DWP have refused a claim for funeral payment. Form was submitted in time but was defective. The client did return properly completed but outside the one month time limit.
We've appealed on grounds of good cause, advising of the circs(first child dying within days of an extremely traumatic birth). Without going into details mum's suffered terrible mental anguish and we simply assumed it would be accepted as good cause for the late return of the correctly completed form.
I was hoping the DWP would reconsider before the hearing. They've inferred they would accept but can't because there are no grounds for a late claim. They couldn't give me the regs!!
I can't believe this and can't find them - can anyone help?

Says at page 557 of CPAG that there is no provision for late claims.

However in the paragraph above it says: "if you submit it within one month, or such longer period as the S of S considers reasonable, your claim is treated as made on the date you originally applied.

Regs 4(7) and 6(1)(b) SS(C&P) Regs.

Sincerely hope this is of help to you and your client.

Thanks Bensup, I was relying on 4(7). The DM himself has used this reg in his appeal submission. I've just spoken to him again and actually quoted the reg "...or such longer period as the S of S considers reasonable...." but he still insists there's no scope for accepting it after the one month.

Is it me...??????

No!

Here's an idea - why not write to the S of S and ask him/her (i'm no good at politics!) whether they think it reasonable that your client was late with the form?!

You'll probably get one of them letters saying D/M acting on behalf of S of S blah blah blah, but, you never know, it just might work!!

Why not. I've just done the letter and asked them to confirm either there's no scope under regs (as they verbally advised) or whether they don't accept the reasableness of the late return of the form. I've told them their response will be sent to TAS.
Fingers crossed.

Would be good if you could post the outcome on here when this appeal's done?

Good Luck!!

The reason that you cannot find find regs dealing with late claims for Social Fund maternity and funeral payments is that there aren't any!There is no 'good cause' for a late claim for either type of payment and there is nothing analogous to Claims and Payment Regs 19 either which is why a 'too late' decision is about as final as you can get.There has been no provision for a late claim since 7 April 1997.

A colleague on the Social Fund said that the defective claim bit is in their procedural guidance but that she didn't know the regs.She also said that if the completed form had been returned within the original 3 month time limit for making a claim she would have treated it as a new claim.

Having read C and P reg 6 the situation seems to be covered there ,which is also where the bit about the Sec of State and reasonableness comes in.Our District Chairman has allowed appeals (not Social Fund)where it has not been put in writing that the Sec of State has considered whether an extension of time would be reasonable in the circumstances,and has not said why he/she hasn't allowed it.Rather garbled,but I hope you know what I mean!

Thanks for your response Judith. If this is the case then it's extremely unfair. I hope I've not got bogged down with my own interpretation of the regs which seem to hold that if SoS considers it reasonable then the claim should be accepted. Perhaps it's now the case that I can't see the wood for the trees.

I had only been instructed after the DM's sub had gone to TAS. I'd hoped to avoid a hearing and he suggested I fax over the 'good cause' reasons and inferred he'd be happy to reconsider if he thought the lateness was reasonable.

We can now only await the tribunal's decision.

There seems to be some confusion on the part of the DWP. The way I see it is that the claim was made within one month so the issue of a late claim does not arise and to use that phrase only confuses.

The claim was defective so Bensup and Sue seem to be right on the face of it that under reg 4(7) the claimant has 1 month to return the form corrected or "within such longer period as the Secretary of State may consider reasonable".

The question is, is a funeral payment a 'benefit' covered by the C&P regs. Reg 2(2) defines a benefit for the purposes of the regs (unless the context otherwise reqires) as, among other things, any social fund payments as are mentioned in section 138(1)(a) and 2 of the SSC&B act.

Section 138(1)(a) says "payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses and funeral expenses".

It would seem to be the discretionary social fund that is excluded from the provisions and not the regulated social fund and I cannot see a problem unless someone can demonstrate that the phrase "unless the context otherwise requires" applies.

I cannot envisage a situation where it would be more reasonable to grant a longer period than where a parent was coping with the death of a child. Can anyone?

Regards
Paul

Sorry I meant to say that the claim was submitted within time (rather than within one month) so the issue of a late claim does not arise.

Nice to know someone else seems to agree. I started thinking I was going mad

Gets you that way sometimes. You are convinced you have known something for years (practically as an article of faith) then out of the blue someone says the opposite only to get you scrambling to the law books to discover (with a huge sigh of relief) that you were right all the time.

