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Should a client have to apply for PIP when his DLA renewal form is lost in the post?
Hi
I helped a client complete a DLA renewal form and sent it off. Unfortunately, this form was lost in the post. By the time, we found out that the form had been lost in the post, the client’s DLA had expired.
I then sent a copy of the DLA form with a covering letter explaining the circumstances and asking for the form to be treated as a DLA renewal. However, the department have written to me saying that they cannot treat it as a DLA renewal and that they have passed the client’s detail on to the PIP department so that he can apply for PIP. The letter does not mention any mandatory reconsideration rights.
Has the department acted in a legal manner? Is there anything I can do to challenge the decision?
Thanks
I would also like to know others’ experience of this. I have such a case on the go at the moment. The form was sent in before 10/6/13 but logged 20/6/13. PIP claim went in, PIP is on the verge of being decided.
I’ve also had cases of renewal forms not received while DWP says they are dispatched and won’t accept late renewals.
I have received advice from another benefits adviser on this topic. For the department to accept the copy of the form as a DLA renewal we need to convince the Decision Maker/Tribunal that on the balance of probabilities the form was lost by the department. If it was lost by the royal mail, tough luck.
Relevant case law: CG/581/2013 (sorry I haven’t got a copy)
Relevant legislation: SOCIAL SECURITY (CLAIMS AND PAYMENTS)REGULATIONS 1987
10(6A) _11This paragraphs applies to a person_–
(a) who has attained the qualifying age and makes a claim for–
(i) an attendance allowance, a bereavement benefit, a carer’s allowance, a
disability living allowance or incapacity benefit; or
(ii) a retirement pension of any category _12or a shared additional pension_
for which a claim is required or a winter fuel payment for which a claim
is required under regulation 3(1)(b) of the Social Fund Winter Fuel
Payment Regulations 2000(b);
(b) who has not yet attained the qualifying age and makes a claim for a retirement
pension _12or a shared additional pension_ in advance in accordance with
regulation 15(1); _13_
11(c) who makes a claim for income support; or
(d) who has not attained the qualifying age and who makes a claim for a carer’s
allowance, disability living allowance _14, incapacity benefit or an
employment and support allowance.__
(6B) A person to whom paragraph (6A) applies may make a claim by sending or
delivering it to, or by making it in person at–
(a) an office designated by the Secretary of State for accepting such claims; or
_11(b) the offices of–
(i) a local authority administering housing benefit _15_;
(ii) a county council in England,
(iii) a person providing services to a person mentioned in head (i) or (ii),
(iv) a person authorised to exercise any function of a local authority relating
to housing benefit _15_, or
(v) a person authorised to exercise any function a county council in England
has under section 7A of the Social Security Administration Act 1992,
if the Secretary of State has arranged with the local authority, county council or other
person for them to receive claims in accordance with this sub-paragraph._
I wrote a letter appealing (the department told me that the Mandatory Reconsideration rules do not apply). The department have changed the decision and awarded the client DLA.
There has been a further complication in this case. Although the department initially told me that the client had been awarded DLA for two years, they telephoned me later to say that as he had made a claim for PIP, he would have to immediately fill in the PIP2 form that he has been sent and he will then be assessed under the PIP criteria.
The client applied for PIP because the DLA department told him that his DLA renewal form could not be treated as a DLA renewal and that applying for PIP was the only option. Furthermore, the DLA has been backdated to the time when he made the PIP claim. However, the person I spoke to from the DLA department said that as the client had made a PIP claim and was not in receipt of DLA when he made the PIP claim, he must be now be assessed under the PIP criteria. I argued that the DLA decision has been superseded and therefore the PIP claim should be treated as invalid. However, the person I spoke to rejected my argument.
Have the department acted legally? Is there anything I can do?
There has been a further complication in this case. Although the department initially told me that the client had been awarded DLA for two years, they telephoned me later to say that as he had made a claim for PIP, he would have to immediately fill in the PIP2 form that he has been sent and he will then be assessed under the PIP criteria.
The client applied for PIP because the DLA department told him that his DLA renewal form could not be treated as a DLA renewal and that applying for PIP was the only option. Furthermore, the DLA has been backdated to the time when he made the PIP claim. However, the person I spoke to from the DLA department said that as the client had made a PIP claim and was not in receipt of DLA when he made the PIP claim, he must be now be assessed under the PIP criteria. I argued that the DLA decision has been superseded and therefore the PIP claim should be treated as invalid. However, the person I spoke to rejected my argument.
Have the department acted legally? Is there anything I can do?
