AA v Secretary of State for Work and Pensions

The appeal about backdating Universal Credit is refused, but the appeal about closing the claim on 24.09.2019 is allowed.

The decision made by the Respondent on 28.10.2020 is confirmed, but the decision made on 24.09.2019 is set aside.

The Appellant stated in oral evidence that she left the UK on 22.08.2019 to take part in the funeral proceedings for her father-in-law which lasted 40 days. At the time she was separated from her husband, but not divorced. She had periodically separated from her husband due to his mental health problems and unfounded allegations of infidelity made by him. She then returned to him when he took medication and his condition improved.

She was intending to return to the UK within a short period. However, her brother-in-law took her passport and would not let her return based on the allegations that his brother was making. The Appellant's brother-in-law eventually realised that his brother had mental health problems, but the Appellant was then prevented by the Covid-19 pandemic from returning to the UK until 07.07.2020.

The Appellant returned to the UK with her husband and they made a joint claim for Universal Credit on 08.07.2020, with benefit paid from 10.07.2020. On 15.10.20 the Appellant's husband asked for Universal Credit to be backdated to 21.09.2019. This was refused on 28.10.2020.

On 14.10.20 the joint claim was closed, and the Appellant made a new claim for Universal Credit as a single person as she had again separated from her husband. On 16.11.2020 she asked for the claim to be backdated to 19.08.2019. On 19.01.21, a further decision on backdating was made. This was again refused.

On 21 01.21 a further joint claim was made, and backdating was again requested The Appellant was told that the issue of backdating had been addressed already in the decision of 28 10 20

Decision of 24.09.20

The DWP made a decision on 24.09.2019 to close the claim of Mrs. AA because she had not supplied information that had been requested from her. In doing this the DWP relied on Regulation 47 of the Universal Credit, PIP, JSA & ESA (Decisions and Appeals) Regulations 2013.

The DWP was not entitled to do this, as the DWP had not suspended the claim in accordance with Regulation 45.

Section 4(1)(c) of the Welfare Reform Act 2012 states that to receive Universal Credit a claimant must be in Great Britain.

Regulation 11 of the Universal Credit Regulations 2013 states that a temporary absence from the UK of one month should be disregarded when deciding whether a person meets the basic condition to be in Great Britain to be entitled to Universal Credit.

Regulation 11(2)(b) states that this period of one month can be extended by a further month when the temporary absence from Great Britain relates to the death of a close relative of the person, or of their partner if the Secretary of State considers that it would be unreasonable to expect the person to return to Great Britain within the first month.

Taking into account the circumstances of this case, the Tribunal concluded that it was reasonable for 2 months of the Appellant’s absence from Great Britain to be disregarded when considering her entitlement to Universal Credit.

The Appellant left Great Britain on 22.08.2019. She therefore continued to meet the residence condition of being in Great Britain until 21.10.2019. The Appellant was therefore entitled to Universal Credit up to 21.10.2019, subject to her providing any information requested by the DWP about her self-employed income and expenses. The Secretary of State is directed to:

Request any information and documentation necessary from the Appellant within 14 days of the issue of this decision.

Determine the Appellant’s entitlement to Universal Credit from the last payment made in 2019 up to 21.10.19 and to pay her any balance due within 21 days of her supplying any information requested by the DWP.

Decision of 28.10.20

Regulation 26 of the Universal Credit, PIP, JSA & ESA (Claims and Payments) Regulations 2013 deals with the issue of backdating of claims for Universal Credit. Backdating is allowed for a maximum period of 1 month to the date on which the claim is made. It is only allowed in very restricted circumstances where because of those circumstances the claim could not reasonably have been made earlier. In the case of a joint claim, both people must satisfy the criteria for a backdated award to be made.

The Appellant and her husband claimed Universal Credit on 08.07.2020 and made an application for backdating on 15.10.2020. The maximum time that the claim could potentially be backdated was 08.06.2020. However, the Appellant and her husband did not return to the UK until 07.07.2020. The earliest date that they could have qualified for Universal Credit was therefore 07.07.2020 due to the basic condition that an applicant had to be in Great Britain.

