Appeal No. UA-2025-000566-USTA
Between:
KA
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Scolding KC
Decided on consideration of the papers
Representation:
Appellant: Kin Cymru
Respondent: Decisions Making and Appeals Division, Department of Work and Pensions
On appeal from
Tribunal: First Tier Tribunal (Social Entitlement)
Tribunal Case No:
Digital Case No.: 1686-2218-1475-3472
Tribunal Venue: Cardiff Appeals Centre.
Decision Date: 28 February 2025
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal did not involve an error of law.
REASONS FOR DECISION
Factual background
KA is a young man (born in 2002) with autism, severe learning difficulties, is non-verbal and has epilepsy. At the date of the decision of the Secretary of State in 2023, he attended a residential placement for young adults with these difficulties. He lived with his mother – who I shall call AA - , attending the residential placement during term times. His mother was his principal carer and he required 1:1 care at all times. At the date of the FTT decision (2025), he was living in a residential setting on a full-time basis.
KA lacks capacity to make decisions about his Property and Affairs under the Mental Capacity Act 2005. In October 2020, the Court appointed AA, along with 2 other family members to be his joint deputies for Property and Affairs (in July 2021 those individuals were also appointed to be his Health and Welfare Deputies, again on a Joint basis).
Whilst a child, AA had received tax credits for KA. In the summer of 2022, she was aware that Universal Credit (which I shall call UC in this judgment) was replacing these credits and wanted to continue to ensure financial support for KA. She contacted HMRC during this time who confirmed to her that child tax credits would continue until July or August 2022. She then sought advice from the CAB who told her that her tax credits were likely to end, which was then confirmed by HMRC.
After these inquiries, AA made a claim for UC for KA on 6 September 2022. AA has no disabilities of her own that would preclude her from claiming benefit and she told the FTT judge that she knew in 2022 that she could claim benefit on behalf of KA. On 19 September 2022 she applied for the claim to be backdated to 6 August 2022.
After this point in time, AA was appointed by the SSWP as KA’s appointee (on 27 October 2022).
On 12 November 2022, KA was awarded UC from 6 September 2022 (and not 6 August 2022 as requested by AA on KA’s behalf).
Decisions Under Appeal
The SSWP asked AA why she wanted to back date the claim. She explained that she had sought advice about the ending of her son’s tax credits and was told after she made the claim that she could ask that it be backdated. The reasons given for the request (according to the SSWP decision of 18 January 2023) were
The Decision Maker contacted AA on 18.01.23 to ask, as KA’s Deputy for the Court of Protection and his appointee for the DWP, why she did not make the claim for UC on KA’s behalf earlier, as she is asking for the claim to be back dated to 06.08.22. A explained that her Tax Credits ended in July 22. It then took some time for her to get advice on what to do she explained that getting an appointment at Citizen's Advice took time. She was advised that she could make a claim to UC for her son, KA..
After making the UC claim she was advised that she could request that that claim be backdated.
The SSWP decided on 18 January 2023 that the claim should not be backdated. The SSWP’s reasoning was described by the First-Tier Tribunal Judge (FTT) as “thin”. It says:
“I have decided the reasons stated by Name [sic] for their delay in claiming UC do not fall within the prescribed circumstances in accordance with Regulation 26(3) of the UC, PIP, JSA and ESA (Claims and Payments) Regulations 2013. Accordingly, the time limit for claiming has not been extended.”
A mandatory consideration decision by the SSWP decided that the decision of January 2023 was correct. It stated that it was AA’s circumstances as appointee that were relevant when deciding if the circumstances existed to backdate a claim, and not that of KA.
Legal Background
Section 5 of the Social Security Administration Act 1992 provides that Regulation may provide to enable one person to act for another in relation to a claim for benefit (s5(1)(g)). The Universal Credit (Claims and Payment) Regulations 2013 (“UC (C and P) Regs”) set out the basis upon which this can take place. The SSWP calls such being an “appointee”.
Regulation 57 of the UC (C and P) Regulations provides that someone can act on someone’s behalf in the following circumstances:
That someone is or may be entitled to benefit (a claim does not need to have been made):
That the person who wishes to claim benefit is “unable for the time being to act” .
