Is the 3 month deadline for late IB claims set in stone?
I have a client who suffered a brain injury June 2001. She received full then half pay until June 2002. The lady is severly handicapped (DLA high car/mob). Her husband assures me that they were never advised to claim IB after her salary ran out (he has power of attorney). I beleive they are now too late to claim, am I correct?

You can claim ICB at any time providing you submit a sicknote to the DWP and satisfy the contribution conditions (or IS if contribution conditions not satisfied). However you can only backdate a claim up to a maximum of 3 months.

The relevant tax years for an ICB claim in this benefit year are 2000/1, 2001/2 and 2002/3. So she may have paid enough contributions in either of the tax years 2000/1 or 2001/2 to qualify for ICB.

If you claim ICB on the basis the claimant has been sick since 2001 this in fact pushes the timescale back to prior the years mentioned above, as the relevant years relate to the benefit year in which your period of sickness began.

Your client should make a claim for ICB on behalf of his wife from the date of her brain injury, with a backdated sicknote for the whole of this period.

While the benefit may only be backdated 3 months in law, it may be worth asking for an ex-gratia payment due to the circumstances.

(The omission by employers to issue the "changeover form" from SSP to ICB is something that really annoys me - and I was aware of one claimant with a terminal condition who got 8 months arrears of ICB paid - no questions asked.)

I think there may be a cleaner route.

Assuming she hit half pay at around 28 weeks when her SSP would expire, Reg 15 of the SSP Regs says she should have been sent a form by the employer (SSP1)to complete and send to DWP to claim higher rate short term ICB. The form is difficult to forget because it is A4 and has many pages, some of which are pre-completed by the employer confirming no further entitlement to SSP, etc.

Failure to issue the SSP 1 should mean that even now ICB is payable from the date when the SSP1 should have been sent to her (assuming the other conditions of entitlement to ICB are met).

Employers have no option but to isse the SSP1 and it is a criminal offence under Reg 22 SSP Regs to not issue one (the offence is being removed in April I believe and I wonder how many prosecutions have ever taken place).

The SSP 1 maintains the original Period of Incapacity for Work so if the employer issues an SSP1 even now in respect of the the SSP ending in 2001 a successful ICB claim backdated to then would follow as a result of effectively resurecting the old PIW. (reg 7 ICB Regs 94. This then gives the claimant 3 months in which to claim ICB (Reg 10 (1) & (2) SS Claims & Payments Regs) from when the SSP 1 was issued. It also avoids potential problems with falling out of entitlement to ICB in later years on contribution grounds if she simply makes a backdated claim without linking to the previous PIW.

She will also need a backdated medical certificate (Med 5) to cover all the time she has been incapable of work.

Hope this makes sense. Basically, get an SSP1 sent by the employer. Get a Med 5 from her doctor. Complete the SSP1 and send it and Med 5 to DWP to claim ICB. A covering letter explaining delay would be helpful.

I have found myself explaining to various personnel/pay department bods their responsibilities to issue an SSP1.

I have established backdated claims using an SC1 to prevent further delay; the backdated sicknote establishes the PIW.

The key point of my previous posting was to point out that it is the date when the PIW began that determines the relevant tax years, not the date the claim is made.

What if the employer says they did send out an SSP1 at the appropriate time?

One would hope that they have a copy or record of one being sent!

Entirely off the top of my head, it may be a requirement for employers to keep a record as part of the SSP requirements. The details will be in the IR's employer's SSP booklet.

Thanks for all your help folks. Ihave advised our client accordingly

if a client obtains a med 5 for past period, can they use that period to qualify for disability premium in income support?

Eg, DWP records show client qualfies for incapacity benefit until 2002, then there is break in claim and client qualified again from July 2003 (contribution record precludes payment of IB). Client gets a med 5 covering period of break. Is disability premium payable immediately?

Thanks.

That is exactly what we got for our client, the backdating has to be done through the ICB office with an ICB claim and med 5, then they will inform IS. (see posts above). It is only the IS premium for which you actually get a backdate (I would think it should work for HB/CTB only claimants as well).
You loose the NI contributions, but it seems a good way to go if you can't appeal the initial decision.
The case that started the post doesn't seem appealable, as there would have been no valid claim in, and our case was out of time. (3 years out of time we could have argued with, as he was not informed, but he was out of time from the date IS stopped).
Weird and round-about system, as always.