Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 340 (AAC)

Fecha: 28-Oct-2024

Interpretation Two: disallowance as penalty for failing to comply with a request for evidence

28.

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”.

29.

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:

Evidence and information in connection with a claim

37.—(1) Subject to regulation 8 of the Personal Independence Payment Regulations, paragraphs (2) and (3) apply to a person who makes a claim for benefit, other than a jobseeker's allowance, or on whose behalf a claim is made.

(2)

The Secretary of State may require the person to supply information or evidence in connection with the claim, or any question arising out of it, as the Secretary of State considers appropriate.

(3)

The person must supply the Secretary of State with the information or evidence in such manner as the Secretary of State determines within one month of first being required to do so or such longer period as the Secretary of State considers reasonable.

30.

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.

31.

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

… It is not in itself a ground of disentitlement to income support that a claimant has failed to provide sufficient evidence to support his claim. But the result of such a failure will be that he fails to prove some essential element of entitlement. That, in a sense, is the sanction behind regulation 7(1) of the Claims and Payments Regulations. The adjudication officer and appeal tribunals must consider the essential elements of entitlement directly. That, in my view, is what the Commissioner meant in paragraph 13 of R(SB) 29/83 when he said that the benefit officer must give a decision on a claim. He goes on to refer to this being “the only fair way to bring in issue a question as to whether or not a benefit officer has sufficient information and whether, having regard to the information which he has, the decision he has given is correct”. But that passage does not suggest that a claim can be disallowed on the independent ground of insufficiency of information. The essential elements of entitlement must be considered directly in the light of the evidence available and the burden of proof on the claimant.

32.

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.”

33.

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.