P.H.C. v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge who considered this appeal on 14 September 2022.

If the Appellant has any further written evidence to put before the new First-tier Tribunal, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (i.e. 25 February 2022).

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The Upper Tribunal office should ensure that a copy of the Appellant’s e-mail to the Upper Tribunal adminappeals e-mail address and dated 26 January 2024 (timed at 11:51:53) (with attachments) should be sent to the Secretary of State’s representative and to the First-tier Tribunal.

Within one month of the date of issue of this decision, the Secretary of State’s representative should provide the First-tier Tribunal with a further supplementary submission dealing with the significance of the further evidence referred to in Direction 5 above.

This is a case about establishing a claimant’s identity (and that of her children) for the purposes of making a claim for Universal Credit (UC).

This appeal is a further example of the occasional gap (some might say the occasional chasm) between what the law says on the one hand about the adjudication of claims for benefit and how the Department for Work and Pensions (DWP) actually operates its decision-making arrangements on the other.

The claimant in this appeal was (or so it appears) previously known by a name which gave her the initials HCU. The claimant is now known by a different name which gives her the initials PHC. The initial ‘H’ stands for the same forename in both instances, while the initial ‘C’ stands for different names. I use her initials (whether previously HCU or more latterly PHC) to preserve the claimant’s privacy.

In this decision (unless quoting directly from documents in the appeal bundle) I refer to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (SI 2013/380) by way of shorthand as the ‘UC etc (Claims and Payments) Regulations 2013’. Likewise the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381) are referred to as the ‘UC etc (Decisions and Appeals) Regulations 2013’.

PHC requests an oral hearing of her Upper Tribunal appeal as a means of proving her existence and her identity. The Secretary of State’s representative (who supports the appeal to the Upper Tribunal) does not request an oral hearing.

I have concluded that it is fair and just to determine this appeal ‘on the papers’. However, and as a result of my decision, PHC will have the opportunity to attend an oral hearing of her substantive appeal before a new First-tier Tribunal. That is the appropriate forum for the further fact-finding that is necessary in this case.

On 8 November 2021 PHC made a claim for UC for herself and her four children. It appears (at least from the UC journal entries) that she completed all the relevant parts of the online UC claim form. Somewhat confusingly, PHC also made the following entry in her UC journal: “There have been changes to my identity from [PHCC] to [PHCU]”. Having said that, the extra ‘C’ in ‘PHCC’ was the same as the ’C’ in ‘HCU’ and the ‘P’ in ‘PHCU’ was the same as the ‘P’ in ‘PHC’.

The following month PHC attended an identity appointment but, according to the DWP at least, failed to provide the required identification at that interview. On 5 January 2022 the following further exchange took place in her UC journal about the identity of her children. The DWP sent PHC a message in these terms:

PHC replied as follows:

The DWP assert that no such deed poll evidence was uploaded. In any event it is not immediately obvious why difficulties over the children’s schooling should have prevented proof of their identity by some other means (e.g. birth certificates or HMRC child benefit decision letters).

On 25 February 2022 the DWP ‘closed’ her claim. According to the official entry in her UC journal, the reason for the closure was “The claimant failed to provide evidence”. PHC applied unsuccessfully for mandatory reconsideration and then lodged an appeal with the First-tier Tribunal (FTT) against the decision dated 25 February 2022.

The DWP’s written response to the appeal before the FTT characterised the decision under appeal in the following terms:

The DWP’s response to the appeal also sought to justify the decision in question in the following way:

On 14 September 2022 the FTT confirmed the DWP’s decision dated 25 February 2022 and so refused PHC’s appeal. The FTT’s statement of reasons gave the following explanation (the text within square brackets is as it appears in the original):

Presumably in the first sentence we are meant to read “the appellant is required to provide” in place of “the appellant is requested to provide” such evidence. More seriously, and putting to one side for a moment the question as to whether they are indeed applicable, the statutory references in the square brackets appear to be somewhat garbled. Those in the first set of square brackets should be to regulation 38 of the UC etc (Claims and Payments) Regulations 2013 and regulation 45 of the UC etc (Decisions and Appeals) Regulations 2013. The second citation should be to regulation 47 of the UC etc (Decisions and Appeals) Regulations 2013.

