Thinking out loud

Suppose your client has failed to declare something which ought to have been declared earlier - they’re at month 5 of their claim and have just now realised that they forgot to mention their 14 year old son in the claim form - or they didn’t tell the DWP that their self-employment has ceased until 6 months later so MIF has been applied.

UC logic tells us that these are “changes in circumstances” and - due to the claimant’s failure to declare them in time - they are only applicable from the AP in which they are declared.

But given that it appears that an entitlement decision is made in each and every AP, can it be argued that these sorts of issues are requests for “any grounds” revision of the older APs? If it can, then a claimant who does not report a change until 13 months later could - in principle - be entitled to arrears.

... and in the light of the recent UT decision on MRs, an out-of-time application for revision will ultimately trigger the right to make an in-time appeal to the Tribunal.  Is that where you are going with this?

I think if the rate of UC changes in any month it can only do so by way of a superseding decision, which refreshes the claimant’s right to apply for revision.  If it doesn’t change, perhaps there has been no decision?

Does SI 2013/381 reg 36 answer this question?  Yes, it is possible in principle but in practice there are several hurdles to negotiate before the SoS will agree to paying up following a late notification of a change of circumstances.

If I have guessed correctly where Elliot is going with this, these are not changes of circumstance in relation to the operative decision in force during any month after the one in which the event occurred. What has happened is that the Secretary of State has made a series of decisions in rapid succession, each one in ignorance of the facts. The claimant has a fresh chance to apply for MR of all these decisions: while a late application has to overcome similar hurdles to those in Reg 36, there is currently a no-strings right to appeal after the MR is rejected as late, courtesy of a recent UT decision.

Do these older decisions still subsist or are you only left with the most recent outcome decision?

Legally they subsist - each time a new superseding decision is made from a certain date going forward the previous one remains in force up to that point.  Whether it still exists in a way you can see or touch in the UC account history is another matter

Yes, in principle, any appealable decision made can be subject to supersession, whether it is the orginal decision or any subsequent revised decision.

The Law Relating to Social Security
SOCIAL SECURITY ACT 1998 (c. 14)
10. —(1)  Subject to subsection 3 and section 36(3) below, the following, namely–

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative

Same rules also apply under section 9 for revisions. That’s if DWP/UC haven’t already abolished supersessions I suppose.

http://www.legislation.gov.uk/ukpga/1998/14/pdfs/ukpga_19980014_300617_en.pdf

I’m in a state of UC delirium where nothing is quite as it seems any more I’m afraid. I may or may not be talking sense.

DWP journals give the impression that a new decision is made every AP and - accordingly - advise of MR rights. However, HB is surely right - there can’t just be a series of consecutive decisions. The Social Security Act still exists and UC needs to operate in the decision/revision/supersession framework.

It follows that a claimant has a series of APs without any change in award, there is no superseding decision so nothing to appeal on the back of.

However, it would still seem that an “any grounds” revision could be pursued against either the original decision or any identifiable superseding decision - even if the ground was the DM’s ignorance and the request is late.

I think this (if it works) is a better remedy than reg 36 because (a) there’s no need to justify the lateness or meet the other conditions and (b) you could use it to get a change of circumstances backdated by up to 13 months, even if it was reported 16 months too late.

Elliot Kent - 26 October 2017 01:40 PM

I’m in a state of UC delirium where nothing is quite as it seems any more I’m afraid. I may or may not be talking sense.

DWP journals give the impression that a new decision is made every AP and - accordingly - advise of MR rights. However, HB is surely right - there can’t just be a series of consecutive decisions. The Social Security Act still exists and UC needs to operate in the decision/revision/supersession framework.

It follows that a claimant has a series of APs without any change in award, there is no superseding decision so nothing to appeal on the back of.

However, it would still seem that an “any grounds” revision could be pursued against either the original decision or any identifiable superseding decision - even if the ground was the DM’s ignorance and the request is late.

I think this (if it works) is a better remedy than reg 36 because (a) there’s no need to justify the lateness or meet the other conditions and (b) you could use it to get a change of circumstances backdated by up to 13 months, even if it was reported 16 months too late.

Considering that each AP is decided on a new set of evidence could it be argued that the determination at the end of the AP is a “no change” supersession?

I don’t think that a “no change” supersession could be done because there isn’t a ground for supersession.

However, you could maybe argue that its a decision not to supersede - which would be appealable.