I’m at appeal with client who made application for IB just before his 20th birthday and was refused IB due to lack of contributions. Client claimed IS.
Fast forward 2 years client still on IS. So why no IBy ?
Made new application for IB and the claim was allowed, but with only 3 month’s backdating.
Have appealed to have IB B/dated 2 yrs which would have taken him onto Long Term Incap at least 1 year ago.
Apparently the IBy22 form was not sent out after 196 days. In the appeal papers the D/Ms submission states that they only send these out as a courtesy and that they have no obligation to do so.
Have requested copy of their procedural guidance to verify and have been refused. They informed me that they are not legally obliged to provide us with one.
I’ve fired off request that the Tribunal request copies as the DWP apparently are limiting them and us from access to a fairly important & relevant document.
Anyone got a copy?
Anyhow just need to blow off some steam before heading home.
Keep a hold folks

There is no requirement in law for a claim for IB in youth to be made on a separate form. A claim for IB is a claim for IB (CIB/1410/2005). Don’t these people check the date of birth?

In my view the decision should be revised under reg3 of the Decisions and Appeals Regs, upon application, on grounds of official error.

They are relying on CIB/1410/2005 to support their position!! Their argument goes that as a decision was made and due to lack of contributions was disallowed and the only way it can be revived (their words) was by the making of a new claim.
I’m of the opinion that they are skewed in their interpretation and that this Commissioners decision actually supports my client; He made application for IB and as he was under 20 they should have noted that he would, all things being equal, have qualified after 196 days. Easily checked by an IBy22 form.

".........Have requested copy of their procedural guidance to verify and have been refused. They informed me that they are not legally obliged to provide us with one........". normally means we don't have any legal backing for yet another of our dubious decisions....

Whenever faced by such intransigence, better known in polite circles as B***** mindedeness, pop off an FOI letter - normally works a treat..

and anyway, relying on an unreported CM decision ? they never take any notice the one's that we quote from....

Hi,

I have the exact same problem, I came across a client who was a FTA a PCA after sorting that out it dawned on me she was 17 years old when claimed ICB Credits and is now 21; so why no ICB(Y). I wrote to DWP asking what had gone wrong and the wrote back confirming that a marker should have been set on their system for the 192nd day of the claim to invite further deatils for ICB(Y) to be processed. They also provide a claim form and stated to ask for it to be back dated. Not surprisingly given the DWP they then changed their minds and awarded ICB(Y) but with only a 3 month backdate.

I wrote again asking for an any time review of their decison on the basis that ICB(Y) is not a seperate benefit, merely a different qualifying condition and as my client had claimed when she was 17 years old it was then up to the Department to proces this correctly. The appeal has now been accepted and the case is being prepared for tribunal. We have also asked for special compensation as the claim has been maladministered by the Department.

Like you I have also relying on CIB1410/2005 which is very clear on the status of ICB(Y) and I can't see how the Department feel this is supportive of their position.

In terms of the legislation for Incapacity Benefit a claim to Incapacity Benefit by a young person should be treated as an Incapacity in Youth claim once they become eligible for the benefit. Section 30A(2) of the Social Security Contributions and Benefits Act 1992 sets out the criteria of Incapacity Benefit in youth. 'If a claimant makes a claim for Incapacity Benefit it is not necessary to make an additional and separate claim for Incapacity Benefit in Youth. It may be necessary procedurally to complete a separate form but that form does not constitute a separate claim to benefit' (CIB1410/2005).

I think there are probably thousands of young people who have been affected in this way

Hi Brian

I’m just back from annual leave so here’s an update. I attended the Tribunal for this client just before A/L.

Chairman upheld DWP decision to back-date 3 months only.

Would not accept argument that there is no separate claim for IBy.

I referred them to Commissioner CIB/1410/2005 but was told ‘I don’t take any notice of Commissioners’!! Bet that’s not in the record of proceedings.

Anyhow the chairman wouldn’t accept my argument and decided that the DWP had carried out the law correctly.

The fact that the DWP failed to set up a marker on their system so as to invite the client to complete an additional form IBy22 was put under the heading of ‘Guidance’ only to DWP staff and deemed not to be law.

Would you believe that in their submission the DWP stated that they only did this out of courtesy to clients but that they didn’t have to do it!!

I’ve request a written statement of the Tribunal decision and would like the chance to get this before a Commissioner. However, I think that from my client’s point of view a claim for ex-gratia payment for maladministration would be the quickest route.

I believe that you are correct Brian in thinking that there are thousands of young people who have slipped through simply because of lax administration or an officer looking at the age/date of birth and not then checking when the claim was actually made. I know I’ve come across at least 4 under this heading.

