CW v Secretary of State for Work and Pensions (JSA)

An attempted electronic benefit claim is presumed not to have been delivered if it was not recorded on an official computer system. A claimant must rebut that presumption with evidence capable of showing delivery; unsuccessful completion of an online form, without confirmation or a system record, does not itself establish a valid claim.

The backdating provisions for adverse postal conditions and inability to make telephone contact cannot be extended to failures in electronic communications. However, for a single JSA claimant, notification by whatever means of an intention to claim may fix the date of claim if the claimant subsequently attends as directed and completes the claim requirements. The tribunal must investigate material evidence of an earlier notification.

Miss W made an online claim for Jobseeker’s Allowance on 12 March 2014 and sought an earlier start date. She said that, after her employment ended, she had made several unsuccessful online attempts and had written to the Jobcentre about them, including a letter dated 7 February 2014 and, possibly, an earlier letter.

The Secretary of State accepted entitlement on the substantive JSA conditions from December 2013, but treated 12 March 2014 as the date of claim. The First-tier Tribunal dismissed Miss W’s appeal. It found that her earlier online attempts had not produced confirmation that a claim had been received, but did not investigate the potential effect of her correspondence with the Jobcentre.

The appeal concerned whether the unsuccessful electronic attempts could constitute a claim, whether the backdating rules applied, and whether an earlier notification of an intention to claim fixed the date of claim.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside and the appeal was remitted for rehearing before a differently constituted First-tier Tribunal under section 12 of the Tribunals, Courts and Enforcement Act 2007.

2. The Tribunal should have considered the special electronic-claim rules in Schedule 9ZC to the Social Security (Claims and Payments) Regulations 1989. Nevertheless, its conclusion that Miss W’s unsuccessful online attempts did not make a valid claim was the only conclusion open on the evidence. She had received neither email nor text confirmation, and no earlier claim had been recorded on an official computer system. She could not, on that case, rebut the presumption of non-delivery in paragraph 6(2).

3. The backdating categories in regulation 19 did not assist Miss W. “Adverse postal conditions” could not properly be interpreted to include failure of the device used to make an electronic claim. Nor could inability to make telephone contact include unspoken electronic communication. The latter category also permitted no more than one month’s extension.

4. The decisive error was the failure, consistently with the Tribunal’s inquisitorial obligation, to investigate regulation 6(4A). The Secretary of State accepted that Miss W’s letter of 7 February 2014 notified an intention to claim JSA. If she had sent an earlier letter giving such notice, the date of claim had to be determined by reference to that earlier notification, provided the remaining statutory conditions were met.

5. The rehearing was directed to determine whether Miss W gave notice of an intention to claim before 7 February 2014. Both parties were directed to provide evidence concerning any earlier communication.

• Upper Tribunal (Administrative Appeals Chamber): Allowed Miss W’s appeal on an error of law, set aside the First-tier Tribunal’s decision, and remitted the case for rehearing.
• First-tier Tribunal: Sitting at Ashford on 16 December 2014, dismissed Miss W’s appeal against the Secretary of State’s decision on her JSA claim.
• Secretary of State: On 20 March 2014, accepted that the substantive JSA conditions were met from December 2013 but treated 12 March 2014 as the date of claim.