I’ve had something similar. Client’s DLA revision claim lost in post or by department, not involved at time. Client lost benefit in April 2014 and was told only option now was to claim PIP and was sent PIP2. Client has severe mental health problems and did not receive support she should have to complete DLA revision claim and did not keep copy. She did ask support staff for help but doesn’t seem to have been provided. I sent a letter requesting we submit a late claim pack for revision on the grounds of clients ill health and lack of support and the fact that claim form lost. I included the PIP2 claim and ask that this be “pending” until decision on dla given.
Client received a letter last week saying DLA claim has been received (thought it had been lost) and sent over to PIP as DLA no longer exists for new claimants. What!? I phoned and was told that the claim hadn’t been received (oh noes, lost again) and that it was most probably referring to my letter, which they’d sent over to PIP. The manager I spoke to said there was no longer a right to appeal a late request for a lost claim when a PIP had been submitted. I asked him to put that in writing with the regulations he was using as I’d never heard of this. He said he would, but I don’t hold out too much hope.
Not sure where to go with this at the moment as the longer it goes on with the PIP claim thrown in the more difficult it gets to try and explain on paper. They seem to be pushing ahead with the PIP and ignoring anything I say. Any advice would help.
There has been a further complication in this case. Although the department initially told me that the client had been awarded DLA for two years, they telephoned me later to say that as he had made a claim for PIP, he would have to immediately fill in the PIP2 form that he has been sent and he will then be assessed under the PIP criteria.
The client applied for PIP because the DLA department told him that his DLA renewal form could not be treated as a DLA renewal and that applying for PIP was the only option. Furthermore, the DLA has been backdated to the time when he made the PIP claim. However, the person I spoke to from the DLA department said that as the client had made a PIP claim and was not in receipt of DLA when he made the PIP claim, he must be now be assessed under the PIP criteria. I argued that the DLA decision has been superseded and therefore the PIP claim should be treated as invalid. However, the person I spoke to rejected my argument.
Have the department acted legally? Is there anything I can do?
I’ve had something similar. Client’s DLA revision claim lost in post or by department, not involved at time. Client lost benefit in April 2014 and was told only option now was to claim PIP and was sent PIP2. Client has severe mental health problems and did not receive support she should have to complete DLA revision claim and did not keep copy. She did ask support staff for help but doesn’t seem to have been provided. I sent a letter requesting we submit a late claim pack for revision on the grounds of clients ill health and lack of support and the fact that claim form lost. I included the PIP2 claim and ask that this be “pending” until decision on dla given.
Client received a letter last week saying DLA claim has been received (thought it had been lost) and sent over to PIP as DLA no longer exists for new claimants. What!? I phoned and was told that the claim hadn’t been received (oh noes, lost again) and that it was most probably referring to my letter, which they’d sent over to PIP. The manager I spoke to said there was no longer a right to appeal a late request for a lost claim when a PIP had been submitted. I asked him to put that in writing with the regulations he was using as I’d never heard of this. He said he would, but I don’t hold out too much hope.
Not sure where to go with this at the moment as the longer it goes on with the PIP claim thrown in the more difficult it gets to try and explain on paper. They seem to be pushing ahead with the PIP and ignoring anything I say. Any advice would help.
The advice you have received from the manager is wrong. If the manager does not put the decision to not treat the DLA forms as a DLA renewal in writing make a complaint. If the decision is made to not treat it not as a DLA renewal ask for a mandatory reconsideration. If the mandatory reconsideration fails, appeal.
Yeah, I asked for his decision in writing, he said he would but I got the vibe it was to get me off the phone. He was so confident he was right it worried me for a moment that I’d missed something in some regs. I think I’ll just go straight for a complaint if I don’t get it within 2 weeks. It’s the fact that the PIP is just chugging ahead as though there’s no problem, even all my letters to DLA are being sent straight over there apparently, because he said I have no rights of appeal. All I want them to do is agree to accept a late claim or if not put in writing why.
I wonder whether, where a decision not to accept a late DLA renewal has been notified yet no Mandatory Recon notice forwarded to the client; as would appear to have happened in the examples above, then the appeal still lies to the Decision Maker.
If it were me I think I’d be appealing to said decision maker then when it gets tied up I’d be writing to HMCTS and asking them to admit it under the old rules. I’ve got a couple where this is likely to happen if JCP don’t pull their socks up.
The advice you have received from the manager is wrong. If the manager does not put the decision to not treat the DLA forms as a DLA renewal in writing make a complaint. If the decision is made to not treat it not as a DLA renewal ask for a mandatory reconsideration. If the mandatory reconsideration fails, appeal.
There is no right of appeal against a decision to treat a PIP claim as a DLA claim or vice versa. See Sch 3 of the 2013 Decisions and Appeals Regs (SI 2013/381). This lists Reg 25 of the 2013 Claims and Payments Regs (SI 2013/380). The only remedy if the decision is not revised is to threaten judicial review.
