Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 196 (AAC)

Fecha: 08-Jul-2024

Ground 1: the 2019 claim for universal credit

20.

The Appellant argued that she had first made a claim for universal credit in 2019. The FTT addressed this issue as follows in its statement of reasons:

14.

I considered whether the Tribunal had jurisdiction to consider Miss R’s appeal as far back as 2019 when she first approached the job centre. I find that the Tribunal had no such jurisdiction. Ultimately it is for social security claimants to make sure that they lodge formal claims for the benefit they consider themselves entitled to. If a claim is made then the Secretary of State can make a decision which carries appeal rights (including the right for a mandatory reconsideration and recourse to the First-tier Tribunal). There are numerate free advice agencies that help individuals to do this, which Miss R could have availed herself of, should she have chosen to do so. Even if Miss R was in receipt of poor advice from DWP staff, ultimately it was up to her to seek independent advice and lodge a claim. Miss R acknowledges, and in my view the evidence demonstrates that she did not do this. In my view Miss R’s explanation of why she did not make a claim throughout 2019 did not reveal any good reason to depart from this principle.

15.

As such, in my view the Tribunal was limited in its jurisdiction to consideration of Miss R’s appeal as it stood against the Decision of 27 December 2020 which had been reconsidered and not changed.

21.

The Secretary of State’s representative now accepts that the FTT’s decision involves an error of law in at least one respect. It is true that the FTT bundle did not include a copy of any decision made on a universal credit claim made by Miss R in 2019. However, there was DWP correspondence on file which confirmed that Miss R had indeed made a claim for universal credit on 20 May 2019 (see paragraphs 8 and 9 above). To that extent at least, the FTT made a decision which was not supported by the evidence and so was in error of law.

22.

The DWP correspondence in question asserted that “As such you were not entitled to UC, and your claim was closed” (letter dated 25 September 2021, FTT bundle Addition A Page 1). However, as I observed in PP v Secretary of State for Work and Pensions (UC) [2020] UKUT 109 (AAC):

… The concept of “case closure” is jurisprudentially highly suspect. Over the years the former Social Security Commissioners and now the Upper Tribunal Judges have done their best to try and eliminate this usage (see CJSA/2327/2001 at paragraph 12 and CE/747/2017 at paragraph 4).

Unfortunately, the notion of case closure, so beloved of frontline benefits administrators, has proven resistant to all such judicial attempts at erasure. As the written submission by the Secretary of State’s representative on the present appeal frankly concedes: “On the contrary, [the DWP’s] training material and operational guidance for the new benefit ubiquitously describe both the termination of an award and any disposal of a claim as the ‘closing’ of a ‘claim’. As a result, any attempt to understand the legal nature of any given instance of ‘claim closure’ is obliged to have recourse to informed inference (or desperate guesswork).”

23.

So, the DWP decision-maker was wrong to talk about the case being “closed” – a concept which does not appear in the Social Security Act 1998 or the Universal Credit etc. (Decisions and Appeals) Regulations 2013 (SI 2013/381) – and apparently to act in a way which may have effectively denied Miss R the right of appeal at the time in 2019. The FTT was also wrong to find that she had not made a claim for universal credit in 2019.

24.

However, none of this assists the Appellant in the final analysis. This is because the FTT’s error was not material to the outcome of the appeal. The FTT had in any event made a clear and indisputable finding of fact that Miss R was in possession of capital in excess of £16,000 in 2019 and as such was therefore excluded from entitlement to universal credit (see regulation 18(1) of the Universal Credit Regulations 2013). So, even if the DWP had both followed the correct notification procedures and given accurate advice, and even if Miss R had applied in time for a mandatory reconsideration of the decision on the claim dated 20 May 2019 and then lodged an appeal, the outcome would have been no different. The FTT’s error was thus immaterial.