Appeal against AA backdate to date of hospital discharge

Hi There

Can anyone give me a bit of advice.  I have a client who was discharged from hospital on 21/01/13.  She was still extremely poorly and had carers going in 4 times a day and would not have been able to advise DWP that she had been discharged from hospital to get her AA put back into payment.  This was also overlooked by support workers and family and DWP were not advised until 25/08/13.  They are stating they will only put AA back into payment from 25/08/13.  Can I appeal of grounds of good cause for them not being notified earlier.

You need to find out whether his AA was just suspended or the awarding decision was superseded and entitlement removed.  If the former, then AA is payable from the day he came out of hospital.  If the latter, then from the day he informed them.

DWP have told me change has to be notified within a month of discharge otherwise they can only pay from date of notification.  I am going to argue continual good cause as she could not have done this herself.

There was a previous discussion on this.  I recall that the consensus at the time was that because payment of the disability benefit, eg DLA, AA, was merely suspended then arrears of benefit could be paid from the date the conditions justifying suspension no longer applied.  In other words, AA could be paid here from the date the person was discharged irrespective of the delay in notifying DWP of that discharge.  That argument was based on a suspension of benefit not requiring a supersession.  However, I recall that the DWP in that particular case made what was, in my opinion, a very valid argument that a supersession was still required in order to suspend benefit once the person had been admitted for 28 days.  If that was not the case, the DWP argued, how could it ever recover an overpayment from day 29 to the date of discharge in those cases where the person failed to disclose that they’d gone into hospital/care.  It had in mind section 71(5A) SSAA 92 which provides:

“(5A) Except where regulations otherwise provide, an amount shall not be recoverable… unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or [has been revised under section 9or superseded under section 10 of the Social Security Act 1998]” (my emphasis)

Indeed.  The DWP’s approach is premised on the entitlement and payability of benefit having separate legal bases under section 8 SSA 98, with entitlement falling under subsection 8(1)(a) and payability under subsection 8(1)(c).  That allows payability to be superseded from day 29 without it affecting entitlement.  They’d argue that the legal basis of supersession, ie section 10 SSA, covers “any” decision, which includes a decision made under 8(1)(c) above.  It seems to me that the DWP are almost certainly right about that.  It would address the above section 71(5A) problem.

I cannot recall this approach ever being put to the Court of Appeal in the case of Adams which involved a suspension of benefit1 because it overlapped with another benefit (benefit2).  The CA held that the lifting of the suspension of payment of benefit 1 was effective as soon as benefit 2 was no longer received, irrespective of when the claimant notified the DWP that benefit 2 was no longer being received.

However, it doesn’t necessarily follow from the fact that suspension of benefit is by way of supersession that the lifting of that suspension upon discharge from hospital must, as the DWP will almost certainly argue, also be by way of supersession.  If the Dept are correct that both decisions are supersessions, they would argue in your case that the claimant’s delay in notifying them means that the supersession reinstating payment of AA cannot be effective from the date of discharge because the law (Reg 7 D&A) doesn’t allow that.  Instead Reg 7 D&A states that a person can be paid from the date of change (here the discharge from hospital) only where they notify the Dept within one month of that change, or within a longer period agreed by the DM (see below).  Otherwise, the supersession is effective from the date of notification.  The Dept will be all apologetic of course.  However, I think a refusal to pay AA from the date of discharge cannot possibly be right and that, whilst the reasoning in Adams may be wrong, it reached the right decision.

Whilst the supersession upon admission to hospital takes effect under Reg 7(2) D&A, any supersession upon discharge would be effective from a date determined by Reg 7(9)(c) D&A which provides:

“(9) ...a decision relating to attendance allowance or disability living allowance which is advantageous to the claimant and which is made under section 10 on the basis of a relevant change of circumstances shall take effect from–..

(c) where–

(i) the change is relevant to the question of whether benefit is payable; and

(ii) the claimant notifies the change before a date one month after the change or within such longer period as may be allowed under regulation 8,

[the] date on which the change occurred;..” (my emphasis)

Under Reg 8 referred to in sub para (ii) above, the circs in which the time limit for notifying the change can be extended by up to 13 months include:

“(c) special circumstances are relevant to the application and as a result of those special circumstances it was not practicable for the applicant to notify the change of circumstances within one month of the change occurring.”

In the present case, if the Dept are correct about the lifting of suspension being a supersession, I’d simply ask the tribunal to extend the time limit under Reg 8 using its power to make any decision legally available to a DM at the date of the decision under appeal.  So extend the limit to 28/5/13.  It is unclear in your case whether the DM has already considered extending the time limit.  If he has done then the application cannot be renewed (see Reg 8(7)).  However,  I don’t think that makes such a refusal un-appealable.  So a tribunal should be able to look at that decision again.

It may be academic, however, because I don’t think it clearly follows from the fact that a suspension requires a supersession that a supersession is also needed to lift that suspension.  Adams appears very good authority for the proposition that the decision lifting the suspension is actually made under section 8(1)(c) and not a supersession at all.  In which case, the delay in notifying the DM does not prevent arrears being paid from the date of discharge.  It is settled caselaw that, in the context of the ending of entitlement to any benefit by supersession, entitlement can only recommence by way of a new section 8(1)(a) decision.  By extension, once payability is superseded, payment could commence only via a new section 8(1)(c) decision.  Which is exactly what Adams holds.

Sorry for multiple edits of this post.