CU v Secretary of State for Work and Pensions

For an extension of time to claim Universal Credit under regulation 26(2), the claimant must both fall within a specified circumstance and show that, because of that circumstance, they could not reasonably have been expected to claim earlier. The former general good cause test does not govern this question.

The assessment remains fact-sensitive. It must take account of the claimant’s wider circumstances, including knowledge of the benefit system and realistic means of obtaining information, while retaining the required causal connection with the qualifying circumstance. A tribunal must make adequate findings before deciding that a claimant could reasonably have made a telephone claim, including whether such a claim could have been accepted.

The appellant successfully claimed Universal Credit on 25 February 2022. He sought to extend the claim back to 1 November 2021, when he became unemployed. The Secretary of State refused the request.

The First-tier Tribunal dismissed his appeal. It found that, despite chronic back pain, he could reasonably have claimed earlier by telephone. The appellant appealed on the grounds that the tribunal had applied an unduly narrow approach and made insufficient findings about a telephone claim.

The Upper Tribunal considered the proper application of regulation 26(2)(b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 and whether the appeal could be remade or required remittal.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside and the appeal was remitted for an oral rehearing before a differently constituted First-tier Tribunal.

2. Regulation 26(2)(b) requires a causal connection between a circumstance within regulation 26(3) and the conclusion that the claimant could not reasonably have been expected to claim earlier. The historic general good cause test no longer governs retrospective claims. However, the assessment of reasonable expectation must take place against the claimant’s circumstances as a whole.

3. The appellant’s disability was accepted as the qualifying circumstance. The First-tier Tribunal wrongly confined its inquiry to his physical ability to telephone. It had to consider whether a person with his disability, and in his wider circumstances, could reasonably have been expected to discover Universal Credit and the available means of claiming it. Relevant matters included his knowledge of benefits, ability to obtain advice, language and communication difficulties, and the effect of his disability on making enquiries.

4. The tribunal’s finding that he could have claimed by telephone was unsupported. Regulation 8(2) permitted a telephone claim only for an accepted class of case or where the Secretary of State was willing to accept it. There was no evidence that a telephone claim would have been available, nor findings sufficient to establish that it could reasonably have been expected.

5. The Upper Tribunal could not remake the entitlement decision because further oral evidence and findings were required. The fresh tribunal must decide the position as at 25 February 2022 and apply regulation 26(2)(b) after making findings on the identified matters.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the case to a fresh First-tier Tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 7 February 2023, dismissed the appeal against the refusal to extend the Universal Credit claim before 25 February 2022.