Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 330 (AAC)

Fecha: 07-Oct-2024

The actual issue in the case

The actual issue in the case

17.

The Secretary of State’s representative in these proceedings has helpfully provided a copy of an extract from the Appellant’s UC journal for the period from 2 May 2024 to 4 June 2024. This had not been provided to the FTT. It sheds light on the “policy issue” at the centre of this dispute. The first three exchanges in a sequence of communications about the Appellant’s housing costs are recorded as follows.

18.

First, on 2 May 2024 the Appellant added a note to his UC journal to the effect that “I wish to notify the DWP that I would like to make a mandatory reconsideration for this month's (April) universal credit housing element.”

19.

Second, on 4 May 2024 the DWP responded with its own journal entry as follows:

I have looked at your housing and can see that your landlord confirmed that your rent is £168.02 per week and that you have 4 rent free weeks per year. As universal credit is paid on a calendar month basis please see below how your housing element is calculated. £168.02 x 48 divided by 12=£672.08, this is the maximum amount of housing element we can issue, however you also have a bedroom that is not occupied so universal credit would not pay for the this room, so there is a deduction due to having a spare bedroom. You have mentioned a mandatory reconsideration, we would not be able to raise this as the way your housing costs are calculated is set out by the government and is not something we can change as this is policy.

20.

Third, on 5 May 2024 the Appellant replied as follows:

Thank you for your reply to my request. The calculation you outline is claimed to be Government policy or should you mean the legislation. The current legislation for how to calculate the amount of rent to award is as follows: Universal Credit Regulations 2013 Schedule 4 Part 3 Paragraph 7 Link to above: (https://www.legislation.gov.uk/uksi/2013/376/schedule/4/ paragraph/7) What is been disputed and why I need to raise a mandatory reconsideration is quite simply the DWP has not applied this regulation correctly. In your and the original calculation it uses the instructions set out in 7(2) of the above regulation, equivalent monthly rent. Whereas the correct instructions that should be applied are set out in 7(1), as the monthly rent is known by way of being notified by my journal well in advance of the calculation.

21.

The remaining journal entries (at least as far as they are relevant) seem to be the Appellant and various DWP staff simply re-stating their respective positions on the correct method of calculating the claimant’s housing costs for the month of April 2024. As the Appellant observed in his entry on 9 May 2024, “we are just going around in circles at the moment”. The entries conclude with the response by Angela B on 4 June 2024, referred to above.

22.

The Appellant’s substantive appeal therefore turns on the proper construction of paragraph 7 of Schedule 4 to the Universal Credit Regulations 2013 (SI 2013/376). This provides as follows (as amended):

Relevant payments calculated monthly

—(1) Where any relevant payment is to be taken into account under paragraph 6, the amount of that payment is to be calculated as a monthly amount.

(2)

Where the period in respect of which a renter is liable to make a relevant payment is not a month, an amount is to be calculated as the monthly equivalent, so for example—

(a)

weekly payments are multiplied by 52 and divided by 12;

(aa) two-weekly payments are multiplied by 26 and divided by 12;

(b)

four-weekly payments are multiplied by 13 and divided by 12;

(c)

three-monthly payments are multiplied by 4 and divided by 12; and

(d)

annual payments are divided by 12.

(3)

Where a renter is liable for relevant payments under arrangements that provide for one or more rent free periods, subject to sub-paragraph (3A), the monthly equivalent is to be calculated over 12 months by reference to the total number of relevant payments which the renter is liable to make in that 12 month period.

(3A) Where sub-paragraph (3) applies and the relevant payments in question are—

(a)

weekly payments, the total number of weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—

52 ― RFP;

(b)

two-weekly payments, the total number of two-weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—

26 ― RFP;

(c)

four-weekly payments, the total number of four-weekly payments which the renter is liable to make in any 12 month period shall be calculated by reference to the formula—

13 ― RFP;

where “RFP” is the number of rent free periods in the 12 month period in question.

(4)

“Rent free period” means any period in respect of which the renter has no liability to make one or more of the relevant payments which are to be taken into account under paragraph 6.

23.

In summary, it appears that the Appellant’s case is that he falls within paragraph 7(1), whereas the Department’s argument is that he is covered by paragraph 7(2) (and, so far as is necessary, paragraphs 7(3), (3A) and (4)). However, for the purpose of the present proceedings I need not resolve that issue, not least as the relevant facts still need to be found and I have not had the benefit of full argument on the point at issue. I simply make two observations in that context.

24.

The first is that it may be necessary to distinguish between (a) the period of time in respect of which there is a liability under the tenancy to make rental payments (e.g. weekly or monthly) and (b) the practical arrangements that are put in place to meet that liability. Thus, for example, a tenant may be contractually liable to pay rent weekly but (e.g. for reasons of convenience) that liability may be discharged according to a monthly schedule of payments.

25.

The second is that the new FTT to which the appeal is being remitted may also find assistance in the decision of the High Court in R (Caine) v Secretary of State for Work and Pensions [2020] EWHC 2482 (Admin). In that case Mr Justice Julian Knowles rejected a challenge to the statutory formulae for converting weekly to monthly amounts.