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Firstly, I’d like to thank everybody for your interest an in-put.
I have to play devil’s advocate here for I am the representative in this appeal and ‘tis my job.
If any of you want to play along with me you can. If you do, though, you will need more information than you have. To that end, I’m enclosing a copy of my appeal letter together with my comments on the Department for Work and Pensions’ submission.
‘Mrs.  disagrees with this decision as the decision awarding the qualifying disability benefit is dated 20 April 2004. Since the Carer’s Allowance application is dated 23 April 2004, this claim is within three months of the date of the decision awarding the qualifying disability benefit and, as that benefit was awarded with effect from 22 January 2003 and, since a stock piled claim for Invalid Care Allowance had been made in anticipation of the award of the qualifying disability benefit on
29 January 2003, the Carer’s Allowance should be backdated from the date of the original Invalid Care Allowance being made i.e. 29 January 2003.
The facts of the case are as follows: -
At the beginning of January 2003 Mrs. ’s late husband who was diagnosed as being terminally ill contacted us with a view to helping him apply for a supersession of his Disability Living Allowance.
On 29 January 2003, a request that Mr. ’s Disability Living Allowance be superseded was sent to the disability benefit unit.
Since a successful outcome of the supersession application would have caused there to be an underlying entitlement to Invalid Care Allowance, a stock-piled claim for Invalid Care Allowance was sent to you by Mrs. on that same date.
The underlying entitlement to Invalid Care Allowance would then have lead to an entitlement to Income Support and, consequently; a stockpiled application for Income Support was also submitted on that same date.
It should be noted here that Mrs. , who is elderly, was under some considerable pressure at that time, since her husband was terminally ill. He actually passed away a short time later, on 17 March 2003. Since the interplay between Disability Living Allowance, Invalid Care Allowance and Income Support is somewhat complex at the best of times, she asked for the help of an advice service and I sent the Invalid Care Allowance claim to you with a signed authority for you to disclose information and I asked for details of the Invalid Care Allowance decision when it was made.
I have been trying to pursue my copies of the Invalid Care Allowance and Disability Living Allowance decisions ever since.
It is suggested by the decision maker’s advice/ file note that the decision superseding the late Mr. ’s Disability Living Allowance was dated 4 February 2003. I spoke to Mrs. when I went to see her to obtain her signatures on the enclosed appeal form GL24 and she tells me that she has no recollection of
Mr. ever having received this decision. Of course this can’t be checked with Mr. since he has passed away. Mrs. can’t very well have informed you of the Disability Living Allowance supersession decision which should have contained details of the revised award and rights of appeal if the decision hadn’t been received.
I had already (on 21 April 2004) had a telephone conversation with Helen Dunn at the disability benefit unit in Blackpool who informed me that their file notes showed that they had received a request for a duplicate decision regarding the Disability Living Allowance supersession as they had received a communication that the original had not been received. Apparently the notes show that this request was entered on their computer on 12 May 2003. She informed me, however, that the notes do not show when decision regarding the Disability Living Allowance supersession was received and nor does it show from whom the request was received. The notes do not show to whom the duplicate was sent nor do they show when the duplicate decision was sent either.
On 23 June 2004 I telephoned Helen Dunn at the disability benefit unit to see if their case notes showed that a duplicate decision had in fact been issued at all. She told me that, when we spoke on 21 April 2004, regarding the request for a duplicate Disability Living Allowance supersession decision she was reading the notes from a full record print of the computer’s notepad facility which they had by that time sent to you to enable you to deal with the back dated Invalid Care Allowance application. Consequently, I then telephoned your office and spoke to Sandra Kirk who confirmed that the Disability Living Allowance full record print was with you. She was not able, however, to tell from the full record print whether or not a duplicate Disability Living Allowance supersession decision had been issued.
All the evidence seems to point to the fact that the only hard copy of the decision regarding the Disability Living Allowance supersession that it can be proved that anyone has ever received is the decision sent to me that is dated 20 April 2004. Since the Invalid Care Allowance re-claim is dated 23 April 2004 it is within three months of the date of the Disability Living Allowance supersession decision. On, on those grounds the Invalid Care Allowance should be back dated as requested.
