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Top Incapacity related benefits topic #4793

Subject: "IB APPEAL / ESA ISSUE" First topic | Last topic
fulham
                              

welfare rights franchise worker, fulham citizens advice, london W14
Member since
14th Nov 2005

IB APPEAL / ESA ISSUE
Thu 28-Jan-10 04:13 PM

Hi,

Any advice would be appreciated.

IB stopped in July / August due to IB50 not being received by DWP.

What are best options?

Should the client appeal the IB decision late (although she had already asked for this to be looked at again?) and I have been told that she has no right of appeal?

What can she claim now? If a late appeal is accepted am I correct in thinking the client can still get reduced rate IS?

Or

Can the client now make a claim for ESA with a 3 month backdate? If she wins an IB appeal this would then supersede the ESA award.

Any help would be great!

  

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Replies to this topic
RE: IB APPEAL / ESA ISSUE, Domino, 29th Jan 2010, #1
RE: IB APPEAL / ESA ISSUE, stainsby, 29th Jan 2010, #2
      RE: IB APPEAL / ESA ISSUE, mike shermer, 29th Jan 2010, #3
           RE: IB APPEAL / ESA ISSUE, ros.white, 29th Jan 2010, #4
                RE: IB APPEAL / ESA ISSUE, stainsby, 29th Jan 2010, #5

Domino
                              

Welfare Rights Advice Worker, Lasa
Member since
22nd Jun 2009

RE: IB APPEAL / ESA ISSUE
Fri 29-Jan-10 09:57 AM

Hi,

He can appeal the IB decision on the grounds of good cause for sending the IB50 late, stating his reasons. He will also have to show good reasons for late appeal (if it is late), and why the case has merit (interests of justice). Does the client have evidence of putting in the revision request within a month of the decision, which would show that the appeal is not late?

If he appeals the IB decision and the appeal is accepted he will not be able to get reduced rate income support as he does not come under a prescribed category of person for receiving income support under Sch 1B para 24 of IS (General) Regs. You can only get reduced rate income support if you are appealing a decision which embodies a determination that you are not incapable of work. The determination in question is the PCA decision. As the IB50 was returned late and not accepted, the client has not undergone the PCA, and the decision to find him fit work has not therefore embodied a determination.

He can instead claim ESA (and ask for the backdating), pending the appeal. If he wins the IB appeal, then this would supersede the ESA award.

  

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stainsby
                              

Welfare Benefits Officer, Gallions Housing Association, Thamesmead SE London
Member since
22nd Jan 2004

RE: IB APPEAL / ESA ISSUE
Fri 29-Jan-10 01:03 PM

I always thoght that any finding that a person is fit for work for whatever reason is not a decision. The decision is the outcome decision to refuse either IB or NI credits. The finding that a person is fit for work (because of the non accepted IB 50) is a determination embodies in the decision to refuse IB

Whether the determination is a determination for the purposes of S171C of the Act (the PCA) is more moot because the authority for that determination is Reg 7 of the Social Security (Incpacity for Work ) Regulations 1995 as amended.

The enabling provision for Reg 7 is S171A (2) of the SSCBA

"(2) Regulations may make provision as to–
(a) the information or evidence required for the purpose of determining
whether a person is capable or incapable of work, and
(b) the manner in which that information or evidence is to be provided,
and may provide that if a person without good cause fails to provide that
information or evidence, or to do so in the manner required, he shall be treated as capable of work."

It is arguable S171A is merely the enabling provison for secondary legislation providing for a person to be treated as capable of work, but S171A of itself does not provide for a person to be determined to be capable or not capable of work. That is still left to S171C where the question is that of the PCA. The determination under Reg 7 where the IB50 is not accepted appears to me to be a determination for the purposes of S171C and so that person should be entitled to IS under paragraph 24 of Sch1B of the IS Regs

Or have I misconstrued something?

  

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mike shermer
                              

Welfare Benefits Officer, Kings Lynn & West Norfolk Borough Council, Kings l
Member since
23rd Jan 2004

RE: IB APPEAL / ESA ISSUE
Fri 29-Jan-10 02:05 PM



Before we get too excited, can you clarify whether "IB stopped in July / August due to IB50 not being received by DWP" meant literally that? If not, from here on in I'm merely waffling.

DWP operate an policy which says that if they send a letter to a customer it is deemed as having been recieved, unless they can prove it hasn't. I'm sure I've read at least one Comm's decision to that effect. Therefore to maintain the proverbial level playing field the same policy must be seen to be applied to letters sent to DWP, and the onus then falls upon them to prove that post had not been receieved.

I would be arguing, If your client is convinced beyond doubt that they did in fact post the form that, unless they can prove otherwise, the mail item was received and had since been mislaid by either the Royal Mail, the contracted out mail opening service or within the BDC itself. Bear in mind that Royal Mail admitted to losing 250,000 packages last year alone. Furthermore JCP are not blameless when transporting documents by Courier as we all know.

It follows that you could appeal on the grounds that they should not have s ended benefit on the grounds of non receipt of a form and that to imply that the form was never sent is unacceptable.

  

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ros.white
                              

writer/editor, rightsnet
Member since
16th Nov 2009

RE: IB APPEAL / ESA ISSUE
Fri 29-Jan-10 02:49 PM

hi.
just on the point about whether or not can get reduced rate IS whilst appealing: i agree with domino that you can't. CIS/2445/2005 confirms that paras 24 and 25 of Sched 1B only apply when failed pca or own occupation test.
cheers ros

  

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stainsby
                              

Welfare Benefits Officer, Gallions Housing Association, Thamesmead SE London
Member since
22nd Jan 2004

RE: IB APPEAL / ESA ISSUE
Fri 29-Jan-10 03:04 PM

Fri 29-Jan-10 03:05 PM by stainsby

So there we have it, para 7 of CIS/2445/2005 holds that a determination under Reg 7 is made for the purposes of S171A, the enabling provision and not S171C

Hot humble pie with mash and liquor for me when I get home then.

  

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