The Appellant had supplied documentation which demonstrated that her husband suffered from serious mental health problems. She also supplied a letter from her GP at Addition I Page 11 which referred to her needing a steroid injection for plantar fasciitis and to her having been seen by the local Mental Health Team in the past and that she was taking Sertraline in January 2021. This letter did not address her medical condition at the time that the claim for Universal Credit was made.

However, it was necessary to show more than a disability or an illness for a claim to be backdated. In the case of a disability, a claimant had to show that because of that disability the claimant could not reasonably have been expected to make the claim earlier.

In the case of an illness, it had to be this illness that had prevented the claimant from making a claim and again a claimant had to show that because of that illness the claimant could not reasonably have been expected to make the claim earlier.

The reason that a claim was not made on 07.07.2020 was because the Appellant and her husband were travelling back to the UK. The delay of one day in making the application for Universal Credit was not related to any disability or illness that the Appellant or her husband had. The Appellant and her husband therefore did not meet the criteria for their award of Universal Credit to be backdated.

The Tribunal therefore confirmed the decision made on 28.10.2020 that the Appellant and her husband were not entitled to have their Universal Credit award backdated.

Entitlement

A single claimant is entitled to universal credit if the claimant meets-

the basic conditions; and

the financial conditions for a single claimant.

Basic conditions

For the purposes of section 3, a person meets the basic conditions who-

…

is in Great Britain; …

For the basic condition in subsection (1)(c) regulations may—

specify circumstances in which a person is to be treated as being or not being in Great Britain;

specify circumstances in which temporary absence from Great Britain is disregarded;

modify the application of this Part in relation to a person not in Great Britain who is by virtue of paragraph (b) entitled to universal credit.

Temporary absence from Great Britain

A person's temporary absence from Great Britain is disregarded in determining whether they meet the basic condition to be in Great Britain if—

the person is entitled to universal credit immediately before the beginning of the period of temporary absence; and

either—

The period of one month in paragraph (1)(b) may be extended by up to a further month if the temporary absence is in connection with the death of—

the person's partner or a child or qualifying young person for whom the person was responsible; or

a close relative of the person, or of their partner or of a child or qualifying young person for whom the person or their partner was responsible,

and the Secretary of State considers that it would be unreasonable to expect the person to return to Great Britain within the first month.

This paragraph applies where the absence is not expected to exceed, and does not exceed, 6 months and is solely in connection with—

the person undergoing—

the person accompanying their partner or a child or qualifying young person for whom they are responsible for treatment or convalescence or care as mentioned in sub-paragraph (a).

Termination for failure to furnish information or evidence

This regulation applies where payment of a benefit to a person (“P”) has been suspended in full under—

regulation 44 (suspension in prescribed cases) and P subsequently fails to comply with a requirement for information or evidence under regulation 45 (provision of information or evidence) and more than one month has elapsed since the requirement was made; or

regulation 45(6) and more than one month has elapsed since the first payment was suspended.

In a case to which this regulation applies, except where entitlement ceases on an earlier date other than under this regulation, the Secretary of State must decide that P ceases to be entitled to that benefit with effect from the date on which the payment of the benefit was suspended.

Time within which a claim for universal credit is to be made

Subject to the following provisions of this regulation, a claim for universal credit must be made on the first day of the period in respect of which the claim is made.

Where the claim for universal credit is not made within the time specified in paragraph (1), the Secretary of State is to extend the time for claiming it, subject to a maximum extension of one month, to the date on which the claim is made, if—

any one or more of the circumstances specified in paragraph (3) applies or has applied to the claimant; and

as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.

