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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

Carers Allowance and backdating

Cordelia
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I have a client who was awarded Carers Allowance and Income Support.  She was a carer for her child A.  Her other child B was also disabled and in receipt of DLA.

A’s DLA stopped in 2013, and so did the client’s Carers Allowance.  She did not realise that she needed to tell Income Support.  (When I met her recently she was under the impression that her Income Support was Carers Allowance.)  She continued to receive the same amount of Income Support i.e. about £45 per week.

In 2016 Income Support realised that her Carers Allowance had stopped, ended her claim and raised an overpayment for the Income Support she had received since 2013.  When we met her we advised her to claim Carers Allowance for child B.  We also asked Income Support to reconsider their decision, as at all times she had been regularly and substantially caring for B.  They have accepted this and agreed that she has not been overpaid.

She’s lost out significantly over the last three years.  If Income Support knew that she was a carer but not in receipt of CA they could have paid a standard personal allowance, even though I accept that she wouldn’t have had a carers premium.  I can’t see any way to make them pay arrears now.  If it was an award of a qualifying benefit it would be backdated, but its not an award its an ending.  And it was advantageous to her, at least in the narrow terms of IS calculations, so the onus was on her to report it promptly.

Am I missing anything?

Paul_Treloar_AgeUK
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No, I think you’re completely correct that the outcome to date is very good, as they’re not hounding for overpayments, and there is a requirement on people to understand a basic need to report changes that might be deemed more obvious. Having said that, one can entirely see the position where your client might have expected the “authorities” to have helped her adjust to her new circumstances and strangely, give her some information about what they actually expect her to do and what support she might be able to get.

If you thought it feasible, you can try for Financial Redress for Maladministration, this https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff is still relevant so that’s one option.

Tom H
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Cordelia - 06 December 2016 08:50 PM

..We also asked Income Support to reconsider their decision, as at all times she had been regularly and substantially caring for B.  They have accepted this and agreed that she has not been overpaid..

..And it was advantageous to her, at least in the narrow terms of IS calculations, so the onus was on her to report it promptly.

Whilst that is good news, I don’t think it’s much of a concession on the DWP’s part really.  As you say, the supersession decision appears advantageous to her given that, more probably than not, she continued to regularly and substantially care for child B and could, therefore, have been paid the standard single person’s allowance unreduced by any CA, £73.10 as opposed to £45, had the Dept been aware of that fact. 

It seems from your post that the Dept have superseded her IS on the grounds of Reg 6(2)(a)(i) D&A 1999 (note to editor of the Blue volumes: please put this important sub para back; it’s only full blown para (i), ie the one immediately following para (h), that’s gone from Reg 7(2)).  That would, of course, be correct as the loss of CA and CP is a change of circs for IS.  And the fact she hasn’t had to make a new IS claim suggests that the Dept have also accepted your view that the supersession is advantageous to her.  It follows that they must have opted for Reg 7(2)(bb) D&A to set the date that the supersession took effect, ie from whenever in 2016 the DM commenced the supersession process.

Whilst sub para (bb) above is definitely a contender, there’s arguably another alternative ground for the supersession taking effect.  I was going to say that that ground was 7(2)(a) because, firstly, it doesn’t expressly exclude a supersession that’s been made on the DM’s own initiative (eg, 7(2)(a) could accommodate any advantageous supersession initiated by a DM where notification had been received within the month or within any period upto 13 months if extended, leaving 7(2)(bb) for those advantageous supersessions initiated by a DM where notification is received later than one month or, if applicable, later than the time limit as extended).  Secondly, and perhaps more importantly, because 7(2)(a) doesn’t expressly require the notification itself to have been made by the claimant, not where it is made within the month anyway, unlike, say, 7(2)(c)(ii).  So notification made by the CA Unit to the IS section would appear to suffice.  Obviously, there’d be difficulties with that approach, not least proving that the CA Unit did, in fact, notify IS.  However, should that interpretation be correct you would have a situation where two alternative contenders existed for when the supersession took effect.  And there is caselaw, admittedly in the context of the choice between competing grounds in Reg 6 rather than Reg 7, which holds that the claimant can rely on the ground which is least unfavourable to him/her.  See R(DLA)6/01 mentioned in the commentary to para (1) of Reg 6 D&A 99 in Vol 3. 

