The Secretary of State for Work and Pensions v Abdul Miah

For Universal Credit, the period covered by a claim is not a defining part that becomes immutable when the Secretary of State determines the claim. Whether the statutory conditions for treating a claim as made earlier are satisfied is an issue of entitlement. It may be considered through the ordinary mechanisms for revision and appeal, including where the relevant facts pre-date the original determination. Regulation 26(2) is not confined to undetermined claims. A post-determination request may therefore be considered as an application to revise the award under section 9 of the Social Security Act 1998 and the associated regulations. The court did not decide the alternative submission that the Secretary of State must investigate the maximum possible claim in every case.

The claimant, who had a severe learning disability, claimed Universal Credit by telephone on 16 March 2020 after his parents’ child tax credit entitlement ended on 16 February. The Department for Work and Pensions awarded Universal Credit from the claim date and later refused his mother’s request to backdate the claim. The First-tier Tribunal dismissed his appeal. The Upper Tribunal allowed it and remitted the case, holding that he was entitled to seek backdating: 2022 UKUT 242 (AAC). The Secretary of State appealed. The central issue was whether the period covered by a Universal Credit claim was a constitutive parameter that could not be revisited after determination, whether by revision or appeal.

The Court of Appeal unanimously dismissed the Secretary of State’s appeal. Underhill LJ gave the judgment, with which Nicola Davies LJ and Whipple LJ agreed.

1. Section 1(1) of the Social Security Administration Act 1992 makes a claim a precondition to entitlement. However, the requirement that it be made within the prescribed time does not place the question of timeliness outside the ordinary determination of entitlement. It remains subject to the statutory procedures for revision and appeal. The approach was consistent with Secretary of State for Work and Pensions v Nelligan [2003] EWCA Civ 555.
2. Regulation 26(2) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 requires consideration of two conditions: a specified circumstance must apply or have applied, and as a result the claimant could not reasonably have been expected to claim earlier. The provision permits an extension of up to one month and requires a decision by the Secretary of State; it is not confined to claims that remain undetermined.
3. Although section 8(2) of the Social Security Act 1998 closes a claim once determined, and regulation 30 permits amendment only before determination, that does not prevent revision of the determination under section 9. A request to backdate can therefore be treated as a request to revise the determined award. The ordinary scope of revision and appeal, including consideration of fresh evidence, supported that conclusion: R(IB) 2/04 R(IB) 2/04.
4. Section 8(2)(b) of the Social Security Act 1998 and regulation 5(2)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 created no separate bar. Backdating necessarily depends on circumstances preceding the determination.
5. The deficiencies in the practical claim process could not alter the statutory construction, although the court considered the absence of an obvious backdating route unsatisfactory. It was unnecessary to decide whether the Secretary of State must adopt a maximum possible claim approach in every case. The claimant’s request was to be considered substantively.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and upheld the Upper Tribunal’s decision.
• Upper Tribunal (Administrative Appeals Chamber): by 2022 UKUT 242 (AAC), allowed the claimant’s appeal, held that he could seek backdating, and remitted the case for determination of the substantive conditions.
• First-tier Tribunal: dismissed the claimant’s appeal against the refusal to backdate. The decision was promulgated on 5 November 2021.