Client claimed Invalid Care Allowance(now Carers Allowance) in 1996 as her husband received DLA middle rate care. DBC advised her she would be better off remaining as an adult dependant on her husbands IB claim and she withdrew her claim. They recieved IS and would have been entitled to a Carers Premium.
Client claimed again May 03 and was sent 'proforma 79' informing her of consequences of chossing either benefit. She again withdrew her claim.
DBC have stated that this cannot be treated as an overlapping benefit as she did not receive IB in her own right. She therefore does not have underlying entiltement and is not entitled to CP. They were unable to provide law they relied upon which precludes dependants being captured by this rule.
Intend to re-apply for CA and request backdating to 1996. Can anyone suggest any tactics.

I'm intrigued by the "pro forma 79" - did the consequences outline entitlement to carers premium?

I think you might find that the DBC telling her she would be better off staying as dependant on hubby's IB could be classed as mis information, not least cos she was not storing up credits for her own record, (important for any future claim for IB or her RP!) not withstanding the absence of CP.

I've come across the dependant addition versus CA before, with clients being called by the DWP who tell them if CA is less. Of course the loss of (I'm guessing) 20p is offset by the potential £25.10 (yeah, I'm still on last year's figures).

However, the "79" may cover all these eventualities. So as I say, I'm intrigued. Any chance of a copy?

The overlapping benefit rules only apply to personal benefits, ie a benefit claimant is eligible to claim, remember the adult dep addition is claimed by her partner. Although last time I read them I remember some neat rule about it being the basic pension that has to overlap, not the dependant additions, that effectively can make some u/e cases more tricky than they first look. (Critical when protecting SDP, which of course does not apply in this case)

Hope this is helpful, I realise there are no tactics here, I think I'm saying you def have a case for ex-gratia payment, re DBC advice, but this might only run up to the period the "79" was issued, as that might contain all of the relevant info. (Although I doubt it!)

Thanks for reply.

Let me have your fax no/address and I'll send you a copy of proforma 79 and 80 the 'explanation'.
You'll probably agree that it is not very clear, definityely confusing for claimants and not explicit about consequences especially for those people claiming IS.

If you send copies of the proforma 79/80 to rightsnet too we'll see if we can publish them.

It's in the post!

Mon 19-Apr-04 12:10 PM by shawn

here is a pdf of proforma 79 & 80 @ -

http://www.rightsnet.org.uk/pdfs/CA_proforma_79_04_03.pdf

many thanks jmc for sending it through

note though that the rates and info re child increases no longer apply

Of interest to this thread, the proforma doesn't actually explain clearly about getting the carer's premium because of the underlying entitlement........

...........or is it me getting it the wrong way araound ...

I don't think it was clear at all regarding the CP, however there is that lovely catch all phrase at the bottom of the FAQ, "if you want further info call us".

I think you should make a new claim, and send in a covering letter requesting an ex-gratia payment for the loss of carer premium from way back when, on the grounds that previous claims were withdrawn following advice/information from the DBC.

It's obvious that the info wasn't clear enough, cos claimant would have pursued claim if they thought they would get more money.

Whoever makes the decision on ex-gratia needs to be convinced that their poor advice meant client lost out. The guide to financial redress for maladministration (I've spent many happy hours perusing this on the DWP website)is clear that if the claimant asked and was not advised correctly, that this is an example of maladministration, for which compensation is payable.

I think you will need to argue, if unsucessful at first request for compensation,(tactics) that the proforma does not enable claimants to see how they are better off, not least the tension between CA taken into account in full for IS, but CP being added to the applicable amount. The test I bet will be one of reasonableness, could an ordinary man in the street tell from that information what to do?

You can't backdate the claim because previous claims were withdrawn. (Please, someone, correct me if I'm wrong)

In my earlier post I pointed to the two distinct periods for compensation, always supposing this pro forma wasn't used when claimant withdrew earlier claim. I think you might find compensation for the first period OK, but I bet they'll defend to the hilt the pro forma as solving all these problems. Not least that if he didn't understand, he could have contacted them for more info - but then you get into a circular argument, as previous contact had made him withdraw claim., so what made him resubmit?

I'm rambling now.....and I accuse the DWP of opaqueness!

However, it's just one case for compensation, not establishing case law (at this stage), so gotta be worth a shot?

Thanks for replies. Confused?
Still waiting for a decision from DWP. Client has been sent another proforma 79 and 80 to 'help' her choose between benefits! Keep you informed.

Just for clarification.

A dependency benefit may overlap with a personal benefit and be paid at the same time under Reg 10(2)(b) of the Overlapping Benefits Regs 1979. Reg 10(1)lists the personal benefits applicable.

However, Carers Allowance is specifically excluded as that comes under Part 3 of the SSC&B Act 1992 and Part 3 benefits do not come within the scope of regulation 10.

Regards
Paul

Hi jmc,

I'm not sure if Commissioner Jupp's decision CIS/367/2003 may be helpful in establishing your client's entitlement to carers premium, at least from 3/4/00.

Commissioner Jupp holds that

- from 3/4/00, when para 14ZA(1) of the Schedule 2 IS Regs was amended, the carers premium was to be included in a claimant's applicable amount simply if they were "entitled" to ICA/CA (and not in "receipt" of it – the prior wording used in sub-paragraph (1)

- sub-paragraph (1) was and is not made subject to anything in sub-paragraph (2)(it being part of the latter that requires that the claimant/their partner be in receipt of ICA/CA but for the provisions of the Overlapping Benefit Regs.

Accordingly, the only issue a decision maker had to consider for the period from 3/4/00 is whether the claimant is entitled to ICA/CA.

Commissioner Jupp concludes:

" the present drafting of sub-paragraph (2) sits uneasily with sub-paragraph (1) and almost certainly results from the legislation having been amended without full consideration of the effects of the amendment on the paragraph as a whole. I also agree with the submission on behalf of the claimant as to the possible irrelevance of sub-paragraph (2) from 3 April 2000".

You could argue that your client meets the "entitled" test set out in sec 1(1) of the Social Security Admin Act 1992, as she did actually make a claim for ICA/CA, and that her entitlement was accepted by being asked to make a choice between receiving it or remaining as a dependent on her husband's IB.

However, she would also need to have since continually met the qualifying conditions for ICA set out in sec 70 of the Social Security Contributions and Benefits Act 1992.

To access CIS/367/2003, click on the following hyperlink:

CIS_367_2003

Thanks Ken and others.

Sorry for the long delay but was awaiting a deciion re- new CA claim. Not surprisingly only backdated for 3 months. Had a long and occasionally heated discussion with DM form CA unit who stated that they are not 'obliged' to provide information to claimants regarding the impact on all benefits merely the ones they are transferring to/from! He said it was claimants own decision to withdraw claim and they had to live with the consequences. He did not accept my argument that they should be given accurate clear information enabling them to make an informed choice.
May be if other advisers have had similar problems it could be raised as a social policy issue.

The CA Unit are now investigating the 'alleged' misdirection and I will let you know the outcome. Not holding my breath though.

Not sure if Commissioner Jupps decision applies as that was personal benefit, whereas in this case it is adult dependant addition, but will give it a try. I now intend challenging the new Pension Credit decision awarding carers premium. Wish me luck!

Thanks again