FO v Secretary of State for Work and Pensions (UC)

An existing award of universal credit does not automatically end because a claimant fails to accept a revised claimant commitment. Where an earlier accepted commitment remains in force, a requirement to attend an interview to review commitments may instead be enforced through the sanctions regime, subject to good reason.

A claimant need not accept a new commitment where exceptional circumstances make that expectation unreasonable under the Universal Credit Regulations 2013. A tribunal cannot fairly find non-compliance on unsupported departmental assertions when the relevant documents have not been produced.

The appellant and his partner had received universal credit since 2018. The Secretary of State closed their joint claim on 14 April 2020, on the asserted ground that the partner had not accepted revised claimant commitments. The First-tier Tribunal, deciding the appeal on the papers, upheld that decision.

The appellant appealed to the Upper Tribunal. The Secretary of State supported the appeal after finding no evidence of the process said to have created the new commitments and accepting that ending the existing award was legally wrong. The issues were whether the award could be ended in those circumstances and whether either member of the couple had committed a sanctionable failure.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal re-made the decision.

2. The appellant's partner had an accepted claimant commitment already in force. Her failure to accept a purported revised commitment could not, without more, terminate the existing universal-credit award. Revised requirements could be addressed through an interview requirement under section 23 of the Welfare Reform Act 2012. A failure without good reason could at most be sanctionable under section 27 and regulation 104(1)(a) of the Universal Credit Regulations 2013.

3. The evidence did not support the Department's assertion that the normal process for new commitments had been followed. The First-tier Tribunal had before it neither the relevant commitment documents nor the crucial online requirement. It could not fairly find that the partner had failed to agree to a commitment on that basis. The Department's duty to provide relevant documents under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008 was material.

4. The circumstances of the first national Covid-19 lockdown were exceptional for regulation 16(b). It was unreasonable to expect the partner to accept new commitments. The appellant also had good reason for missing the work-search review shortly before lockdown, given the public advice and his unsuccessful attempts to contact the Jobcentre. No sanction was appropriate.

5. The decision closing the claim was revised and reversed. The award was reinstated from 14 April 2020, and the matter was remitted to the Secretary of State for the consequential adjustments.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal's decision, re-made the decision and reinstated the universal-credit award.

• First-tier Tribunal (Social Entitlement Chamber): On 21 July 2020, upheld the Secretary of State's decision to close the couple's universal-credit claim.

• Secretary of State: On 14 April 2020, closed the claim following the asserted failure to accept revised claimant commitments.