CK v Secretary of State for Work and Pensions

Universal Credit etc (Claims and Payments) Regulations 2013, regulation 26(2), requires both a specified circumstance in regulation 26(3) and a finding that, as a result of that circumstance, the claimant could not reasonably have claimed earlier.

A regulation 26(3) circumstance need not continue throughout the period for which backdating is sought. The causation and reasonableness requirement in regulation 26(2)(b), however, must be addressed separately and in relation to the continuing delay. A tribunal must not decide the issue merely by asking whether the claimant acted reasonably overall. It must give adequate reasons for its findings on both causation and reasonableness.

The claimant's Working Tax Credit ended on 3 March 2023. HMRC notified her on 14 March, but the First-tier Tribunal found that the notification gave inadequate reasons. The claimant sought clarification through HMRC and her MP, and claimed Universal Credit on 30 March 2023.

The Secretary of State refused to backdate the award to 3 March 2023. The First-tier Tribunal dismissed the claimant's appeal. It accepted that late notification explained delay until 14 March, but held that later delay was not justified. The claimant appealed to the Upper Tribunal, contending that the First-tier Tribunal had inadequately explained its conclusion.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the case was remitted to a differently constituted First-tier Tribunal.

2. Under regulation 26(2) of the Universal Credit etc (Claims and Payments) Regulations 2013, a claimant must satisfy two separate requirements for a late Universal Credit claim to be backdated. First, one or more circumstances in regulation 26(3) must apply, or have applied. Secondly, as a result of that circumstance, the claimant must not reasonably have been expected to claim earlier.

3. The wording that a circumstance “applies or has applied” means that a regulation 26(3) circumstance need not have persisted throughout the whole delayed period. The requisite continuing analysis instead concerns regulation 26(2)(b): the tribunal must determine whether the relevant circumstance caused the delay and made earlier claiming unreasonable. Those elements will often require separate consideration.

4. The First-tier Tribunal addressed whether a regulation 26(3) circumstance existed, but did not adequately address the causal and reasonableness requirements in regulation 26(2)(b). It therefore failed to give adequate reasons in the sense explained in South Bucks District Council v Porter (No 2) [2004] UKHL 33.

5. On rehearing, the new tribunal must consider whether the inadequate HMRC letter gave actual notification of expiry within regulation 26(3)(aa), or whether notification was only complete when the claimant was given the reasons and informed of the right to claim Universal Credit. It must then decide the backdating issue afresh.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): On 28 November 2023, dismissed the claimant's appeal against the refusal to backdate her Universal Credit award.