If a claim form is lost between DWP offices, has a claim been made?

This is all further to the late appeal I asked about in this thread:
http://www.rightsnet.org.uk/forums/viewthread/1708/

As described, Income Support stopped in February. They have now told me they are sending the appeal we made in July on to tribunal, as they don’t believe they can reinstate benefit (despite reinstating incapacity credits). I will ask for an expedited hearing.

In the meantime, Income Support said to get benefit back in payment we should make a rapid reclaim. To this end they sent out a full A1 claim form, which they said was an error but they told me it should be filled in rather than wait for a rapid reclaim form to be posted, with a covering letter explaining this, which we duly did. They confirmed receipt of this application form, but then told me they have decided they can’t pay IS after all, and so forwarded it to the ESA office to see if it could be treated as a claim for ESA instead. I have not got any written decision. I understand that a claim for IS can be treated as a claim for ESA, at their discretion, but ESA have since indicated to me over the phone that in practice an ESA1 is required. Anyway, the ESA office deny receiving any form on the day IS say it was received, or at all. It was sent Track + Trace. IS have not retained a scan of the form (neither have I, as it had to be completed at a home visit).

I plan to: assist with a claim for ESA; and complain about the shoddy maladminstration to date.

In the above circs, is the client not entitled to a decision on her recent IS claim?
I must admit, I don’t actually see how IS on a claim starting now can be awarded, and perhaps we should have ignored DWP advice and put in a protective ESA claim instead. But, will ESA actually pay out before the client passes a WCA, if there is a pending IS appeal and where the cl has not attended her last scheduled PCA?

Bonus question: If for whatever reason the ongoing appeal fails, but a new claim for ESA is accepted, is there any route to getting the client transitional protection? IS was last paid in February, there should effectively be no break in incap credits, we would ask for ESA to be backdated to the day IS stopped.

Now I’m completely confused.  You said in your original post that the appeal had lapsed.  Now the Department is sending it down to TTS.  On what legal basis?

A ‘new’ IS claim is to be treated as a claim for ESA.  There is no discretion.  However, in your client’s case, as I said in my reply to your original post, IS should automatically be re-instated.  So, in the light of the mess the Department seems to have got itself into whether they will pay ESA on a new claim here is anyone’s guess.  As for getting ESA backdated, God only knows.  All logic, reason and law have completely disappeared here.

Again, if IS was stopped as she failed to attend a medical, an appeal was duly and lawfully lodged and good cause for not attending that medical was accepted, a further determination was made that she was still incapable of work, or treated as incapable, which brought her back within her original period of Incapacity for Work then the IS decision falls away and IS has to be re-instated.  I don’t really know what else to say. You might wish to consider contacting their legal department before you, your client and the BDC are completely engulfed by that black hole coming up behind you.

nevip, thank you for giving an opinion on this mess. I don’t know if I’m missing some subtle distinction between: being entitled to incapacity credits; being treated as in a period of incapcity for work; and being entitled to receive IS? At the risk of clouding things further, my understanding of the department’s logic is that a decision on incapacity credits is not necessarily the same as a decision on Income Support.

[Just to recap: I was told by phone that the reasons put forward in the appeal we sent on 1/6/11 had been accepted - I asked if this meant the appeal was lapsed, was told “yes”. Client duly received a letter confirming “still entitled” to incap credits from the date they had stopped back in February. I blithely assumed (and advised the client) this meant IS would be reinstated in due course. I have since been told by phone that a further “decision” would have to be made (I think by some different section) on whether they could actually pay out. Citing the month-plus break in payment, they told me a new claim would be needed instead (initially advising for some reason that it should be a new IS claim - which would then be treated as ESA; but now saying it should be an actual ESA claim). I asked that they actually determine the IS appeal one way or the other, or else I’m going directly to the tribunal. I was finally told on 31/8/11 that a decision was being posted out to the client to the effect that they will not pay IS, and are forwarding the appeal to tribunal.]

I think asking for their legal basis for the above is a good idea.

Just to clarify my main question in this thread:
A claim form has been received by a benefit office, and they confirm it has been passed on to a different benefit office..  who claim not to have received it. Do we just pretend this never happened, and fill in a new claim? Or is there anything at all to be gained by pressing for a decision on this phantom claim.
Given that it seems the wrong benefit was claimed, albeit on the benefit office’s advice, I suppose it is a moot point.

They may ask for a new claim form to be completed for info’ purposes but the date of claim is the date of the first claim received at their office.  The fact that they subsequently lost it rebounds on them and not the claimant.

Final update on this: Income Support tell me they’ve gone back to their legal guidance, decided that IS can be reinstated back to the decision date after all. Problem solved, I can shred the ESA1 I just filled in.

Do they actually get paid for all this nonsense?