Client was in reciept of Incapacity Benefit. Was also getting DLA @ LRC.

Sought review on DLA and this upped to MRC. This gave rise to Income Support entitlement (due to inclusion of SDP in assessment).

Client claimed for IS and asked for backdating to date of DLA award. This was refused outright on grounds that it was over 3 months ( by 7 days!!!!)

Now going to appeal. A couple of questions...

1. Should they not have dackdated by 3 months anyway.

2. Any case law in this area.

3. Is the fact that the Disability and Carers Centre took so long in making a decision on the supersession a good point of argument at appeal. ( anyone got a link to their targets in this area?)


DWP submission basically claiming client should have sent in IS claim prior to DLA decision and then sought review of that dissallownce decision.

"DWP submission basically claiming client should have sent in IS claim prior to DLA decision and then sought review of that dissallownce decision."

????!!!!!

Tue 20-Apr-10 12:55 PM by nevip

I don’t think the problem is the timing of the IS claim necessarily. The Claims and Payments Regs specify that the DLA claim must be made no later than 10 days of the IS claim (reg 6). The problem is that reg 2 rules out a supersession in these circumstances being a “claim for benefit”.

“Claim” is not defined in the Admin Act but refers to a definition under s191 of The Social Security Act 1975. Much of this act has been repealed but not, as far as I know, s191, but, this act is nowhere to be found on line.

If s191 is still on the statute books and offers a different interpretation than the C&P Regs then your client might have a case. If not, then the DWP could well be right.

This discussion has come up before on here and, if memory serves, has identified that different DWP offices have different interpretations on this. However, don’t quote me on that!

I don’t understand the 3 month backdating issue. This is covered by reg 19 of the C&P Regs and allows backdating on any one of specified grounds, which might or might not be satisfied. Furthermore, the 7 day thing is a red herring as an award of DLA is not a specified ground for backdating under reg 19. And, if one of the grounds in reg 19 can be made out then just because the IS claim was made outside the 3 months from the award of DLA care does not mean that the award cannot be backdated at all just that the maximum backdate is 3 months.




as

"IS claim was made outside the 3 months from the award of DLA care does not mean that the award cannot be backdated at all just that the maximum backdate is 3 months."

This nevip is my line of thought.

The client has mental health problems. This should allow for the 3 months backdating under reg 19. However as the request was for a period of more than 3 months they are just being pig headed and unreasonable (not like them). They could have treated the request as a claim for maximum allowable backdating and given the 3 months.

Tue 20-Apr-10 09:06 PM by neilcoll

"DWP submission basically claiming client should have sent in IS claim prior to DLA decision and then sought review of that dissallownce decision."

????!!!!!

What they mean is the client should have made a claim for IS in anticipation of his DLA been raised. He would have been refused on the grounds he did not qualify.

Then if he was awarded DLA at MRCC (as he was), he could then ask for a review of the refusing IS decision on the grounds of the change in circumstances.

All clients should know this!!!

Grounds for revision of the refusal maybe, but wouldn't S12 SSA stand in it's way; no claim can be held to subsist if not appealed. That's why there are qualifying benefit rules, surely.

Sounds to me like there's some confusion between the qualifying benefit rules and the backdating rules going on. Qualifying benefit rules demand a claim within 10 days of the original application; and 3 months of the decision; if the regs talk about "claim" it could get interesting, but to my mind, no original claim then it'll fall to reg 19 backdating whether or not the second claim is made.

A request; explaining that this is a backdating claim under reg 19 C&P and explaining the grounds would be a good idea as JC+ have obviously missed the plot, however it seems unclear as to whether the IS claim was 3 months after the SS application or the decision; that will be crucial.

Especially in the light of the Novitskaya decision Claire posted around Xmas, any hint of a claim for IS could be accepted as a "claim" if made within the requisite 10 days, so if the second claim was made within 3 months of the decision then qual ben rules could hold, if not then reg 19... Why couldn't they reasonably be expected to seek assistance?

"however it seems unclear as to whether the IS claim was 3 months after the SS application or the decision; that will be crucial."


DLA decision (increase LCCC to MRCC) made on 20/12/2009.

Increase in DLA made from 13/09/2009 which was date of supervision request.

Client then makes IS claim on 20/12/2009......asking for backdate to 13/09/2009.

Refused on grounds that this backdated request is over 3 months.

Hope this clarifies the situation.

My argument is that, if looked at reasonably and fairly, IS could/should have been backdated from 20/09/2009.