RA v The Secretary of State for Work and Pensions

An award of universal credit is a final benefit decision. Once a claim has been decided, it no longer subsists. Entitlement cannot later be ended by purporting to suspend or close the claim.

Any removal of an existing award requires a lawful revision or supersession ground. A failure to provide later identity verification does not, without more, establish that the original award was made in ignorance of or under a mistake about a material fact. Regulation 45 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 permits suspension of payment, not retrospective termination of entitlement from the award date.

The appellant claimed universal credit on 27 March 2020 and was awarded it on 1 May 2020 under Covid-era identity-verification arrangements. In May 2021 he was asked to provide identity and travel evidence. When evidence was not supplied, the Secretary of State decided on 17 June 2021 that entitlement had ended from the beginning of the claim and that an overpayment was recoverable.

The First-tier Tribunal confirmed those decisions on 3 January 2023. It treated regulation 45 of the relevant Decisions and Appeals Regulations as sufficient authority for the result. On appeal, the Secretary of State accepted that the tribunal had erred in law, but contended that the original award had in substance been revised under regulation 9(b) because it was made under a mistake as to a material fact.

The issue was whether there was a lawful and evidential basis to remove the appellant’s entitlement retrospectively from 27 March 2020.

1. Appeal allowed. The First-tier Tribunal’s two decisions involved errors of law and were set aside. The Upper Tribunal remade the decisions which the First-tier Tribunal ought to have made: the appellant remained entitled to universal credit from 27 March 2020 and was not overpaid for the period 27 March 2020 to 26 April 2021.

2. Under section 8 of the Social Security Act 1998, the appellant’s claim ceased to subsist when the Secretary of State decided it and awarded universal credit on 1 May 2020. It was therefore legally erroneous to describe the claim as later being suspended or closed. The award decision was final under section 17(1). It could only be altered by a revision or supersession on a lawful ground and on a proper evidential basis.

3. Regulation 45 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 did not supply such a ground. Its consequence for non-provision of information was suspension of payment. Regulation 47 could permit entitlement to end only where its conditions were met, and regulation 47(2) could not authorise retrospective cessation from the date of the original award; it operated from the date of suspension.

4. The Secretary of State’s later reliance on regulation 9(b) also failed. The material fact said to have been mistaken was not identified. The original award accepted the appellant’s identity. A later failure to verify that identity did not itself show that the award had been made under a mistake as to who the appellant was or where he lived.

5. The First-tier Tribunal had failed to identify and apply the correct statutory basis for the decisions under appeal. Its inquisitorial and adjudicative role required it to do so, rather than adopt an inadequate appeal response without analysis.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decisions for error of law, and remade the appeals by allowing the appellant’s appeals from the Secretary of State’s decisions.
• First-tier Tribunal (Social Entitlement Chamber): On 3 January 2023, confirmed the Secretary of State’s decisions of 17 June 2021 that entitlement had ended from 27 March 2020 and that an overpayment was recoverable.
• Secretary of State for Work and Pensions: On 17 June 2021, decided that the appellant had been paid universal credit in excess of entitlement from 27 March 2020 to 26 April 2021.