On 16 October 2023 Upper Tribunal Judge Citron gave PHC permission to appeal to the Upper Tribunal, pointing out that, although the Department had the power to require provision of proof of identity, it was not itself a condition of entitlement to UC. Judge Citron further considered it was arguable that the FTT had accordingly lost sight of its task, namely to determine whether the Respondent’s decision to refuse the Appellant’s claim for UC was correct in law.

On 15 November 2023 Ms Emma Fernandes filed a written submission on behalf of the Secretary of State, supporting the Appellant’s appeal to the Upper Tribunal. On 26 January 2024 Deputy Upper Tribunal Judge Buley KC issued further and more detailed observations and directions on the appeal. In pursuance of those directions, Ms Jessica Cowan provided a very helpful supplementary submission on the appeal on behalf of the Secretary of State (dated 18 March 2024).

As Ms Cowan frankly acknowledged in her supplementary submission, “UC DMs [decision-makers] act in accordance with national operational procedures, or more local practices, that tend not to concern themselves with their statutory basis, which tends to lead to decisions that do not refer to statutory provisions or concepts.” And, one might add, such an approach also tends to lead to decisions that, if they do refer to statutory provisions or concepts at all, they often refer to the wrong ones. As a result, as another of the Secretary of State’s submission writers has observed in an earlier case, “any attempt to understand the legal nature of any given instance of ‘claim closure’ is obliged to have recourse to informed inference (or desperate guesswork)” (PP v Secretary of State for Work and Pensions [2020] UKUT 109 (AAC); [2020] AACR 25 at paragraph 8).The present appeal is a classic case in point.

Ms Cowan suggests that in the instant case there are (at least) five different ways in which the DWP decision-maker’s disallowance for the claimant’s failure to prove her identity might potentially be understood in terms of the applicable legal framework. Using her labels, they are as follows:

For those readers who are impatient for answers, I agree with Ms Cowan that Interpretation Five of this typology reflects the correct approach to questions of identity. Furthermore, my reasoning for the most part adopts Ms Cowan’s analysis

This appears to have been the approach taken by the DWP appeals submission writer at first instance. They sought to make sense of what had happened by stating in the response to the appeal that the Appellant’s claim had been closed “as per regulation 45” of the UC etc (Decisions and Appeals) Regulations 2013. However, for the following reasons this reading cannot be right.

So far as is material, regulation 45 of the UC etc (Decisions and Appeals) Regulations 2013 provides as follows:

There are two clear reasons why regulation 45 cannot apply in the present case.

The first reason is that, according to paragraph (1), regulation 49 applies only “where the Secretary of State requires information or evidence … in order to determine whether a decision awarding a benefit should be revised under section 9 of the 1998 Act or superseded under section 10 of that Act”. Yet there was no pre-existing decision in this case awarding benefit that was capable of revision or supersession.

The second reason is that the information or evidence has to be required from one of the categories of claimant listed in paragraph (2). However, PHC did not fall into any of the categories (a) to (e). The most promising might appear to be category (c) – “a person from whom the Secretary of State requires information or evidence under regulation 38(2) (evidence and information in connection with an award) of the Claims and Payments Regulations 2013” – but this provision is again predicated on there being an existing award of benefit that is susceptible to revision or supersession (see further below).

Regulation 47 of the UC etc (Decisions and Appeals) Regulations 2013 certainly provides for (as the heading puts it) “Termination for failure to furnish information or evidence” but this only comes into play where payment of benefit has been suspended under (amongst other provisions) regulation 45. If regulation 45 does not bite for the purposes of a suspension, then neither can regulation 47 bite by way of termination (see RA v Secretary of State for Work and Pensions (UC) [2024] UKUT 207 (AAC) at paragraph 25). Furthermore, and in any event, a decision to terminate under regulation 47 falls to be made by way of a supersession (see R(H) 4/08 at paragraphs 28-34), which again presupposes an existing decision.

It follows that regulations 45 and 47 of the UC etc (Decisions and Appeals) Regulations 2013 on suspension and termination cannot logically be invoked as a means of disallowing a new claim for benefit.

The DWP’s response to PHC’s appeal, as well as including regulations 45 and 47 of the UC etc (Decisions and Appeals) Regulations 2013, also set out the text of regulation 38 of the UC etc (Claims and Payments) Regulations 2013. However, as noted in relation to the previous interpretation, this provision is again predicated on there being an existing award of benefit that is susceptible to revision or supersession. Indeed, the heading to the regulation puts this beyond any doubt (emphasis added): “Evidence and information in connection with an award”.

The preceding regulation is on the face of it more in point. The heading to regulation 37 of the UC etc (Claims and Payments) Regulations 2013 is undoubtedly more promising (again, with emphasis added): “Evidence and information in connection with a claim”. So far as is material, regulation 37 provides as follows:

The DWP’s request that PHC provide evidence as to her identity (and that of her children) can readily be construed as having been made under regulation 37(2). Did her apparent or alleged failure to do so mean that her claim for UC fell to be disallowed by way of a penalty for such failure? There is nothing in regulation 37 (or elsewhere in either set of the relevant 2013 regulations) to suggest that a failure to comply with such a request leads automatically to a disallowance. However, the answer can be found in the case law.

Commissioner Mesher (as he then was) put it this way in R(IS) 4/93 (at paragraph 14):

Likewise, and as the Tribunal of Commissioners explained in R(H) 3/05 (at paragraph 79), “An administering authority is therefore required to inform a claimant of the information and evidence he should provide and it is for the claimant to supply such information or evidence as best he can. Where a claimant fails to provide information or evidence he can reasonably be expected to provide, there is no express sanction – but an inference may be taken against him and the case or the relevant issue may as a result be determined against him.”

It follows that a failure to provide evidence in response to a request under regulation 37 of the UC etc (Claims and Payments) Regulations 2013 is not, in and of itself, a sufficient reason for disallowing a claim for benefit.

Can a new claim for UC be automatically disallowed because it has not been made in the required manner? Version 1 of this approach is sketched out by Ms Cowan in her supplementary submission in the following terms (at paragraph 14):

However, I agree with Ms Cowan that on closer analysis this line of argument is unsustainable. The fact of the matter is that PHC went through all the steps in the official online UC claims process and was permitted to lodge her electronic claim. As Ms Cowan rightly observes, “In these circumstances, the argument that the ID interview is the paragraph 2(3)(a) approach method of authenticating identity in effect posits that the Secretary of State in practice permits the claimant to use the official electronic mechanism for making a claim and then afterwards decides whether or not the claimant is to be allowed to do what she has already been allowed to do. I submit that this is absurdly topsy-turvy” (at paragraph 15).

Indeed, it appears that the online UC claims process does not currently impose any requirement that a prospective claimant prove their identity. Furthermore, there is no evidence that PHC was asked to prove her identity before making her online claim. That being so, she was not required to use an approved method of authenticating her identity for the purposes of the condition of making an electronic claim (in paragraph 2(3)(a) of Schedule 2 to the UC etc (Claims and Payments) Regulations 2013). It necessarily follows that her subsequent failure to prove her identity to the Secretary of State’s satisfaction did not mean that she was not permitted to make such a claim. She had already successfully crossed that particular bridge.

This construction is consistent with the description by the Court of Appeal of the UC claims process and departmental post-claim procedures in R (Bui) v Secretary of State for Work and Pensions [2023] EWCA Civ 566 at paragraph 34 (emphasis added):

It follows that the ID check is not strictly part of the process of making a claim at all. Rather, it is part of the post-claim procedure for assessing whether the UC conditions of entitlement are met. There can be no question of a claimant being retrospectively denied the use of the online claim regime which they have already been allowed to use to lodge a claim. It follows that this version of an approach based on the claim not being made in the required manner cannot provide the answer as to the basis for a disallowance where the claimant’s identity has not been established.

There is an alternative possible variant of the approach which purports to disallow a new claim as not being made in the required manner. As noted in relation to Interpretation Three above, section 1(1)(a) of the Social Security Administration Act (SSAA) 1992 provides that a person shall not be entitled to benefit unless “he makes a claim for it in the manner … prescribed in relation to that benefit by regulations”. This requirement was considered by Upper Tribunal Judge Perez in ED v Secretary of State for Work and Pensions [2020] UKUT 352 (AAC) (‘ED v SSWP’), a case in which the claimant made a series of claims for benefit using a false (and indeed wholly fictitious) identity, which only came to light sometime later.

In discussing section 1(1)(a) of the SSAA 1992, Judge Perez suggested that as a general principle:

It might therefore be argued on this basis that a claimant’s failure to provide their real name on a benefit claim might constitute a failure to make “a claim for it in the manner … prescribed” and as such result in a disallowance. There are, however, at least three potential difficulties with such an analysis.

The first is that there are important differences on the facts as between the instant appeal and ED v SSWP. In the latter case it was (albeit belatedly) known that the claimant was not the (fictitious) person who she claimed to be. In contrast, in PHC’s case there was no evidence at all suggesting the claimant was someone else – at most it was a case of an alleged failure to provide supporting evidence to confirm her identity. There was no suggestion she was concealing her true identity and as such no basis for drawing an adverse inference to the effect that she was someone other than who she said she was. Furthermore, PHC’s case was about a new claim for benefit whereas ED v SSWP was about a revision of an award made on an existing claim.

The second difficulty is that Judge Perez’s observations in ED v SSWP on section 1(1)(a) as a ground for disallowance were somewhat tentative and were not strictly necessary for her decision. Primarily the judge relied upon section 1(1) of the SSAA 1992 (irrespective of section 1(1)(a)) or in the alternative section 1(1A) and 1(1B) (on which see further below) as the basis for finding that the claimant was not entitled to benefit. Notably counsel for the Secretary of State in that case did not seek to mount an argument for disallowance based exclusively on section 1(1)(a) (see paragraph 36) and Judge Perez was careful not to express a definitive view in the absence of full argument on the point (see paragraph 40).

That leads neatly to the third difficulty with this potential approach based on the claim not being in a required manner. The absence of full argument on the point in ED v SSWP meant that Judge Perez’s attention was not drawn to the decision of Commissioner Howell QC in CIS/51/2007, a case in which a claim had been rejected because the claimant had failed to provide proof of identity. That authority does not support the proposition that a claim form is only properly completed if the answers are accurate and truthful. As Commissioner Howell explained:

Accordingly, I agree with Ms Cowan’s submission that:

Those ‘well-established conceptions of decision making’ in the arena of benefits adjudication include the principles laid down in Kerr v Department for Social Development [2004] UKHL 23, not least Baroness Hale’s statement, following her review of the authorities, that:

I therefore agree with Ms Cowan’s submission that the idea that the factual accuracy of a claimant’s statement of their identity is relevant to whether a claim has been made in the prescribed manner for the purposes of section 1(1)(a) of the SSAA 1992 is fatally problematic. But that still leaves section 1(1A) and 1(1B) to be considered.

This interpretation is much more promising. Section 1(1), (1A) and (1B) of the SSAA 1992 (as amended by section 19 of the Social Security Administration (Fraud) Act 1997) provide as follows:

Section 1(1B) provides for three alternative conditions ((1B)(a)(i), (1B)(a)(ii) and (1B)(b)), each of which must be considered in turn. It is only where the claimant fails to meet all three tests that the entitlement condition in section 1(1A) is not satisfied.

This was the case in ED v SSWP, whereJudge Perez accepted the submission made on behalf of the Secretary of State that the claimant was disentitled from the outset of her claim(s) by virtue of section 1(1A) and (1B) (see paragraphs 54-64). I agree with Ms Cowan’s analysis at paragraph 32 of her supplementary submission:

Ms Cowan helpfully further submits as follows:

It follows that section 1(1A) and 1(1B) of the SSAA 1992 set out the correct approach to questions of a claimant’s identity in relation to new claims for UC (and most probably other benefits, although none are at issue in this appeal).

The position with regard to PHC’s children is not quite the same. In the first place regulation 5 of the UC etc (Claims and Payments) Regulations 2013 provides that section 1(1A) (and so by necessary extension section 1(1B)) “is not to apply to a child or qualifying young person in respect of whom universal credit is claimed”. The UC child element is then payable “for each child or qualifying young person for whom a claimant is responsible” (regulation 24(1) of the Universal Credit Regulations 2013 (SI 2013/376)). Assuming that PHC herself can satisfy section 1(1A), then entitlement to the child element under regulation 24 will depend on the Secretary of State being satisfied as to the existence and identity of any children. It is then for the claimant to prove the child’s existence and identity on the balance of probabilities, applying the principles set out in Kerr v Department for Social Development.

The FTT approached the appeal applying Interpretation Two from the five-fold typology above. In effect, it treated the claimant’s failure to comply with the requirement under regulation 37 of the UC etc (Claims and Payments) Regulations 2013 to provide identity evidence as sufficient reason in and of itself to disallow the claim. For the reasons above, that approach involved an error of law. The FTT should have tackled the appeal through the lens of section 1(1A) and (1B) of the SSAA 1992. I therefore allow PHC’s appeal, set aside the FTT’s decision dated 14 September 2022 and remit the appeal to be reheard by a fresh tribunal.

In her supplementary submission, Ms Cowan sets out an invaluable summary of the approach that the new FTT should adopt:

Ms Fernandes, in the original written submission on behalf of the Secretary of State, helpfully provided a checklist to assist the new FTT in its decision-making, namely to:

I would add that before addressing the issue identified in paragraph 56(a), the FTT should consider what information the Appellant did herself provide, and whether that information was itself sufficient to enable the Secretary of State to ascertain her NiNo. On the face of it at least she appears to have provided her NiNo with her mandatory reconsideration request (see paragraph 59 below).

The District Tribunal Judge will doubtless wish to consider whether to make more specific case management directions. It will doubtless also be in her own best interests that PHC herself should comply with any such directions as and when they are issued. I make the following further observations in the hope they may be of assistance.

The DWP response to PHC’s original appeal to the FTT included on the cover page a NiNo starting with the letters ‘SG’ (which I refer to here as the ‘SG NiNo’). According to Ms Cowan, the SG NiNo was allocated to a person known as HCU on 2 March 2006. As such, she contends, that SG NiNo would not have been traceable using the surname which the Appellant gave when (now) describing herself as PHC. Ms Cowan adds that at the time of the UC claim the decision-maker did not know about the SG NiNo. However, in the absence of the full UC claim form from the FTT appeal bundle it is not clear whether PHC did in fact refer to the SG NiNo at the time of her original claim. What appears to be beyond any doubt is that in her request for mandatory reconsideration (her letter dated 4 March 2022) PHC certainly and expressly cited the SG NiNo by way of a case reference.

PHC subsequently provided the Upper Tribunal with further evidence, notably by way of various attachments to an e-mail dated 26 January 2024 (timed at 11:51:53). It is not clear from the electronic file whether this evidence was copied by the Upper Tribunal office to the Secretary of State’s representative. Be that as it may, I direct that a copy of this e-mail (with its multiple attachments) should be forwarded by the Upper Tribunal office to both the Secretary of State’s representative and the relevant FTT office. This evidence includes copies of the following:

It may well be that the new FTT takes the view that on the basis of this evidence it can be satisfied on the balance of probabilities that PHC meets the requirements of section 1(1A) and (1B) of the SSAA 1992. However, that is ultimately a question of fact for the new tribunal to determine. In the meantime, I direct the Secretary of State’s representative to provide a further supplementary submission for the FTT dealing with the significance of this further evidence.

Meanwhile PHC would be well advised to gather together any further relevant evidence to assist in confirming both her own identity and that of each of her four children. This will obviously include any formal legal documentation (e.g. passports, birth certificates, driving licences and deed polls). It could also include other official documentation (e.g. correspondence from HMRC (about tax credits and/or child benefit), GPs, hospitals, schools and financial institutions such as banks) and any further documentation which goes to show that she was HCU, and she is now PHC, and that they are one and the same person, and that she has four children as she states.

I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.