KL v Secretary of State for Work and Pensions

Unemployed people who are not receiving jobseeker’s allowance may still fall within regulation 8A of the Social Security (Credits) Regulations 1975, because they may be treated as having satisfied the relevant statutory conditions. A claim for credits must nevertheless be made on time or within such further time as is reasonable in the circumstances. That question is one of fact, assessed by reference to all the circumstances, including the length of the delay. A disagreement with sustainable factual findings does not ordinarily establish an error of law on appeal to the Upper Tribunal.

The appellant appealed against the First-tier Tribunal’s dismissal of his appeal concerning national insurance credits for the 2017/18 tax year. The Secretary of State had refused the claim because it was late and because the appellant had not provided sufficient evidence of actively seeking work. The First-tier Tribunal accepted that the appellant had been available for and actively seeking work, but found that the claim was made after an unreasonable delay. The central issues were whether regulation 8A applied to a person who was not a jobseeker’s allowance claimant and whether the First-tier Tribunal erred in law in finding that the claim was late.

The appeal was dismissed. The Upper Tribunal proceeded on the papers under section 11 of the Tribunals, Courts and Enforcement Act 2007.

1. Regulation 8A of the Social Security (Credits) Regulations 1975 can apply to an unemployed person who was not a jobseeker’s allowance claimant. The phrase treated as having satisfied the conditions in section 1(2) of the Jobseekers Act 1995 permits the person to be notionally treated as satisfying the relevant conditions, including claimant status.

2. The heading Credits for unemployment supported that construction. A statutory heading may provide contextual assistance in interpretation, as explained in R v Montila [2004] UKHL 50. The heading referred generally to unemployment rather than specifically to jobseeker’s allowance claimants.

3. Even if regulation 8A did not apply, the appellant had not shown entitlement under another route in the 1975 Regulations or that an alternative claim had been made in time.

4. Under regulation 8A(3), a claim made after the first day of the relevant period must be made within such further time as may be reasonable in the circumstances. This is a question of fact, not law. The assessment includes the length of the delay and all other circumstances. As the delay increases, more compelling circumstances may be required. The First-tier Tribunal considered the evidence, made sustainable findings, and gave adequate reasons. Mere disagreement with those findings did not establish an error of law.

5. SM v Secretary of State for Work and Pensions (JSA) [2021] UKUT 179 (AAC) did not assist. That case concerned the mistaken treatment of unemployment credits as jobseeker’s allowance and involved no issue about a late claim under regulation 8A(3).

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed on 6 October 2022.
• First-tier Tribunal (Social Entitlement Chamber): appeal dismissed on 20 August 2021, confirming the Secretary of State’s decision of 1 March 2021.