Ipswich Borough Council v TD & Anor

A claimant cannot be entitled to universal credit for an assessment period where the calculated amount is £0.00. Under sections 3 and 5 of the Welfare Reform Act 2012, read with regulation 17 of the Universal Credit Regulations 2013, entitlement requires an amount payable of at least one penny.

Consequently, a person is not “on universal credit” under regulation 2(3B) of the Housing Benefit Regulations 2006 during a period of nil entitlement, even if DWP records describe a nil “award”. The person is therefore not automatically passported to full housing benefit. Questions of recoverability and the person from whom any overpayment may be recovered remain for the First-tier Tribunal.

The claimant and her partner received housing benefit while living in temporary accommodation. Housing benefit was awarded on the basis that universal credit was a passporting benefit. For five consecutive assessment periods, however, the claimant received universal credit payments of £0.00 because household income exceeded the relevant amount.

The First-tier Tribunal concluded that the claimant remained entitled to universal credit because her claim had not been terminated. It therefore found no housing benefit overpayment. Ipswich Borough Council appealed, raising whether a claimant could remain “on universal credit” when the applicable award was nil.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law and the case was remitted to a freshly constituted First-tier Tribunal for an oral rehearing.
2. Sections 3(1)(b) and 3(2)(b) of the Welfare Reform Act 2012 make satisfaction of the financial conditions a condition of entitlement. Sections 5(1)(b) and 5(2)(b), read with regulation 17 of the Universal Credit Regulations 2013, require the claimant’s income to be such that the amount payable would be at least the prescribed minimum of one penny.
3. There can therefore be no entitlement to a nil or £0.00 amount of universal credit. The DWP descriptions of a nil “award” did not establish entitlement. The claimant was not “on universal credit” under regulation 2(3B) of the Housing Benefit Regulations 2006 during the relevant periods and was not automatically passported to full housing benefit.
4. Regulations 6 and 32A of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 may permit a claimant to be treated as making further claims without a fresh application. They do not create an underlying entitlement during periods when the financial conditions are not met. The Secretary of State’s decisions also engage sections 8 and 11 of the Social Security Act 1998.
5. The Upper Tribunal’s decision concerned only the existence of an overpayment. Whether the overpayment was recoverable, and from whom, remained to be determined under regulations 100 and 101 of the Housing Benefit Regulations 2006. The Tribunal also observed that DWP notices describing a nil “award” could materially mislead claimants and should state the legally accurate position.

• Upper Tribunal (Administrative Appeals Chamber): allowed Ipswich Borough Council’s appeal, set aside the First-tier Tribunal’s decision of 26 July 2021 and remitted the case for rehearing by a freshly constituted tribunal.
• First-tier Tribunal (Social Entitlement Chamber): allowed the claimant’s appeal and concluded that no housing benefit overpayment had arisen.