Income Support (General)Regs 1987 Sch 9 para 25(1)(a) & 25(2)(b)

This says that payments to adopters are taken into account up to the level of the personal allowance applicable for the adopted child plus any disabled child premium. Anything above that level is ignored.

I have a client who is paid an adoption allowance for a child who is in receipt of the highest rate of the care component of DLA. The applicable amount for the family therefore also includes the enhanced disability premium.

Up to April this year the DWP were only taking into account the personal allowance for the child plus the disabled child premium. Now however they are also taking into account the enhanced disability premium, and saying that she has previously been overpaid!

The DWP are interpreting any disabled child premium to mean all premiums applicable to the diabled child which in my view is not what the regs say.

I have requested a reconsideration on the grounds that the decision is erroneous in law. However I would be extremely grateful if anybody has had a similar problem or knows of any commissioners decisions on this issue.

Sounds like your local DWP is making up their own policy on the hoof. From a policy standpoint, it would not be totally unreasonable to take into account the Enhanced Disability Premium in this way, but if DWP wants that policy to be enforced, it will have to legislate for it.

At present, Sch 9 para 25 makes it crystal clear that only the Disabled Child Premium is caught. This is a term of art within the legislation, not a general, catch-all phrase which can also include EDP for a child. DCP is regulated in para 14 of Sch 2, whereas the EDP (for all ages below 60) is governed by para 13A.

Your DM has misinterpreted the (admittedly incomplete) guidance in para 28172.2 of the Decision Maker's Guide. This says to take into account payments up to the child's applicable amount, "including any DCP". No mention of EDP there. But, the DM obviously thinks that the EDP triggered by the child's level of disability counts as part of its applicable amount. It's unfortunate that the DMG guidance isn't expanded, as yet, to say that EDP isn't caught as the law stands.

Jim

Dear Jim,

Thanks for your comments they are appreciated.

The local DM accepts that it is ambiguous and will be referring it to ACI for further guidance. ( Advice on constitutional issues). This may take some time but I will take to appeal if necessary.

Dparr

I had this exact situation and formally complained. They backed down in the end with very ill grace and then completely repeated it all at a review of IS six months later!

I'm sure the referral will come up with the right answer; it might be worth sending any reply from ACI to Rightsnet so it can be published for anybody else to use in future.

Unlucky to have to go through all this, when the law isn't ambiguous at all, DP! It's the DMG that's poorly expressed, but even that can be read in the claimant's favour.

Jim