[2024] UKUT 340 (AAC)

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.