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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

PIP / Qualifying Benefit for backdatin IS - Carer’s adversely affected! 

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Glenys
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Housing Systems, Leeds

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Hi Simon et al.
Resurrecting this as have been asked to advise on a similar case,(except this was where PIP was stopped on a re-assessment) with added complication that still awaiting PIP decision, CA and IS ended.  HB and CTC still in payment fortunately, but benefit capped as 5 kids. Client does not wish to claim UC but I’m worried that the outcome for IS will not be good.
When you said “However, there is a subtle issue about anytime revision of CA entitlement in our submission ” I wonder if you could go into more detail for us?
I’ve been going round in circles in terms of getting IS reinstated in terms of CA as qualifying benefit where the IS is not currently in payment (see pages 1131 and 1170 in CPAG handbook)- it seems from what these pages say it might be that it’s not a matter of revision but a backdate - which would be no good as client would not be able to make a fresh claim for IS and would have to claim UC.
Is that what the problem is? Or is it something else? Or have DWP been saying it’s a supersession rather than a revision - with the same result?
I think it’s an any grounds revision but the “double leap” from PIP to CA to IS worries me.
I’ve looked at the IS regs and also the SS&CS; (decisions and appeals) regs but they don’t help me -unless I’m missing something (very possible!!).

If only the FTT judge had said on what grounds they decided to allow IS to be reinstated!

Any help you can provide on the “subtle issue” argument would be very much appreciated

Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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I absolutely agree that the official error route is not ideal, but as you have identified there does not appear to be any clearer route in legislation available; as you say the more obvious route of fresh claim with backdate is no longer available (save for someone with SDP entitlement). As your case is a PIP reassessment rather than DLA migration it does not fit so succinctly with the OM case, but I would argue there is still a strong case to be made. I have pasted the most relevant section of my submission to FTT which I hope may be helpful:

2.3 It is submitted that the decision to terminate Mr G’s Income Support claim amounted to official error as per Regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The claim was closed as a consequence of the termination of an award of a qualifying benefit, Carer’s Allowance, which itself was terminated due to the decision to terminate Mrs P’s claim for Disability Living Allowance. Given the circumstances as explained in the previous paragraph, it is submitted that the DLA award should have been reinstated when good grounds for the missed assessment were accepted. This approach was confirmed in OM v Secretary of State for Work and Pensions (PIP): [2017] UKUT 458 (AAC) in which Judge Mesher says:

Para 37 ‘Since the decision disallowing entitlement to PIP has been set aside, the basis for the application of regulation 13(1)(a) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 (see paragraph 10 above) falls away, because there is no longer a negative determination under regulation 9(2) of the PIP Regulations in existence. It is perfectly clear from the terms of the notification letter of 22 July 2016 that the Secretary of State’s decision covered both PIP entitlement and the termination of entitlement to DLA. The claimant’s appeal against that decision must therefore be regarded as covering both those aspects of the decision. Accordingly, my substituted decision sets aside the termination of entitlement to DLA after 9 August 2016. Payment of the amount due under the existing of award of DLA from 10 August 2016 onwards must now be made unless and until either that award terminates under its own terms or is brought to an end by supersession, a PIP assessment determination is made (regulation 17 of the Transitional Regulations), another negative determination is made or there is a failure to comply with some other requirements (regulation 13(1)).’

2.4 It is submitted that, given it was erroneous to close Mrs P’s claim for Disability Living Allowance, it follows that the subsequent decisions to terminate entitlement to Mr G’s claims for Income Support and Carer’s Allowance were erroneous in law, and there are therefore grounds to reinstate the claims upon review. 

2.5 It can be seen that Mr G’s award for Carer’s Allowance was reinstated and backdated to cover the period in which his Income Support claim was stopped (Doc G). Given that Carer’s Allowance is a qualifying benefit for the purposes of Income Support, it is submitted that Mr G should qualify for uninterrupted entitlement to Income Support. Regulation 3(7) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that the Secretary of State may revise an original award of a relevant benefit if a qualifying benefit is subsequently awarded. 

mycatismo - 15 June 2019 12:06 PM

Hi Simon et al.
Resurrecting this as have been asked to advise on a similar case,(except this was where PIP was stopped on a re-assessment) with added complication that still awaiting PIP decision, CA and IS ended.  HB and CTC still in payment fortunately, but benefit capped as 5 kids. Client does not wish to claim UC but I’m worried that the outcome for IS will not be good.
When you said “However, there is a subtle issue about anytime revision of CA entitlement in our submission ” I wonder if you could go into more detail for us?
I’ve been going round in circles in terms of getting IS reinstated in terms of CA as qualifying benefit where the IS is not currently in payment (see pages 1131 and 1170 in CPAG handbook)- it seems from what these pages say it might be that it’s not a matter of revision but a backdate - which would be no good as client would not be able to make a fresh claim for IS and would have to claim UC.
Is that what the problem is? Or is it something else? Or have DWP been saying it’s a supersession rather than a revision - with the same result?
I think it’s an any grounds revision but the “double leap” from PIP to CA to IS worries me.
I’ve looked at the IS regs and also the SS&CS; (decisions and appeals) regs but they don’t help me -unless I’m missing something (very possible!!).

If only the FTT judge had said on what grounds they decided to allow IS to be reinstated!

Any help you can provide on the “subtle issue” argument would be very much appreciated

Glenys
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Housing Systems, Leeds

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Joined: 23 June 2010

Thanks so much Simon!

Mike Haran
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Caseworker, Richmond CAB

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Joined: 8 April 2016

Cl’s IS terminated when partner’s PIP stopping and therefore his CA.

PIP and CA reinstated. DWP refuse to reinstate IS on the grounds:

- No official error

- Not possible to make new claim for IS (the exceptions do not apply)

- Reg 3(7) of the Decision and Appeals Regs 1999 only apply
where the decision is an award and not the termination of an award.

Any thoughts on the reg 3(7) point?

I see there was a UTT appeal last year. Is there a decision?

Thanks

roecab
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Welfare benefits supervisor - Roehampton CAB

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Mike,

Based on what you have said, then Daphne’s post above might be appropriate i.e. as PIP now awarded, then IS should revise retrospectively: -

PIP has presumably now been awarded continuous with the cessation of the DLA award and therefore also the carer’s allowance is continuous, so your client was entitled to a qualifying benefit at the point the decision was made to stop paying IS - see CPAG 1268 for anytime revisions on basis of qualifying benefit.

Hope that helps

Best wishes

Michael

Mike Haran
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Caseworker, Richmond CAB

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Thanks Michael.

That is the way we were going but the DWP are taking the line
that ‘Regulation 3(7) only allows a ‘decision ... awarding a relevant benefit to be revised.
It does not allow a decision terminating IS to be revised’.

The arguments are set out in this more recent thread:

https://www.rightsnet.org.uk/forums/viewthread/15312

roecab
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Welfare benefits supervisor - Roehampton CAB

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Joined: 17 June 2010

Mike,

No problem, and keep us updated as to how it goes- it all seems random, which could indicate, not unusually, that the DWP do not understand the situation themselves!

Cheers

Michael