Universal Credit (UC) is the main means-test benefit available to be claimed by those of working age. By default, entitlement starts on the date of claim. Many UC claimants will often not start their claim at the earliest possible opportunity and so may miss out on some benefit income.
This might be for a variety of reasons, such as:
- being hampered by health issues, or other circumstances of life
- difficulties accessing or using the IT that is normally required to make a claim
- waiting to see if their circumstances improve before committing to a UC claim
- not realising that another benefit they were getting was going to end
- not knowing that UC might be available in their situation.
But can these claimants request their UC claim be backdated*, how far back can a claim go and what is the time limit to make such a request? We explore these issues as well as outlining the current case law regrading time limits in this article.
* On a technical point, the UC regulations don't refer to 'backdating' at all. Instead, you may see a UC decision-maker agreeing to "extend the time in which to make a claim". This is, for practical purposes, the same as backdating, so we will use that term here.
How far can UC be backdated, and in what situations
UC claims may be backdated up to a maximum of one month. Backdating is only allowed in certain prescribed circumstances, not just for any general 'good cause' reasons - these are outlined in the Universal Credit Regulations.
The claimant, and also their partner in the case of a joint claim, needs to show that they could not reasonably have been expected to make the claim earlier due to one (or more) of the following reasons:
(a) They were getting one of the benefits that UC replaces, and the decision to end that benefit was not sent to the claimant before its effective date.
(b) They have a disability.
(c) They have supplied medical evidence of an illness that prevented them from making a claim.
(d) They were unable to claim because the official computer system was inoperative.
(e) Their UC claim as part of a couple was refused or terminated because their partner did not meet one of the basic conditions for UC, and then they separate and claim as a single person.
NOTE: Case (d) will be rare - even when the UC computer system was for a period overwhelmed with new UC claims at the start of the covid pandemic, making it extremely difficult to submit an online claim, an Upper Tribunal decided that this did not make it "inoperative".
So how does a claimant in one of the above situations go about getting backdating?
A UC claimant who wants backdating will need to first submit their claim, and then know to communicate a backdating request either in writing on their journal, or verbally to their work coach. The request should then be passed on to be considered by a UC decision-maker.
This is because the UC online claim form does not ask from what date the claimant wants their UC to start, and it does not otherwise indicate that backdating is possible. The claim does not include a freeform box in which a claimant can give DWP any further information, such as a backdating request. Once a claimant starts their claim, they will find no claimant-facing "backdating 'to do'" item in their list of actions to complete.
So a claimant may not realise they need to make a backdate request until after they have received their first UC payment. In the past this would have been considered too late.
Time limit for making the request - change due to caselaw
Until recently the DWP were of the opinion that any backdating request could only be considered if the request was submitted before a decision had been made at the end of the claimant's first Assessment Period. After that, DWP would say that it was too late to amend the claim with a different requested start date. The DWP's reasoning included that the requested date of claim is an aspect of the claim, and section 8 of the Social Security Act 1998 dictates that once a claim has been decided and the claimant has an award of benefit (or not), then the claim itself no longer exists. DWP also noted that they would interpret a request after the end of the month as an attempt to make a second claim, this time with a request for backdating, would be futile as the claimant had already been receiving UC for longer than any backdating could reach back to.
This interpretation was successfully challenged in the Upper Tribunal case AM v SSWP (UC) [2022] UKUT 242 (AAC), issued on 1st September 2022. The 3-Judge panel decided that a backdating request can be made after the first Assessment Period has been decided. This is because the start date of claim is one of the matters decided by the UC decision-maker on the initial claim, and is open to challenge in the normal way, i.e. within the normal one month time limit, which can be extended up to 13 months with good reason. A subsequent Upper Tribunal case, WB v SSWP (UC) [2022] UKUT 332 (AAC), further decided that in any event an explicit request is not always needed in order for backdating to be considered; a claimant could make an 'implied' backdating request, if the facts of their situation indicated that they may come within the scenarios where backdating can be allowed.
The Secretary of State is considering a further appeal in the Court of Appeal, but in the meantime has issued guidance to decision-makers that they should follow the above tribunal decisions.
Current guidance
Given in ADM memo 03-23: Claiming UC for a past period – effect of Upper Tribunal decision, guidance for all decisions made after 1.9.22 on new UC claims is to the effect that if either:
(a) a claimant asks for backdating; or
(b) the claimant doesn't ask for backdating, but:
i. the claimant says something that suggests that there may have been a delay in claiming; or
ii. there is evidence of debts or unmet needs that suggests that there may have been a delay in claiming; or
iii. there is evidence that suggests that one or more of the circumstances in which the time for claiming can be extended
… then the decision-maker should consider backdating as part of their initial decision on the claim.
