Incorrect advice re; Portuguese national

A little guidance needed….......

Cl (Portuguese national), lone parent, mortgaged property, ceased work June 2010. Not done 5 yrs continuous employment has previously claimed JSA. Visits local JC+ to ask about any entitlement to benefits, advised that as a lone parent no need to work, Cl says ‘I want to work’, JC+ says no need, you’re a lone parent you need to claim IS, Cl asks ‘Are you sure? I’m from abroad’ advised ‘yes’.

Cl makes IS claim 18.06.10 and hears nothing she calls JC+ every week to chase claim, told merely with a decision maker, we will be in touch soon. 21.09.10 letter received ‘no entitlement, no R2R for benefit purposes’.

Next day 22.09.10 Cl calls JC+ from friends house to make claim for JSA, JC+advise they need more info so Cl agrees to call them back when she gets the info together. Cl calls them back (not sure of date) and is told there was no record of the claim.

Cl starts again and valid JSA claim made, initial interview last week, signs on this Friday.

Am I right to think I should be…
1. Seek backdating of JSA claim - 3 months max on basis of misleading advice from officer of DWP,
2. Complaint for special payment for;
    a) loss of statutory entitlement to JSA for the period before the JSA claim/backdating
    b) loss of SMI which would have started 17 Sept if JSA claim had been made rather than IS
    c) compensation for inconvenience, hardship etc (Cl has been taken to court for repossession of home - suspended)

If anyone can give me any regs/case law etc that can support the above or any other suggestion please holler - thanks in advance, Chaos.

How old is their child? Are they in education? If so you could use the Baumbast line of caselaw to argue there is entitlement to IS anyway as opposed to JSA. Only issue with this is that it is not clear whether residency under this route helps a person establish permanent residence after 5 years.

hi

i have had success in previous job going for compensation. was helped by tribunal judge making a finding that cl had been misadvised and that there might be grounds for compensation.  in my case that was appeal about income support being refused, but same would apply to backdating jsa appeal. if appeal allowed, implies that tribunal accepts misadvise/maladministration.

i also got compensation for unpaid tax credits and hb/ctb.  special payments section liaised with local authority who paid the hb/ctb (not quite sure on what basis).  sounds as though tax credits and ctb might apply to your client.

the compensation claim took a while and quite a lot of input -  it was hard to get dwp to understand that cl not having right to reside due to claiming income support had knock on effect on other benefits and so she should be compensated for them too - but was definitely worth persisting with.

cheers ros

I’d be looking to see if Teixeira was relevant here and if so go for a late IS appeal.

Many thanks to you all,

Unfortunately child is only 2 yrs of age so Baumbast or Teixiera is not going to be helpful.

Thank-you all for super fast feedback, letter to DWP is on its way.

I have a very similar case ongoing at the moment. My client did successfully get her JSA claim going with her max backdate but of course she is out of pocket because her JSA backdate could not go back far enough to reach the date from when she claimed IS.

We have just been informed that our compensation request has been sent to the “special payments unit” in Leeds today. Hold the front page - and try not to get too excited - it has only taken DWP 18 months of my pestering on a regular basis to get to this stage…

My client too wanted to claim JSA but was pushed into claiming IS by DWP phone staff - who really should know better! We have had numerous cases like this locally and have raised it with the DWP team who run our local liaison meetings. They assure us that staff are being re-trained on this.

post script to my earlier entry above - the DWP has just paid my client £1,291 from the Spcial Payments Unit - this covers loss of JSA/HB and compensation for delays and inconvenience. It is worth pursuing compensation claims!

Great result.