This is covered in Chapter 53 section 3 of the CPAG handbook, on p1144.
Note also that the DM can only treat a claim for DLA as a claim for PIP (or vice versa) if s/he is of the opinion that there is no entitlement to the benefit actually claimed. I’m not sure whether by ‘revision’ SharonM means ‘renewal’. That could potentially be helpful as there is the discretion to accept a DLA claim if you have been invited in writing to make a renewal claim (which would appear to still be possible after the DLA award has ended). See Reg 22 of the PIP (Transitional Provisions) Regs (SI 2013/387, as amended by SI 2013/2689). However, it is again at the discretion of the DM to accept the DLA claim, I think…
Jon
The advice you have received from the manager is wrong. If the manager does not put the decision to not treat the DLA forms as a DLA renewal in writing make a complaint. If the decision is made to not treat it not as a DLA renewal ask for a mandatory reconsideration. If the mandatory reconsideration fails, appeal.
There is no right of appeal against a decision to treat a PIP claim as a DLA claim or vice versa. See Sch 3 of the 2013 Decisions and Appeals Regs (SI 2013/381). This lists Reg 25 of the 2013 Claims and Payments Regs (SI 2013/380). The only remedy if the decision is not revised is to threaten judicial review.
This is covered in Chapter 53 section 3 of the CPAG handbook, on p1144.
Note also that the DM can only treat a claim for DLA as a claim for PIP (or vice versa) if s/he is of the opinion that there is no entitlement to the benefit actually claimed. I’m not sure whether by ‘revision’ SharonM means ‘renewal’. That could potentially be helpful as there is the discretion to accept a DLA claim if you have been invited in writing to make a renewal claim (which would appear to still be possible after the DLA award has ended). See Reg 22 of the PIP (Transitional Provisions) Regs (SI 2013/387, as amended by SI 2013/2689). However, it is again at the discretion of the DM to accept the DLA claim, I think…
Jon
I did mean “renewal” sorry. Client returned renewal claim. DLA stopped as they say claim never arrived and sent her PIP form to complete. DM will not accept my request to submit a late DLA renewal claim, because he said it is now a PIP claim. We sent the PIP form back with the request but asked that this be pending until a written decision on DLA given. I hope that makes sense.
Does he have discretion to accept the late claim? He made it sound as though he had no choice in the matter and was pointless to put in writing as no rights of appeal. He did say he was going to though.
[ Edited: 10 Jul 2014 at 02:46 pm by Sharon M ]So I think that it is at their discretion, and the only hope is JR or convincing DWP that the DLA renewal claim was returned on time…
So I think that it is at their discretion, and the only hope is JR or convincing DWP that the DLA renewal claim was returned on time…
Thank you, Jon, for the information and pointers you’ve given me. I’m hoping the PIP Transitional Provisions reg 22 will give me some wriggle room. You’re a star.
There must be easier ways of earning a living than this.
Had something similar myself before I went on holiday, client did not get renewal pack and her DLA stopped. She phoned to find out why and they sent her a PIP form. She complained, but meanwhile I had a hard copy of DLA form on my PC and we completed that. Still waiting for outcome of complaint-we shall see how it goes.
Call me cynical, but I have a vision of an ESA claiment on a DWP workfare placement putting renewal claims through a big shredder and then department claiming they never received any forms to begin with. This is all taking place in IDS’s basement.
A copy of an email I have received from another benefit adviser: -
As advised, Regulation 4 of the PIP(Transitional provisions) Regs 2013, allow a DLA entitled person to make a claim for PIP. No further regulations were made regarding the specified areas in which this rule applied. It is purely a matter of policy implementation. (see p. 605 of the current CPAG handbook). In light of that an argument that the PIP claim cannot be accepted as valid is unlikely to succeed.
Under Regulation 30 of the transitional provisions, where a claimant has disputed a DLA refusal decision, claimed PIP in the meantime and the DLA decision is subsequently overturned, the PIP claim will be dealt with under the usual claiming rules so that the DLA award would end 4 weeks after the PIP decision (whether that was successful or not).
The client cannot withdraw the PIP claim without risking his DLA award as the transitional regulations include provisions which allow a DLA award to be terminated where a claim for PIP is made and subsequently withdrawn. (Regs 14 & 15) . DLA payments would end 14 days after the date DWP were notified of the withdrawal.
As things currently stand it seems that your client will need to complete the PIP forms so that the DLA can continue to be paid until a decision is made on the PIP claim. If the claimant does not comply with the PIP claims process then the DLA award is suspended or terminated as per the usual rules.