Entitlement to IS when caring for someone who has claimed AA, DLA or PIP

Hi,

I have seen a couple of decisions from the DWP (most recent one today) where they have refused entitlement to Income Support based on no conditions of entitlement where person A is caring for someone who has made a claim (but no decision has yet been made) for AA, DLA or PIP.

The IS Regulations clearly state that a person who is caring for someone who has claimed AA, DLA or PIP is entitled to claim Income Support for up to 26 weeks or when a decision is made on the qualifying benefit but the DWP are regularly refusing the claims based on no conditions of entitlement. I’ve requested a callback from the Benefits Centre so am hoping I can get them to allow the claim without having to go through the MR process.

I have another client who was refused under similar circumstances (claimed IS for the period that DLA for child application was being decided for her disabled son) but DWP refused this too. We have had to go FTT for this.

Am I missing anything here?

Many thanks

Jegger17 - 22 May 2018 11:21 AM

Hi,

I have seen a couple of decisions from the DWP (most recent one today) where they have refused entitlement to Income Support based on no conditions of entitlement where person A is caring for someone who has made a claim (but no decision has yet been made) for AA, DLA or PIP.

The IS Regulations clearly state that a person who is caring for someone who has claimed AA, DLA or PIP is entitled to claim Income Support for up to 26 weeks or when a decision is made on the qualifying benefit but the DWP are regularly refusing the claims based on no conditions of entitlement. I’ve requested a callback from the Benefits Centre so am hoping I can get them to allow the claim without having to go through the MR process.

I have another client who was refused under similar circumstances (claimed IS for the period that DLA for child application was being decided for her disabled son) but DWP refused this too. We have had to go FTT for this.

Am I missing anything here?

Many thanks

No i don’t think you are!

We now have UCFS, but previously in the above scenario we would do clerical applications with covering letters citing the legislation you allude to, because of the above stuff.

Just in case as well as paragraph 4 of Schedule 1B IS (Gen) regs 1987, if you haven’t already, have a look at paragraph 3b too. As well the above scenario i.e. an additional ground. Its handy as another ground for claiming IS as a carer (but no premium paid for this ground).

So I received the callback from the Benefits Centre who advised that the Attendance Allowance claim needs to be registered before the claim can become live. I spoke to Attendance Allowance who have advised that the claim is currently in a queue and not due to be registered for another 6-8 weeks.

The regulations state that a carer can claim IS “if the person being cared for is in receipt of attendance allowance but
only for the period up to the date of determination of that claim, or the period of 26 weeks from the date of that claim, whichever date is the earlier…”

Can someone please point me in the direction as to get some clearer guidance on this? The Benefits Centre are saying that IS entitlement in this situation only starts from the date that the claim is registered but this is not what the regulations say. I spoke to the Enquiry Line who are advising that it can take 6-8 weeks before a claim is even registered on the system so the client would have to wait 6-8 weeks from the date he has claimed until his IS entitlement would begin. I have looked at DMG Vol. 4 and it doesn’t mention anything of the claim needing to be registered.

I really do not want to go through the MR process but the Benefits Centre (Lisahally) are being particularly difficult on this.

Any suggestions?

MP with such obvious systemic barriers.

I can also raise via stakeholders (although a quick reply is not guaranteed…)

Hi Daphne,

That would be much appreciated. If you could specifically quote Lisahally Service Centre as the Team Leader and the Manager I spoke to there were particularly unhelpful and quite smug that the IS claim would not be allowed. I have looked high and low and cannot find anything (guidance included) to say that entitlement only begins when the disability benefit claim is registered. It is looking like I will have to do a rapid reclaim for JSA for the client and go down the MR route but can imagine that they are likely to refuse this as well.

I have spoken to Attendance Allowance who have advised that they have received the claim on 4 May and it has been registered on their scanned documentation system but this is not enough to allow the IS entitlement for the carer to commence? The claim is now in a 6-8 week queue to be officially registered and for decision to be made and once this happens then the IS claim will be payable.

If DWP DMs are being guided to only pay the IS claim from when the disability benefit claim is ‘registered’ then surely this should be reflected in the regulations? As the regulations say from the date of claim and there is no guidance or case law as to when that ‘date of claim’ begins from (i.e. date of postage, date of receipt etc.).  Some clearer guidance on this would be much appreciated.

Many thanks

Hi Jegger - I have had a reply from stakeholders giving an email address for someone at AA who you can contact as they say there should not be a delay - i will direct message you it. I will go back to them about the IS department and their attitude…

Jegger17 - 23 May 2018 09:55 AM

Hi Daphne,

If DWP DMs are being guided to only pay the IS claim from when the disability benefit claim is ‘registered’ then surely this should be reflected in the regulations? As the regulations say from the date of claim and there is no guidance or case law as to when that ‘date of claim’ begins from (i.e. date of postage, date of receipt etc.).  Some clearer guidance on this would be much appreciated.

Many thanks

Hiya Jegger it sounds like you are already on your way to getting this sorted but in relation to this particular query the regulation about Attendance Allowance date of claim is Social Security (Claims and Payments) Regs 1987 , Regs 6(8), 6(8A) and 6(9).

Date of claim is the date that the form was requested (provided it is then ‘properly completed’ and sent back to the DWP) or if this date is not known 6 weeks before the date a properly completed form is received by the DWP.