As much as I hate to say it, I think the decision is probably correct.

The IB(Y) rules are in the basic conditions of entitlement in the SSCBA. S.30A(2A)(c) provides for the 196 qualifying period.

If the claimant doesn't meet that then there is simply no entitlement and so must make a new claim at the later date. To my knowledge, there is nothing requiring the SoS to remind the claimant of that.

Grossly unfair though, especially if the circs change (permitted work, working partner, etc) and the claimants loses out through not having IB at all! I would certainly push hard for extra-statutory payments if the DWP are not implemening thier own guidance though.

There is mention of the problems with the qualfying period in my post about ESA and transitional provisions...

The tribunal's decision is correct but for very simple reasons. Backdating beyond 3 months would be unlawful under regulation 19 of the Claims & Payments Regs. The tribunal had no jurisdiction to deal with the earlier claim as the initial refusal decision on that claim was not under appeal before it and the absolute time limit for a late appeal had lapsed. That is why I suggested a revision request.

If he had put a 6 month backdated sick note in with his original claim then the refusal decision would have been absolutely wrong in law because at the date of claim he was entitled to ICB. If he did not, then I still believe it was an official error as they did not investigate his claim properly as indicated by the terms of the original decision.

I'm confused by your post Paul. The original post confirms the new claim was backdated for the maximum allowable three months.

Are you suggesting to seek a review of the original refusal decision? If so, then what would be the official error?

Hi Tony

It was the second decision under appeal to backdate beyond 3 months; therefore the appeal was bound to fail. Also, out of time for late appeal against the first decision.

Only way to open up the first decision is by way of revision. If he had put a 6 month backdated sick note in with his original claim then the refusal decision would have been absolutely wrong in law because at the date of claim he would have been entitled to ICB. A decision saying otherwise would have no legal force.

If he did not put a backdated sick note in, then I still believe it was an official error, as they did not investigate his claim properly as indicated by the terms of the original decision. They should have investigated his claim on the basis of his NI record and as to whether he qualified “in youth”. The decision notice should have informed him that he had been accepted as incapable of work and would become entitled to ICB after being so incapable for 196 days. At the very least this alerts him to the possibility of making a fresh claim in 6 months time.

My view is that a failure to do so misleads claimants as to a) the proper conditions on which their entitlement rests, and, b) how properly to claim that entitlement. And until a higher authority than the DWP tells me otherwise then those are the arguments I would pursue.

It is simply just not good enough for the Department to do the bare minimum or fail to explain the demands upon claimants of such a complex system and then just wash its hands as claimants miss out on important rights and entitlements. Those days are long gone.

I have had this problem and agree with Nevip that a revision request needs to go in. My local DWP were relectant to pay back money due but eventually did after consulting their legal section (Central Adjudication in Leeds I think) who accepted that a second claim did not have to be put in after the 28 week period. Claimant recieved over £2k arrears.

The simple point is that when someone claims benefit because they are unfit for work they claim IB and IS. If there are not enough NI contributions to entitle the claimant straight away then they recieve IS (ignoring other factors of course). To keep the entitlement to IS they still have a claim in with the Incapacity Section of the DWP who decides if they are unfit for work. After the 28 weeks the IB section should have paid IB. Simple - I think - as long as you go for the revision not backdating.

Maybe ask the IB section to consult Central Adjudication on the revision request?

I still can't see it in the context of the DWP's legal obligations.

Whatever moral obligation we think the DWP has (the days of the DWP blithely washing its hands are not long gone - they do it all the time) we cannot impose those above its legal obligations - though not for want of trying.

I hear what you're saying, but I cannot see how it can be an official error for the DWP not to investigate if the claimant was incapable of work for any period prior to the dating of a MED3. If there was some other evidence in existence suggestive of incapacity which the DM failed to consider, then I would certainly argue that was an official error, but otherwise, I can only see it as an unreasonable burden in the eyes of the SoS.

You could apply the same reasoning to every single IB/IS claimant (not just those IoW) who might qualify for a disability premium sooner than 52 weeks if their incapacity for work were made retrospective. If your argument holds, the DWP must investigate all of these claims to see if the claimant was IoW before the date the MED3 was signed - I can't see the DWP are capable of even contemplating that extra work.

I agree entirely that the DWP should have informed him of his possible future entitlements, but in the case of an absence of medical evidence that would initiate some duty for the SoS to consider entitlement from an earlier date, then I am still of the opinion that the proper remedy is to seek extra-statutory payments.

