Should they or shouldn’t they have…........

Playing devils advocate regarding how far back the Carers element can be paid.

PIP award decision was days prior to UC decision to award UC in 2017/18 i.e. PIP awarded before UC was awarded.

So can’t make an argument that carers element may be backdated on the basis of Schedule 1 paragraph 31 UC etc: (Decisions and Appeals) Regulations 2013.

In the first AP client advised that he was in receipt of PIP SDL, but no mention his partner provided 35 hours plus care. Client also advised during that period he had been assessed by a hospital ophthalmologist and was deemed to have severe visual impairment.

This was pre-covid he had face to face meetings in the jobcentre.

Would it be arguable to argue that he should have been asked if someone was caring for him a la Kerr v etc below. If so that failure amounted to official error i.e. Reg 9 UC etc: (D&A) regs 2013.

I know I know know but etc etc stones unturned but avoiding straws etc etc.

https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-3.htm

‘Baroness Hale as lead judge in the House of Lords hearing Kerr v Department for Social development for Northern Ireland [reported as R1/04(SF)] held ‘What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and w​hat information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced (paragraph 62)’.

‘If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself’ (paragraph 63).

How does the claimant present? A severe visual impairment is to some extent a meaningless phrase in isolation. Being told you have a severe VI is equally meaningless. Were they registered as SSI? Has registration even been discussed? What does severe mean in reality?

If the claimant were presenting at JCP as someone, for example, minus a guide dog; minus a navigation cane etc. and only on PIP DL @ SR then how would JCP be expected to discern that there was any need for care at all? I would expect/hope that someone with a severe VI would be offered and would opt for registration as SSI and that their PIP would be enhanced rate of both components. I would also hope some steps would be taken in terms of provision of aids, appliances and support and that the claimant for their part would detail all that at length when they visited JCP as well as take some steps to make the invisible visible i.e. taking up what they were offered. 

My suspicion is that if the claimant was newly diagnosed then the shock of that most likely makes none of the above likely to happen and you have an insurmountable problem.

I am of course playing devils advocate.

I suppose you are looking at an argument along the lines that the DWP ought to have taken a cue from their knowledge of the VI partner’s PIP award to explore the question of whether the partner had an entitlement to the carers premium. I think that would be a fairly obvious angle for a welf doing a benefits check to explore, but I think it is ambitious to convert that into a positive duty on the DWP.

There are quite a number of breadcrumbs you would need to follow to get from “VI partner has a PIP award” to “other partner has a CE entitlement”. First, as Mike says, it is not obvious that the person would necessarily have a need for a carer at all. Then there are the questions of whether they do in fact have a carer, whether that carer happens to be the partner and whether the partner is actually doing the required amount of caring. I think the DWP will say that they were entitled to leave it to the claimants to identify themselves if they thought it was appropriate (bearing in mind that both the UC claim form and the PIP literature sent out on an award would have referred to the possibility of additional benefits for carers).

Something that I do think might merit consideration is how the questions about caring in the initial claim form were addressed. Suppose the other partner filled in the form to say that they were a carer but that the person they were caring for did not receive PIP (perhaps the letter was in the post). Is there then perhaps a stronger argument that the DWP could have started to fit the jigsaw pieces together? On the other hand, if the claim form was filled in to the effect that they weren’t caring for anyone, would it really be for the DWP to second guess that?

Thanks Mike and Elliot, for the time and effort put into the responses.

It’s not an uncommon scenario we see and pick up on. Invariably the partner is and has been providing 35+ hours of care, holding down jobs too. Very little pre-knowledge or experience of benefits other than CB and TC’s or self recognition of the informal care provided is ‘care’ as we know it.

So thanks for tolerating my crude thinking aloud devils advocate speculative foray into straws etc etc

Erm the client decided to pursue this themselves writing on the journal and were very very successful.

The decision letter was on the lines of on **/**/2022 you reported a change that happened on **/**/2017. Declaration outside the assessment period in which the change happened.

The DM has reviewed the reasons for the delay in notifying them of the change. On this occasion it has been decided that special circumstances apply and UC will be adjusted from beginning of UC claim **/**/2017