NK v Secretary of State for Work and Pensions

For the purposes of regulation 26(3)(d) of the Universal Credit etc. (Claims and Payments) Regulations 2013, whether an official computer system is “inoperative” is a question of fact informed by the legal meaning of that term. A system may be inoperative even without a technical outage, but no fixed threshold can be stated by reference to queue size or waiting time. The tribunal of fact must assess all the circumstances. A system that remains capable of receiving claims, although very busy and causing substantial delay, may properly be regarded as operative. An error in a tribunal’s reasoning is immaterial where it did not affect the outcome.

The appellant claimed Universal Credit online on 29 March 2020, shortly after the first national lockdown, and sought to have entitlement backdated to 24 March. He relied on illness and on the heavy demand affecting the Department for Work and Pensions’ online and telephone systems. The Secretary of State refused the request. The First-tier Tribunal dismissed the appeal on the papers on 22 March 2021 and refused an application to set aside its decision. Permission to appeal to the Upper Tribunal was granted on the issues whether illness prevented the claim and whether the official computer system was “inoperative” under regulation 26(3)(d). The central question was whether the First-tier Tribunal had materially erred in law.

The appeal was dismissed and the First-tier Tribunal’s decision confirmed.

1. Illness. The First-tier Tribunal was entitled to find that the appellant’s symptoms did not prevent him from making a claim under regulation 26(3)(c). The tribunal’s reference to his ability to leave home was erroneous, since the evidence showed that relevant premises were closed and self-isolation restrictions applied. That error was immaterial because the decision did not depend on the possibility of making a claim in person.
2. Meaning of “inoperative”. Whether the official computer system was “inoperative” is a question of fact, while the meaning of the term is a question of law. The First-tier Tribunal accepted that website traffic was very high and that a claim could take several hours to complete. It was nevertheless entitled to find that claims could still be made and that the system was therefore not inoperative.
3. The possibility that exceptionally heavy traffic might render a system inoperative cannot be excluded. No hard and fast rule should be set by reference to the number of users in a queue or the length of the delay. The tribunal of fact must exercise judgment on all the circumstances.
4. The First-tier Tribunal’s reasons were sufficiently adequate, although fuller explanation of its assessment of the evidence would have improved the decision. Its findings were open to it and disclosed no material error of law.

1. Upper Tribunal (Administrative Appeals Chamber) dismissed the appeal and confirmed the First-tier Tribunal’s decision.
2. First-tier Tribunal (Social Entitlement Chamber) dismissed the appellant’s appeal on 22 March 2021 and confirmed the Secretary of State’s decision.