This also relates to JSA but felt this was themost appropriate place to post..

Client (married with one child) was previously getting IB/IS. Failed PCA (9pnts under MH descriptors). Appealed..appeal failed. Client claimed IBJSA. In the meantime, clients consultant psychiatrist provided another sick note. Client took this along to JC+. Nice man behind the desk says "oh yes, fine, you need to claim IB and sign off JSA." Client followed the advice and signed off. JSA stopped but of course not entitled to be treated as incapable of work prior to another PCA due to 6 months rule. No one seemed to realise this until 4 or five weeks later. in the meantime client without income other than CTC until someone else at JC+ advised that a JSA claim should be made by the spouse. New Ib claim yet to be determined..client now receieved new incap for work questionaire to complete.

All this happened before client came to see me. Is there any redress for client in these circumstances? Could this be a case for an ex-gratia payment to cover the four or five weeks without income or should we wait until the new IB claim is determined?

Also, can anyone tell me if the 6 month rule will cease to have effect after 6 months from the original disallowance even if the new claim was made prior to the end of the 6 months or does a further new claim need to be made after the 6 months expires

Any thoughts or musings most welcome!

steve, not that i am at all confident, having managed to lose an appeal to the commissioner on IB disallowance which used a medical report which was over 6 months old at the date of the disallowance decision, and didn't include a mental health assessment even though she was certified as having depression (sniff - i am not bitter...no, really...)

...you might want to consider Commissioner Rowland's decisions R(IB) 1/01, R(IB)2/01 and CIB 3106/03 on this 6 month rule thingy...

my understanding is that she can't be _deemed_ incapable of work in the 6 months period under reg 28, but she can still be actually incapable of work - they have to do an incapacity assesment...

jan

Thanks Jan, the CDs were helpful but I'm still not 100% clear on whether it applies to claims made prior to the expiry of the 6 months full stop or whether a claim made before the expiry can then be treated as incapable later on when the 6 months does expire. Maybe I just haven't had enough coffee today!

From my memory of being an IB DM, when someone makes a new claim within 6 months of the previous disallowance that claim is disallowed if the medical condition is the same as in the previous claim. The clock starts running again from the new decision, so any subsequent claim made within 6 months of the the NEW decision will automatically fail. My failing memory suggests to me that the DM is not required to make a referral for a PCA in these cases, in other words they can rubber-stamp the 'No' decision. Where I worked last we had a guy who kept making a new claim every month, and every new claim started a new 6 month 'qualifying period'.
The key to getting around this rule is by demonstrating that either the claim is based on a new incapacity or that the existing incapacity has 'significantly worsened'. This usually results in a referal for a PCA before IB is put into payment (it should be fast-tracked). You might want to check the DMG on the DWP website for the relevant bits of law.

That's pretty much the approach taken by the DWP, but it doesn't appear to be lawful.

R(IB) 1/01 para 6

"Although it is not strictly a matter arising on this appeal, the claimant has complained that the decisions of the adjudication officer and the tribunal in this case have been relied upon to refuse him benefit on subsequent claims. The adjudication officer has submitted that that would be wrong and that a decision under regulation 8(2) merely operates to terminate the existing period of incapacity for work. It does not prevent the claimant from successfully opening a new period of incapacity for work by making a fresh claim, or in income support case where the claimant is entitled to benefit without being incapable of work, an application for review (now revision or supersession) which will require the arrangement of a further medical examination. Regulation 19 of the 1995 Regulations provided:

"A determination whether a person is, or is to be treated as, capable or incapable of work, which is made for the purposes of determining his entitlement to any benefit, allowance or advantage, shall be treated as conclusive for the purposes of his entitlement to any other benefit, allowance or advantage in respect of any day or any period to which that determination relates" (my emphasis).

The period to which a decision under regulation 8(2), and, indeed, most other determinations, relates ends immediately before the date from which a new claim or application is effective. What the decision may do is prevent, for a period of 26 weeks, the claimant from being treated under regulation 28(1) as being incapable of work pending an all work test assessment but, if the claimant is found to be incapable of work when the assessment is made, benefit can be backdated to the beginning of the period covered by the new claim or application"

Jan,

do you know where I can get a copy of CIB 3106/03

Victor

hi victor

here's a link to the decision on the commissioner's website-

http://www.osscsc.gov.uk/aspx/view.aspx?id=1274

rgds

jan

Slightly different scenario. Client did not attend medical in April 2008. IB stopped on 15/4/2008. Claimed JSA, incl H.Costs. Wife works 12 hour per week. 1 Child.

Client has epilepsy exacerbated by stress. Worse now and has 1-3 seizures per week.

His DEA at the Jobcentre advised him that he should be on IB and to claim on 16/10/2008; thinking the 6 months would be up then. He did and then found out that the notification of IB ending wasn't until later that month. DM has referred for medical. No income in the meantime and lender already saying court action will start in 1 month.

My question relates to Reg 28 (IW regs) and the caselaw CIB/3106/2003.