I would also observe that the decision maker was more than a little precipitate in making the original decision refusing to pay Invalid Care Allowance on the grounds that the disabled person for whom our client was caring was not in receipt of a qualifying disability benefit. My covering letter dated 29 January 2003 that accompanied the original Invalid Care Allowance claim made it clear that the claim was made as a result of a claim that the late Mr. ’s Disability Living Allowance be superseded. Indeed, my letter also mentioned that the supersession application was being made under the special rules provisions. Had the decision maker delayed making the decision regarding the Invalid Care Allowance application until the decision regarding the Disability Living Allowance had been made
Mrs would not be having to go through all this trouble to claim the back dated underlying entitlement to Invalid Care Allowance to which she clearly should be entitled.
I understand the original decision refusing to pay Mrs. Invalid Care Allowance on the grounds that the disabled person for whom our client was caring was not in receipt of a qualifying disability benefit was made on 3 February 2003.
If the Department for Work and Pensions’ assertions that the Disability Living Allowance supersession decision was made on 4 February are correct, would it have been too much trouble for the Invalid Care Allowance decision maker to have waited one more day?
Furthermore had the Department for Work and Pensions responded to my requests for details of the Disability Living Allowance and Invalid Care Allowance decisions, as I was authorised to receive, none of this would be happening.
It is clear that the system has failed Mrs. and I would request, in the light of the above, that the decision refusing to back dated the underlying entitlement to Invalid Care Allowance be changed without her having to go through the additional stress of attending a Social Security Appeal Tribunal.
Yours Faithfully
Steve Stringer
(Health and Disability Advice Worker)
‘I am in receipt of the Department for Work and Pensions’ Schedule of Evidence regarding our above named client’s Invalid Care Allowance appeal to be held in Sheffield on 22 November.
I would make the following observations in the order in which they appear in the Schedule of Evidence.
In section 5, The Facts of the case the Department for Work and Pensions mentions: -
a telephone call from the Invalid Care Allowance Unit to myself dated 21 May 2003. I returned this telephone call on 6 June 2003 when I spoke to Mrs Edmeads at the Invalid Care Allowance Unit of the Department for Work and Pensions. She advised me that that the claim for Invalid Care Allowance made by our above named client had been refused, as the disabled person for whom our client was caring was not in receipt of a qualifying disability benefit. If we accept (as we are being asked to do so by Department for Work and Pensions) that the decision awarding
Mr. the Higher Rate Care Component of Disability Living Allowance was issued on 4 February 2003 it is not, then, unreasonable to point out that the Department for Work and Pensions had known for some four months, at that time, that the disabled person for whom our client was caring was in receipt of a qualifying disability benefit…
a record print from DLA records indicating that the decision awarding
Mr. the Higher Rate Care Component of Disability Living Allowance had been given on 4 February 2003. It is here argued that this record print is not evidence that the decision was actually received, or even issued. I would argue that an actual copy of that decision might be accepted as evidence that a decision was issued but the Schedule of Evidence does not include a copy of that decision. The Department for Work and Pensions may argue that their computer system doesn’t allow for the production of copies of decisions. This may well be the case, but I do not believe that our above named client should be penalised by the Department for Work and Pensions’ inability to produce copies of official documents. In the absence of such evidence I believe that our above named client should be given the benefit of the doubt and that it be accepted that the decision supposedly issued in February 2003 was not sent.
In section 6 the decision maker’s decision the Department for Work and Pensions mentions: -
“There is no evidence to suggest that this notification was not issued…”
There is, however, evidence on the Department for Work and Pensions’ case notes that the decision was not received. On 21 April 2004, I had a telephone conversation with an officer of the Department for Work and Pensions who said her name was Helen Dunn. She advised me that her case notes showed that a request for a duplicate decision was input onto their computer records on 23 May 2003, as the original decision had not been received. It is regretted that a copy of these case notes are not included in the Schedule of Evidence.
There are, potentially three grounds for the appeal.
We ask the Social Security Appeal Tribunal to accept that the decision made in February 2003, awarding the late Mr. Higher Rate Care Component
was not received. Furthermore we ask, therefore, that the decision dated 20 April 2004 notifying of the award of the Higher Rate Care Component of Disability Living Allowance to Mr. be treated as the only decision. As The Department for Work and Pensions have not seen fit to enclose a copy of that decision I enclose a copy herewith. Since, upon receipt of that decision, Mrs. made a reclaim for Invalid Care Allowance which was received by Department for Work and Pensions on 26 April 2004, we would ask that the appeal be allowed as the reclaim for Invalid Care Allowance was made within 3 months of the date of the decision awarding Mr. the Higher Rate Care Component of Disability Living Allowance.