And a further thought re the relationship between Regs 6(2)(a) and 7(2), I don’t think we can assume that “notification” under the latter is the same thing as the claimant “applying” for supersession under the former.  For instance, the claimant who notifies IS that their CA ended 8 months ago, isn’t necessarily applying for supersession under 6(2)(a).  B v SOS, after all, reminds us that the claimant is not expected to understand the materiality of the fact notified.  In the present case, the claimant thinks her IS is her CA, so even if she’d notified the IS team about the change, I think the resulting supersession would still be done on the DM’s own initiative rather than on her application.  That further supports, I think, the idea that 7(2)(a) and 7(2)(bb) are both compatible with DWP “own initiative” supersessions.
 
However, as stated above, I was going to name 7(2)(a) as a contender until I realised it is, by virtue of Reg 7(1)(a), expressly made subject in the present case to Sch 3A to the D&A Regs.  But, if anything, that is even better news because the applicable para of Sch 3A here appears to be para 1.  That para would have the supersession of the IS taking effect from the date of change (the exact date depending on whether her IS was paid in arrears or advance).  Para 1, therefore, appears to be the proper contender to 7(2)(bb), the former allowing the supersession awarding 73.10 p/w to be effective from 2013, the latter allowing it from 2016.  The beauty of para 1 is that it’s only condition is that the supersession is made on the grounds of change of circs so that it includes both supersessions made on application by the claimant and, as here, on the DM’s own initiative.  And it doesn’t require any notification to have been made to the IS section at all, whether by claimant or CA Unit. 

There appear, therefore, to be two competing grounds for the effective date of supersession and I’d be arguing that the claimant is entitled to have the benefit of the least unfavourable or, in the present context, the most favourable.  I would also resist any contention that it is somehow implicit in Reg 7 that sub para 2(bb) exclusively deals with advantageous supersessions initiated by the SSWP.  The grounds in 7(2) are separated by “or” and appear freestanding.  I’ve given an example above of how 7(2)(a) could be construed to accommodate “own initiative” supersessions and, certainly, para 1 of Sch 3A does not restrict supersessions to those made only on the claimant’s application.

[ Edited: 8 Dec 2016 at 01:03 am by Tom H ]
Cordelia
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Thank you both.

I think I’m going to have to dust off the law books to follow Tom’s argument, but it sounds interesting.

One question Tom - how do you get the DWP to delve into the finer points of the regulations?  I can barely persuade them to read the relevant paragraphs in the Decision Makers Guide.

Tom H
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Cordelia - 07 December 2016 08:25 PM

One question Tom - how do you get the DWP to delve into the finer points of the regulations?  I can barely persuade them to read the relevant paragraphs in the Decision Makers Guide.

That is a very good question for which I’m afraid I don’t have an answer.  I once worked in a decision-making capacity at the start of my working life and I can tell you that I thought the manual was the law.  And that is the problem here: there is simply no culture of law in most of the DWP.  I don’t know what’s worse, the Vivaldi or, once through, having to silently listen, whilst slowly shaking your head, to nonsense sprouted by call centre staff convinced they’re imparting some great lesson to you, whilst you’re just waiting for the right moment to interject with “thanks for that but any chance I could have a three hour call-back”.  And even that, if rather than when, it comes is often only marginally less incompetent.

If you’re getting the law books out (and Cordelia, dust? tut tut:)) I’d save yourself half an hour of your life and just focus on para 1 of Sch 3A vs Reg 7(2)(bb).  I think I went on a bit unnecessarily about 7(2)(a) in my last post.  When I wrote that post I did so based on the most up-to-date version of the D&A Regs provided by the Blue Volumes.  I’ve since looked at the very brief commentary on Sch 3A found in volume 3 of the legislation books which talks about Reg 7(2)(bb) taking precedence over the paras of Sch 3A and supports that statement by referring to Reg 7(1)(a) D&A.  I’m not sure that’s right.  There seems an assumption in the commentary concerned that sub paras (b) and (bb) of Reg 7(2) are the only provisions that deal with an advantageous supersession based on change of circs.  But that overlooks the fact that 7(2)(a) - there, I’ve mentioned it again - which also concerns advantageous, change of circs’ supersessions is overreached by Sch 3A. 

