Oh Hellow there, can anyone provide assisatanc eon this one before I blow my top !

Client is caring for her uncle who recieves DLA high rate mob - has been diagnosed with liver failure, heart failure and severe breathing problems. She has put in for a supersession of the care componant on his behalf and claimed Carers Allowance at the same time. He has had extra care needs since April' 09 and will meet the 6 month forward test.

She currently receives JSA - her CA was refused as he does not receive M rate care of DLA (at the moment) - therefore IS will not pay her Inc supp as a carer, as she does not have a current claim for CA. pending - and they say they will not consider a claim untill the DLA and CA has been awarded.

IS can be paid as a carer untill CA is awarded, but they insist that as CA decision has been made, refusing entitlement, they will not consider a claim untill it has been awarded. ! I remember seeing something on this either a Commissioners decision or court of appeal on _ the CA DM should not have made a decision refusing entitlement to CA until he had the full details to make a decision ie if he knew that a review of DLA was pending he should not have made a decision untill the DLA care componant had been decided, as he did not have the full facts to make a decision, also that making a decision he new would be revised once the DLA supperssion had been made was purely for administrative purposes and not in the interest of the claimant.

Does anyone know this decision or can provide a link or copy of it ?.

Cheers

Col

No.

It seems to me that para 4(a)(iii) of schedule 1B to the IS regs is sufficient for your client to be entitled for up to 26 weeks from the date of the 'claim' for DLA. In this context, I believe that 'claim' can also mean 'supersession'.

Income Support as a Carer isn’t dependant on claiming Carers Allowance at all. The refusal of Carers Allowance here is a red herring. You can get Income Support as a Carer even if you never claim or intend to claim Carers Allowance.

They can refuse Income Support as a Carer if the person she cares for hasn’t made a claim for DLA/AA in the last 26 weeks - or if she isn’t ‘regularly and substantially engaged’ in caring.

My guess is that she has been refused because they say that a supersession isn’t a claim.

I had always thought that it had to be an actual claim, but am interested that it may be otherwise…..

Jane

See reg 2(1) of the Claims and Payments Regulations for the definition of "claim for benefit". Most revisions/supersessions are not included.

I didn't know about the definition in reg 2(1) C&P regs, but it defines a "claim for benefit" whereas the reference in para 4 of schedule 1B is a "claim for a disability living allowance".

In the proper context therefore, I might suggest there is still mileage in arguing the point at tribunal since a "claim for a disability living allowance" can only mean a claim for the appropriate rate of DLA. In that regard, could it not be seen that a supersession of DLA from say LRC to MRC may be a claim for the appropriate rate of DLA?

Clutching at straws perhaps, but I think the interpretation is certainly consistent in the right context.

If it is not - and claim does indeed mean claim as per the meaning in the C&P regs then, regardless of disability, why not ask your client if there is anyone else that she knows who can make a claim for DLA so she can qualify for IS while the Uncle's supersession is going through?

Unfortunately my client was was held under the mental health act for "touting for people on M/H rate care" in her area.

Seriously thou - Decision refusing IS as carer was changed on reconsideration -
I requested experienced DM look at decision again using Sch 1B 3 (b) and
4 (a) (iii) giving entitlement.

So take it supersesion of DLA is a claim for benefit

Is this not a simlar problem to that described in the previous discussion topic?

CMS doesnt recognise any claim as a carer unless in receipt of carers allowance? - and then the need to argue the provisions in Schedule 1B; which the DMs only reluctantly agree to change (if at all) after a length of time; I think there is a target of 50 days to make a decision to revise or not - and just think how many people will have given up at the first hurdle.

Perhaps you could do an e-bef and/or send to me as a case study to send on to CPAG?

The decision was changed within 2 days of appeal being faxed.

Is it not a case of very poor decision making by the DM and not the system itself, computers cannot make decisions on benefit entitlement people do and their supposed to use the legislation.

It appears that in your area there is a ploicy of blank refusal of claims if CA is not in payment - this should surely be a training need for decision making and an incorrect policy in place. There a formal letter of complaint with copy of the legislation and copy this to Yvetter Cooper, also do a piece in the local and national papers "Poor Decision Making Lets Down Carers" or "carers left to starve" or "Sick and disabled made to suffer by DWP".

I had a similar problem a few years ago in the merseyside area - cant remeber the exact details but the gist was - income support not being awarded from date DLA was awarded as the IS claim was made outside of the 10 days _ DM's were using the DLA date of claim as the date it was received and not the date it was requested - this case took months to resolve and went to the "Technical section" at leeds - I had to fax them copies of the legislation and their own guidance - it turned out they had been misapplying the legislation for years and had to go through old claims to correct previous decisions, it also prompted new training for IS DM's at Huyton BDO.

Thanks Darlo - I particularly liked those ideas for press headings and well done in getting your BDC to change their ways. You may be right that my concerns are caused by bad decisions but I think there is a more systemic problem.

Of course decision makers make the decision however the CMS does indicate entitlement, claimants are told whether they are eligible at the end of their call so a computer is involved. I think many then do not turn up for interview so the claim is never verified.

- DMs then make their decision from the information in the claim or at least they should, there is obviously some sort of electronic processing which I have not seen and I wonder if this is just followed?

There is a question in the claim form/telephone interview relating to whether the person you care for is applying for DLA, relevant in your case and this should have triggered an 'eligibility indicator' assuming your client provided the correct information. The fact that it did not suggests that the system is not working?

I can't find any questions relating to caring for some one temp ill - the caring question then goes straight into DLA/AA - so if this information is not collected.....

Nick