Although I have suggested he get evidence from G.P on his deterioration and submit...I am wondering if he can be paid anyway from end of Oct (i.e when 6 months is up). This is what I've understood from p73 of the DRH and the caselaw. If then passes medical, from 16/10/2008.

However, from CPAG handbook, I understand that DWP can delay payment until the medical (having always advised this way).

I don't have any papers relating to the case and am seeing him again on Monday. Any advice would be welcome.

Hi Sangeetae,

when you say IB stopped 15/04/2008 do you mean that was the actual date of decision and the actual notification of the decision just went out on a later date?

Andy

That should only apply to claims made within the 6-month period. Because incapacity for work is assessed on a daily basis, once the 6-month period is up then he should be treated as incapable of work and paid benefit until he fails another PCA.

Paul,

i'm confused i thought the DWP stance is that the claim was made within the 6 month period.

Andy

Andy

That’s my fault. I should have made it clearer. The CPAG info referred to only concerns claims made within 6 months where reg 28 doesn’t apply, i.e. there has been no deterioration. In other words a further claim not covered by reg 28 can be made within 6 months but benefit cannot be paid until either the PCA is passed or 6 months is up, whichever comes first. Because at the 6 month period point he can be treated as incapable of work because there has not been a negative incapacity determination within the last 6 months.

However, in reality the claimant, at the 6 month point, would probably have to submit a fresh claim if he had not been re-assessed under the PCA.

I think sangeetae might have thought that CPAG was saying that the DWP could delay paying benefit during a period where a person is treated as incapable of work. They weren’t and the DWP cannot.

Paul

Thanks Paul,

going off at a tangent i was wondering about the IB stopping on the 15/04/2008 but the notification going out on a later date scenario. Might sound really pedantic but you know the scenario with SOS's submissions (appeal bundle) and the front sheet states personal details etc and then the date decision made e.g. 24/06/2008 and decision notified 25/06/2008. Well have come across the odd JCP decision in which the gap between decision and actual notification has been several days and wondered if that was a possibility in Sangeetae's case which bearing in mind the claim made in 16/10/2008 she could exploit.

Oh gawd i hope this makes sense, its my outreach day in Crewkerne and my brain has gone from a semblance of clarity to a muddled puddled wotsit.

The worst gap I have seen between the decision and its notification was nearly 6 weeks - not surprising the poor claimant was incandescent.

I had one recently where the gap was 3 months. However, as the decision had no legal force until notified to the claimant our local jobcentre (quite properly) carried on paying her up until the actual date of notification. We also won the appeal.

The DWP are stating the claim is within 6 months.

I am going for a deterioration argument as well. Still waiting for the G.P to be more explicit.

So, to clarify, he should be paid when the 6 month point is reached anyway? Or should he make a new claim to put this into effect? (wouldn't it be ESA now?)

Thanks, Sangeeta


(hadn't even thought about the contribution conditions, since his last IB claim was in Jan 2007.)

If his claim is yet to be determined at the 6 month point then they should just issue an entitlement decision and start paying him. You might have to 'remind' them.

If they have determined his claim against him without applying the PCA then at the 6 month point request a revision on grounds of official error (i.e. not applying the PCA) and they should pay him from the end of the 6 month period until such time as he fails a PCA.

Hi Andy,

The benefit stopped being paid on 15/4/2008 (date on the DEA's system), but apparently the decision was dated later that month. They don't have a copy.

Sangeeta

i'd say definitely proceed with IB claim from 16/10/08 and don't claim ESA. You can ask for his PCA to be fast-tracked, because no benefit is in payment pending PCA. If he passes PCA he is entitled from 16/10/08.

There is no 6 month rule!!!! which prevents this.

I think I'm getting somewhere thanks. The decison was dated 17/5/2008.

I have evidence re deterioration with more due tomorrow.

I've been told that PCA can't be fast-tracked and has not even been initiated following DM's decison on 5/11/2008, that benefit cannot be paid without it.

Another DM is looking at paying from tomorrow when 6 months is up, will look at new evidence and has initiated PCA (IB 50). Hooray!

I'll be complaining too.

sory - i didn't know a decision was given on 5/11/08 - have you appealed?

the position is that if there is a new condition or a significant deterioration, IB can be awarded within a six month period of failed PCA. If neither, a new IB claim made within 6 months, but cannot benefit from being deemed incapable on the basis of med. cert until an incapacity determination is given. A PCA needs to be carried out before payments are made - hence the need for priority - if PCA successful, award starts from date of claim.

if a disallowance was made on the basis that IB is not payable because claimed within 6 months of failed PCA, it is wrong in law and give grounds for appeal. hope you get it sorted out...

Thanks;

this decision on 5/11/08 was, as I understand it, that IB cannot be paid until pca carried out. But I was told they are not given any priority.

DM will consider paying from today as 6 months is up and has taken evience re deterioration (more to come) and sent out an IB50. I think it's covered.

(I'm making an effort to type decision correctly this time).