The circumstances referred to in paragraph (2) are—

…

the claimant has a disability;

the claimant has supplied the Secretary of State with medical evidence that satisfies the Secretary of State that the claimant had an illness that prevented the claimant from making a claim; …

One of the issues in this appeal was a decision made by the Respondent on 24/09/2019 which closed the Appellant’s claim because requested information had not been supplied. The tribunal set that decision aside because the Respondent had not previously suspended her claim in accordance with Regulation 45 of the Universal Credit Regulations 2013. The tribunal went on to replace the decision with its own, which was that the Appellant continued to be entitled to Universal Credit until 21/10/2019. This was based on the finding that the Appellant had left the United Kingdom on 22/08/2019 and did not return until 07/07/2020 but was entitled to continue to receive Universal Credit for 2 months, based on a temporary absence of the type allowed under Regulation 11, in particular Regulation 11(2), i.e., the extension of the usual period of allowable temporary absence from 1 month to 2 months where the absence is in connection with the death of a close relative (see paragraphs 23 to 28 of the SOR).

However, the tribunal’s decision does not appear to take into account the requirement under Regulation 11(1) which is that the absence must both be not expected to exceed, and not actually exceed 1 month. In my view, the wording of regulation 11(2) in permitting an extension of a further month, implies that the same requirement, i.e., the expectation in relation to the period of absence, and the actual period of absence must not exceed the total permitted period.

In this case, the Appellant was abroad for nearly 11 months, so the actual period of absence exceeded 2 months and she is not entitled to benefit from the disregard from the basic condition of being in Great Britain.

Discussion

It was agreed by the parties in the appeal before the First-tier Tribunal that the claimant had been entitled to universal credit immediately before his temporary absence from Great Britain. The condition in Regulation 11(1)(a) of the Universal Credit Regulations 2013 was therefore met.

Regulation 11(1)(b)(i) of the Universal Credit Regulations 2013 contains two conditions to the operation of the disregard to a temporary absence from Great Britain. The first is that the absence is ‘not expected to exceed’ one month. It was accepted that the claimant had, when he left Great Britain, ‘intended’ to be absent from Great Britain for only three weeks.

Paragraph 20 of Schedule 1 to the Decisions and Appeals Regulations provides that a supersession for a change of circumstances takes effect from the start of the assessment period in which it occurred. That means that one must look at whether there has been a change of circumstances on or before the last day of the assessment period (in this case, on or before 28 June 2021) to decide whether an award may be superseded from the first day of the assessment period (in this case, 29 May 2021).

In this case it is clear from the agreed facts that, as at 28 June 2021, the claimant had not been absent from Great Britain for a period exceeding one month.

Having accepted that the claimant had ‘intended’ to return in three weeks’ time when he left Great Britain, the First-tier Tribunal made no finding as to whether the claimant’s intention changed (and if so, when), and it said nothing about when he was ‘expected’ to return (to the extent that that might be different from when he ‘intended’ to return). It said only that it ‘had no reason to doubt that [the claimant] had intended to return after three weeks but that this was prevented by coronavirus travel restrictions’ (paragraph [33] of its statement of reasons). The claimant didn’t contact the universal credit team until 26 July 2021 (after the end of the assessment period beginning on 29 May 2021).

In the absence of a finding of fact that the claimant’s intentions had changed in the period up to 28 June 2021, or any finding that his absence was otherwise ‘expected’ to exceed one month (and the date on which that ‘expectation’ arose), the First-tier Tribunal was bound to find that the claimant’s absence from Great Britain in the assessment period beginning on 29 May 2021 was to be disregarded under Regulation 11(1) of the Universal Credit Regulations 2013.

The First-tier Tribunal was therefore wrong to decide otherwise, and it was therefore also wrong to find that the claimant had received an overpayment in respect of that period. This was in error of law and the error was clearly material.

This case concerns the basic condition of entitlement for universal credit that the claimant be presented in Great Britain: section 4(1)(c) of the Welfare Reform Act 2012. Section 4(5)(b) provides for regulations to specify circumstances in which temporary absence from Great Britain may be disregarded. Regulation 11 of the Universal Credit Regulations 2013 (SI No 376) is made under that authority.