I think the crux is: does the fact that 7(1)(a) tells us that 7(2)(bb) is not dependent on Sch 3A for its meaning and effect, ie it’s freestanding, prevent para 1of Sch3A which in the present circs is, admittedly, potentially far more generous than (2)(bb), from applying at all?  On reflection, possibly.  But that would mean even if the CA Unit, or better still, the claimant, had notified IS within a month of the CA ending and such notification had simply been overlooked, the supersession which is eventually made 3 years later on the DWP’s own initiative is only effective from now not 3 years’ ago.  That doesn’t seem right.  Para 1/Sch 3A must make equivalent provision to 7(2)(a) which it replaces in IS cases.  It surely cannot be defeated just because such a supersession is made on the DWP’s own initiative under (2)(bb).  That would ignore the fact that para 1 includes both “own initiative” and “on application by the claimant” supersessions.  There seems to be an assumption in the drafting that a notification of a change of circs is an application by the claimant for supersession when, as stated earlier, that’s not necessarily so.  And certainly not the case where it was the CA Unit that did the notifying.

Because you’re not going to get anywhere with the DWP, Cordelia, except perhaps for, as Paul suggests, the compensation route, my advice would be to request a MR, if necessary a late one, of the IS supersession decision made in 2016 and then take it to appeal where, hopefully, a tribunal will find in your favour.

[ Edited: 8 Dec 2016 at 12:52 am by Tom H ]
Tom H
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The more I look at this the more I feel you’ll have your work cut out winning any legal challenge, so compensation may well be your best bet.  Whilst my argument accepted that 7(2)(bb) was not directly subject to Sch3A, its insistence that para1/Sch3A could apply at the same time, forcing a choice between the two provisions, would in effect make the former subject to the latter.  And that is expressly forbidden by 7(1)(a). 

It might have been different had the application for supersession been made by the client for then 7(2)(bb) could not have applied.  The DwP in that event would have chosen 7(2)(b) which would still not produce any arrears of IS because such a supersession takes effect only from the date the client notified them.  However, that raises one final point which is perhaps still worth a go.  What if the CA unit had made a timely notification to the appropriate office, ie the IS section, which is likely given it’s standard practice I believe, and what if the client decided to make an application for supersession now, despite the fact a supersession has already been made on the DM’s own iniative? 

7(2)(bb) would obviously not apply as the application would be being made by the claimant.  7(2)(b) would also arguably not apply because we assume the CA Unit’s notification would have been within a month of the change occuring.  That would leave only para 1/Sch3A as the basis for the date the supersession took effect, which would be the date of the CA Unit’s notification, ie 2013. 

Several issues/problems with this argument: (i) proving that the notification was made by CA to IS; (ii) that it was made within one month of the change occuring, (iii) that a notification from someone other than the claimant or a person acting on their behalf is capable of being a valid notification for the purposes of Reg 7(2) where it is made within one month and, finally, (iv) demonstrating that the claimant is not prevented from making an application for the original decision to be superseded despite its having been superseded already on the DM’s own initiative.

On that last point, as you may know, the principle of finality established by section 17(1) Social Security Act 1998 prevents two separate outcome decisions operating during the same period of time.  In this case, the DM’s supersession is effective only from 2016 onwards, so there is scope for the original decision, ie the one awarding £45 p/w IS, which has been effective since the beginning of the IS claim, whenever that was, right the way up until 2016, to be superseded again in respect of the period 2013-2016 without it appearing to offend the principle of finality. 

There’s still hope, therefore, but it’s the old problem of cost (in terms of the ground work needed to run this case) versus benefit, especially where the chances of success are perhaps 50/50 if that, which seems the case here.