My client was awarded DLA HR Care under the Special Rules in 1996 as a result of an AIDS diagnosis. That diagnosis remains but owing to advances in theraputic drugs, he now believes he will live sufficiently long and remain well enough to consider returning to work. He also receives IB and a return to work will not be financially worthwhile if he loses his DLA. He realises that he will lose the IB and will notify that department of the DWP if he returns to work, but is resistent to notifying the department dealing with DLA as going back to work is not of itself a notifiable change of circumstances and his Doctor tells him that as a matter of medical definition he retains his AIDS diagnosis, so he sees no other change of circumstance of which he is required to notify DLA.
Does anyone have any views/experience on this point?
Also, if the client notifies IB but not DLA of any return to work, is it likely that the IB department will tell the DLA department, which would then generate a review of his DLA award?

I’m not strong on Departmental practice in special rules cases but my thoughts are as follows. DLA care awarded as at date of claim death is to be reasonably expected within 6 months. But as we know benefit is not withdrawn simply because someone survives past that point. However, sometime later the person’s doctor tells him that he may reasonably expect to survive for, say, another 12 months. The question would be would the Department withdraw benefit if they had possession of this information (presuming no other care needs).

If so then I think that the claimant would be under a duty to disclose as section 71 of the Admin Act says that there is a recoverable overpayment when there has been a failure to disclose and but for that failure benefit was paid that would otherwise not have been paid. This is subject to the unambiguous instructions of what was required to disclose, of course.

I’ll be glad to be proved wrong, however.

Regards
Paul

A recent decision by Commissioner Howell, CDLA/3429/2005, holds that whilst the fact of returning to work in itself is not sufficient to revise and remove a DLA award, it may be if the nature of the work reflects the true extent of a claimant's physical ability.

A summary of CDLA/3429/2005 is in the briefcase area of rightsnet.

In addition, a March 2006 decision by Commissioner Mark specifically considers and dismisses a claimant's appeal against a decision to remove his special rules DLA award following him returning to work.

A summary of CDLA/845/2005 is also in our briefcase area.

Working itself is irrelevant, as you know. In my opinion, it wld only be an issue if the type of work contemplated wld lead a D.M. to have some sort of serious doubts (or reasonable doubts) about the correctness of the award. Given a Special Rules scenartio, this could not be so for the Care Component, as ANY job cld Not possibly affect prognosis. For Mobility, there could conceivably be problems, but not unless he job involved a reasonable amount of walking or standing. If he were to take up a job as a golf groundsperson walking severalk miles a day that wld be inconsistent with any H.R. Mobility he may have. Bar work may also be problematic as another example.

However, again given the Special Rules scenario, it may be possible that the Department might wish to supersede the current award given his prognosis having evidently been affected by the treatment he is receiving. I wonder when his award was last superseded?. If it was a while ago then there may be more risk of a supersession now, whereas if it was more recently then probably not. . In either event, however, the fact he started work is not a notifyable r.c.of circ's., so will not affect the situation either way. The only way there cld be problems is if, in notifying them of anything, you cld unwittingly prompt someone to go fishing around for reasons to revoke (merely by reminding them of your existence by having written to them!). The I.B. section shld, not, in these circ's, however, inform the D.L.A. Unit, and I would think probsably wouldn't; but you never know!. Sorry that's not much help, back to square one!.

Just to clarify as we seem to have posted at roughly the same time. Agree with the others that starting work is not of itself a notifiable change, I am referring to the change in prognosis.

The issue is surely whether or not the claimants death is still reasonably expected within the next six months?

If he could obtain a further DS1500 then there is nothing to supersede.

However, if he can't get a DS1500 then there has been a change of circumstances.

If there is no entitlement under other regs then the question arises as to when the actual change of circs occurred.

The returning to work can be a CoC as referred to above.

The CDs are quite clear.

The fact that the claimant would prefer to keep his DLA as well as work is irrelevant when the question is over entitlement.

The claimant could already be being overpaid.

Just one more thing.

Has the claimant been advised on claiming Working Tax Credit?

Yes, he has been advised on WTC, but his concern is that he will not be able to cope with work and even though the new linking rules for IB mean that he could reclaim IB at the old rate if he had to stop work within 104 weeks, he is concerned that he would lose his DLA permanently.

As the replies (for which many thanks) indicate that there is still some grey in this area - particularly with regard to the date on which any notifiable change of circumstances is deemed to occur - it would be particularly useful to know if the IB Section themselves notify the DLA Unit when a claimant starts work, as I myself feel sure any notification would generate a review that would not otherwise take place.

I can't remember whether it is yet in force or will be soon, but there are new rules that a Special Rules award, instead of being for an indefinite period as it is at present, will be for a fixed period of 3 years. This must imply that survival beyond the expected date has become sufficiently common to require addressing in the rules. DCS does commonly review DLA awards where people return to work, but as other correspondents have pointed out there are only likely to be problems if the work undertaken is inconsistent with the level and component of the benefit.

The problem with special rules awards is that they are deeming rules - ie, it is totally irrelevant whether there are actually any care or mobility needs as long as the special rules are satisfied. I note that the CPAG handbook comments that an award based on the Special Rules can be revised at any time if it appears to the SoS that the original diagnosis was wrong or has ceased to be correct. There is no authority cited for this but it feels right. As I understand it your client now feels that he is not particularly likely to die within 6 months. His doctor is right to say that the diagnosis won't go away, but its implications may change.

So far I think he has to be OK as the DCS knows (I presume) that he is claiming under the special rules - if they no longer know that and just think he has an ordinary indefinite award it may not ahve occurred to them to check up, though 10 years is a long time for anyone to be terminally ill in any meaningful sense.

Certainly under the new rules, once the fixed 3 yr period has expired you'd be looking at normal DLA qualification routes. My feeling is that no longer being terminally ill probably is a change of circumstances, and that the special rules are the only occasion on which a specific medical diagnosis as opposed to functional disability can be applied in DLA.

Brigid

John Birks said:-

"If he could obtain a further DS1500 then there is nothing to supersede.

However, if he can't get a DS1500 then there has been a change of circumstances."

This is similar to the point I raised also, on when he was last assessed for D.L.A. under the Special Rules. If this wsas when the initial award was made, some 10 years ago, then there's clearly more risk of a supersession, if someone becomes aware of his award's existence in the D.L.A. Unit. If, however, it was reviewed much more recently, with a newer DS1500 Report, then there's less risk, obviously.

The question is whether the I.B. Section are likely to inform the D.L.A. Unit. I know they occasionally do if a dodgy IB85 medical report comes in, but rarely I think nowadays around here at least. They used to do so regularly but fell foul of lots of tasty legal arguments concerning the diffeent qualifying conditions for D.L.A. + I.F.W.. I have not heasrd of them doing so in the scenartio described, but clearly someone who works for the Department may know much more than those who don't.

re brigid's point above re new 3 year rules .... from rightsnet news 22 sept ...

"The DWP has issued new guidance that confirms that all new 'special rules' awards of disability living allowance and attendance allowance are to be made for a fixed period of 3 years .... from 25 September 2006"

Special rules DLA/AA awards to be made for fixed period: New rules introduced next week