If the Social Security Appeal Tribunal do not accept that the decision awarding the Higher Rate Care Component of Disability Living Allowance to the late
Mr. is dated 20 April 2004, we would then ask the Tribunal to consider whether the Department for Work and Pensions made an error in law in failing to delay the decision regarding the claim for Invalid Care Allowance until the decision regarding the application for a supersession of late Mr. ’s Disability Living Allowance was known.
In the decision maker’s decision the Department for Work and Pensions say, “suggestions that it would not have been too much trouble to wait one further day before making the Carer’s Allowance decision, do not take into account of the fact that vast number (sic) of claims that are received at the Carer’s Allowance and the difficulties that claims to Disability Living Allowance sometimes entail, means it is not practical for Carer’s Allowance to delay making decisions whilst awaiting the outcomes of Disability Living Allowance decisions.”
It is not clear what the Department for Work and Pensions’ legal standpoint is when they make this argument.
If it is practical for a claim for Disability Living Allowance to take a certain amount of time, why, then, is it not practical for the same amount of time to be taken in making a decision regarding applications for Invalid Care Allowance/Carer’s Allowance, especially when it takes that amount of time for the Invalid Care Allowance/ Carer’s Allowance decision maker to become in possession of the facts necessary to make a correct decision?
It is not, in any event, clear what is so practical about making precipitate and ultimately inaccurate decisions regarding claims for Invalid Care Allowance/Carer’s Allowance and then have Invalid Care Allowance/Carer’s Allowance applicants re-claim when the decisions regarding claims for qualifying disability benefit are known.
The Department for Work and Pensions’ argument is particularly unconvincing in this case as it was made clear in the letter accompanying the Invalid Care Allowance application made on 29 January 2003 that late Mr. ’s application for a supersession of his Disability Living Allowance was made under the special rules provisions as he had been diagnosed as` terminally ill. (Doc 10)
Commissioner’s decision CG/1479/1999 would seem to suggest that the failure of the decision maker to delay making a decision regarding the Invalid Care Allowance application made in January 2003 until the decision regarding late Mr.
Application for a supersession of his Disability Living Allowance was known was an error in law.
I enclose herewith a copy of that Commissioner’s decision.
There is also a strong moral argument to this appeal which, it is felt, is sufficient for this appeal to succeed on those grounds.
When Mrs. made her application for Invalid Care Allowance she was under some stress, her late husband having been diagnosed as terminally ill.
It is unrealistic to expect her, especially under these circumstances, to appreciate the complex interplay between Disability Living Allowance, Invalid Care Allowance and Income Support. This is the reason why she engaged the help of our Advice Service and the is why both Mrs. and her late husband authorised me to act on their behalves and to receive details of decisions regarding application s made for benefits by them.
My letters accompanying the Invalid Care Allowance (Doc10) application and the application for a supersession of Disability Living Allowance made on behalf of late Mr. (copy enclosed) clearly state that I requested details of the decisions when they were made. Had the Department for Work and Pensions let me have these details, this case would not be going to appeal. Bearing in mind the work that this appeal has caused, not only at Foxhill and Parson Cross Advice Service but also at the Pensions Service, The Invalid Care Allowance Unit, the Disability Benefits Unit and the Appeals Service and the work still to be done at the Social Security Appeal Tribunal, the Department for Work and Pensions’ comments regarding practicalities are particularly interesting in this context.
Thank you for your attention.
Yours Sincerely
Steve Stringer
(Health and Disability Advice Worker)’
I confess that I was excited by the CD and I enclosed it with my comments. I was hoping that, not only would this CD help me win the appeal, but create a precedent that would prevent Department for Work and Pensions from making Carer’s Allowance decision until the outcomes of claims for qualifying disability benefit were known. I’m afraid I’m not so excited now as I once was since all the regulations under which Mesher decided that the failure to delay decisions regarding Invalid Care Allowance/Carer’s Allowance claims was an error in law have been repealed. It doesn’t alter the principle, though. Is that good enough?
Doesn’t C&P regs 18 (c ) says that a reclaim for Invalid Care Allowance/Carer’s Allowance has to be made within 3 months of the award of the qualifying disability benefit?
Nevip suggests that there is nothing in the regs to suggest that a client cannot have a claim for Invalid Care Allowance/Carer’s Allowance re-opened at any time after the award of the qualifying disability benefit. Doesn’t DMA reg 8 (2)(b) say that the application has to be made within 13 months? This scuppers me as we are being told that the decision awarding the qualifying disability benefit was made in February 2003 and the request that this decision be looked at again wasn’t sent until April 2004.
DMA Reg 8 is not quoted in the Department for Work and Pensions Schedule of Evidence.
Any comments gratefully received.
Steve
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