We have had a number of cases where DLA/AA claims have been delayed and in some cases refused because the DBU has sought to find an appointee (without a request from the claimant or representative).

DBU seem to want to do this in cases where the forms indicates that the claimant may have problems managing their own affairs. DBU has asked the Local Authority to become an appointee on occasions, but our local authority will only do this in the most extreme cases.

Many of the applicants we have seen having these problems get State Retirement Pension etc. without the need for an appointee.

Have other advisers had any similar problems?

Thanks.

Yes. Even had a case where the wife was written to about this without them telling her husband who was the claimant. This seems to be an automatic response where any supervision needs relating to dementia, memory etc are put on the form. It also seems to be more for the DBU's convenience than anyone elses with little explanation for the prospective appointee about the full rnage of their responsibilities.

Where necessary I have just drafted a letter for the claimant stating they don't want an appointee with a brief explanation why and asked them to make a decision. This seems to work even though they can be persistent. You need to be careful when giving reasons not to put anything that could be interpreted as contrary to supervision needs stated on the application. The fact that they have been managing their other benefits should be relevant.

Seems to happen most where the claimant has a partner in my experience. Not looked at the regs so not sure what scope the DWP has to insist on an appointee. Seem to remember some discussion on Rightsnet where DWP refused to pay benefit until an appointee was sorted.

The Agents,Appointees,Attorneys and Receivers Guide can be found here-
http://www.dwp.gov.uk/advisers/docs/aaarg/index.asp

Judging how often I've had to advise about this, it feels like this issue arises fairly regularly.

In my view DWP are acting unlawfully if they refuse to decide a claim or to make payment when they feel that someone should have an appointee. The legal position about appointees as set out in Reg 33(1) Claims & Payments Regs is that the Secretary of State may make someone an appiontee if they apply in writing to be an appointee.

There is nothing in the legislation which requires an appointeeship as a condition for a valid claim or for making payment or a decision.

The DWP's guidance on this interestingly states:

"Appointee needed but no one nominated
5300 If a visiting officer decides a customer needs an appointee but no one has been nominated, make attempts to identify a suitable person, e.g.:
• a spouse
• a relative or close friend
• an organisation, e.g. a LA or AHA or
• the proprietor of a CH/NH, but only if no other suitable person is found.

5301 If a suitable person is not available, inform the customer’s local social services and the relevant benefit section."

Nowhere in the Guidance does it give powers to delay a decision or payment. This seems to be one of those practices adopted by some DWP staff which have no legal foundation - akin to the "two nights rule" in living together cases or the new mythical rule called "you can only claim by telephone".

One remedy would be to write to the DWP's solicitors advising that there has been a breach of the Secretary of State's duty to decide a claim and warning of the risk of judicial review action as a result. You could also refer to a solicitor who does adminstrative law work. Public Law Project may be worth talking to.