PR v Secretary of State for Work and Pensions & Anor

The FTT was concerned with the Appellant’s appeal against the Council’s decision of 28 February 2020 revising its earlier decision on HB Claim 2. The FTT decided the Council was correct to have backdated her entitlement to 17 June 2019 on the basis of regulation 83(12) and (12A) of the Housing Benefit Regulations 2006 (SI 2006/213). The Appellant’s case is that backdating to 16 January 2019 was required by virtue of regulation 83(5)(a) of the Housing Benefit Regulations 2006. The analysis that follows considers both of these routes. Finally, there is a separate point about whether there is a still undetermined claim for housing benefit from October 2018 which would permit backdating to the date the Severe Disability Gateway opened.

Regulation 83 deals with the “Time and manner in which claims are to be made” for housing benefit. In backdating the Appellant’s HB Claim 2 (of 10 July 2019) by one month the Council was relying on regulation 83(12) and (12A):

Backdating HB Claim 2 by one month meant that the Appellant’s actual entitlement to housing benefit started from 17 June 2019, being the Monday following the date of claim (regulation 76(1) of the Housing Benefit Regulations 2006; and see definition of “benefit week” in regulation 2(1)).

The Secretary of State’s representative states that HB Claim 3 (on 14 January 2020) should have been treated as a new claim, rather than the Council revising its decision on HB Claim 2 (on 10 July 2019). If that is right, then presumably entitlement to housing benefit should only have commenced from a date in December 2019, applying regulation 83(12) and (12A). However, the Secretary of State’s representative makes this point more by way of assertion than argument, and cites no authority for the proposed alternative course of decision-making action. The explanation provided by the Council (see paragraph 27 above) is preferable, namely “At the same time [i.e. at the same time as making the award on HB Claim 3], we treated her application as an out of time request for a reconsideration of the decision made on 11 July 2019.” Thus, a request for an “any grounds” revision should normally be made within one month of the notification of the decision in question (regulation 4(1)(a) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002), regulation 4(1)(a)). An out of time request can be made where it is reasonable to grant the application and special circumstances meant that it was not practicable to apply for a revision within the time limit. The Appellant’s case could justifiably be seen as meeting those criteria as well as having intrinsic merit (Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, regulation 5).

Finally, on this aspect of the appeal, I note in passing that the one month time limit for backdating housing benefit claims is a relatively recent restriction. Until April 1, 2016, the maximum period allowed under regulation 83 was six months (see the change made by regulation 3 of the Housing Benefit (Abolition of the Family Premium and date of claim) (Amendment) Regulations 2015 (SI 2015/1857)). If that change had never been made in 2015, then in all likelihood the Council would have been able to treat the Appellant’s claim as having been made on 16 January 2019, so as to take full advantage of the Severe Disability Gateway. But it was not to be so.

Be all that as it may, and subject to the discussion of regulation 83(5)(a) that follows, the preceding analysis means that the FTT did not err in law in upholding the Council’s decision to backdate entitlement under HB Claim 2 by one month to 17 June 2019.

However, Mr Bradley for the Appellant submits that there is another basis on which her claim can be treated as being made on 16 January 2019. This submission turns on regulation 83(5)(a) of the 2006 Regulations, which provides as follows (regulation 83(10) concerns advance claims and does not arise on the facts here):

Mr Bradley put the argument in his original letter of appeal to the Council on behalf of the Appellant thus: “she claimed HB within one month of being awarded income-related employment and support allowance (IRESA) and regulation 83(5)(a) of the Housing Benefit Regulations 2006 provides for the date of claim for HB in such cases to be the first date of entitlement to IRESA.” He further developed the submission in this way:

In his written submission to the FTT, Mr Bradley argued that his letter of 5 December 2019 to the DWP (see paragraph 21 above) was a claim for IRESA and moreover that the Appellant had registered her intention to make a claim for housing benefit within one month of that letter (see paragraph 23 above), so satisfying the terms of regulation 83(5)(a).

The Council, in its reconsideration letter, rejected this reading of regulation 83(5)(a):

The FTT dealt somewhat briskly with this aspect of Mr Bradley’s submissions, ruling that “the wording of Regulation 83(5)(a) is clear in terms of the claim for HB being made within one month of the claim for ESA being received at the appropriate DWP office. [The Appellant] was not making a new claim for ESA” (paragraph [11]). Clearly, the FTT was both accepting and echoing the Council’s argument as to the proper construction of regulation 83(5)(a).

The Appellant’s grounds of appeal to the Upper Tribunal were twofold. The first and primary ground was that the FTT had misdirected itself in holding that regulation 83(5)(a) required a new claim for ESA to be made. Mr Bradley argued that the insertion of the word “new” added a requirement not provided for in the regulation. In support of this submission, he noted that “the definition of a ‘claim to benefit’ as provided for in Regulation 2(1) of the Social Security (Claims and Payments) Regulations 1987 includes “an application for a revision under section 9 of the Social Security Act 1998 or a supersession under section 10 of that Act of a decision for the purpose of obtaining any increase of benefit, but does not include any other application for a revision or a supersession of a decision”.” The second ground of appeal was that the FTT had failed to provide adequate reasons for its decision.

