[2025] UKUT 344 (AAC)

First-tier Tribunals operate under great pressure, and I have already noted the care taken by the tribunal in preparing a detailed statement of reasons in addition to a reasoned decision notice. The provisions of the 2001 regulations, particularly regulation 13, are notoriously difficult to follow and have been criticised in previous Social Security Commissioners’ and Upper Tribunal decisions. The position in this case is further complicated by the transition from HB to universal credit. But I do not think the tribunal succeeded in teasing out the various legal issues, with the result that its decision involved an error of law.

The tribunal’s proposition at paragraph 60 of the statement of reasons: seems to be that either at the time of, or by virtue of, the decision of 21 February the claimant had no continuing entitlement to HB. This seems to be based on the fact that in the period between her moves the claimant had no entitlement to HB, from which the tribunal reasons that she had to make a new claim (which had to be for universal credit because of the Transitional Provisions Regulations). The tribunal does not appear to rely on regulation 14 of the 2001 Regulations, but I shall have to deal with that provision later.

Paragraphs 60 and 61 of the statement of reasons add the fact that the claimant had not informed the council of her renewed entitlement. It is not entirely clear whether the tribunal’s reasoning was based purely on the fact of a gap in entitlement, meaning that the claimant had to make a new claim and was then caught by the Transitional Provisions Regulations, or whether the problem lay in her failure to tell the council about her new entitlement, causing the council to terminate her claim. But in any event I do not consider that the reasoning was correct in law.

The fact that the council had issued a termination decision is not determinative. The council’s decision of 21 February 2023 (as revised on 20 April 2023) was the subject of the appeal to the First-tier Tribunal, which had the power to change it if the law required a different decision. The issue is whether the correct decision was the closed period supersession decision for which the claimant had argued, or whether such a decision was prevented by anything in the law governing closed period supersessions or in the 2001 Regulations or the Transitional Provisions Regulations.

I have concluded that as at the date of the council’s decision, the form of decision on entitlement required by the law was a closed period supersession and that nothing in the various Regulations prevented one on the facts of the claimant’s case.

I am fortified in my conclusion by the recent decision of Judge Butler in SSWP v SC and MJ v LB Bromley [2025] UKUT 299 (AAC), which was not available to the First-tier Tribunal in this case, and its comprehensive review of past Commissioners’ and Upper Tribunal decisions, including Judge Rowland’s decision in SSWP v NC [2023] UKUT 124 (AAC) on which the claimant’s representative relied. Although Judge Butler’s decision concerned “prospective” closed period supersession decisions (where as the date of the decision, a claimant is temporarily not entitled to benefit, but it is anticipated that they will become entitled again) – and held that such prospective decisions could not be made – her conclusion rests on an analysis of the principles pursuant to which closed period supersession decisions fall to be made.

It seems to me to follow from her analysis (and in particular her description at paragraph 195 of the “mechanism” by which closed period supersession decisions are made) is that such a decision falls to be made where, as at the date of the decision, (a) a claimant has an award of a benefit that is still in existence, (b) there are a legal ground and a factual situation that require the award to be retrospectively altered by supersession but (c) the factual situation obtaining as at the date of the decision is such that the claimant is entitled to the benefit.

Though some of the decisions on closed period supersessions have noted the desirability and convenience of the closed period supersession mechanism in avoiding the need for claimants to make fresh claims where they have had a finite past period of non-entitlement, as well as the unfairness of treating past payments of benefit in the period after entitlement recommenced as overpayments, I have not found any suggestion in the authorities that a decision maker has to look beyond the three conditions in paragraph 26 above and consider, for example, whether a closed period supersession is fairer than a termination.

On what seem to have been the First-tier Tribunal’s findings in the present case, conditions (a), (b) and (c) in paragraph 26 above appear to have been satisfied by the claimant on 21 February 2023. The tribunal could only look at the circumstances obtaining as at the time of the council’s decision, but was not (as some of its reasoning suggests) confined to the evidence that the council than had. It therefore follows that the tribunal should have set aside the council’s decision and substituted a closed period supersession unless something else in the law required a termination of the award. It is in that connection that I must look at the Transitional Provisions Regulations and at regulation 14 of the 2001 Regulations.

I do not consider that the Transitional Provisions Regulations alter the position. I agree with the claimant’s representative that regulation 5 of the regulations is not in point because it applies to people who meet all the conditions of entitlement, including having made a claim. If it applied to all those who met the substantive conditions of entitlement to universal credit, it would have amounted to a simultaneous compulsory migration of everyone to universal credit.

If the claimant had needed to make a fresh claim to benefit in February 2023, Regulation 6A (which replaced regulation 6 in July 2022) would have prevented her claiming HB and thus in practice forced her to claim UC. But she did not need to make a fresh claim, given that her existing award could continue by virtue of a closed period supersession.

