The guidance was challenged on the grounds that it unlawfully failed to advise seeking consent or representations from the claimant before the deductions were made. Specifically, it (i) failed to include that whether the claimant consented to the deductions was a relevant consideration; (ii) implied that it was not under an obligation to seek representations and information from the claimant; and (iii) omitted to say that in many cases it would need to seek those views in order to act fairly. Additionally, the decision maker was in effect precluded from considering any of the claimant’s circumstances. The claimant also argued that these failures amounted to a breach of her human rights, under her rights to property under Article 1 of Protocol 1 or as discrimination in breach of Article 14. 

In the High Court, the judge allowed the claimant’s application but only on the ground that the guidance led to the decision maker not seeking representations and information from the claimant. He said: ‘…the claim for judicial review succeeds on one aspect only. This is that the defendant’s written guidance to decision makers in relation to TPDs is unlawful because, by implication and omission, it has the effect that, read as a whole, the guidance presents a misleading picture of the true legal position to decision makers, in that it does not make clear that claimants should be offered the opportunity to make representations and/or provide relevant information to the decision maker before the TPD decision is taken’ (paragraph 292). The other arguments made were rejected. The judge did not go further than declaring that the guidance was unlawful in the single respect he identified: ‘This is because TPDs are imposed upon over a hundred thousand claimants each year and so any breaches of common law duties affect a very large number of people. Also, the deficiency in the written guidance that I have held to exist can relatively simply and easily be remedied, by adding a direction to the effect that claimants should be offered the opportunity to make representations and/or provide relevant information to the decision maker before the TPD decision is taken’ (paragraph 291).

Comment from CPAG

The decision is not simple authority that the deductions are unlawful or that claimant consent is required. But it does establish that views and/or information should be sought from the claimant before these deductions are made. Arguably, it should apply to universal credit as well as to legacy benefits (like income-related ESA) – but that may require additional authority.

Summary

The claimant claimed asylum in the UK in February 2016. On 18 May 2019, she was told that her claim for asylum was successful. The letter notifying her of that also said: ‘This letter does not confirm you have leave, give you the right to work or allow you access to benefits. To do this you have to enrol for a biometric resident permit…’. A second Home Office letter with the same date said the claimant must supply her biometrics and: ‘If you do not, we will be unable to issue you with this proof of your immigration status in the United Kingdom. This means that your asylum support (if you are in receipt of it) will end and you will not be able to claim benefits or start work…’. The claimant’s biometric residence permit (BRP) was not issued until 29 August 2019. On 12 September 2019, the Home Office wrote to the claimant to say that her asylum support was to end, and: ‘You may now take employment or claim benefits to support yourself and your dependants.’ The claimant then submitted her claim for child benefit to HM Revenue and Customs (HMRC), which was received on 16 September. However, HMRC refused to backdate entitlement more than three months, despite the rules providing for backdating to the date of the claim for asylum in February. That was on the grounds that her claim for child benefit was allegedly not made within three months of the date of the letter allowing her claim for asylum (which HMRC alleged was 18 May), as the rules require. On appeal, the First-tier Tribunal accepted the claimant’s argument that on the facts she should have been taken to have been notified of her refugee status on 29 August, the date that she was given her refugee’s BRP, and that therefore her claim was made within the specified three months and could be backdated in full.

In the Upper Tribunal, Judge Gullick KC rejected HMRC’s further appeal. The tribunal had reached the correct conclusion on the facts. In so doing, he considered the relevant rule, at regulation 6(2)(d) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, SI No.492. That provides that backdating to the date of the asylum claim is possible where a person who has claimed asylum claims child benefit and ’satisfies the following conditions— (i) the person is notified that he has been recorded as a refugee by the Secretary of State; and (ii) he claims that benefit or allowance within three months of receiving that notification’. In this case, the Home Office correspondence was so misleading that the claimant reasonably believed that should could not be entitled to benefit until she had been issued with a BRP. The tribunal had wrongly held that the reference to being ‘recorded as a refugee’ necessarily referred to the issue of the BRP. That was not correct, and it was not the case that the three-month period could never begin with receipt of the notice of refugee status. Rather, on the facts of this case, the Home Office letters ‘incorrectly stated that a claim for child benefit could not be made until receipt of the BRP’, and so were ‘not valid’ as notifications of refugee status for the purpose of the backdating rule at regulation 6(2)(d). The arguments of HMRC that the letters did not refer to child benefit and that other publicly available information referred to the date of the notification letter were dismissed. The judge said:

‘In my judgment, adopting the approach to statutory construction which I have set out above, the notification of refugee status of the type sent to the respondent on 18 May 2019 was not valid notification of the recording of refugee status for the purpose of regulation 6(2)(d) of the 2003 Regulations. That is because the notification incorrectly stated that a claim for child benefit could not be made until receipt of the BRP. In my judgment, a notification of this sort which contains a statement denying the existence of the very right to claim an entitlement which it would otherwise confer cannot, in this context, be a valid notification’ (paragraph 56).

