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

A claim for jobseeker’s allowance is defective under regulation 4 of the Social Security (Claims and Payments) Regulations 1987 only where it fails the requirements imposed by the claim form. A failure to provide information or evidence requested only at a later interview cannot itself make an otherwise properly completed claim defective.

Such a failure may instead be relevant to an entitlement decision. Where an earlier claim remains undecided and may cover the period of a later claim, an appeal concerning backdating of the later claim is premature. The Secretary of State must first determine the earlier claim.

The appellant claimed jobseeker’s allowance on 28 May 2013 and sought backdating. The Secretary of State refused backdating, and the First-tier Tribunal at Rochdale upheld that refusal under reference SC947/14/00642.

Permission to appeal was granted because the tribunal had arguably failed to investigate, in accordance with its inquisitorial duty, the appellant’s reasons for backdating. It was accepted that this was an error of law.

Before the Upper Tribunal, a prior claim made on 17 April 2013 became central. The Secretary of State had treated it as a defective claim after the appellant allegedly failed at interview to provide identification for his wife. The central issue was whether that post-form failure could validly render the earlier claim defective, and whether the unresolved earlier claim made the later backdating decision unnecessary.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law because it failed to elicit the appellant’s reasons for seeking backdating. Its decision was set aside.

2. Regulation 4(9) of the Social Security (Claims and Payments) Regulations 1987 defines a defective jobseeker’s allowance claim by reference only to the requirements in regulation 4(1A). Those requirements concern completion of the approved claim form in accordance with its instructions and provision of the information and evidence required by that form.

3. Information or evidence requested only at a subsequent interview cannot make the completed claim defective if it is not required by the form. On the evidence and inferences available, the April 2013 form did not require identification for the appellant’s wife. The alleged failure at interview therefore did not make the 17 April claim defective. A later failure to provide requested evidence may be relevant to an ordinary entitlement decision, including through adverse inferences, but it does not prevent substantive adjudication of a properly made claim: cf R(H)3/05.

4. The 17 April claim had consequently never been properly determined and remained for decision by the Secretary of State. Applying CJSA/2327/2011, that issue could be resolved in this appeal. Until the earlier claim is decided, the backdating of the later claim for an overlapping period is otiose. The statutory decision-making function belongs to the Secretary of State; the tribunals acquire appellate jurisdiction only after a decision on the claim.

5. The Upper Tribunal therefore set aside the Secretary of State’s decision of 20 June 2013 as unnecessary. If the decision on the earlier claim does not cover the period to 28 May 2013, the later claim, including any backdating issue, may still require determination.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material legal error, and set aside the Secretary of State’s decision of 20 June 2013 as unnecessary.
• First-tier Tribunal, Rochdale: On 8 January 2015, under reference SC947/14/00642, upheld the refusal to backdate the 28 May 2013 jobseeker’s allowance claim.