Finally I need to consider whether regulation 14 of the 2001 Regulations required the claimant’s award of HB to be terminated rather than continued by virtue of a closed period supersession. Regulation 14 operates in conjunction with other regulations, so in order to explain my conclusion I need to summarise them.

First, regulation 7 of the 2001 Regulations gives a council power to supersede an earlier decision awarding benefit where there has been a change of circumstances since the decision had effect. There is no dispute that the claimant moving out of the first property was a change of circumstances.

Secondly, regulations 11 to 13 of the Regulations deal with the suspension of payments of housing benefit, and these are followed by regulation 14, headed “Termination in cases of failure to furnish information”.

In outline, regulation 11 allows a council to suspend payment of HB, in whole or in part, in certain circumstances. One of these sets of circumstances (under regulation 11(2)(a)) is “where it appears to the relevant authority that an issue arises whether the conditions of entitlement to housing benefit … are or were fulfilled”. Regulation 12 then provides for the suspended payments to be made once the council becomes satisfied that benefit is properly payable.

Separately, regulation 13 allows a council to suspend payment of housing benefit in relation to persons who fail to comply with “information requirements”. These are “requirements to furnish information or evidence needed in order to determine whether an award of benefit should be revised or superseded”; in the case of HB, the council’s power to require the information that it sought from the claimant is contained in regulation 86(1) of the Housing Benefit Regulations 2006. Regulation 13 does not contain any separate power to require information.

The power to suspend applies where the information requirements are directed to a “prescribed person”. The persons prescribed in regulation 86 itself are “a person who makes a claim, or a person to whom benefit has been awarded”. Such a person must furnish the information within a period of one month, unless the council allows a longer period.

Confusingly, regulation 13(2) contains a different, narrower list of prescribed persons; these include people, like the claimant, whose HB has been suspended under regulation 11(2)(a). Regulation 13(3) applies to “any person to whom paragraph (2) refers” and contains a further requirement for the relevant authority to notify any such person of the requirements of regulation 13. The requirements themselves are set out in regulation 13(4) in terms close but not identical to those of regulation 86; they are either to (a) to furnish the information of evidence needed within one month or such longer period as the authority considers necessary or (b) satisfy the authority within that period that the evidence or information does not exist or that the person cannot obtain it.

Regulation 13 has a complicated and confusing relationship not only with regulation 86 of the HB Regulations, but also with regulation 11 of the 2001 Regulations. Mr Commissioner (later Judge) Rowland pointed it out nearly 20 years ago in CH/2995/2006 (see in particular paragraphs 20 to 24 of his decision). Regulation 13(3) adds a procedural requirement to a requiring authority’s power under regulation 86 while regulation 13(4) relaxes the obligation of the recipient where information is not obtainable.

It is nevertheless clear, given that the claimant fell within the group of prescribed persons in regulation 13(2), that the council’s obligation to give notice of the requirements of regulation 13 applied to her. The council’s letter of 17 January did not refer, as the letter of 25 January did, to the possibility of explaining that information did not exist or was not obtainable; the first letter referred to the one month deadline but neither letter referred to the possibility of seeking an extension.

The Upper Tribunal has held that failure to give the notice required by regulation 13(3) invalidates any subsequent termination under regulation 14 and that failure to give notice of the possibility of an extension of the deadline or of the possibility of showing that information is not obtainable are examples of such failures: see AA v Hounslow LBC [2008] UKUT 13 (AAC), Secretary of State v North East Lancashire Council [2011] UKUT 300 and VW v LB Hackney [2014 UKUT 277 (AAC).

Regulation 14 comes into play in two sets of circumstances. One is where a person whose benefit has been suspended under regulation 11 subsequently fails to comply with an information requirement; the other is where a person’s benefit is suspended under regulation 13 as a result of failure to comply with an information requirement. Regulation 14 provides in both cases that the person ceases to be entitled to benefit from the date on which the payment of benefit was suspended or (if earlier) the date on which their entitlement to benefit ceased.

Termination under regulation 14 has a penal quality insofar as it bars entitlement even where the substantive conditions of entitlement are otherwise satisfied, and requires a claimant to make a fresh claim. It is thus appropriate that the preconditions to making a permanent supersession under it are strictly applied. They were not satisfied in the respects I have identified in paragraph 39 above. It therefore follows that regulation 14 did not authorise or require the decision that the council made.

It appears to have been common ground between the parties that the claimant met the substantive conditions of entitlement to HB in respect of the second property by 21 February 2023, but there is no formal finding to that effect by the First-tier Tribunal. Nor is there a finding as to the precise dates of the closed period. I hope that it will be possible to save effort and expense by my remaking the decision without a remittal to the First-tier Tribunal. I have nevertheless given directions to cater for the eventuality that either party disagrees with the proposed terms of the remade decision.