Secretary of State for Work and Pensions v AH

Universal Credit entitlement is determined by complete assessment periods. A claimant whose entitlement does not subsist throughout the first assessment period cannot obtain an award for that period by treating entitlement as assessable part way through it.

The prisoner exception in regulation 19(2) of the Universal Credit Regulations 2013 protects an existing single claimant with a previously calculated award that included the housing costs element. It does not extend to a person first remanded in custody during their initial assessment period, because there has been no preceding complete assessment period in which entitlement and the housing-costs award were determined.

The Secretary of State appealed against a First-tier Tribunal decision which had allowed AH’s appeal concerning the housing costs element of Universal Credit.

AH claimed Universal Credit on 17 August 2021 and was remanded in custody on 11 September, before the end of his first assessment period. He was released on 26 January 2022. The First-tier Tribunal held that regulation 19(2) of the Universal Credit Regulations 2013 disapplied the general bar on entitlement for prisoners because AH had been entitled immediately before remand and his custody did not exceed six months.

The central issue was whether a claimant remanded in custody before the end of the first assessment period could rely on regulation 19(2) and receive Universal Credit, including the housing costs element.

1. Appeal allowed. The First-tier Tribunal erred in treating the claimant as entitled to Universal Credit immediately before remand merely because he satisfied the basic and financial conditions when he made his claim.

2. Under sections 3 and 6 of the Welfare Reform Act 2012, the basic conditions may be met but entitlement does not arise in prescribed circumstances. Regulation 19(1)(b) of the Universal Credit Regulations 2013 is such a restriction for a prisoner, including a person remanded in custody.

3. Universal Credit is payable for each complete assessment period within a period during which entitlement subsists. Regulation 21(1) defines an assessment period as one month beginning with the first date of entitlement and each subsequent month during which entitlement subsists. Accordingly, entitlement must subsist throughout the assessment period; it cannot be determined by a notional assessment during the first period.

4. The exception in regulation 19(2) has two cumulative conditions. Although the claimant met regulation 19(2)(b), he did not meet regulation 19(2)(a). Its reference to a person who was entitled immediately before imprisonment and whose calculated award included housing costs requires an already completed, preceding assessment period and a pre-existing calculated award.

5. The claimant became a prisoner during his first assessment period, from 17 August to 16 September 2021. He therefore had no prior complete assessment period or calculated award. Regulation 19(2) did not disapply regulation 19(1)(b), and entitlement did not arise when it was determined at the end of that first period.

6. The Tribunal’s decision was set aside and remade. The claimant’s appeal was refused and the Secretary of State’s decision of 20 September 2021 was confirmed.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal in [2023] UKUT 274 (AAC), set aside the First-tier Tribunal decision, and remade it by refusing the claimant’s appeal.
• First-tier Tribunal (Social Entitlement Chamber): On 3 August 2022, under reference SC285/22/00888, allowed the claimant’s appeal and held that he remained entitled to the housing costs element while remanded in custody.