The Secretary of State for Work and Pensions v Abdul Miah (a protected party, by his litigation friend Mashuq Miah)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Nicola Davies LJ,Whipple LJ |
| Judgment Date | 01 March 2024 |
| Neutral Citation | [2024] EWCA Civ 186 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000313 |
[2024] EWCA Civ 186
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Nicola Davies
and
Lady Justice Whipple
Case No: CA-2023-000313
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
UTTJJ Jacobs, Wikeley, Wright
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Brown KC (instructed by the Treasury Solicitor) for the Appellant
Tom de la Mare KC and Tom Royston (instructed by Child Poverty Action Group) for the Respondent
Hearing date: 7 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 1 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal concerns an aspect of the rules governing claims for Universal Credit (“UC”) generally referred to as “backdating”. I will need in due course to set out the relevant statutory provisions, but before doing so I will outline the facts leading to the decision which is challenged in this appeal:
(1) The Respondent to this appeal, Mr Miah, (“the Claimant”) was born on 16 February 2000. He has a severe learning disability and appears by his father as his litigation friend.
(2) When the Claimant reached the age of twenty, on 16 February 2020, his parents' entitlement to child tax credit (“CTC”) for him ceased. In order, in effect, to replace that lost support, his father on 16 March 2020 submitted a claim for UC to the Department of Work and Pensions (“the DWP”) on his behalf: the claim was made by telephone.
(3) The general rule is that a claim for UC cannot be made for a period starting earlier than the date that it is submitted (“the date of claim”): in other words, it cannot be retrospective. But where, as the result of one of a number of specified circumstances, which include disability, a claimant could not reasonably have been expected to make the claim earlier than they did, the Secretary of State is required to allow them to claim for a period of up to a month before the date of claim: this is the “backdating” referred to above. (The provisions which have this effect are set out at paras. 12 and 13 below.)
(4) The Claimant's father did not when he submitted the claim refer to any circumstances that might have entitled him to have the claim backdated; as will appear, the procedure for claiming did not afford any obvious opportunity to do so.
(5) On 16 April 2020 the Claimant was informed of the DWP's decision to award him UC from the date of claim.
(6) The fact that the decision covered only the period from the date of claim meant that there was a gap of a month between the date when the Claimant's parents ceased to receive CTC (16 February) and the date as from which he became entitled to receive UC (16 March). On 23 July 2020 the Claimant's mother asked the DWP to backdate his claim to 16 February.
(7) That request was refused on 3 August 2020, and a request to reconsider that refusal was itself refused by a decision dated 27 October 2020 1 (though only notified to the Claimant on 11 November).
(8) I should add that on 9 July 2020 the DWP made a further decision adding an element to the Claimant's award on account of his limited capability for work-related activity (“LCWRA”). That award ran from 16 June 2020. On 10
November 2020 the Claimant asked for it to be backdated to 16 February 2020. By a reconsideration decision apparently of the same date that request too was rejected. This decision has not featured separately in the submissions before us but I mention it since it forms part of the procedural history.
The basis for the refusals was not that the Claimant was unable to satisfy the substantive requirements of the backdating provisions but that in the DWP's view the Secretary of State was not empowered to backdate once a decision had been made on the original claim. The decision of 27 October 2020 explains its position succinctly as follows:
“… [O]nce a decision is made in respect of a claim, it no longer exists as such in law and is replaced by an award or a disallowance. A claimant can seek a revision of the award within the time scales allowed (1 month in most cases) but that revision can only affect the claim for the period decided. The revision cannot add dates to the claim that were not part of the original decision. In other words, you can change the award from the date the claim begins but you cannot backdate a claim to an earlier period by means of a revision.”
(The provisions relating to “revision” are set out at paras. 23–27 below.)
The Claimant appealed to the First-tier Tribunal against the Secretary of State's decision of 3 August 2020. The appeal was heard on 25 March 2021. By a decision promulgated on 5 November 2021 FTTJ Joshi accepted the DWP's contentions and the appeal was dismissed.
The Claimant then appealed to the Upper Tribunal. The appeal was heard by a panel of three Judges – UTJJ Jacobs, Wikeley and Wright. By a decision dated 14 September 2022 they unanimously allowed the appeal and held that the Claimant was entitled to seek to backdate his claim. They remitted the case for a determination of whether on the particular facts of his case the requirements of the backdating provisions were satisfied. It is against that decision that the Secretary of State appeals to this Court, with permission granted by Lewis LJ.
The question whether the DWP was entitled to refuse to entertain the Claimant's request to backdate depends on the construction of the applicable statutory provisions. The same issue has arisen in a number of other cases before the First-tier Tribunal (and indeed similar issues arose before the predecessors to the Administrative Appeals Chamber of the Upper Tribunal, the Social Security Commissioners) and has resulted in divergent decisions. The appeal in the Upper Tribunal was directed to be heard by a panel of three Judges because it involved “a question of law of special difficulty and/or an important point of principle or practice”.
The Secretary of State was represented before us by Mr Edward Brown KC and the Claimant by Mr Tom de la Mare KC, leading Mr Tom Royston. Before the Upper Tribunal the Secretary of State was represented by Mr Jack Holborn and the Claimant by Mr Royston.
THE STATUTORY PROVISIONS
Although entitlement to UC is governed by the Welfare Reform Act 2012 we are in this appeal concerned only with the legislation about the procedures applying to claims to such entitlement, and more particularly about:
(a) the procedure for making benefit claims – being the Social Security Administration Act 1992 (“the SSAA 1992”) and the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (“the C&P Regulations”); and
(b) the making of decisions about such claims (including the power of revision and the right to appeal) – being the Social Security Act 1998 (“the SSA 1998”) and the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (“the D&A Regulations”).
Making the claim
The starting-point is that entitlement to benefit is dependent on the making of a claim in accordance with the applicable regulations. Section 1 (1) of the SSAA 1992 reads:
“Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied—
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.”
In Secretary of State for Work and Pensions v Nelligan [2003] EWCA Civ 555, [2004] 1 WLR 894, this Court confirmed that the effect of section 1 (1) was that a claim (or, exceptionally, the deemed making of a claim) was a precondition to entitlement. Mr Brown emphasised that this principle, which he described as enshrining “claimant autonomy”, was a foundational feature of the benefit system.
The power to make regulations of the kind referred to in section 1 (1) is conferred on the Secretary of State by section 5 (1) of the Act, which reads (so far as material for our purposes):
“Regulations may provide—
(a) for requiring a claim for benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed;
(b) for treating such a claim made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made as may be prescribed;
(c) for permitting such a claim to be made, or treated as if made, for a period wholly or partly after the date on which it is made … .”
Paragraph (b) is important for our purposes because it empowers the making of regulations providing that a claim made on one date may be treated as having been made on a different date.
The C&P Regulations are made under those powers. 2 They contain provisions covering a wide range of procedural matters, but under this head I need only refer to three:
(1) Regulation 8 provides for how claims for UC are to be made. The default rule is that they must be made online, but in certain circumstances they may be made by telephone.
(2) Regulation 10 provides, in effect, that subject to certain exceptions, the date of a claim is the date of the online communication or the telephone conversation by which it is made.
(3) Regulation...
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