DLA and stays in hospital

We have a case which we are tying ourselves in several knots with regarding DLA and hospital.

situation is this.  client went into hospital and DLA were notified by the hospital that this had happened.  client came out before 28 days but DLA were never notified that she ahd came out.  DLA assumed she was still in hospital and made a supersession decision shortly after the 28 days and payment was stopped (but never entitlement).

Due to the client having learning difficulties the issue of the money stopping was never picked up on until May 2010 meaning the client had been without payment of DLA for almost two years.

When this became known to us DLA were informed and a decision was made to restart payment to the client but only from the date they were notified rather than the original date when payment was stopped.

now my initial thought before seeing the papers was that this was a simple case and payment should just be backdated as there was never any doubt as to her entitlement but I now have several issues in my head.

number 1 is am i right in thinking that the decision to superscede and stop payment cannot be challenged as it is over 13 months even if it was based on ignorance of a material fact (that she wasnt even in hospital for 28 days)?

number 2 is there anyway that the decision to restart the payments can be made a review rather than a supersession based on the fact that their was ignorance of a material fact meaning that she gets all of the money is is due?

I hope this makes some sense and as always thanks for any opinions or advice.

If there was no decision to alter entitlement then payment, in the ordinary course of events, would simply have been suspended.  As there was no alteration to entitlement then there would have been no supersession decision in the formal sense.  My reading of such cases has always been that the supersession provisions do not then apply when trying to get payment re-instated.  If getting benefit back into payment from the date of suspension does not require a supersession decision then the usual time limits do not apply.  One simply provides the Department with the relevant information and benefit should be re-instated effective from when suspension should have been lifted (i.e. the date the claimant came out of hospital).  It’s been a while since I’ve done similar applications in similar circumstances and don’t recall any problems.  Memory could be playing tricks of course.

nevin my intial thoughts were the exact same as yours re this and initally i thought it was a open and shut case but after looking at the submission papers the dwp did make a supersession decision to stop payments.  that was when i started to complicate things in my head.

I am not the greatest reader of the actual regs in the world but have tried having a search to see if i could find the actual process that should be followed in this situation but so far havent been able to find this.  if someone could point me in that direction i would be gratefull.

Steve

Have a look at CA/3800/2006 where the commissioner decided on the facts of that case that where the future was uncertain it was inappropriate to rush to supersede and should have suspended instead until there was more certainty.  The remedy is to revise the superseding decision under 3(5)(a) of the D&A Regs on ground of official error and then to lift suspension under reg 20.  There has also been a later decision along the same lines but I don’t have the reference unfortunately, although I have read it.

Regards
Paul

had a look at that decision and it has given me the answer i needed.  you have probably saved me a few hours of stress going through regulations to arrive at that.  much appreciated.

the fact that they had supersceded rather than suspended the payment caused me the initial problem but the judge specifically mentions the exact remedy for that in that decision.

Thanks from me too Nevip. I’ve just picked up a case where AA has not been put back in payment from the date of discscharge from hospital ‘because you did not tell us within one month of the date the change affected attendance allowance’.

Similarly thanks from me too.  I called to query how the arrears had been calculated following discharge from hospital and was told fairly firmly that ‘this is the law, we may not agree with it but we have to implement it because it is the law’ when referring to the 28 days.  They were also clear that the 28 days is from discharge not from when benefit stopped which in my case is about 3 weeks after discharge.  They seemed under the impression that there is no discretion in whatever provision they are referring to for extending time limits with good reason.  I look forward to finding out exactly what provision they are doing this under.