Major appeal court victory on benefit backdating

15 September 2022

AM v Secretary of State for Work and Pensions (UC) [2022] UKUT 242 (AAC) (Judges Jacobs, Wikeley and Wright) 1 September 2022

Benefit claimants have the right to challenge decisions about the date from which their Universal Credit begins, a three-judge panel of the Upper Tribunal has held in an important new decision.

AM is a young man with a severe learning disability. With the help of his parents he claimed Universal Credit (UC). The UC application form asks no questions about backdating, and nothing was said by officials about when benefit would start. DWP awarded him benefit from the date of his claim. At that point, AM asked for his claim to be backdated for one month, arguing that because of his disability he could not reasonably have made his claim any sooner. DWP said it was too late to consider that argument: whether or not he could have made his claim any sooner, it was impossible to get a backdate once a claim had been decided. A first-tier tribunal agreed with the government.

Because this was ‘a matter of wide applicability and importance’ and ‘of special difficulty’ [§4], the Upper Tribunal took the exceptional step of arranging a panel of three judges to hear the case. It decided to allow AM’s appeal. The judges rejected DWP’s argument that it is a claimant’s duty to state, when making a claim, the date from which a UC award should begin. Rather, it is ‘a determination to be made by the Secretary of State in the course of deciding the claim’ [§57]. That means claimants are entitled to say their UC should have been backdated, even after a decision has been made on their claim, through the usual process of revision and appeal.

The decision means DWP must stop telling claimants they are too late to seek backdating of their universal credit, and must instead check whether they actually meet the criteria. People who meet the criteria for backdating (for which see reg.26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013) should get the money they are entitled to.

DWP has three months to seek permission to appeal.

Tom Royston represented AM, instructed by Claire Hall and Martin Williams at Child Poverty Action Group.

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