The guidance also states that after the claim is decided, the date of claim is an aspect of the decision that can be challenged by Mandatory Reconsideration or appeal.
Standard Letters and more information
We have two standard letters that you may find useful (but watch out for a potential pitfall - see below):
UC CP1A Late request for a backdate
UC CP1B Late request for a backdate - info provided at time of claim or within first MAP
Click here to access these letters.
For more infomration on backdating a UC claim - click here.
Examples
Example - challenging the date of claim after it has been decided
Leon is in the Support Group, he and his partner Sandy get income-related ESA as a couple. Sandy finds a job starting on 3rd August, earning £1500 per month. They report this to the DWP, and on 25th August Leon receives an ESA decision notice saying that as of 3rd August he has a partner working more than 24 hours, so his last day of ESA entitlement was 2nd August.
On 25th August Leon and Sandy therefore apply for UC. On 1st October they are notified that, after taking Sandy's first pay packet into account, £491 of UC is awarded for their first assessment period, running from 25th August - 24th September. Leon asks for a Mandatory Reconsideration, on the grounds that they should have been given an extension of time in which to claim. i.e. he asks for the decision to include backdating. On reconsideration, the UC Decision-maker accepts that neither Leon nor Sandy could have reasonably claimed UC sooner, because they had not been notified that Leon's ESA had ended. Leon and Sandy are awarded UC for the period 3rd - 24th August. Sandy did not receive any wages in that period, so they get full UC pro rated to 22 days, amounting to £700.
Example - Implicit request for backdating - can generally lead to the claimant being better off, or at least no worse off
Sandra has a serious accident and is hospitalised. It becomes clear that she will be unable to return to work, and her employer gives her notice on 10th June. Sandra's final wages are paid to her on 25th June. She leaves hospital on 27th June, and starts a UC claim. The UC Decision-maker sees that Sandra last worked on 10th June and is covered by a hospital fit note since then, which indicates she could not reasonably have claimed sooner. Although she didn't ask for this in her claim, the DM decides that he can extend the time for Sandra to claim UC, and awards backdated UC for the period 11th - 26th June. Although her UC amount for this period is reduced due to her notice pay, she can at least be no worse off due to the backdating. This is because the timing and amounts of her UC payments for the assessment periods from 27th June onwards are not affected by the backdating decision.
Potential pitfall?
In some particular instances, backdating UC may not be in the claimant's best interests. This could cause a detriment to a claimant e.g. where they would lose entitlement to a Severe Disability Premium (SDP) in a legacy benefit, and therefore also miss out on the Transitional SDP Element of UC.
Where it is the claimant requesting the backdate, if their UC award includes (or is likely to include the Transitional SDP Element) then they can chose the date they want their UC backdated to to avoid losing it. There is potentially a higher risk of losing it if decision-makers are pro-actively awarding UC for backdated periods.
Example
Ayisha claimed UC after separating from her partner. She has complex health needs and there was a two week delay between the separation (and her partner leaving the property), and her claim for UC. Her IR-ESA and HB continued during these two weeks but her Child Tax Credit was stopped. Her UC award could include a Transitional SDP (TSDP) Element, if her IR-ESA was amended to include an Severe Disability Premium for the two weeks she was living alone. However, the UC decision-maker decides that because Ayisha has reported dealing with health issues at the time of her UC claim, she has made an implied request for backdating. They award backdated UC for the 2 week period between Ayisha becoming single, and when she applied to UC. Ayisha gets more in UC for that 2-week period than she was receiving at the time through her IR-ESA and HB. This is because the LCWRA component is more generous in UC, and also her UC includes Child Elements. However, she has now lost the chance to have a TSDP Element included in any future UC Assessment Periods, because she was not entitled to IR-ESA with the SDP included on the effective date of her UC claim.
If Ayisha now wanted to get a TSDP Element, it could be complicated and difficult in this case for her to successfully argue for the decision on the start date of her UC award to be reconsidered. To have the effective date of claim moved forwards, she likely could not simply rely on the grounds that it would make her better off in the long run. She might need to demonstrate that there was some reason she did not meet the backdating rules which the DM had applied in her favour. She may also need to ask the HB and ESA offices to revise their respective decisions on the correct dates to end benefit, as well as asking for the SDP to be included in her ESA.