P.H.C. v Secretary of State for Work and Pensions

A new Universal Credit claim cannot be disallowed merely because the claimant fails to provide requested identity evidence. The evidence provisions concerning an existing award, suspension and termination do not govern a new claim. Nor does a post-claim identity check retrospectively invalidate an electronically lodged claim.

Identity is addressed instead through sections 1(1A) and 1(1B) of the Social Security Administration Act 1992. The tribunal must consider each alternative statutory route for establishing or allocating a National Insurance number. For children, the claimant must prove existence and identity on the balance of probabilities. The First-tier Tribunal must conduct its own evidence-based rehearing.

The appellant claimed Universal Credit for herself and her four children. The Department for Work and Pensions closed the claim after she failed, in its view, to provide sufficient evidence of identity. The First-tier Tribunal confirmed that decision on 14 September 2022, treating the failure to provide evidence as sufficient to terminate the claim.

The Upper Tribunal considered whether the decision could be justified by provisions concerning suspension and termination, failure to provide evidence, the prescribed manner of claiming, or the statutory identity and National Insurance number conditions. It also considered the approach required of the First-tier Tribunal on a rehearing.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and the case was remitted under section 12(2)(b)(i) to a fresh tribunal for an oral rehearing.
2. Regulations 45 and 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 concern suspension, termination and the revision or supersession of an existing award. They cannot be used to disallow a new claim where no award exists.
3. Regulation 37 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 permits the Secretary of State to request evidence. Failure to provide it is not, by itself, a ground for disallowance. The evidence must instead be assessed against the essential conditions of entitlement.
4. An identity check undertaken after an electronic claim has been accepted is part of the post-claim entitlement assessment. It does not mean that the claimant was retrospectively prevented from making a claim in the prescribed manner.
5. The correct framework for the claimant’s identity is section 1(1A) and (1B) of the Social Security Administration Act 1992. The three alternative routes in section 1(1B) must be considered in turn. Entitlement fails only if all three are unsatisfied. The First-tier Tribunal must make its own findings on the evidence, including evidence obtained after the Secretary of State’s decision, and may direct further investigation.
6. Section 1(1A) does not apply to a child or qualifying young person in respect of whom Universal Credit is claimed. Entitlement to the child element nevertheless requires the Secretary of State, and ultimately the tribunal, to be satisfied on the balance of probabilities as to each child’s existence and identity.
7. The new tribunal should establish what evidence was supplied, what searches and identity investigations were conducted, and whether the statutory tests were properly addressed. It must decide independently whether the claimant is the person she says she is and whether the original disallowance was premature or otherwise legally justified.

The case was remitted with directions for an oral hearing before a fresh tribunal. Further evidence was to relate to circumstances existing at the date of the original decision.

• First-tier Tribunal (Social Entitlement Chamber): on 14 September 2022, confirmed the Secretary of State’s decision dated 25 February 2022 and refused the appeal.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for rehearing by a fresh tribunal.