'Tis enough to give a person a connery!

Is that a Sean "Connery" Nevip?!!

Sorry couldn't resist

You are soooo right though, it's a feeling that comes over us all at some point, that jump in the stomach when you think maybe, just maybe you've told hundreds of people the wrong thing!!

Then you find out you are right and the powers that be wrong, yet again!!!

We lost!! I'm gobsmacked and extremely disappointed.

I didn't (can't ) rep but put in what I thought was a good sub explaining full reasons for late return of initial defective claim and also specifying the relevant regs. Chair vehemently disagreed and went on to make some very scathing remarks in the SoR including some about me misunderstanding the essential legal points. She went on to state "...no provision in the '87 Regs or elsewhere in the relevant legislation and no discretion either for the SoS or a tribunal to extend the prescribed time for claiming....there is no way in which the time limit can be extended or waived, irrespective of the reasons for the delay in claiming or the particular circumstances of the case..."

She then went on to say "..Reg 4(7) provides that if the claim is defective at the date when it is received the SoS may refer the claim to the person making it and if the form is received properly completed within one month, or such longer period as the SoS may consider reasonable from the date on which it is so referred, the SoS shall treat the claim as if it has been duly made in the first instance...." which was my argument.

Am I going mad or is ther something which I've missed again?
I want to take this to Commissioners. What do you think??

So sorry.

Take it to Commissioners - what is there to lose?!!

The Tribunal is in the shoes of the decision maker when it decides appeals (R(IB)2/04), and so I would think it should be in a position to decide on the reasonableness question.

There may be some mileage in resurrecting the old HB JR case R v Westminster City Council ex p Berisha

In Berisha, the Council decided that it could not and would not extend the deadline for providing evidence of rent necessary to decide the HB claim.

Mr Justice Sullivan quashed the Council's decision and ruled that it must exercise its discretion, that the discretion is not entiterely unfettered and must be execrcised reassonably in the Wednesbury sense, ie all the relevant circumstances must be considered.

I suggest that you should be able to show that the Tribunal fialed to consider all the relvant circumstances and so did not exercise its discretion reasonably

Yes, I agree.

The case was never about a late claim or extending the time limit for claiming as the tribunal mentioned. The case was always only about the judicial exercise of discretion in allowing for extending the time limit for the rectification of the defective claim.

Thus, as Stainsby said, was there a reasonable exercise of discretion?
The case turns on JR type arguments.

Cheers all - it's always a good spur to have this sort of positive feedback. I'm about to apply to the chair for leave but reckon it'll end up with me going directly to the Commissioner as I can't see him/her granting it.

Just to let you know, the chair refused to grant leave and has commented if I am arguing about Wednesbury reasonableness then the procedure is now to apply for jr. I've submitted it to the commissioners office anyway. I can't see LSC granting LA for jr application until we've exhausted all channels.

I wouldn't worry too much at this stage about being refused leave by the chair. I was refused leave by the chair in CH/1780/2005 but won the case eventually.

(You can look that one up for yourself if you want to indulge my vanity!!)

I've had a few successful ones when chairs have initally refused but it was just her comments about jr which made me think perhaps I was on the wrong lines.

No, I wouldn't worry about the chair's refusal either. We have been informed by TAS here that roughly 50% of applications refused by chairs are then granted by the commissioners.

We routinely get refused by chairs only to get granted leave by a commissioner.

"..The procedure is now to apply for JR"

I dont know of any new legislation in this area, and I would have exepected decsisions such as the Tribunal of Commissioners R(IB)2/04 and R(H)3/05 would point the other way.

R(H)3/05 was itself concerned with claims that had been held to be defective

Of course, can't comment definitively without seeing the SOR but if the chair has misdirected herself as to the law then leave to appeal is back on again.

A summary of the case won by stainsby, CH/1780/2005, is available in the briefcase area of rightsnet together with a link to the full decision itself.

I'll check 'em all out when I've time to breath. Thanks everyone

Commissioner refused leave.
Reason simply quotes "Although this is a sad case, it is not in my judgement arguable that the decsion not to grant further time under C&P Reg 4(7) was unreasonable"

What do you think the merits for applic for jr??