Comment fom CPAG

The judge’s concentration on the content of the Home Office letters in this case is important: it was accepted by all parties that had the Home Office merely stated that the claimant had been recognised as a refugee, the time limit would have started to run.

Summary

The claimant was a young man with autism and a learning disability. When he reached the age of 20 in February 2020, his parents lost entitlement to child tax credit for him. On 16 March 2020, the appellant’s father made contact with the DWP to make a claim for UC on his son’s behalf. After an initial telephone appointment, there were three further telephone calls to confirm details of the claim. In none of either the original call or the followup calls was there any discussion of the start date for the claim – ie, so that ‘backdating’ was not discussed. In April 2020, the claimant was awarded UC from 16 March 2020. In July 2020, a request for backdating by one month to 16 February was made. That was rejected by the decision maker on the grounds that it had been made outside the one-month time limit that a claim could be extended by and had been requested after the claim had been determined. That decision was upheld both on mandatory reconsideration and by the First-tier Tribunal.

A panel of Upper Tribunal judges (Judges Jacobs, Wikeley and Wright) held that the tribunal had erred in law and that it had not been necessary for the claimant to have requested ‘backdating’ before the claim was determined. They referred the case to a fresh tribunal to decide if any of the backdating grounds were actually made out. (The judges clarified that the relevant law, at regulation 26 of the Universal Credit Regulations 2013, SI No.376, does not actually refer to ‘backdating’, although that was the term in common use. Rather, it provides for the circumstances in which the Secretary of State is obliged to ‘extend the time’ for claiming UC, by up to one month, back from the date on which the claim was in fact made.) They accepted the claimant’s argument that neither the primary legislation (at sections 1 and 5 of the Social Security Administration Act 1992) nor regulation 26 imposed a requirement to request this extension either at the time of making the claim or before the claim was determined. Rather, the start date of any entitlement to UC is a question of fact for the decision maker to determine when making her/his decision on the claim. That could then be challenged by applying for a revision of that decision. Whether ‘backdating’ would actually apply would then depend on whether any of the circumstances identified in regulation 26 applied.

In so holding, the judges rejected the argument of the Secretary of State that, as regulation 26(1) says that a claim must be made on ‘the first day of the period in respect of which the claim is made’, the start date contended for made must be specified in the claim (either expressly or by implication). The Secretary of State referred to R(SB) 9/84 (ie, an older case about the now long-defunct supplementary benefit), which said that backdating had to be requested as part of the claim or before it was determined. But the judges considered that regulation 26 was not about the contents of a claim and did not create any requirement regarding it: ‘It follows,’ said Judges Wikeley and Wright in giving their reasons for the decision, ‘that legislation has not made it a requirement of a UC claim that the claim itself specifies a date from which entitlement is sought. It follows, as a matter of statutory construction, that identifying the date from which entitlement is sought is a determination to be made by the Secretary of State in the course of deciding the claim rather than a constitutive part of the claim itself’ (paragraph 57). Regarding R(SB) 9/84, that was not authority regarding UC, and was not to be followed as there were ‘important contextual differences between the supplementary benefit scheme on the one hand and the UC regime on the other’ (paragraph 61). Judge Jacobs submitted his own reasons as part of the decision, emphasising that the date of claim is set by the decision maker and not by any request made by the claimant – but his conclusions regarding the outcome were the same as those of Judges Wikeley and Wright.

Comment from CPAG

It remains good advice to ask for ‘backdating’ as soon as possible and if at all possible before the claim is determined – for example, by entering the request on the online journal. However, this decision makes it clear that the DWP should not regard that as a legal requirement, and that the backdating request may still be made on revision of the initial decision. The Secretary of State has applied for permission to appeal to the Court of Appeal. See also the article in Bulletin 291, p4.

Note: the Secretary of State's appeal against this decision was dismissed by the Court of Appeal on 1 March 2024. For further details, see our caselaw summary Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186 and our test case update: No requirement to request backdating before a claim to universal credit determined.

