I have a client who has failed his PCA and wishes to Appeal this decision.

I have advised about the draw backs of claiming IS (reduced rates & gap in NI credits if unsuccessful at appeal)

I was told today by a DWP advisor that if client unsuccesful at an appeal then any IS that was received would be treated as an O/P & at some point the client would have to repay this.

Have i missed some recent ruling? Or is this 110% incorrect advise!

Thank you in advance for any replies.

Jackie S

jackie, you're the second person to post here with this particular problem, which i haven't come across personally. the other poster was in Wales, so it doesn't indicate just a local blip.
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=111&topic_id=2509&mesg_id=2509&page=

i don't think we have all missed it, so as far as i'm aware, the advice is wholly incorrect. (see also the current thread on the disability forum about GL24s and reps signatures... <sigh>

please keep us posted about your progress with this, because if it's going off in norwich and wales, something is afoot... perhaps your DWP adviser can refer you to the authority - it might be another internal memo...<sob> <only joking>

Just in case this might be one of those urban myths that suddenly and inexplicably take root, as with the GL24, may I suggest you contact the local Office manager - or failing that Rob Heatherington, District manager who should be able to nip this in the bud so to speak ..........




Jobcentre Managers - Norwich

Kevin Hatch / Phil Borthwick


kevin.hatch@jobcentreplus.gsi.gov.uk

philip.borthwick@jobcentreplus.gsi.gov.uk



Nortfolk District Manager: Rob Hetherington

rob.hetherington1@jobcentreplus.gsi.gov.uk

It's obvious nonsense, but I recently saw a client who lost his PCA appeal and promptly got a letter from DWP telling him he hadn't been entitled to the IS he received pending the appeal. DWP never made an o/p decision, but they did inform HB of the decision and the Local Authority did make an o/p decision for the HB he'd had.

Only took one letter to DWP to sort it out, but the client was very worried and you do wonder where they get these ideas from.

Many thanks for the advice Mike. I have just E-mailed Kevin Hatch for confirmation / clarification and will let you know what the response (if i get one) is.


Jackie

I know it's only been a few days, but to date I have had no reply from Kevin Hatch...

I'd email the District Manager then, and just for good measure copy in your original to Mr Hatch.....

There is a crucial difference here. In your client’s case the appeal was determined so he fits squarely within pragrapgh 25 of schedule 1B of the IS Regs. But in the case in the other discussion the appeal was withdrawn so was not, in the literal sense, determined.

Ariadne makes an interesting point in that discussion. The new form of paragraph 25 of schedule 1B states “a person……who has made and is pursuing an appeal against the decision which embodies a determination that he is not so incapable but only for the period beginning with the date on which that determination takes effect until the determination of his appeal”.

While I stand by my original view in that discussion I can see how someone in the DWP might isolate that piece of the regulation and try to impose a literal interpretation of it.

That might have worked years ago but since movements in legislative interpretation down the years came more and more to adopt purposive constructions then I don’t see it working now. The intention of the reg, in my view, was to provide a safety net for those pursuing a legitimate appeal right but who, for one reason or another, could not claim JSA and who might other wise starve.

If the words are considered carefully in each other’s context then they are merely saying that a person can be paid IS but only for a period ANYWHERE IN BETWEEN the date of the decision under appeal and the final determination of the appeal. That can be for the whole of that period or simply part of that period. It does not require that the appeal actually be determined.

I derive further fortification for the “anywhere in between” interpretation by the CD that says IS cannot be paid for that part of the period between the decision under appeal and the lodging of the appeal (which includes a request to receive IS with a penalty).

Slight confusion. Should have said the scenario in your client's case was that the appeal was determined.