Can anyone please advise? I have a client who was previously on higher rate mobility, middle rate care. In October he completed renewal forms but was managing much better and was awarded nothing. However, in November he had a significant deterioration due to a collapsed lumbar disc and became housebound again. As his current award didn't expire until March, we put in an appeal. At appeal, the Tribunal advised that they couldn't award it, as at the time of the renewal claim he was better and therefore he hadn't met the 3 month qualifying condition. However, I have had a similar situation with a new claim where the Tribunal made an advance award to allow for the 3 month period so I am now confused! Any advice would be much appreciated.

Have you checked Regulation 13 of the Social Security (Claims and Payments) Regulations 1987?

Further to the above CSDLA/852/2002.

If you were seeking the same rate of benefit as previously awarded, the 3 month qualifying period doesn't apply - see Reg 6 and 11 of the DLA Regs. This applies even if there is a break in entitlement of up to two years.

Notwithstanding the provisions Ruth rightly highlights I’m not sure that regulation 13A can assist. I think the regulation is less clear now than it was before section 12(8)(b) of The Social Security Act 1998 came into force which states that no account can be taken of circumstances not obtaining at the date of the decision.

Regulation 13A usually assists a claimant who satisfies the disability conditions on the date of claim but at that point has not served the qualifying period. Thus a decision maker or a tribunal has a power to make an advance award. Regulation 13A can also assist if the disability conditions are satisfied on any day after the date of claim within 3 months of the date of claim and (for the purposes of an appeal) before the date of the decision.

Compare the wording of regulation 13A with that of regulation 13 which gives a power to make an advance award of benefit (excluding, among others DLA) only after treating the original claim as made on a date on which the conditions of entitlement would be satisfied. This sidesteps (although enacted prior to it) the harsh effects of section 12(8)(b) (above).

The phrase in both regulations “unless there is a change of circumstances” must be read in conjunction with the whole of the regulation and means a change of circumstances, which would not entitle the claimant to benefit.

If the disability conditions are only satisfied after the date of the decision then a tribunal cannot take account of that by virtue of section 12(8)(b). This, then, would fall to be a change of circumstances requiring a new claim or supersession. What the DM/tribunal should have done was to treat the appeal as an application for supersession and determine it on that basis. I would ask the DWP to do that.

Thanks everyone for your input, that's been really helpful. The deterioration occured after the claim so according to 12(8)(b) it looks like it cannot be taken into consideration. In which case a new claim (as he was awarded nothing on renewal) might be more appropriate, which we've done anyway. I'l take a look at the relevant Regs you've suggested though and the written reasons when they come through.