Just had an appeal turned down for IB as detailed in my previous post.

The chairman was sympathetic but was bound by law. He did however recommend that the DWP review the case on compassionate grounds re R(G) 1/61. Not holding my breath though!

The chairman indicated that there was case law stating that DWP staff have no duty of care when it comes to telling clients that they should claim for a benefit. He could not remember what case law it was. Does any one know about this?

I don't know the case law mentioned but as far as I am aware there is no specific duty of care that would found a cause of action in the county court for damages.

However under the old citizen charter and 1991 DSS framework document the DSS/DWP are guided to be pro-active in exploring a person's circumstances and identifying potential benefit entitlement when a person makes general enquiries of them. Failure to do so may lead to an award of an ex-gratia payment.

Regards
Paul

Cheers Paul.
Will this framework document still apply as i seem to remember that there was a change in emphasis in that it was now down to the claimants to be pro active and enquire about eligibility of benefits.

Not sure Ian. But I am bolstered by the commissioners' decisions which interpret reg 19 of the claims and payment regs as 'giving information that leads a person to believe that they are not entitled to benefit' to include failure to provide information, when considering grounds for backdating.

Paul

Just wanted to back up Paul's first reply - re ex-gratia payments!

I've successfully used the ombudsman's report on finacial redress for maladministration which includes failing to advise of entitlement when asked.

My case: client was signing on for UB/JSA - and jobcentre knew partner was long term sick as client would regularly have to change her signing on time or rearrange interviews due to his needs - but was never advised to swap claim to his name - which brought them a very nice ex gratia payment - backdated lump sum of Disability premium - going back several years!

From your query I deduce (sherlock Holmes stylee) that your client must have had some discussion regarding benefit entitlement? Just didn't ask the right questions. Sounds like an arguable case...bang in the request for exgratia - you imply the appeal chair was sympathetic! (I know the opinion of chair holds no sway for ex-gratia - but consider it an indicator of your client's case!)

Thanks jo. I will give this a go. Where can i get a copy of the ombudsmans report on financial redress.?

Can you give the refs. for the decisions you have mentioned as our District Chairman brought it up at a Tribunal this morning and said that he thought that the actual Reg. was going to be changed? Thanks.

According to CPAG handbook p1304 the case that says you can't sue DWP for negligence is Jones v Dept of Employment <1989> QB1 (CA). Also mentioned on p245 of Vol 3 of the legislation volumes.

I don't have a copy and couldn't find it on Google.

I don't know if we're looking at different books but on p1304 of my version it says that you may be able to sue for negligence and quotes Haringey LBC v Cotter which seems slightly unlikely. On p1309 it mentions Jones v Dept of Employment (got that on p245 of vol 3 as well) but the commentary in vol 3 makes the case that you can't sue the Secretary of State for a wrong or negligent decision because of finality of decisions. It also leaves open the possibility of suing for negligent advice.

Ian

The Parliamentary Ombudsmans Annual Report - 1993 (ooh get her!) is the one that sets out examples of maladministration that the DWP publication - Guide to Financial Redress for Maladministration quotes directly from including "failing to advise of entitlement when enquiries are made".

Had a quick search on t'internet but couldn't find original doc of 1993 report - have found it in the past cos I remember quoting directly from it.

The DWP guide is on their website - but if you google the title it came up as second option for me - happy hunting!

However - having looked at your previous posting outlining circs of case - not sure that they failed to advise - maybe client just didn't act in time?

Am not clear why IB claim not successful - if she had claimed when she gave up the WBLA place would she have satisfied the contribution condition or was there too much of a gap! Don't know the linking rules in this scenario guess you have prob checked this out already - but was wondering if the gap was just caused cos she didn't immediately reapply then wouldn't just backdating the claim to the date she ceased the WBLA with a backdated sicknote get you past this?

(Maybe I'm not so clever as I thought - see previous post - and all you experienced IB claimers with clients who take up WBLA places are shouting "stoopid girl" at me - hey I know what I know!)

Thanks for the info Jo.
The client didn't actually reclaim the IB cliaming that she was not advised to do so. The DM stated the assumption must be that the procedures were followed and the client in this case would have been told upon ending the course that she needed to claim IB again, unless there was any evidence otherwise.
If client agrees we will complain attaching a claim for ex gratia payment, asking what the precise procedures are upon the ending or leaving of a course e.g. are they required to send out a written letter? If so how do they expect a person who is registered blind to reads it?
Re-arrange these words: straws at grasping!

You're right, I should have referred to p1309. Having looked at Haringey v Cotter it doesn't seem to me to say anything about sueing for bad advice.

I do not know whether or not the following is any use to you:

"6. It is not part of the function of a medical board to advise those appearing before it of theri social security rights. The adjudication officer submits that the burden was on the claimant to enquire of his right to benefit. Nevertheless, it remains an obvious fact that those who are in contact with their local DSS office do rely greatly upon the help, experience and advice of those in the local office. And it is an essential feature of our social security system that those in the local offices are so ready to give claimants and potential claimants the benefit of their help, experience and advice. The social security system is, in our moder welfare state, so complicated that the inexpert inevitably have to rely upon the expert. Having regard to his many contacts with the local office, I do not find it surprising that the claimant did not formally make an enquiry of his rights under the Acts. The question ultimately is one of "reasonableness" (see CS/15/79) and whether the person concerned has done or omitted to do what could reasonably be expected of him having regard to his rights under the social security scheme."
CI/147/1986

Cheers Sanat. I will use this in our complaint.