I have a client who cares for her mother 24/7, the mother has claimed AA and has been awarded it from july, ie. 6months from when her care needs commenced. AA decison made beginning of march.

client has claimed IS because she has no income or savings, but according to DWP client cannot get IS until AA is in payment -see schedule 1B 4(a)(i), DWP say client could have got IS while the AA claim was being decided - 4(a)(ii), but since AA decision already made client not entitled to IS.

schedule 1B covers the prescibed categories of person who can claim IS
4(a)(iia) states -

"(iia) the person being cared for has claimed attendance allowance in accordance with section 65(6)(a) of the Contributions and Benefits Act (claims in advance of entitlement), an award has been made in respect of that claim under section 65(6)(b) of that Act and, where the period for which the award is payable has begun, that person is in receipt of the allowance;" .


It has been suggested that heading 4(a)(iia) covers the situation that my client is in, but as far as I can see it looks like it has the same effect as heading 4(a)(i), but on the other hand why would there be 2 headings that have the same effect?

please can anyone help me get to the bottom of this ? , does 4(a)(iia) cover the situation my client is in ?

the client has appealed the IS decision, but seeing as how it will be several months before the tribunal hearing, I would like to ask the DWP to revise their decision immediately if I can, she cannot claim IS any other way, nor can she claim JSA since she could not even work part time.


any comments and help appreciated,
Jim Cook

I think you can argue para 4(a)(iia)Schedule 1B is intended to cover both the 26 week "waiting period" prior to a successful advance AA award, and the subsequent period when AA finally kicks in.

It might help if you refered them to Vol 4 para 2052 of the DWP Decision Makers Guide where included in the definition of Caring for another person is:

"...regularly and substantially engaged in caring for another person and that person
...
1.3 has
1.3.a made an advance claim for and
1.3.b an award of and
1.3.c not completed the qualifying period for
"AA" or the care component of DLA at the highest or middle rate or

1.4 has
1.4.a made an advance claim for and
1.4.b an award of and
1.4.c completed the qualifying period for
"AA" or the care component of DLA at the highest or middle rate and the award is in payment..."

thanks for your advice, I'm confident i've now got to the bottom of it and that the CL should get IS. i phoned the DWP to explain but unfortunately they steadfastly refused to change their decision, despite being unable to adequately explain the reasons for their point of view,
i've written to the chap at the DWP who deals with appeals so hopefully he'll see the light and revise the decision

interestingly, the local DWP said the version of the DMG they had was an older one that didn't contain subpara 1.3 you mentioned.

Jim

That last para of yours appals me. Making a mistake is one thing, but being directed to the latest official guidance and refusing to look at the decision again because they haven't got the guidance amounts to maladministration in my view. The claimant should lodge a complaint.

It's lamentable that the DM can't grasp the meaning of the reg, by the way. Para 4(a)(ii)(a) is being interpeted as if the words in parenthesis "where the period for which the award is payable has begun" weren't there. If they weren't, the DM would be right - AA would have to be in payment. In that case, of course, there would be no need for the reg at all - receipt of AA is dealt with in sub-para (i). The DM should be wondering what the reg is there for.

Having said that, the legal drafting is poor, allowing DMs a chance to screw things up. Sub-para (iia) and (iiia) are clearly afterthoughts to cover this very scenario, so why not word them with something like:

"... an award has been made ... and the date of commencement of that award has not yet been reached"? Trying to legislate further within the same sub-para seems unnecessary. Once payment of AA/DLA begins, para (a)(i) covers the position.

Jim

I totally agree with Jim about complaining - I've had a raft of arrogant short sighted just plain incorrect / can't or often won't read even their own guidance let alone the actual law decisions. DMs can search the DMG on the DWP intranet so there's no excuse for having an old version.

Lots of these decisions have been abandoned on second tier review prior to appeal (so your letter to the appeals officer is probably a very good idea) but as you say the delay is horrific and why should we as tax payers fund the costs and aggro and your client suffer the total aggro and demeaning ignominy of applying for Crisis Loans when it could all be sorted out at stage 1 if someone just actually did a little work?

I think that unless we complain each and every time about cases like this we strengthen the hand of sloppy decision making and make the position of unrepresented clients positively worse.

Personally after your letter to the appeals officer I would write to the local IS manager and DEMAND that the claim is looked at urgently, register a formal complaint, and threaten judicial review for unneccesary delay by a public body if the decision isn't revised within 14 days. And then at 14 days presuming you have a LSC franchise and client is legally aidable, call the Public Law Project on 0808 808 4546 to discuss how you can take that further.

(I've done this with obscene delays on paying arrears of IS premiums following successful passporting appeals - letter saying "Either you haven't made a decision superseding IS, in which case I'll judicially review you for delay, or you have made a decision but you haven't paid in which case I'll sue you. Choose.")

(Rant over. Sorry.)

the dwp have fowarded the appeal to TAS, it looks like they want to get a tribunal to decide on the meaning of 4(a)(iia).

there seem to be 2 ways of reading it: -

1. IS is payable during the period when an advance award of AA has been made but it is not yet in payment , and , it is still payable when AA commences payment

or
2. IS is payable if there is an advance award of AA, and the period for which it is paid has commenced.

I agree with you that to interpreting it the second way is wrong because that would duplicate 4(a)(i)

when it came out 4(a)(iia) was tacked onto the end of some JSA amendments, maybe this means someone had realised that there was a problems and tried a quick fix.

any comments