That the person who would receive the benefit does not have a Deputy appointed under the Mental Capacity Act 2005 (and other similar persons).
That the person who is to act as the appointee is over 18 and has made a written application to the Secretary of State to be appointed.
Regulation 57 then says this about the person so appointed:
“(4) The functions are exercising on behalf of P1 is any right to which P1 may be entitled and receiving and dealing on behalf of P1 with any sums payable to P1.”
Regulation 57 (5) says:
“Anything required by these Regulations to be done by or in relation to P1 may be done by or in relation to P2 or any person mentioned in paragraph 2 “.
The “person mentioned in paragraph 2” includes a deputy appointed by the Court of Protection under the Mental Capacity Act 2005.
Revocation of the appointeeship can take place if the Secretary of State revokes it, or the appointee resigns it or the Deputyship comes to an end (Reg 57(8)).
Regulation 16 of the Universal Credit (Transitional Provisions) Regulation 2014 provides that where someone has been appointed to act on behalf of a claimant in respect of benefits or tax credits before the claim for universal credits (under Regulation 18(3) of the Tax Credits (Claims and Notifications) Regulation 2002 – which applies to circumstances when someone can be an appointee for those benefits, can act for a person who is unable to act in making a claim for a tax credit. This regulation was expressly designed to enable those who already act on behalf of the claimant in respect of existing benefits and tax credits to be treated as having been appointed to act on their behalf in respect of universal credit and vice versa. Regulation 18 was expressly designed to allow the process of transition to UC easier for those who are unable to communicate with the SSWP themselves.
Backdating a claim
The relevant Regulations applicable to this claim are the Universal Credit (Claims and Payments) Regulations 2013. Claims for UC are to be made electronically or by telephone (Regulation 8). The date of the claim, is under Regulation 10, to be the date on which the claim is received at an office, or the date on which the claim is properly completed if by telephone (Regulation 10). Regulation 26 provides for a right of extension of time for claiming universal credit in certain circumstances.
These are (Reg 36(2)):
If one or more of the circumstances specified in paragraph 26(3) applies and
As a result of that circumstance, the claimant could not reasonably have been expected to make the claim earlier.
The circumstances in Reg 26(3) are (only those potentially relevant to this claim are included in this analysis) ;
The claimant was previously in receipt of an existing benefit (which includes under the UC (Transitional Provision) Regulations 2014, tax credits and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant’s entitlement had expired (Reg 26(3)(aa)) .
The claimant has a disability (Reg 26(3)(b).
The claimant has supplied the Secretary of State with medical evidence that prevented the claimant had an illness that prevented the claimant from making a claim (Reg 26(3)(c ) :
The official computer system of the SSWP was not working so the claimant could not make a claim electronically (Reg 26(3)(d).
The Court of Appeal looked at Regulation 26 (but not in this context) in SSWP v Abdul Miah [2024] EWCA Civ 186. This identified that Regulation 26 was designed to ensure that those who had matters beyond their control or related to their personal characteristics could extend time by a month. At paragraph 35 of Abdul Miah, Lord Justice Underhill recognised that they are people who could not reasonable expected to make their claim earlier, and some of whom will be especially vulnerable as a result of ill health or disability, and many will not have ready access to advice.
Jurisdiction of the Upper Tribunal
The Upper Tribunal’s may only allow an appeal under section 12(1) of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) if it finds that the making of the decision by the First-tier Tribunal involved the making of an error on a point of law.
Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account relevant factors, procedural unfairness or failing to give adequate reasons for a decision. These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13].
In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57]. That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.
The First-tier Tribunal’s decision
AA was unhappy with the SSWP decision. She appealed to the FTT. Her argument was that the criteria in the Claims and Payment Regulations only apply to a claimant – and not to an appointee or deputy. She argued that the SSWP’s view that the criteria apply to the appointee, and that they were too restrictive, and that an appointee/Deputy could never meet the criteria in s26 of the Claims and Payment Regulations. She also submitted that the regulations amounted to indirect discrimination on the grounds of disability as whilst someone without an appointee could succeed under the Regulations, an appointee is treated differently as their reasons for delay cannot or will not be taken into account [sic].
