Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 340 (AAC)

Fecha: 28-Oct-2024

Interpretation Three: claim not in the required manner (version 1)

34.

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):

Section 1(1) of the Social Security Administration Act 1992 makes it a condition of entitlement that a claim to be made in the manner stipulated in regulations. One of the ways in which the regulations allow a claim for UC to be made is electronically. However, a person may only use an electronic communication to claim UC if the conditions of paragraph 2 of Schedule 2 to the Claims and Payments Regulations are satisfied. One of those conditions is that “the person uses an approved method of [...] authenticating the identity of the sender of the communication where required to do so” (paragraph 2(3)(a)). It might be argued that the ID interview precisely was the approved method of authenticating her identity for this purpose. It would follow that if the claimant did not authenticate her identity in this way, she was not allowed to claim electronically and therefore had not claimed in the manner the regulations stipulate.

35.

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).

36.

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.

37.

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):

… Claims for UC are now made by completing an online application form. This contains no questions about NINos as such, but it does require the claimant to give personal details such as their name, date of birth and address. The next step is for the DWP to ascertain if the claimant meets the eligibility requirements under the WRA 2012. This involves a check on their identity, described in the evidence as "verifying their identity to UC standards", and also confirming that they are habitually resident. As part of this process the claimant may be asked to provide proof of identity such as a passport…

38.

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.