I have to decide the correct interpretation of regulation 11(1)(b)(i) as modified by regulation 11(2). This provides that an absence is disregarded if ‘the absence is not expected to exceed, and does not exceed, [two months]’.

Two different judges of the First-tier Tribunal have interpreted those words differently.

Version 1 The judge who heard the claimant’s appeal read them as meaning that: an absence of up to two months is disregarded provided that it was not expected to exceed that period. This is the version supported by [the Secretary of State’s representative]. It was also the version supported by the different representative for the Secretary of State in AM.

Version 2 The judge who gave permission to appeal to the Upper Tribunal read the words as meaning: there is no disregard if the absence in fact lasts longer than two months.

AM dealt with the interrelation between regulation 11 and the supersession provisions. The judge decided that there had been no change of circumstances to justify a supersession (ending the claimant’s entitlement) in the assessment period during which the claimant left Great Britain. That assumed that any change that did occur would not take place until the following assessment period. That result is consistent with Version 1.

There is a different analysis. If Version 2 is right, there was no disregard at all as soon as the two months had expired without the claimant returning. The result would be that, retrospectively from the moment she left Great Britain, the claimant did not satisfy the basic condition of being in Great Britain. I therefore direct the Secretary of State to make a new submission explaining the basis on which the Secretary of State interprets the language of regulation 11(1)(b)(i). It is not obvious to me.

The Secretary of State respectfully submits that Version 1, and the decision in AM v Secretary of State for Work and Pensions [2024] UKUT 137 (AAC), are correct.

It helps to consider Versions 1 and 2 by reference to the simplest scenario for which reg 11 provides: where an absence was originally expected not to exceed one month, but did exceed one month, and there is no ground for an extension (reg 11(2)) or longer absence (reg 11(3) or (4)). In this scenario it is only the text of reg 11(1) that is relevant. And in this scenario:

Version 1 is correct because the text of reg 11(1) is anchored to the present tense. An absence is disregarded in determining whether a person is in Great Britain if the absence is not expected to exceed, and does not exceed, one month. The use of the present tense on four occasions illustrates that the application of reg 11(1) is determined on a point-in-time basis. Universal credit is, after all, designed to address a person’s current needs.

The words ‘is disregarded in determining’ reinforce this by directing attention to the status of a person’s absence at the point in time the decision-maker is applying reg 11. It is only after a person’s absence has unexpectedly exceeded one month that a decision-maker has reason not to disregard the absence. But until that point, the absence was correctly disregarded.

Take the following example. A person departs Great Britain for a two-week holiday in Turkey. On the fifth day of the holiday they satisfy reg 11(1). Their absence has not exceeded one month and it is not expected to exceed one month. On the eleventh day of the holiday, the person becomes injured and needs to delay their return by 12 weeks. From that moment the holiday is expected to exceed one month, and reg 11(1) ceases to be available. But there is no retrospective effect upon the earlier ten days of the absence. On each of those days it was correct to say that (a) the absence did not exceed one month and (b) that it was not expected to exceed one month.

Version 2 could have significant adverse consequences for a claimant. Take the example of a claimant who travels overseas for medical treatment (reg 11(3)). If the claimant’s absence unexpectedly and unavoidably exceeds six months, even if only marginally, Version 2 causes them to face an overpayment of six months’ worth of universal credit. The text of reg 11 should be interpreted in a way that avoids such results since it is not the policy intent, and Parliament would generally not approve, that regulations should retrospectively remove an established entitlement. In fact, for the reasons set out above, such an interpretation (Version 1) is the better interpretation even on a literal reading of the text.

The Secretary of State is, in another case presently before the Upper Tribunal, inviting the Tribunal to overturn a decision of the First-tier Tribunal to the extent that the decision adopted the Version 2 interpretation: KK v Secretary of State for Work and Pensions UA-2024-000647-USTA.

Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated: