[2023] UKUT 288 (AAC)

In the light of its conclusion on the previous question, the FTT found that the claimant “should have made an application for ESA on 10/12/2019 and therefore directs that the Secretary of State re-assesses [the claimant] for an award of ESA from 10/12/2019.” The FTT cited no further authority for this proposition.

This is where the FTT erred in law. It is a precondition of entitlement to benefit that a claimant makes a claim (see section 1 of the Social Security Administration Act 1992). Following his release from custody in December 2019, the claimant did not make a fresh claim for IRESA. Nor did he make an ESA claim at any time thereafter, although he tried to argue his now terminated ESA claim should be revived. Indeed, the claimant had been advised by Jobcentre staff to make a claim for UC, which is what he did. There are therefore at least two difficulties with the solution adopted by the FTT, i.e. directing the Secretary of State to treat the claimant’s UC application as a claim in the alternative for IRESA.

First, the fact is that by 12 December 2018 the UC regime had been ‘rolled out’ across the whole of the United Kingdom. A series of Commencement Orders made under the Welfare Reform Act 2012 in effect abolished legacy benefits in designated geographic areas, subject to some very narrowly defined exceptions, which do not arise on the present facts. The net result is that no further new awards of legacy benefits could be made after that date. This is an illustration of what is sometimes known as the ‘lobster pot principle’ – once a claim for UC has been made, there is no going back to a legacy benefit.

Secondly, there is, moreover, no lawful basis on which the claimant’s claim for UC can be transformed into a claim for IRESA. Regulation 9 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), when read with Schedule 1, allows for the interchange of certain claims for specified benefits. However, a claim for UC is not listed as being a claim which may be treated as a claim for any other benefit, let alone a claim for IRESA. The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381), which govern UC decision-making, include no equivalent provisions to Schedule 1. This is hardly surprising given that UC is designed (subject to exceptions which do not matter for present purposes) to be the sole mean-tested social security benefit going forward for people of working age.