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Forum Home  →  Discussion  →  Universal credit administration  →  Thread

“Backdate request can only be made within one month of the start of the claim”

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Jo_Smith
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I am getting few of those: “, with reference to the request for backdating, backdating requests need to be made within one month of the original claim date in order to be considered.”


I am afraid I cannot find any sources to support the above statement from UC agent.

I looked into your internal guidance http://data.parliament.uk/DepositedPapers/Files/DEP2019-0465/Backdating_v4.0.pdf , and Chapter A2 of Advice for Decision Makers (paragraphs A2043 to A2049), as well as primary legislation: Regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013. None of the sources mention this.

Am I missing something?

BC Welfare Rights
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Reg 26 (2) of the C&P limits backdating of claim start date to 1 month in specific circumstances. http://www.legislation.gov.uk/uksi/2013/380/regulation/26/made 
Are you talking about something different?

Ianb
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BC Welfare Rights - 14 November 2019 11:49 AM

Reg 26 (2) of the C&P limits backdating of claim start date to 1 month in specific circumstances. http://www.legislation.gov.uk/uksi/2013/380/regulation/26/made 
Are you talking about something different?

I think the question is not about the circumstances in which one month backdating may be allowed. Rather it is about whether there is any legal basis for DWP to say that a request for backdating has to be made within one month of the date of claim.

Andrew Dutton
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It has all the hallmarks of being yet another nonexistent ‘rule’ used by UC to put people off.

Jon (CANY)
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Before April 2018 there was a difficulty, in that any backdating issue had to be decided so that the AP date could be set and UC put into payment. This meant that a backdating request could delay the making of the award, and JCP sometimes used to advise against asking for backdating for that reason. This should have been cleared up by SI 2018 No. 65, in which as per the explanatory note:

Regulation (5)(a) and (c) amends regulation 21 of the Universal Credit Regulations and regulation 3(6) inserts new regulation 21A into those regulations to make provision for cases where there is a change in the first date of a claimant’s entitlement to universal credit after the assessment period cycle for the award has been established. Where adjusting that cycle retrospectively would cause unnecessary disruption to the administration of the claim, provision is made for the length of the first assessment period to be adjusted as necessary in order that subsequent assessment periods remain as previously fixed.

I wonder if JCP are harking back to the pre April 2018 situation?

Jo_Smith
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Ianb - 14 November 2019 12:59 PM

I think the question is not about the circumstances in which one month backdating may be allowed. Rather it is about whether there is any legal basis for DWP to say that a request for backdating has to be made within one month of the date of claim.

Correct, this was my enquiry- UC says that this request can only be made within one month from the start of the claim.


Jon, thanks for SI

Charles
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This is an interesting one:

Claims for benefit are supposedly made “in respect of” particular periods (see for example the wording in reg 26(1) of the C&P Regs).

DWP assume that unless backdating is explicitly requested, the claim is made in respect of the period starting with the date of claim. If they are correct about that*, a backdating request would have to be made as an amendment to the claim, which can be made up until a decision is made on it (see reg 30 of the C&P Regs).

An alternative would be to make a fresh claim for the backdating period, but of course that fresh claim could only be backdated for one month, so that wouldn’t help.


* The argument against this would be that as there is no place on the claim form to say the date from which you wish to claim from, it is wrong for DWP to simply assume it to be from the date of claim. If this argument is correct, you would need to MR/appeal the decision made on the claim.

Elliot Kent
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I agree with Charles (and I’m sorry if this post has just ended up re-stating what you already said)

Specifically, UC is a system shock for how we are used to dealing with backdating.

Most benefit claim forms will ask the claimant to specifically state the date they are seeking to claim from, so it is unambigous on the face of (say) a completed ESA1 that “Mr X is claiming HB from 14.11.19”. That sets the parameters of the claim. The decision maker is then able to assess whether that claim is in time and, if not, whether an extension of time to claim can or should be granted. It is far from clear that the decision maker could backdate beyond the period stated on the claim form or that this could form the basis of a revision request or appeal..

If the claimant subsequently decides they have undersold themselves, they could (a) amend their claim if it has not yet been decided or (b) make a second claim for a fixed period ending at the date of their first claim - but whether backdating was appropriate would need to be based on the point in time at which the second claim was based.

Either way, in a situation where backdating is limited to one month, it is unlikely to be possible to use either option after the first AP is over.

But this analysis is all predicated on the idea that the claim form makes it clear when the claim is supposed to be from. That is not the case with UC (not for any principled reason, but simply because it isn’t a question that the UC claim asks). So I wonder if in the absence of any way of actually spelling out the date of claim, it becomes a matter for the DM deciding the initial claim and therefore something which could be dealt with as a revision request.