AA’s submissions to the FTT were that:
(a) The test set out in Regulation 26 of the Claims and Payments Regulations was too restrictive as it related solely to the appointee rather than the person who was making the claim. The claimant for these purposes should be KA and not AA.
It was indirect discrimination on the grounds that individuals claiming UC through an appointee were treated differently under the regulations than a claimant.
The SSWP had not provided any legal grounds to support her view.
The decision breached KA’s human rights by unlawfully depriving him of his possessions under Article 1 of the First Protocol.
The First-Tier Tribunal Judge gave an extensive judgment. I summarise his conclusions which were that:
That AA was the Deputy under Regulation 57 and therefore had the authority to make the claim (paragraph 35).
That the submission of AA would “give rise to a fiction” , as AA would disappear and there would need to be KA being the person making the claim which the FTT judge described as being “entirely detached from the reality of the situation”, and too “narrow”.
AA was in control of the process on behalf of KA and derived the means to do so under Regulation 57 of the UC claims regulations, which meant that the claimant should be read as the person exercising the power under Regulation 57 (paragraph 35).
No circumstances arose which met the criteria under Regulation 26 (paragraph 35).
That the submission in respect of the Human Rights Act and Article 14 of the ECHR was dismissed. KA did “retain status” due to his entitlement to benefit and there would be circumstances under Reg 26(3)(b) where AA would qualify if she had some form of disability at the point of making the UC claim to take account of the delay, and that having Regulation 57 and Regulation 26 enables there to be sufficient flexibility to allow benefits to be managed. (paragraph 36).
That whilst he had sympathy for AA juggling speaking to HMRC and SSWP with caring for KA, but that was not a circumstance to extend time under Regulation 25 (paragraph 37).
That the good cause provisions set out in Regulation 19 of the Claimant and Payments Regulations 1987 were not relevant, following CU v SSWP [2024] UKUT 32 at [36 and 37]. I note here that at paragraphs 38 – 42 of CU, Upper Tribunal Judge Jones makes the following points:
“…the test [under Regulation 26] is whether, as a result of the particular circumstances that brought a claimant within one or more of the categories in Regulation 26(3), a claimant could not reasonably have been expected to make the claim earlier. In this case there must be a causal connection between the Appellant’s disability and the reasonableness of not making the universal credit claim at an earlier time.
39. That is not to say that a claimant’s wider circumstances do not fall to be considered in any way. What was reasonably expected from a claimant, given the circumstances that satisfy regulation 26(3) must be assessed against the background of the claimant’s circumstances a s whole.
40. What can reasonably be expected in one set of circumstances may be different from what can reasonably be expected from a person in another ……
41. Nonetheless, in order to satisfy Regulation 26(2)(b) , a connection must exist between the circumstances that brough the claimant within regulation 26(3) and the unreasonableness of expecting him to have claimed earlier than in fact he did “.
The grounds of appeal and the parties’ submissions
AA argues that the judge was wrong in law, for the reasons given before the FTT but also because:
The DWP erroneously considered that AA was an appointee: she was not – she was the deputy and a deputy cannot as a matter of law be an appointee.
The order of the Court of Protection in respect of Property and Affairs identifies that KA was not joined to the proceedings in the Court of Protection, and he did not delegate the making of the claim for UC to his mother as the proposed deputy. AA argues that Regulation 57(5) does not apply to AA because the order of the Court of Protection is unrestricted in terms of financial matters and so the claim for UC was made under the terms of the order. AA also argues that Regulation 57(5) mentions “persons mentioned in sub paragraph 2 of that regulation and no “persons” are identified in sub paragraph 2. AA’s submission is that Regulation 57(5) does not apply.
The law does not require any person to make a claim for benefit, and so it could be KA as well as AA that makes that claim.
The SSWP’s submission about KA as the Deputy are wrong in law and was not considered at the hearing.
