Does anyone know the answer to this - I can't pin it down.

Client had a large capital windfall in Jan and notified PS. His PC was suspended in May. Client was sent an enquiry letter by PS seeking info about withdrawals from the account. In anticipation of a deprivation decision I gathered all the relevant info from client and sent to the PS in two letters - 1 in May and 1 in June.

This week, client has been told simply that he is not entitled from February due to capital. I am really annoyed the PS have not considered ongoing entitlement as I have gone to great pains to show them where and when all the money went.

The questons is, can I appeal this 'non entitled' decision on the grounds that the PS haven't considered client's entitlement at the date of suspension, or are we confined to making a new claim backdated to the date that capital fell low enough to bring within PC again?

Thanks all,

don't have much time for full reply, but suspect the latter will be easier. he was paid to end of April, then decision was made disallowing from Feb.

the question is whether a revised decision can disallow for periods within an on-going award. this used to be possible under the old review system, but like anything to do with revisions and superwotsits has become more complicated. if i remember right, from an earlier discussion here, the question isn't finally decided, vaguely remember the question may have been touched upon in a cd, but not determined. the claim not subsisting after a determination was the fly in the ointment, and opinion was divided. sorry i can't be more help, and hoping i'm not way off beam and someone else can point to the thread, or a cd on this???

The problem appears to lie with section 8(2) of the Social Security Act 1998 which as Jan suggests altered the procedures under the old Adjudication Regs. S8(2) is in the following terms: -

“Where at any time a claim for a relevant benefit is decided by the Secretary of State—

(a) the claim shall not be regarded as subsisting after that time; and

(b) accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time”.

A nil award cannot be superseded on the ground of change of circumstances (R(I) 5/02).

However, I think this is unclear where an award is made on the initial claim and then later superseded on grounds of a change in circumstances.

It would appear that the DM supersedes the original awarding decision effective from the date claimant had too much capital but is unable to supersede his own decision if no award is left in place. Once the claimant’s capital falls below the required level then he must make a new claim.

The section seems to bear that construction but is by no means clear.

Thanks VM JJ and Paul,

The problem for my client with having to make a new claim, is that HB has stopped and client only has enough money to pay his rent for six months - at a push. I need to get an appeal in now for the ongoing PC entitlement, rather than another several months when the PS finally decide that he's not entitled due to deprivation. I could pursue the HB without the PC decision, but that will be difficult and most certainly time consuming. Once the client's money runs out, he'll be facing (probably intentional) homelessness for sure - and he's disabled.

This does still happen now - most notably with limited period past overpayments in IS, where current entitlement continues, and in incapacity for work decisions where it has been discovered the claimant worked for a past period. It also happens all the time with HB overpayments (although those rules are a bit different.

I'll look around a bit more with your pointers and come back later with more questions.

In the meantime, I hope you/others might add more if you think of anything.

Thanks again,

Still working on this. Does anyone know what this means (from the annotation to s8(2)SSA?: "paragraph (a) refers to a "claim" but in this context that is not to be read as being in contradistinction to, say, a supersession."

I think it means that the same principle applies to supersession decisions as well as new claims and would suggest that my client must make a new claim.

However, the annotation also refers to s.12(8)(b), which says that, like s(8)(2)(b), the appeal cannot take into account circumstances not obtaining at the time of the decision.

In my client's case this doesn't apply because, at the time of the decision, we had already shown that our client's capital had fallen below the limit.

As I said earlier, awards are removed retrospectively in a number of situations but onoing entitlement remains. The DWP must at least believe they should be doing this or they wouldn't be doing it - how are they doing it? I must be missing something here... I just can't accept that the rules allow the PS to remove an award entirely, and retrospectively, when a current entitlement remains.

Tony

For what its worth I think that the confusion is around the word 'claim'.

Your client made a claim, it was decided and he was awarded benefit.

He or she now does not have a claim to benefit but does have an award and a decision to that effect exists.

Some time later a new decision is made by way of revision or supersession. S.8(2) has no relevance to ongoing entitlement because the client is not being paid on the basis of the claim but on the decision made on that claim.

As you rightly point out the DWP make this sort of decision all the time. They revise or supersede the S.8 decision to show that within the indefinite period that benefit was awarded for, there are specific period(s) where there is now no entitlement.

This may mean that there is no ongoing entitlemnt but not necessarily. The indefinite award may stay in place except for the period X to Y.

There you go - clear as mud.

David