Forum Home → Discussion → Income support, JSA and tax credits → Thread
Getting Income Support reinstated after a late appeal
Client was on IS (no IB) for various severe health problems. She failed to attend a PCA just under 26 weeks ago due to health issues, has been living off a relative’s benefit income since then. We saw her in June and put in a late IS appeal citing medical reasons for both lateness and non-attendence. We missed advising her to also make a new claim at this point. The appeal was accepted, incap credits from Feb have been reinstated, appeal lapsed. However, when she phoned to ask about IS coming back in payment, she was told that she would have to claim ESA instead.
We have now been told by IS that in fact she should now claim IS - not ESA - though this will be treated as a claim for ESA anyway. This will be a new claim, as there has been a break in IS of over a month, though it can be a rapid reclaim and she can request backdating. However, IS stressed to us that this is only their current understanding, and it may be that in future their legal dept will decide that claimants in this scenario must claim ESA.
We wonder:
- is it correct that our late appeal (against IS stopping) could never have led to the old IS claim being reinstated?
- what is the distinction between a claim now for ESA, and a new claim for IS which is treated as a claim for ESA?
- what level of evidence might be needed to show what she has been living off in the interim?
Would be grateful for any comments.
—-
EDIT: for the record, on 8/9/11 Income Support finally revised their decision in clmt’s favour.
If the appeal is allowed, then Income Support should be reinstated.
Income Support decision maker was quite clear to me on the phone yesterday that this is not the case, where there has been a break of over a month (and no IB in payment).
I don’t understand any of this. Are you saying that after failing to attend the medical she was treated as not incapable of work and taken off IS. Then after appealing, good cause for failing to attend was accepted and she was then accepted as incapable of work (or treated as incapable of work). Because if so, she is merely restored to her original position and IS must be put back in payment. There is no need to make a new claim and this one month thingy is absolute nonsense. Or have I completely misunderstood?
nevip, you understand the situation, at least as well as I do. Client has a decision dated 4/7 that she is “still entitled to” Incap credits from February, but no IS is forthcoming.
I have just visited the client, and she has been sent an A1 to fill in (apparently after some difficulty in convincing the call centre she did not have to claim ESA). A call to the IS DM confirmed that, in her opinion, this should actually have been a rapid reclaim form (and, they sent a wrongly-addressed envelope), but the quickest way forward seemed to be to complete the A1, with a backdating request, and a statement from the client and relatives that she has had no other means of support in the meantime.
[ Edited: 15 Jul 2011 at 02:24 pm by Jon (CANY) ]If the backdating on this claim is successful (and she gets the disability premium back), then I doubt we’ll be taking it any further.
If there is a problem, eg backdating is not allowed; or the whole claim is not allowed because no “new” claims for IS can be taken now; or, no money will come in payment until the cl passes an ESA conversion medical; then what should be our recourse? We apparently have a “successful” appeal against an IS decision which has not been implemented.
Then you threaten them with the full force of the law, MP, kitchen sink, et al.
Hmmm….
It seems to me that you need to be absolutely clear about what in fact has been appealed and what revision was made.
My understanding is as follows:
1. Client fails to attend medical. DM makes decision ending IB credits as client falls to be treated as capable of work.
2. DM makes decision ending IS in light of fact that prescribed condition of entitlement (incapacity for work) has ended (above decision at (1) is binding on the IS DM).
3. Claimant appeals decision on credits. (I am not 100% clear on this- it may be that the claimant ALSO appealed the decision on IS but that is not what usually happens).
4. DWP revise its decision on credits (presumably accepting good cause).
If that is the chronology the question is: by what method can the decision at (2) above in respect of IS now be revised?
I struggle to see which of the myriad paragraphs of Reg 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No. 991) allows for a revision of the decision to stop IS in these circumstances.
If this is what happens then I think the best and safest course would be to file a LATE APPEAL against the IS stop decision immediately. Then, assuming that appeal is admitted (as it should be given what is fair and just- in particular what is relevant here is the apparent lack of any alternative remedy) a power to revise the stopping of the IS decision will arise through Reg 3(4A).
For what it’s worth, the appeal was against a JCP decision that: “your Income Support will change. This means from 23 February 2011 you are not entitled. This is because you have to be available for work. You should claim Jobseekers Allowance instead.”
GL24 sent to the office dealing with the IS claim, name of the benefit under appeal “Income Support”, citing date on the above letter. “My Income Support was stopped because I did not attend an interview. [blah blah, medical reasons noted].”
The decision they returned was “you are still entitled to incapacity credits from 18 February”.
I’m not clear on how we can appeal the IS decision any more directly than we already have, unless the grounds really need to be “I have had incap credits reinstated”, rather than just “I had a good reason for not attending”.
Hi Craven,
So it seems from what you say that:
1. You appealed against the decision to stop IS (which had been made following the decision to stop credits on the basis of failure to attend a medical).
2. The DWP then revised the decision to stop the credits.
3. That means you still have an undetermined appeal against the decision to stop the IS.
4. The remedy is therefore to ask the DWP to progress the IS appeal- they need to send it to the tribunal service.
5. Write to DWP explaining the above and stating that if they don’t prepare a bundle of papers and send the response to the Tribunal Service within a fixed period then you will write directly to the Tribunal Service asking them to give directions for the progress of the appeal.
Thank you for all the responses, I’m a bit clearer on the issues.
We’ve asked JCP to either revise in client’s favour and pay IS, or else send their response to the tribunal service. We’ll go direct to the tribunal if they don’t.
An update on this: via phone, Income Support are maintaining they can not make an IS award on a non-ICB sickness claim following the rules change in January, though they tell me they only realised this interpretation of their position recently. Therefore they have forwarded the new IS claim which they have asked us to make on to ESA, to see if ESA can put any benefit in payment, and consider backdating. They are yet to issue this to me as an actual decision on the IS appeal, they tell me that a direction from the tribunal is unlikely to speed them up much.
Has anyone else run into this?
What rule changes in january are income support useing to refuse payment?
The changes effective as of 31/1/11 are discussed here:
http://www.rightsnet.org.uk/forums/viewthread/998/
Tony Bowman summarised it thus, which I don’t think anyone disputed:
“Claims for the benefits in regs 2(a)-(c) of the ESA (TP) Regs made on or after 31 January, or claims made before that date for a period commencing after it, are revoked; meaning that all new claims for IB, SDA or IS (linked claims only) will be for ESA.” .. but also “IMO it will still be possible to make a claim for income support, but only where there is an ‘existing award’ of IB or SDA, at any point up to the time that the department issues a ‘conversion decision’ in respect of the claimant “.
The January changes only abolished the linking periods for new claims. As you know the linking provisions merely connect two periods of incapacity for work into one period. If he has won an appeal in the circumstances described he is still in his initial period of incapacity for work and the January changes are not applicable.