decision not to include a disability premium

I have just met with a lady who was in receipt of IB and IS (as she’s long term sick, no DLA). When her husband died Jan 2010 she was sent forms to claim breeavement allowance which she has been in receipt of since then. She gets £97.65 per week. if this is compared to her previous applicable amount at 2010 -11 rates of £93.45 per week there’s only £4.00 difference. However when the claim for the BA started she informed the Housing Benefit dept. After taking several months to reasses they have used the applicable amount for a single person of £65.45 making the excess income much higher at £37.20 which has obviously reduced her HB & CTB considerably. She also has been assessed as having to pay a considerable amount towards her medication (she has severe osteoporosis) and other medical costs. She is being taken to court for non payment of council tax.

I went with her to the HB office last week and after much discussion, phone calls to the DWP etc they are considering whether they can pay any more HB and CTB. To add insult to injury, when looking at her records they found they had not uprated her BA in April and have indicated this will be treated as an overpayment.

Presumably HB have used the correct applicable amount (though I was pushing thet they should have still included a disability premium) so what other rguments can i use. If she had been aware of the implications of being in receipt of BA rather than IS she wouldn’t have claimed it. She has written asking to go back on IS but the BA will continue until next January. Her health is suffering and she has been prescribed ant depressants.

Your client should get the disability premium as she has been continually incapacitated for work since before 27/10/08. As her IB was only stopped because of overlapping rules she should be deemed to have underlying entitlement to it.