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

Hello

Just wanted to give thanks for how useful this thread has been for my UC backdating appeal; I mined the arguments here and in the WRB article for my submission. The appeal succeeded at FTT and in my client’s case, the backdating got him to within the one month since his legacy benefit ended, enabling SDP TE to be included in his UC award.

Looking forward to seeing what the UT make of this one!

Good to know FTT cases are succeeding.

The Upper Tribunal case will be heard by a 3 judge panel on 15th and 16th of June 2022.

Martin

Has the Upper Tribunal made its decision yet?

If so could we have an update….I have just received an initial refusal to backdate on a similar case

Thanks

JayKay - 20 July 2022 03:55 PM

Has the Upper Tribunal made its decision yet?

If so could we have an update….I have just received an initial refusal to backdate on a similar case

Thanks

No update so far as is public knowledge - CPAG as reps will know the outcome before it is published. Check the CPAG test cases website for updates and guidance in the meantime and the rightsnet and AAC websites for the decision when published.

https://cpag.org.uk/welfare-rights/resources/test-case/request-backdate-universal-credit-made-after-claim-determined

https://www.rightsnet.org.uk/welfare-rights/caselaw

https://www.gov.uk/administrative-appeals-tribunal-decisions

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The most important step in these cases is to progress your client’s dispute immediately without waiting for the UT decision. This is because once the UT decision comes out (and assuming that it goes in the claimant’s favour), it will be open to the DWP to argue that the anti-test case rule prevents you from relying on it. If your dispute is already in the system (and ideally at FtT) by the time that the UT decision comes out, this argument will be unavailable to them.

Thanks Elliot - initial refusal to backdate was only received today so will be putting in a MR imminently

a linked but side issue to this thread. but….if caught in time how are people finding the DWP are dealing with a request for a backdate caught in time “due to disability”?

it seems pretty vague and even the advice for decision makers doesnt really cover any examples.

Are these generally being granted ok?

Great result from CPAG and Garden Court North:

https://cpag.org.uk/welfare-rights/resources/test-case/no-requirement-request-backdating-claim-universal-credit

https://www.gcnchambers.co.uk/am-v-secretary-of-state-for-work-and-pensions/

Thanks Shawn.

We are really pleased.

Should be pointed out however, that unless the DWP amend the online claim form so that it actually asks claimants whether they want backdating and if their circumstances fit within the reg. 26 criteria then it is unlikely many people who might want and be eligible for backdating will ever have it considered (even though at least we now know that it can legally be considered on revision, it is clear it won’t be unless claimant somehow discovers that they could have had backdating and seeks a revision). It is not right that a basic issue of entitlement for an earlier period is something which can only be established by challenging a decision- DWP needs to be able to make these decisions right first time but won’t be able to do this if they continue to fail in their duty to obtain relevant information.

So we are still interested in hearing about cases where people have not requested backdating before a claim is decided and are now trying to obtain it.

Our summary is now live .... thanks to CPAG for sharing a copy of the judgment

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/universal-credit-claimants-have-the-right-to-seek-backdating-of-their-claim-after-the-decision-to-award-benefit-has-been-made

Good stuff, well done Martin, Tom et al.

I have just skimmed the decision, but it is nice to see arguments explored in this thread and elsewhere on these boards several years ago being refined and perfected and eventually vindicated in the UT. I am just noticing that this thread has over 100,000 views which speaks to what a big issue this has become.

It’s a shame that the UT wasn’t prepared to get more stuck in to the issue about the consequences of the date of claim not being asked. It seems to me that the DWP would have been on stronger ground if the question were asked in the claim form as there might at least have been something in saying that the claimant might be unable to go back on an express date of claim at a later point. That was certainly a position I saw ESA DMs take.

But I’m sure that will be a public law battle for a later date if they don’t change the form…

EDIT - Question answered in this thread: https://www.rightsnet.org.uk/forums/viewthread/18807/

Hi all

Just resurrecting this thread in relation to an upcoming case where ‘backdating’ was requested after the decision on entitlement. They have treated it as a separate claim for the month preceding the actual claim. SSWP has accepted that reg 26(3) conditions were met but are insisting that the claim 1) needed to be amended to cover the period prior to the making of the claim, 2) was only amendable whilst it was still a claim, and 3) the request for backdating is an attempt to raise circumstances not obtaining at the time of the decision so is barred under s.8(2) SSA 1998. As a result, any request for backdating after the initial claim was decided was doomed to fail.

This was initially raised as an attempted late MR of the original decision on entitlement (admittedly there doesn’t seem to have been any formal decision on entitlement, there was just the fact of UC entitlement running from the date of claim). SSWP refused to consider revision of the initial decision on UC entitlement and treated it is a new claim.

AM (helpful though it is!) was handed down just before the appeal was lodged. A colleague had basically advanced the arguments from the Welfare Rights Bulletin article prior to that.

I am slightly concerned that the anti-test case rule may apply (though the SSWP hasn’t raised it herself). My argument would be that in any case, the SSWP failed to consider reg 26 and was to that extent in official error, so this is not being decided ‘in accordance with’ AM. Haven’t really had this point come up before though, so I would welcome any input.

Thanks in advance and best wishes

Alex