And if that is the case, you would be able to make the request within 1/13 months of the initial decision…

helendmhf
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Just wondering if anyone had an update to this thread? I’ve seen the post from Elliot referring to the possibility of a revision request but, TBH, get rather confused at that point!

I have a colleague whose clients are all subject to the Mental Health Act and are in hospital. His client applied for UC and was awarded it from 6/12/19. However, as she went into hospital on 2/10/19 my colleague then, on 22/1/20, requested backdating to 2/10/19. She has now received an MR letter which states:

If a claim has been decided, a request for backdating can only
be by means of a further claim which in the case of Universal
Credit, would lead to backdating being considered from the date
of the second claim.

In your case Universal Credit was claimed on 06/12/2019 and
the decision to award UC was made on 06/01/2020. At this point
the claim ceased to subsist and was replaced by an award.

The earliest date I can determine that the request to extend the
time for claiming (backdate) was made is on 22/01/2020 and
therefore has to be treated as a further claim from that date.

As such the period from 02/10/2019 to 21/12/2019 cannot be
considered as it outside the maximum time limit (1 month) for
extending a claim.

The period from 22/12/2019 to 21/01/2020 cannot be allowed
because it covers a period for which you have already been
given entitlement in the claim made on 06/12/2019

The claim for extension (backdating) is therefore refused

Having read and re-read this several times and not quite getting my head round the difference between ‘At this point the claim ceased to subsist and was replaced by an award’, I accept that the earliest he could have requested backdating to was 6/11/19, ie one month prior to the date of claim.

It seems the DM has taken his backdating request as a 2nd claim, hence their decision that the dates overlap with the first claim and therefore no backdating is necessary.

Leaving aside issues such as whether there is a strong case to argue for backdating (which I don’t think would be a problem), where do we go from here? How would a revision differ from what he has already done? How would we go about submitting a revision request?

Thanks in advance for any words of wisdom.

Elliot Kent
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This isn’t altogether straightforward. What the DM is saying is that your client made a claim for UC on 06/12/19 which was prospective only. When they then came back at a later date and asked for backdating, this was treated as a late claim from 06/11/19 but no award could be made as the maximum backdating period had already expired.

There are two assumptions which the DM is making here which may or may not be correct.

The first assumption is that the initial claim for UC was only prospective and did not include a request for backdating. The issue is that the online UC claim form does not have the option to indicate when you are claiming from - there is nowhere to ask for backdating and no indication that it is even possible. Is it correct in these circumstances to assume that backdating is not being requested, which is what the DM has done? If this assumption is wrong, then backdating ought to have been considered as part of the initial claim.

The second assumption is that the date of claim is then an immutable part of the claim. It is possible to request that a decision is changed (i.e. revised) on “any grounds” within 1 month of the decision (extendable to up to 13 months) (i.e. mandatory reconsideration). The DM has assumed that it is not possible to revise the decision insofar as it addresses the date from which benefit is claimed. In other words, there was a claim from 06/12/19 and benefit was awarded from that date so it is not now possible for this decision can be changed to pretend that the claim was made from 06/11/19 and therefore award entitlement from that date. This has therefore made it necessary to treat the backdating request as a new claim from an earlier date rather than an “any grounds” revision - which is why we then run into the problem about the time limit. This is a long-held assumption but I don’t think there is any authority on it and it may be that there is scope to challenge it. Revision on “any grounds” is quite broad.

The next step would be to appeal. Your client would need to establish that one of the above assumptions is wrong i.e. that either (1) an online claim for UC is capable of being read as including a request for backdating or (2) the “any ground” revision power does extend to the date of claim subsequently being altered. You would then also need to establish a ground for backdating, although that may not be too difficult if your client was actually in psychiatric hospital at the time.

Paul_Treloar_AgeUK
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I certainly think your second assumption is strongly arguable Elliot.

helendmhf
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Thanks Elliot. A very detailed reply and something for me to chew over. Just to check I’ve understood it correctly:

Assumption 1 - are we trying to suggest that there could be an unwritten clause to argue that any UC claim should include the option to include backdating, whether explicitly requested or not?

Assumption 2 - An any grounds revision would be arguing that the claim made on 6/12 could be revised to include the backdating request, rather than treating this as a new claim?

From Paul’s comment (thanks Paul) maybe assumption 2 is the better route to go down?

Paul_Treloar_AgeUK
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To try and explain a bit more, I think assumption 1 is more difficult because there is no option to request backdating when making the new claim so I can’t see how you can argue the DM should consider it because their isn’t any possibility of it being requested.

