Hi,
I wondered whether anyone would be able to offer any advice on the following (sorry it's a bit lengthy, just trying to give you the full picture!):

Couple, both aged under 60 and on Incap. Husband failed PCA in July05, Incap stopped and claim was made for I/S pending an Incap appeal. I/S paid at a reduced rate.

He withdrew his Incap appeal in Sep05 (advised by another agency). He is still signed off work by his GP but does not meet the 15 points under PCA and does not come under any exemption.

I/S notification received in Jan06 stating I/S cancelled from Sep05 when Incap appeal withdrawn. No overpayment letters received, possibly as DWP error.

Husband is still employed and receives a £1/week from employers. He therefore cannot claim JSA and he does not receive any SSP.

He could make a claim for WTC, due to him receiving I/S, from my understanding, he should get 28 weeks WTC from the date I/S started. Not sure about backdating though or whether this is only paid if I/S still in payment?

Can the DWP consider the partner to be the claimant at the time the I/S claim was put in? Would the reduction off their I/S still apply?
Would an appeal of the latest I/S decision be necessary to do this? Or does anyone have any other ideas?

Husband receiving £1/week from employers - why? is it some sort of retainer ??

Possible new claim for IB for different med condition or significant deterioration of existing one

I'm still not particularly au fait with WTC but think it can be claimed whilst off sick from work and in receipt of ssp or short term IB and also whilst on IS but only for 28 weeks

There's absolutely no reason can't swap claimant roles but partner has to either sign on, claim as incapable of work or as carer. I've not come across a situation like this before and without doing any research can only assume partner will have to have reasons for not claiming earlier (back to time your client's IS cancelled).

You'll have to double check some of my responses but I'm sure someone on the forum will either verify the above or tell me I'm a fool (in the nicest possible way of course).

Are you sure they can't claim JSA. If someone in part time work can claim why can't someone working nil hours, under contract, and recieving a token sum ? I can't think of a rule that would disbar him of hand.

He could just say that he can't do that job, but will actively look for alternative work. Again the idea that you can recieve sick pay from one job while continuing work at another would suggest there is nothing inherently wrong with this approach.

If anyone has a reason why it won't work I will defer to that, but until someone explains this I don't see any "therefore" about it.

And he must soon be able to make a new ICB claim, he will be able to do so as soon as 6 months have passed from the negative PCA. Or sooner if he can get a sick note for a different or worsened condition.

I have no idea whether they will accept a claim from the partner from the date of original claim - but couldn't you argue that your client was misadvised ? If they put all the details of their partners ICB on the form you would have thought that the alternative claim would be flagged up?? After all the DWP were told about her circumstances, and failed to inform her she was entitled to benefits - and that should be enough for a backdate.

They should also have continued getting the disability premium while the benefit was reduced of course.

This seems to be more a problem of too many avenues to explore - is it best to challenge it on behalf of the husband, or to try for a backdate for the wife, or make a complaint...

I am starting to ramble so I will leave it at that.

Victoria J

Thanks for your replies.

The small sum the husband receives is from an insurance scheme he paid into. The Tax Credit office will not accept this as remunerative pay & so WTC cannot be paid.

They have now put in a new claim for I/S in the wife's name and requested a backdate to the start of the previous claim, and we are set to argue if/when the backdate is refused.

The husband wants to return to his previous job, but they will not adjust his workplace for him (possibly a claim under DDA now!) so advised him to claim JSA.

We had already gone over the PCA and still not enough points!

Does the DWP have to consider a 'better off' calculation when assessing an Income Support claim as to who should be the claimant/partner?

No the DWP do not consider better off calcs. The couple can chose which one of them makes the claim.

"No the DWP do not consider better off calcs. The couple can chose which one of them makes the claim. "

Rats. Presumably that has been tested. I was thinking it could follow nicely from the informed of the circumstances and failed to advise backdate rule...

I guess that was just wishful thinking then.

Victoria J

I think I must have initially misunderstood the 'better off calc' issue. I now take it you mean perhaps the DWP should have advised about the ability to swap claimant roles etc to ensure maximization of income?? IF it was broached by the client then yes it would possibly be maladministration but I'm sure they're not under any obligation to advise about this. Hopefully someone out there will tell me I'm wrong but I'm not holding my breath.

Sue

Could the husband shove in another appeal against the PCA decision?

If it was only taken in July 05 then still within the 13 months?

Could argue that appeal has reasonable prospects of success and so should be admitted.

Could then reclaim the IS on basis "has made and is pursuing" PCA appeal.

The problem with JSA is availability for work. If he is sick then the DWP will say that he is not available. If he says he is available then the DWP will say that his presence is expected at his usual place of occupation, therefore he is not available for (other) work. Either way, he is not available for work.

In any case if the wife is now to claim, it seems a bit pointless (money wise) for both of them to put in claims as they'll only be paid up to their applicable amount. The only benefit in this would be that they both get NI credits and/or HRP.

Sue