I received an interesting letter from DLA the other day. I entered an appeal in May on behalf of a client aginst a small overpayment of DLA. My letter clearly said that Mr X wants to appeal. The letter I received from DLA said

"We have looked again at the facts and the evidence we used to make our decision and looked at the points you have raised. However, we have not changed our origina decision. This means that Mr X owes £n"

The letter then askes for repayment of the money.

No indication that this has been heard by an appeal tribunal or that the file will be sent to the appeal writers etc.

When I phoned the section dealing with this, I was told that if we now want to appeal, we will have to write in and request one.

What are they talking about? The problem is that I will have to write in anyway to correct them which will look like an appeal and they might think they are right.

I reckon you should write in and enclose (and refer to) the previous appeal something like as follows.

Further to the attached late appeal. On receiving the letter dated in XX/XX/XX it appears the letter is not a decision as it does not contain the mandatory information that identifies it as a decision (appeal rights, right to request revision/Written Reasons as per Reg 28 D&A regs 1999)it appears that no decision has been made that could supersede the appeal submitted in time on XX/XX/XX (copy attached.)

If the letter of XX/XX/XX is treated as a valid review decision the appeal of the decision XX/XX/XX is, I believe, still operative and has not been affected by the decision of XX/XX/XX by way of advantageous Supersession or Revision under Regulation 30 (1) of the Social Security and Child Support (Decisions & Appeals) Regulations 1999 as the decision could only be made as an error in law or to have misunderstood the law.

The decision of XX/XX/XX leaves the amount decided as a recoverable overpayment as unchanged. As this is not an advantageous decision the appeal dated XX/XX/XX is still valid. Please arrange an oral hearing.

That is more or less what I have done, I just wanted to rant about it. I am more concerned about unrepresented apellants who may well just give up.

Something like the following usually gets a result and may (and I am being at my most optimistic here) decrease the likelihood of it happening again: -

Further to the letter of appeal dated......on behalf of our client.....(copy enclosed) I am writing to request that the appeal be processed and the case sent down to TAS for listing.

If this request is not complied with we will have no option but to advise our client to consider judicial review proceedings to compel you to carry out your statutory obligations.

We thank you for your co-operation in this matter etc, etc.

Yours etc

C.C. DWP legal dep't

However, I share your concerns about the unrepresented and I am thoroughly sick and tired of these kind of unlawful practices; see also, refusal to give out claim forms, benefit officers on counters telling people they are not entitled, when that role falls to a decision maker.

Oh my god I'm ranting now; I'll leave quietly now!

Regards
Paul

Its Friday.

I'm off to the pub.

Five years ago it seems i wrote I was off to the pub.

Now I need to know what exactly is the definition of advantageous to the claimant.

In this case the person was receiving less Income Support as was taken to be in receipt of another benefit, Carers Allowance.

IS included Disability Premium & Carers Premium.

CP paid in error as not getting CA.

By removing CP and CA customer should get more IS.

However, is advantageous benefit specific or holistic?

Wed 12-Aug-09 06:58 AM by Kevin D

In HB/CTB, an increase, or new award, of a "relevant benefit" (including Income Support), takes effect from the actual date of that change. If there is a similar provision for changes of circs involving IS, I can't see the DWP has any legal basis for refusing to increase IS retrospectively. Hopefully, someone who knows IS can confirm whether or not there is such a provision.

This would be advantageous to the client I am sure assuming it is an IS appeal, as they would end up with more. But what wee need to know is why did the error occur in the fiorst instance? Are we talking revision (original decision wrong all along as never had CA) or supersession (original decision right becasue used to have CA but no longer has)?

Under reg 5 of the Decisionas and Appeals regulations a decision can be revised at any time if the SoS realises it was wrong because of ignorance of a material fact, and in any event if the decsiion is appealed. But there are all sorts of rules about timescales.

Generally a change of circs that is favourable to the claimant only takes effect from the date it is notified, but can be backdated for a month if notified in that time, or longer if there's good cause (reg 7). But there does seem to be a special rule relatng to the cessation of carer's allowance, when the change is backdated to the day after CA ceased.

How did the mistake happen?

CA appears to have ended as DLA for cared for person dropped to LRC in 2006.

CA Unit didn't advise IS section.

Customer did not advise the IS section.

Run on for CP when CA ends is 8weeks.

As the notification to IS was 2009 the supersession decison is from date of notification.

Notification was by JC+ Lone Parent Adviser.

As LPA have presumably seen the claimant previously and failed to advise properly on her benefit entitlement we've requested an extra-statuatory payment for maladministration (seeing as there is no legal grounds for correcting the decision.)

Had the claimant been claiming IS on grounds of Incapacity I don't think there would be a maladministration issue. However, she wasn't and DWP confirmed as claimed on basis of being a LP

The advantageous bit of regulation 7 (D&A) is intended to be benefit specific I'm sure.

Its just that the customer was thought to have more income and a higher applicable amount.

In total the decision could be viewed that she is worse off, a disadvantageous decision.

Of course it could all be a load of rubbish and the compo avenue is the right option to pursue.