Hi, I wonder if anyone has any ideas about this case - I'm not very hopeful that something can be done but I felt I should raise it anyway.

The situation is as follows;

Client had very serious brain injury in 2005 and has been in hospital /nursing care ever since.

She was initially under the Court of Protection but this was revoked in 2008 as she was felt to be capable of dealing with her own affairs. It seems quite likely that she would have been entitled to IB had she claimed (or someone claimed on her behalf) in 2005 as she had been self employed with a very profitable busines for many years before the brain injury and it is highly likely she paid enough NI contributions (in fact voluntary contributions were paid until 2006 when the business was wound up).

I don't think she was /is is eligible for IS or income based ESA as she still has a house , family members live in it (and get HB for it) but none of them are incapacitated or over sixty so as she is permanently living elswhere it would be treated as capital.

It seems to me that the Court Of Protection should have advised the reciever/PoA to make a claim for IB in 2005 but I understand that this was never mentioned.

Other than complaing to the Court Of Protection does anyone have any idea if we could get an IB claim backdated this far - I was thinking along the lines of the IS cases where backdating was allowed because of wrong advice being given by a person who the claimant ought to have been able to rely on to give correct advice.

Any ideas gratefully recieved, even if it is to say that it is impossible!

First of all voluntary contributions do not help you qualify for incapacity benefit, only State Pension. The only contributions that do are class 1 and class 2, and up to a point only, credits.

Any backdating beyond the statutory 3 months is only a starter, in my view, if the cause of the problem was within the DWP - wrong advice then. Bear in mind that for many benefits even wrong advice from DWP will normally only allow backdating for a maximum of 3 months.

This is not an uncommon problem for many people who for whatever reason are ignorant of their rights to benefits. Maybe someone should have mentioned it but the issue lies between her and whoever that "someone" is. And that is a legalistic way of thinking.

and whilst i know litte about the CoP, i dont think their function is to give benefit or other advice; it is to approve the arrangements made re. finances ....

Whether they will have a potential claim against the COP will depend on the wording of the COPs documentation that outlines the responsibilities and obligations of the COP in relation to your claimant.

I have dealt with a number of claimants who have COP involvement and I'm not aware of any responsibility on the part of the COP to maximise someone's income. In simple terms their duty is to manage someone's finances, but it would be worth checking what the documentation says.