As for the first ground, and entirely unbeknownst to Mr Bradley – and for reasons that will become apparent, no criticism whatsoever should be directed towards him – he has inadvertently misquoted regulation 2(1)(c) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968). The true text of limb (c) of the definition of “claim for benefit” as it stood at the material time and as it now stands reads as follows:

“claim for benefit” includes–

…

(c)

an application for a revision under section 9 of the Social Security Act 1998 or a supersession under section 10 of that Act of a decision for the purpose of obtaining any increase of benefit in respect of a child or adult dependant under the Social Security Act 1975 or an increase in disablement benefit under section 60 (special hardship), 61 (constant attendance), 62 (hospital treatment allowance) or 63 (exceptionally severe disablement) of the Social Security Act 1975, but does not include any other application for a revision or a supersession of a decision;

The text that is underlined in the extract above (and inadvertently missing from Mr Bradley’s version) was inserted by regulation 9 of the Social Security (Miscellaneous Provisions) Amendment Regulations 1992 (SI 1992/247) with effect from March 9, 1992. Its effect was to limit the scope of claims for increases to benefit within the definition of a “claim for benefit” to claims for adult and child dependency increases and certain increases relevant to industrial disablement benefit. It follows that the definition does not include an application for an increase by way of a premium in a means-tested benefit (such as the severe disability premium) to be added to an award,

The reason for Mr Bradley’s inadvertent misquoting is as follows. His grounds of appeal, making the point about regulation 2(1)(c), were drafted in March 2021. He presumably (and not unreasonably) relied upon the text of regulation 2(1)(c) as found at that time on the legislation.gov.uk website. However, as Mrs Gratrex (one of the DWP officials acting for the Secretary of State in the instant appeal) reports, the official website was misleading, She explains thus: “Unfortunately at some point in 2020 when converting from pdf to the online published version, the legislation.gov.uk site omitted the 1992 changes … The site has now been corrected to restore the 1992 amendments.”

It is with some embarrassment – given that I am General Editor of the annotated Social Security Legislation series – that I have noted that something has also gone amiss with the text of regulation 2(1)(c) reproduced in Volume III of that series at p.384 of the 2022/23 edition. This is, however, a different type of error. That text includes the 1992 amendments, but appears to duplicate an amendment to the regulation made in 1999. It will be corrected in the next edition.

The short point underpinning all this is that the central premise of Mr Bradley’s argument on the definition of a “claim for benefit” in regulation 2(1)(c) of the 1987 Regulations does not assist him. On 5 December 2019 he was not making a claim on the Appellant’s behalf for one of the designated increases of benefit encompassed within regulation 2(1)(c). Moreover, that definition “does not include any other application for a revision or a supersession of a decision” within its scope.

That being so, the request on 5 December 2019 to amend the Appellant’s ESA claim was not itself a claim for benefit for the purposes of regulation 83(5)(a), so shutting off this route to backdating entitlement to housing benefit.

As to the second ground of appeal, I accept that the FTT’s reasoning is somewhat truncated. However, if it was inadequate, it was not material to the outcome of the appeal.

The Appellant’s representative raises a new point in the course of the reply to the Respondents’ written responses. Reference is made to a form included in the FTT appeal bundle headed “Claim for Housing Benefit/Council Tax Reduction Scheme”, which was signed and dated by the Appellant on 22 October 2018. Mr Bradley further points to a decision letter from the Council (dated a week later on 29 October 2018) regarding the Appellant’s entitlement to Council Tax Reduction. He argues that this meant, at least by inference, that there was an outstanding and still undetermined claim for housing benefit. It is further submitted that a decision on the housing benefit claim should now be determined (obviously after the Severe Disability Gateway opened on 16 January 2019) which would allow for housing benefit to be paid from that date.

The Council’s response is that the form in question dated 22 October 2018 was not a claim for housing benefit but rather a notification of the Appellant’s new circumstances for the purposes of her existing Council Tax Reduction claim.

The Council’s arguments are compelling, not least as the Appellant had ticked the “Change in Circumstances” box rather than the “New Claim” box on the form. She had also asked for her claim to be effective from the date her Council Tax Reduction had been suspended. In addition, the Appellant gave no details on the form of either the rental liability or an account to which benefit might be paid, in both cases being information which would have been only relevant to a housing benefit claim. These omissions were entirely consistent with the form being only concerned with Council Tax Reduction.

Moreover, it is trite law that whether a document amounts to a claim is a question of substance not form. As Arden LJ (as she then was) ruled, “it is now well-established that the meaning of documents should be ascertained in the light of the relevant surrounding facts (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896) (see Novitskaya v London Borough of Brent (SSWP intervening) [2009] EWCA Civ 1260; [2010] AACR 6 at [19]). On any sensible and fair construction the form in question was a notification of a change of circumstances for the purposes of an existing claim to Council Tax Reduction and not a fresh claim for housing benefit,

Finally, and in any event, this is all academic. The Upper Tribunal has no jurisdiction in this matter. The status of the claim form in question was not in issue before the FTT and equally is not a live issue in the Upper Tribunal appeal.

It is not difficult to feel considerable sympathy for the Appellant’s predicament in this case. The only reason that she was unable to make a claim for housing benefit in January 2019 at the time the Severe Disability Gateway was introduced was because at that point she did not have an extant award of the severe disability premium in her ESA award. This was so notwithstanding the facts that (a) she had previously had the benefit of such an award; and (b) her entitlement to the premium was both reinstated and backdated following her successful PIP appeal to a tribunal in December 2019. However, on these facts regulation 83 of the Housing Benefit Regulations 2006 limits backdating of housing benefit to one month on any claim made after the advent of the Severe Disability Gateway. There appears to be no other transitional provision (e.g. in the TP Regulations) that can be deployed to accommodate such a case. It is unclear whether the Appellant’s circumstances are such that a claim to the DWP for an ex gratia payment would be considered, but such matters in any event lie outside the Upper Tribunal’s jurisdiction.

I therefore conclude that the decision of the First-tier Tribunal involves no error of law. I therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). My decision is also as set out above.