Because of that, the assumption 2 must be able to be challenged because otherwise there is simply no way to have backdating applied to a new UC claim once in payment. And the only route that appears obvious is the claimant makes request on journal once UC award in progress and any ground revision allows original entitlement decision to be revised and taken back up to one month.

Elliot Kent
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I suppose the point I am making on the first issue is because the form fails to ask the claimant when they are claiming from, this is left ambiguous. It could be a claim from 06/11/19 or it could be a claim from 06/12/19. We don’t know because nobody asked.

Where there is an ambiguity in the claim, it will fall to the DM to determine what the intentions were. It is unclear what principled basis there could be for always assuming that the claim was intended to be from the date of claim rather than an earlier date. One assumes that if they were given the option, the majority of claimants would ask for backdating as far as possible.

The SSWP can avoid this ambiguity by including a question on the claim form asking when the claim is from, as has been done on paper claim forms for decades, or just ringing up and asking. It isn’t clear to me why the SSWP should be given the benefit of her own failure to ask the question.

I think you can run both of these arguments as alternatives. If I get some time, I might try to run up some draft grounds.

Edit - here are some other threads on this
https://www.rightsnet.org.uk/forums/viewthread/14752
https://www.rightsnet.org.uk/forums/viewthread/15687

[ Edited: 15 Apr 2020 at 05:53 pm by Elliot Kent ]
HB Anorak
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Apologies if this has already been said/debunked, but having just read the last handful of posts I wondered whether the following is helpful:

Reg 21 of the 2013 D&A Regs says:

Where, on a revision under section 9 of the 1998 Act, the Secretary of State decides that the date from which the decision under section 8 or 10 of that Act (“the original decision”) took effect was wrong, the revision takes effect from the date from which the original decision would have taken effect had the error not been made.

The first kind of decision referred to in s8 is a decision on a claim.  This suggests that the matter of what date the claim is made from does not die with the claim but forms a determination embodied in the decision on the claim which is thus capable of being changed by way of revision

helendmhf
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Thanks to everyone for the replies. I’ll pass the info on to my colleague to see what his client wants to do. It’ll certainly give them something to think about.

Helen Rogers
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Has anyone had an appeal on this issue yet?  Or a successful outcome?
I’ve got an appeal hearing coming up on this issue.  I’m planning to argue that back date request can be treated as late MR of original decision.
I’d be interested to know which arguments have worked and those which haven’t.

Clara
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I have appeal papers for one of these too.  They cite Section8(2) of the Social Security Act 1998:

’ In effect, once a decision is made in respect of a claim, it no longer exists as such in law and is replaced by an award or a disallowance.  A claimant can seek a revision of the award within the time scales allowed (1 month in most cases) but that revision can only affect the claim for the period decided.  The revision cannot add dates to the claim that were not part of the original decision.  In other words, you can change the award from the date the claim begins but you cannot backdate a claim to an earlier period by means of a revision’.

I have read this thread and the others mentioned and I am still so confused about what they are saying.  Is it a long way of excluding a UC backdating request from challenge by review? 

Surely the administration of requests for backdates would be really inconsistent too as the success is dependent on the time it takes the department to make the decision on the claim.  The claim ceases to ‘subsist’ once it is replaced by an award!

The department accepts that the client would have qualified for backdating under Reg 26 because of disability in the papers so I assume I should concentrate on the question of whether the start of claim date decision is a decision subject to an any grounds revision?  It would be good to hear from any one who has already been to appeal with one of these.

Elliot Kent
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Just getting right to the heart of it Clara, the DWP’s argument is that the date from which a benefit is claimed is an inherent and immutable part of the claim which cannot be interfered with once the claim has been decided.

In other words your client claimed benefit from date X. The only claim which is in front of the DM is the claim from date X. It is not conceptually possible to award from an earlier date because (in general) entitlement cannot exist without a claim.

If this proposition is correct, then the rest of their argument is right as far as it goes. The claim ceases to exist once it is decided and therefore can no longer be amended by the claimant.The only way then to secure an entitlement for a date prior to date X is to make a further claim for that earlier date which is subject to the rules and time limit from reg 26 - meaning that the 2nd backdating claim needs to be made within a month of the date the claimant proposes entitlement should start from.

If that proposition is wrong, then you win your appeal because the date of claim is a matter which is capable of being revised.

[ Edited: 2 Sep 2020 at 05:09 pm by Elliot Kent ]
Paul_Treloar_AgeUK
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If all of the above is correct, how can there have been backdating on any other social security benefit in the past?

Are the terms of the UC C&P regs drawn in a distinctly different way to those of other benefits? Surely that’s the start point here.

