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Date of decision
Sorry - this is another of my ‘I’m sure I know this but I’m not sure where I got it from’ queries…..
It’s always been my understanding that when an application is made for benefit, changes to the application can be made right up until date that the claim is decided and the decision-maker can decide that, for example, nothing is payable at this point and then this changes at another point due to a change while awaiting the decision. And that the decision-maker is obliged to take into account all changes of circumstances up until the date the decision is made - I guess like they do in disability benefits where you don’t yet meet the past period requirement on the date you apply but you do from a later date.
Can anyone point me towards any regulations which outline this? Or tell me if I’ve completely made this up or if this has changed somewhere down the line?
Thanks for any and all help received.
Mairi
It’s implied in s8(2) of the Social Security Act 1998 (and the HB equivalent: para 2 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000) - no entitlement on the basis of circumstances not obtaining at the date on which the claim is decided, subject to supersession under s10 (and HB equivalent Schedule 7.4). There is nothing in s8/para 2 to prevent the DM from takin into account any circumstances down to the date of the decision. Otherwise, claimants who have frequent changes of circumstance would be penalised by excessive delay in decision making. In HB for example there is generally a one-month limit on backdating, so if you were entitled for a month, then not for the next month, then again a month later, and if the Council took longer than three months to deal with the claim, it would be impossible to get HB for the second period which is clearly unjust. So the Council should deal with both periods when it decides the claim.
The concept of considering circumstances “down to the date” of the decision is so time-honoured and so frequently rehearsed by courts and Tribunals that I cannot cite a definitive original case law source for it - it’s pretty much trite law now.
What Peter says.
The claim exists until it is decided and the decision needs to decide the claim - so the facts existing during the period through which the claim exists needs to be considered. The decision maker is precluded from looking after the facts which don’t obtain at the date of decision - and so implicitly can look at the facts up to the decision.
KK v SSWP [2019] UKUT 313 (AAC )at para 8 is an (arbitrary, rather than authoritative) example of this being applied. The claimant claimed JSA from 9 March 2009 and this was refused on 2 May 2009. The UT found that he became entitled on 1 May 2009 and therefore his appeal was successful.
See also DMG 02428.
[ Edited: 10 Jan 2020 at 03:13 pm by Elliot Kent ]Thanks so much.
The concept of considering circumstances “down to the date” of the decision is so time-honoured and so frequently rehearsed by courts and Tribunals that I cannot cite a definitive original case law source for it - it’s pretty much trite law now.
Just out of interest, Sweet and Maxwell commentary (p219 of Vol III) says that the purpose of s8(2) of the SSA 1998 is to reverse R(S) 1/83 and R(S) 2/98 which held that a tribunal could take into account circumstances occurring after the date of the decision.
Yes, Tribunals used to take into account circumstances down to the date of the appeal decision, not the original DM decision. Section 8 prevents that. I thought 22 years was far enough back!