(e ) KA was unable to act yet the SSWP erroneously assert that the Deputy must meet one of the conditions set out in Regulation 26, and in this case the Deputy was seeking to protect her son’s interests.
It was a breach of KA’s human rights and discrimination under Article 14 of those rights to have a situation where the claimant is in a better position if the SSWP have failed than if they have not (referring to Regulation 26(3)(a) and (aa)).
AA argues that the approach of the respondent was disproportionate and the Tribunal erred in law to find otherwise. AA’s submission about this is set out in submissions made for the FTT hearing [FTT bundle, submissions made 3 June 2024]. AA’s submission is that KA is profoundly disabled and so cannot make a claim for benefit at any time. Article 14 of the convention prohibits discrimination on various grounds, and KA has “other status” qualifying him for those grounds and Article 1 of the First Protocol of the HRA provides that individuals will not have their possessions displaced or removed other than with a fair process. Social Security benefit is a possession for these purposes. Discrimination in the administration of such possessions/benefits can therefore amount to a breach of the Human Rights Act 1998). AA’s inability to satisfy any of the circumstances under Regulation 25 thus deprives KA of his possessions which is 1 months' worth of backdated UC and this would be unlawful discrimination.
The SSWP argues that the appeal should be dismissed. This is for the following reasons:
AA as KA’s deputy is the only person who can make a claim on behalf of the claimant, and the test must be applied to AA and not to KA. Circumstances pertinent to KA are not relevant.
The FTT considered Regulation 26, and AA’s submissions and that whilst AA had caring responsibilities, none of them satisfied the requirement under Regulation 26(3) , and so there was no error of law.
Upper Tribunal Judge Church granted permission to appeal on the basis that it is arguable that the reference to Claimant in Regulation 26(2) and (3) should be interpreted as references to KA and not AA.
Analysis
What is the purpose of Regulation 57 and does it apply to KA and AA’s situation?
Regulation 57 of the UC (Claims and Payments) Regulations 2013 is headed “persons unable to act”. It is designed to provide a basis whereby those who may lack capacity or who have difficulties engaging with the benefits system can appoint someone on their behalf. The statutory language is where a person is “unable for the time being to act”. That covers a variety of situations where someone’s ill health, incapacity, disability or even other matters (such as there being in detention and so unable to correspond with SSWP) means that someone else has to act on their behalf.
Regulation 57(2) is written in the negative and so can be confusing. My understanding of Regulations 57(1) – (5) is as follows:
Regulation 57(1) allows another person to “be appointed” by the Secretary of State to act for a benefit claimant. The word “appointee” does not appear in the Regulations, but is a term used by the SSWP and others to refer to someone who has met the criteria in these Regulations and others which have similar effect.
Someone can only be “appointed” if the benefit claimant is unable for the time being to act.
To be appointed by the Secretary of State the person who wishes to be the appointee must have made a written application to be so appointed, and be over 18 and “be a natural person” (i.e. not a company, charity or other organisation).
Alongside an appointee, my reading of Regulation 57(5) is that it allows “anything required by these regulations to be done by or in relation to P1” (which would include making a claim, backdating a claim and many other matters) to be done by the person so appointed – i.e. the appointee.
However, Regulation 57(5) does not stop there. It permits all acts which could be done or in relation to the benefit claimant to be undertaken either by the appointee “or any person mentioned in paragraph 57 (2)”. Paragraphs 57(2) mentions a Deputy appointed under the MCA 2005. My reading of this is that if someone is a Deputy then they have no need to be an appointee, because they would be a person mentioned in paragraph 57(2) and therefore can do anything relating to the benefit claimant under the Regulations.
Regulation 57(4) provides that the functions undertaken are any right to which the benefit claimant may be entitled and dealing with sums on behalf of the benefit claimant. Dealing with those sums must be able to be done by the person mentioned in paragraph 57(2) given the terms of Regulation 57(5).
My view therefore is that as KA’s deputy, the Secretary of State recognises that the deputyship of AA gives her the power (along with others) to undertake all acts related to the property and affairs of KA save where expressly excluded in the terms of the COP order. There does not need to be an appointment by the Secretary of State as there is already a mechanism under the Deputyship order for the person who is “unable to act” to have someone to act for them in dealing with their property and affairs. That must include applying for benefit.