Charles
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I think the issue is that UC doesn’t ask you when you want to claim from, it simply assumes the claim is for the period beginning on the date of claim. Other benefits generally ask when you want to claim from.

Helen Rogers
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An update on my appeal case on this issue.
The Judge said she was impressed with my arguments.  (All credit goes to the contributors on here!)
She seemed keen to allow the appeal, but said she wasn’t convinced about my argument that you could ask for backdating by MR of the original decision, because she said the claimant had got what they were asking for in the decision.  But she was very interested in the fact that the claim form does not ask which date you want to claim from.
The Judge adjourned the appeal for UC to respond to my submission and in particular to comment on the Explanatory Memorandum to SI 2018 No. 65 which Jon (CHDCA) mentions above.
UC’s response was to supersede the appeal.  This is, of course, very welcome, but leaves me no nearer to knowing for sure what the legal basis for backdating in this situation is.
Anyway – a big thanks to everyone on here whose ideas I harvested.
I’d still be very interested to know if anyone has had a decision from a Tribunal Judge in this situation one way or another!

Paul_Treloar_AgeUK
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Good work Helen, very nice result.

Would you maybe be able to share anonymised version of your submission as the arguments you used might be useful to other advisers with similar cases?

Helen Rogers
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This is an excerpt from my submission.
However, I can’t guarantee that this is what UC used to supersede the appeal!

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Paul_Treloar_AgeUK
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Thanks Helen, that’s very useful and usefully concise.

Daphne
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We’ve been sent in a UC First-tier Tribunal decision by someone who has been using the information in these forums to help him, and he has kindly asked to share the decision on here in case helpful to others.

The Judge rejects the DWP’s submission that once a claim has been decided, a request for backdating can only be by means of a further claim and backdated from that date. He finds that reg 26(2) provides for backdating from the initial date of claim, not when the request for backdating was made.

[ Edited: 27 Apr 2021 at 01:12 pm by Daphne ]
Elliot Kent
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Whilst a welcome outcome, the summary reasons don’t really engage with the DWP’s argument (although that is probably not surprising as the submissions don’t appear to set out the argument with any real clarity, as per).

What the DWP are saying is that RS made two claims for UC. The first claim was made on 07/08/20 and sought an entitlement from 07/08/20. It was a timely claim and was awarded. When he made a “request for backdating” on 10/09/20 what he was in fact doing was making a second claim this time asserting an entitlement from 08/07/20. The second claim was out of time, because even with the maximum allowable extension of time of one month, the second claim could not result in any further entitlement beyond what RS had already achieved by his first claim.

The reason why this argument is wrong is because a “request for backdating” is not a new claim - its a request for “any grounds” revision of the decision on the first claim. So RS was entitled to ask that the decision be revised on the basis that he has been treated as having claimed from 07/08/20 whereas in fact he wanted to claim from 08/07/20. That being the case, the decision on the first (and only) claim can be revised accordingly so that he is entitled from 08/07/20 if the conditions are met. DWP seem to believe this is not possible but do not explain why.

Martin Williams
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Rosie and I did an article in WRB about this problem which is now online here:

https://askcpag.org.uk/content/207219/too-late-for-a-backdate

Needless to say, we agree with Elliot that a claim for UC is just that and not also a “claim for a period” such that if a claimant does not mention they want backdating prior to claim being decided any new request for backdating is dealt with as a new claim and not simply a revision request.

I’ve done some submissions on this which might help.

These refer to a document which shows what questions are asked on UC form to demonstrate that claimants not asked when they want to claim from. I will try and get that uploaded with the article and the decisions referred to in the submissions as soon as I can.

We represented a claimant in a case like this last week alongside TH Law Centre. The Judge said she had seen a “myriad” of such cases and was allowing them all and DWP were not asking for reasons.

This seems like it might be an area where DWP are carrying on making decisions on basis of interpretation of law which FTTs reject and which DWP are not prepared to challenge.

In those circumstances, I think it would be good to get case examples where DWP lost at appeal and did not challenge- if DWP insist on continuing with decision making in this way it might then put us in better position to ask them to look at the matter, or ask the Courts to do so.

So would much appreciate if you could contact me with claimant details of any cases like this you have had.

Martin.

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Martin Williams
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We have now added all the materials for this on the askCPAG website here: https://askcpag.org.uk/content/207219/too-late-for-a-backdate

Martin Williams
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We now have a case on this pending in the Upper Tribunal.

Martin

Elliot Kent
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Martin Williams - 26 January 2022 03:16 PM

We now have a case on this pending in the Upper Tribunal.

Martin

Excellent, it will good to see this finally resolved. Will be interesting to see how DWP argue it.