Summary

The claimant had a number of health problems, including autistic spectrum disorder, fine motor problems, urinary problems and chronic back pain. He was refused personal independence payment (PIP) having failed to score sufficient points. That decision was upheld by the First-tier Tribunal. In its decision, the tribunal said that it considered that the claimant had exaggerated his symptoms and difficulties regarding various parts of the test for PIP, and that it did not consider him a credible witness. But the tribunal also made substantial reference to other evidence in the case, and said that it had given itself a warning similar to that referred to in the criminal case of R v Lucas [1981] QB 720, where it was said the fact that the witness has lied about some matters does not mean that he or she has lied about everything.

Judge Hemingway set the decision aside and referred to the case to a fresh tribunal, on the grounds that the tribunal had given inadequate reasons for the scoring it applied regarding the claimant’s need for social support. But it had not erred in its approach to the claimant as a witness. There was no need for Upper Tribunal authority on the application of R v Lucas in the social security context, as what it said was obvious (and the tribunal hardly needed to give itself a warning about it).

Further, the tribunal was entitled to assess the claimant’s credibility and to reach the conclusions it did regarding the lack of credibility of certain parts of his evidence. The tribunal had not relied for its conclusions on entitlement solely on its findings about the claimant’s credibility (which would have been wrong), but had instead conducted ‘a holistic analysis’ and taken into account and relied upon, ‘not only the oral evidence it received, not only the written evidence it received which had emanated from the claimant himself, but the considerable written evidence, including medical evidence, it had received from other sources’ (paragraph 23). Neither had the tribunal created an impression of unfairness by its frequent references to its disbelief of the claimant. The judge had regard to VS v SSWP [2017] UKUT 274 (AAC), a decision in which it was considered that the amount of such comment by the tribunal had created the impression of unfairness. But the present case was different. The judge considered that the tribunal ‘did properly apply its adverse credibility conclusions. Its frequent references to the lack of credibility when explaining and justifying its conclusion with respect to each activity in issue, was perhaps unnecessarily repetitive as I have touched upon but on my reading what it was doing was simply stressing its disbelief with respect to each compartmentalised consideration of each activity for the sake of thoroughness’ (paragraphs 24–25).

Comment from CPAG

This decision is a clear statement of a tribunal’s ability to make adverse credibility findings about a claimant and the approach to that when deciding entitlement and giving reasons. For a wider discussion, see the article in Bulletin 291, p7.

Decision in brief

That is wrong as not the test set out: 

‘In other words…if the claimant needs to use an aid or appliance (such as cutlery with special qualities) in order to cut food into pieces then he…scores two points for doing so, irrespective of his ability or otherwise to convey food and drink to his mouth, to chew food, and to swallow food and drink….Some might say it is so obvious that an inability to perform one of the relevant elements of the definition without an aid or appliance leads to the scoring of two points under the relevant activity, that I should not have bothered. But it would be unfortunate if the interpretation taken by the F-tT [First-tier Tribunal] in this case were to take hold and that claimants were to lose out as a result.’

Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – decision in HMRC v RS (CTC) [2021] UKUT 310 in this case now formally not a final decision – but present decision agrees with it, so that following termination claimant could not in August 2019 make a new claim for tax credits on the basis that the savings (or transitional protection) rule at Article 7(6) of SI 2015 No.634 applied to him as he had a tax credits award for the previous tax year – the rule requires the new claim to be ‘for the next tax year’ (ie, not to a part tax year) – the transitional protection therefore ceased once tax credit entitlement was terminated – however, ‘I should make it clear I am not expressly deciding that the protection afforded by Article 7(6) only applies in the context of renewal claims…in the absence of full argument on the point, I do not exclude the possibility that there may be other types of case which fall within the remit of Article 7(6)’ (paragraph 53)

Decision in brief

Not required to be a claimant of JSA by relevant rule in regulation 8A of Social Security (Credits) Regulations 1987 – late claims possible by virtue of regulation 8A(3) where lateness is ‘reasonable in the circumstances of the case’ – that is a question of fact not law – tribunal made adequate findings of fact before finding that was not a satisfied and made no error of law

Decision in brief

Tribunal erred in only considering claimant’s ability to prepare a carrot (and even that by inference rather than proper findings) – claimant was exhausted in the evenings after a day at work, and it was reasonable for her have the meal cooked from fresh ingredients in the evening – tribunal’s reasoning was perverse and failed to address that her CFS meant she was too tired to do that – ‘Although what is reasonable may vary from case to case, in the present case it could hardly be suggested that it was not reasonable for the appellant to work and, if it was reasonable for her to work, then the only reasonable time to expect her to cook a meal from fresh ingredients was in the evening’ (paragraph 15)