The only leg I can see Income Support having to stand on is maybe to argue that until somebody at AA has confirmed that the form has been ‘properly completed’ this date of claim cannot be confirmed. They’d be arguing that until this decision has been made there is a possibility that the claim form has not been properly completed and that the claim is defective (unless and until these defects are corrected by the claimant). It would then come down to the question of whether a defective claim was ever a claim in the first place(!).

In the face of such an argument I’d be submitting that in a situation like this where it is clear that all the other requirements of Reg 6 are met the burden of proof lies on the DWP to show that the AA claim form has been not been properly completed if they want to refuse the IS claim. I’d also be arguing that a decision that a claim is defective is not a decision that it was never a claim at all but a decision that an existing claim will not go any further.

That’s the analysis from my point of view. I’d be interested if there is any case law on defective claims. In a world where common sense prevailed you would think that the sensible thing to do would be to accept and process the IS claim and then in the unlikely event the AA claim turned out to be defective recover any overpayment.

Hi Sam

The problem that I have had with this case and a few other similar cases is that the DWP rarely follow the legislation and unfortunately there is no guidance. I was quite lucky in this case as a Stakeholder (courtesy of Daphne’s previous post) was able to make a quick(er) decision on the AA claim and hence the IS claim became payable.

My understanding is that the legislation clearly exists to allow a carer to claim IS whilst a (disability benefit) claim is being decided for the person being cared for. However, with no clear external guidance on this provision (or any caselaw) I have found that the DWP in a number of cases are arbitrarily applying their own interpretation of what is meant by the ‘claim being made’. The problem is more often than not the (disability benefit) claim is disallowed by the time that the IS claim has been decided and received - meaning that clients can go without benefit for 3-4 weeks (i.e. whilst waiting for an original IS decision, which is then refused, and then having to claim JSA by duress) or become subject to jobsearch conditionality for 3 or so months whilst waiting for a tribunal date for the disability benefit claim, if there are merits. Hope this makes sense.

I was lucky on this case as (thanks to Daphne) a positive decision was made on the AA claim allowing IS to become payable from the date the disability benefit was claimed. However, I am not confident that the DWP will effectively apply the legislation the next time a claim for IS is submitted under this provision.

Is there any pressure that can be put on them to make sure Benefit Centres are uniformly applying this provision?As you have mentioned, I appreciate it becomes difficult without any clear guidance and/or caselaw on the issue, so not sure that there are any quick wins?

Many thanks for getting back to me on this with such a comprehensive reply.

Also, thanks Sam for getting back to me on the provision re. the date of the claim being made. This will be useful for any MR - I think the majority of claims under this provision will have to go down that route unfortunately until the DWP apply a uniform approach.

Hi Jegger - pleased your case has been resolved :)

And have gone back via stakeholders to say this situation needs resolving properly to ensure the legislation is applied correctly - and thanks Sam for clarifying the specific regs.

I am reluctantly not convinced by the burden of proof argument.

The date of claim is only the date of claim once the claim itself has been completed and returned. The word “claim” must infer a valid claim but I don’t see how it can be deemed as valid until such time as the claim has, at minimum, been examined for having been completed without error or omission. Scanning and uploading does not determine that.

Now, the burden of proof to show entitlement on a claim falls squarely onto the claimant. It strikes me that it would be rather odd to have a scenario where, simultaneously, you could have the burden of proof on the claimant to show entitlement but on DWP to show that a form hasn’t been completed properly. Potentially that means a claimant could send in a near blank claim pack that would have to be accepted up to the point it was finally looked at. I’m not sure that flies.

Jegger17 - 21 June 2018 01:36 PM

The problem that I have had with this case and a few other similar cases is that the DWP rarely follow the legislation and unfortunately there is no guidance.

There certainly is guidance, see DMG Volume 4 at paragraph 20116 section 2.2 (my emphasis):

Regular carers

1. both entitled to and in receipt of CA or would be in receipt of CA but for the application of the loss of benefit provisions and caring for another person or
2. regularly and substantially engaged in caring for another person and that person
2. 1 is in receipt of “AA”, AFIP, the care component of DLA at the highest or middle rate or the daily living component of PIP at the standard or enhanced rate or
2.2 has claimed “AA”, DLA, AFIP or PIP or
2.3 has made an advance claim for etc

Then go to para’s 20120 and 20121 where the 26 week period is explained in more detail.

Hi Paul/Mike/Daphne

Thanks for getting back.

Daphne - it will be interesting to hear their response and thank you for taking this up.

Mike - I fully understand where you coming from but surely this would go against what the legislation is designed to protect (i.e. a carer being without benefit whilst a claim for qualifying benefit is being made). When I initially called IS said there was an 8 week wait for the claim to be registered, which I presume was (as you say) ensuring a valid claim had been made. Surely any defective claim of the disability benefit whilst IS is paid should lead to an overpayment as per someone’s post previously?

Paul - I quoted this guidance to the BC in my correspondence with them to no avail. Sorry, when saying ‘no guidance’ I mean no clear direction as to how the DWP should interpet the provisions. Unfortunately, until there is such I think DMs will continue to imply their own meaning as to what is meant by the ‘date of the claim’. Until there is clearer practical guidance on this I am not confident that IS claims will be allowed at first application under this provisions.

Sorry to be so persistent on this I am just incensed that the DWP can leave people without benefit who are full time carers for people who have not yet claimed a disability benefit. I have had a few cases on this now (each one stronger than the last) and have foolishly been more confident each time that the IS claim will be allowed first time round. Luckily, I have not had to go to FTT on any of them.