The argument made by AA in respect of the terms of the Deputyship cannot hold water. There is no requirement that KA be joined to an application for Deputyship (albeit that this does happen in some cases), and nothing to suggest that KA would have the capacity to make decisions to delegate, or not delegate, various financial functions to his mother and not others. The relevant Deputyship order is general in nature and does not exclude the Deputy making applications for benefit. Whilst there are some matters related to Deputyship which require the Court of Protection to make specific orders (such as the sale of property), the making of an application for benefit is not one of those set out in the legislation.
Are the circumstances related to AA or KA the relevant ones when looking at Regulation 26?
I agree with the First Tier Tribunal Judge and disagree with the submissions made by KA and AA in this appeal. If someone is appointed under Regulation 57 or holds a Deputyship, one looks at their position – as the person who acts on behalf of the person who lacks capacity/has a disability/has other personal issues – and not that of the person on behalf of whom they act. To do otherwise would be to create an administratively confusing situation, and one which failed to take account of the responsibilities under Regulation 57 of the Claims and Payments Regulations 2013.
The person who is the appointee stands in the shoes of the person who is making a claim. It is their particular issues and circumstances which must be examined under Regulation 26 as they so act. It cannot be the person with the disability, as otherwise it would make a mockery of the idea of someone acting on behalf of someone else. That must involve the burdens, as well as the benefits of appointeeship.
The Appellant’s submissions would enable someone who lacks capacity or who has an appointee to be able to pick and choose when or if they used that person. That firstly would undermine the purpose of the appointee or Deputy, which is to act in the best interest of someone who lacks capacity. Second, it begs the question why an appointee/Deputy is needed if someone has an ability to act without one.
Did the judge err in the conclusions reached about AA’s circumstances and if they met the criteria set out in Regulation 26?
I agree with the FTT judge’s analysis of Regulation 26 on the facts as presented to the FTT. The facts set out by AA do not give rise to a case which falls into Regulation 26. The relevant disability or ill health would be that of AA, not of KA. None of the other criteria apply. There has been no error of law by the FTT Judge.
Human Rights Act grounds
AA seeks to argue that Article 1 of the First Protocol read with Article 14 has been breached by the approach of the SSWP/the FTT in this case. I dismiss this part of the appeal. Whilst social welfare benefits can amount to “possessions” for the purposes of Article 1 of the First Protocol, it does not create a right to acquire property or to receive a pension of a particular amount (Beeler v Switzerland (Appy 78630/12). Where someone does not satisfy the legal conditions laid down in UK law for entitlement to any particular form of benefit, there is no interference with the rights under Article 1 of the First Protocol save where such could be held to be discriminatory.
The Appellant seeks to argue that Article 14 is engaged and that Regulation 26 and/or the statutory scheme is discriminatory because it provides greater hurdles for him as a disabled person than someone who is not disabled.
I must confess to finding AA’s arguments about Article 14 as somewhat confusing. KA is not being prevented with access to the benefit, nor is he being treated differently to others in respect of the amount of benefit he receives. The sole issue is whether he should receive a backdated payment. The SSWP has sought to create equality of arms between those with significant disabilities and those without by having a system of appointee ship so that those who are not able to claim on their own behalf are able to make a claim.
There is nothing discriminatory about having Regulation 26 look at the circumstances of the person making the claim – i.e. the person filling in the form – not the person about whom the benefit may be paid. Even if I am, however, wrong about this, given that this involves broad economic and social policy, the Secretary of State is given a wide margin of appreciation at to how he administers the system and I can see nothing discriminatory in focusing the attention on those who make the claim rather than those who will receive the benefit when exercising a discretion to backdate benefit as it is only if that person’s circumstances justify an extension that such backdating can take place. My view is that any differential in treatment can be justified on this basis.
Conclusion
I dismiss this appeal.
FIona Scolding KC
Judge of the Upper Tribunal
Authorised by the Judge for issue on 17 July 2026