Anti-test case rule and AM v SSWP (UC) [2022] UKUT 242 (AAC) (‘backdating’)

Hi all

I initially posted this on the long-running ‘time within which UC must be claimed’ thread but am posting separately in hope of a response!

This is in regard 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.

I understand people have been winning these arguments at FTT long before AM, but given that s.27 requires cases to be treated ‘as if the adjudicating authority’s decision had been found by [the UT] NOT to have been erroneous in point of law’, I have some reservations.

Many thanks in advance and best wishes

Alex

I think there is a great deal of merit in the “don’t worry about it unless it’s actually raised” line of thinking.

The DWP haven’t formally acknowledged the decision or given any guidance as to how they intend to respond to it, whether they intend to appeal, whether they consider that anti-test case rules apply etc. They are still in the stage where they apparently think the decision only relates to PIP (https://www.rightsnet.org.uk/forums/viewthread/18751/)

The anti-test case rule doesn’t bind a Tribunal unless the original decision was made under the anti-test case rules by DWP.

In your case, the original decision was made before AM was handed down which means the claimant can rely on AM in an appeal to the FtT.

HB Anorak - 16 November 2022 11:35 AM

The anti-test case rule doesn’t bind a Tribunal unless the original decision was made under the anti-test case rules by DWP.

In your case, the original decision was made before AM was handed down which means the claimant can rely on AM in an appeal to the FtT.

Yes - that too of course!

Thanks a lot both of you - super helpful. Hopefully a straightforward tribunal then! I had seen that thread on ‘PIP only’ Elliot - astounding.

Am I right to think that if the application for revision had gone in after AM then that would have been caught by the rule under s.27(1)(b)?

Thanks again

Alex

Z2KCaseworkvolunteer - 16 November 2022 12:59 PM

Thanks a lot both of you - super helpful. Hopefully a straightforward tribunal then! I had seen that thread on ‘PIP only’ Elliot - astounding.

Am I right to think that if the application for revision had gone in after AM then that would have been caught by the rule under s.27(1)(b)?

Thanks again

Alex

I did some thinking about this (which is in a forthcoming WRB article). Basically, it is arguable that AM v SSWP will not trigger the anti-testcase rule. This would be as follows:

Question:

Does the “anti-testcase” prevent anyone getting backdating for a period prior to 1 September 2022 (ie, the date when AM was decided)?

Answer:

That will be the case if section27 of the Social Security Act 1998 applies to AM.

That is because sub-section (3) of section 27 would then stop AM being relied upon to generate entitlement to benefit for any period prior to when it was decided.

Arguably however, the anti-testcase rule is not engaged:

1. Section 27(1)  provides that the anti-test case rule only applies where the effect of the Upper Tribunal decision at issue (ie,  AM in this case) is that “the adjudicating authority’s decision out of which the appeal arose” was wrong in law.

2. “Adjudicating authority” is defined in sub-section (7), and applied to AM would refer to the Decision Maker’s decision in that case (rather than that of the First-tier Tribunal).

3. The Decision Maker in AM who decided AM’s claim for UC was not found to have erred in law by the Upper Tribunal.

Rather the Upper Tribunal found that the Decision Maker who later refused to revise that decision (on the ground that the claim needed to expressly state a request for backdating and this could not be raised for the first time at revision), was the one who had erred in law (or it found the FTT did but the FTT simply repeated the DM’s refusal to revise decision).

4. But the decision out of which the appeal in AM arose was not this refusal of revision, but the original decision. Strictly speaking,  the right of appeal lies against the original decision and the appeal right exists once revision has been refused.

5. So there is no ruling by the Upper Tribunal that the original decision in AM’s case was in error of law, and arguably therefore section 27 does not bite.

If that is right, then advisers should be able to assist claimants to get backdating of UC even if the decisions awarding them UC were made several years ago. But this point has not yet been tested…..

The SSWP applied to the UT for permission to appeal in this case yesterday.

I would say that FTTs dealing with these should be asked to go on applying AM unless the SSWP issues a s.26 Social Security Act 1998 notice. The FTT should not use its own powers to stay proceedings because:

1. If SSWP wants can appeal and have the UT case manage them (UT more suited to case managing blocks of cases than FTT).
2. The amount for SSWP is small but a lot to claimant and should be decided without delay so far as that allows proper consideration of issues.
3. Three judge panel of UT is clear- issues are decided and should be followed- SSWP has resources to seek PTA if wants to on cases that are allowed.