JonL's points are interesting, but I cannot find any reference to support it (maybe they got a touch of conscience on that occassion). It is well known that once a claim has been refused it ceases to exist. the IB section does indeed monitor IFW for the purposes of IS, but incapacity for work is a distinct entity to a benefit paid on that basis - the permitted work rules are a very good example of that point, where exceeding the PW limits do not interefere directly with the incapacity benefit, but with the underlying incapacity for work upon which the entitlement is founded.

Hi Tony,

I hear what your saying as well. Of course it is sometimes difficult to fit the 'morally correct' and 'commonsense' arguments into the law.

I run the risk of error here as it has been a while since I looked properly at this. But, bearing in mind that there does not seem to be a provision stating a separate claim is required for IBY, could the first decision to refuse IB not be interpreted as 'You are not entitled to IB at this time because of NI reasons. However, after this 28 weeks we will pay you IB if you are still unfit for work as NI considerations are irrelevant' (?). So on this interpretation it is not that the original decision was wrong, just that the change to IB from IS did not occur due to admin error.

Someone in Central Adjudication appeared to think along these lines from my experience. I also think the IB section's continued involvment in deciding IFW would support this. What do you think?

On this thinking a revision is not appropriate - just confirmation that IBY was claimed at the beginning and no separate claim needs to be made.

Cheers

Tony

We’re not asking them to investigate whether a claimant is incapable of work prior to putting in a med 3. The med 3 goes in with the claim. The claimant is, therefore, incapable of work from the date of the claim. The issue is when does actual entitlement to ICB start? After being incapable of work for 196 days. That is a matter for the DWP to activate once the claimant has provided a properly completed claim.

The reasoning of Baroness Hale in Kerr is equally applicable here, in my view. It is a process of collaboration between the claimant and the Department. The claimant provides everything he is able to provide and the Department does everything within its power to assure a just outcome.

We know the Department routinely washes its hands but that does not mean that what it does is lawful and it is up to us not to let it get away with it. The appellate authorities are much more amenable to these type of arguments than they were 20-30 years ago.

Fri 05-Sep-08 08:51 AM by Tony Bowman

Morning Jon,

I'm certain there is no provision for a seperate claim to IB(Y) (Paul refereneced this earlier). I think what you are suggesting would amout to an advance claim and is a good idea that would benefit those claimants who have some retrospective IFW, and the three allowable months of an advance claim would take them up to the 196 day qualifying period.

I deffo agree about the admin error if the claimant wasn't advised to claim by the DWP, and that's the point I've been making. To be honest, I don't recall if the IB refusal letter mentions the point but, if not, I think it's certainly worth asking the DWP to amend the letter to do so.

I'm wondering how this issue will turn in ESA? If the claimant is entitled to ESA(IR) then I would guess there would no problem as its a single benefit. If the claimant doesn't qualify for ESA(IR) during the qualifying period, then maybe the possibility for similiar problems remains...

Does anyone fancy having a go at my ESA post... (which was inspired by IB(Y) problems where the 196 days starts pre 27/10 and ends after)?

Hi Tony,

Again I can see where you are coming from with this but at the same time cannot help but feel there must be some logical route around the problem to achieve the result we want. The situation is different from putting in an advance claim up to 3 months ahead because of the acceptance by the Incapacity Section of the claimant's IFW during the 28 week period.

In an ideal world the DWP would issue a decision saying 'you are not entitled now because of NI reasons, but after 28 weeks you will be entitled. Just keep supplying us with evidence of IFW'. Can we fit this desired analysis and what happens at this time inside a legal framework?

Your analysis so far is that the intial refusal is correct (on NI grounds) and therefore a new claim needs to go in after 28 weeks (unless the 28 weeks IFW comes earlier and the claimant could get IB straight away or argue this is an advance claim within 3 months). As far as I can remember the DWP do issue a decision saying you are not entitled now but may be after 28 weeks. Then they have a procedure of contacting people and inviting them to claim IB - all well and good if it works. If it does not then how many people will remember to reclaim?

So assuming there is no advance claim; the original decision is correct; there is no 'underlying' entitlement (as this is a different concept involving overlapping benefits) - where does that leave us?

Could the IB Sections acceptance of IFW not be seen as (for want of a better term) a 'continuing claim'? Normally a claim ends when there is a negative decision on it, but here we have the IB Section in receipt of all relevant information and active in the claim for IS. They can simply switch to IB at a later date. This would seem a just way to look at things and is certainly workable for both parties.

I must admit I have not read the Cmr decisions quoted above. If they address these points direct then please let me know.

I will check out your ESA post Tony.

Cheers