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Split DLA payments??
client separated from husband last year due to coercive behaviour
The dwp have split the DLA payment as child lives with dad 50 percent of the time, although social services report states that the mum is the one with the caring responsibilities.
she gets uc and CA and child benefit
Client not happy with father getting half the dla money as he refuses to do anything. On his custody days he refuses to take son to hospital appointments or school “as mum gets child benefit and uc” . he refuses to do stuff that costs money as “she is the one getting the benefits”
the extra expenses generated for having an ill child is being met solely by mum as she still does everything for him, even on his custody time
Does anyone here have experience of challenging this kind of thing? DLA keep saying they will look into it and get back but they never do
ta
Interesting, I cannot see anything in s5 of the Administration Act or in the 1987 Claims and Payments Regs that specifically provides for a child’s DLA to be paid to more than one person. I suppose the general principle of interpretation that the singular includes the plural could be relied on, but maybe a starting point would be to ask DWP under which provision they have determined that the benefit should be paid to two different people at the same time.
Never encountered that situation and I’m not certain splitting the payment is permissible.
Reg. 43 Social Security (Claims and Payments) Regs. 1987 deals with the arrangements for appointees and making payment to the the appointee. Reg. 43 (1) provides that;
the Secretary of State…shall…..appoint a person to exercise, on behalf of the child, any right to which he might be entitled under the Social Security Act 1975 in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of that allowance.”
That clearly contemplates there being only a single appointee at any one time - and it is that appointee who is to receive payment. I’d be interested in what others think, but I’m unaware of any other provision that allows DLA payments to be split in the way that is happening in this case.
ETA: and for the sake of clarity, there is always an appointee. Even in your run of the mill cases, the parent receiving payment is, legally, the appointee.
[ Edited: 5 Jul 2023 at 11:15 am by past caring ]I agree with the above.
Furthermore, reg 43(2)(d) requires that the appointed person has “given such undertaking as may be required by the Secretary of State as to the use, for the child’s benefit, of any allowance paid.”
Note also that references to the singular including the plural in section 6 of the Interpretation Act 1978 are subject to the caveat, “unless the contrary intention appears”.
What about Reg 34(1)?
It’s still drafted in the singular though isn’t it? So we’re back to the Interpretation Act.
Here we have a case where the child is the beneficiary for the purpose of Reg 34, one parent is the appointee and default payee on behalf of the child, but DWP is paying some of the benefit to a second payee on behalf of the child as well.
What about Reg 34(1)?
Not sure that does it.
The phrase ‘in whole or in part’ is one used in most payment contexts in social security legislation - e.g. most benefits can also be suspended ‘in whole or in part’. What reg. 34 does is give the SoS the power to make payment of benefit to a person other than the claimant where it is the claimant’s interests for this to happen. In my view, on a proper reading of reg. 34 (1) if the phrase ‘in whole or in part’ has any real effect, it is to allow some of the benefit to be paid to the claimant and some to be paid to an appointee - i.e. it doesn’t provide for multiple appointees. But with child DLA, the benefit could never have been paid to the beneficiary in the first place - hence the need for reg. 43.
It’s still drafted in the singular though isn’t it? So we’re back to the Interpretation Act.
Here we have a case where the child is the beneficiary for the purpose of Reg 34, one parent is the appointee and default payee on behalf of the child, but DWP is paying some of the benefit to a second payee on behalf of the child as well.
I was thinking that one parent would be the appointee, and would ordinarily be paid the DLA in full as appointee for the child, under Reg 43.
Reg 34 follows on from that, and could allow some (or all) of that payment to be made to another person where that is necessary to protect the interests of the beneficiary.
So even if both Reg 43 and Reg 34 could only each be applied to a single person, that would still be sufficient to pay both parents.
Not sure that does it.
The phrase ‘in whole or in part’ is one used in most payment contexts in social security legislation - e.g. most benefits can also be suspended ‘in whole or in part’. What reg. 34 does is give the SoS the power to make payment of benefit to a person other than the claimant where it is the claimant’s interests for this to happen. In my view, on a proper reading of reg. 34 (1) if the phrase ‘in whole or in part’ has any real effect, it is to allow some of the benefit to be paid to the claimant and some to be paid to an appointee - i.e. it doesn’t provide for multiple appointees. But with child DLA, the benefit could never have been paid to the beneficiary in the first place - hence the need for reg. 43.
As per my previous post, Reg 43 requires the payment to be made to the appointee, but why can’t Reg 34 be applied after that?
Because as HB Anorak has pointed out, it is still in the singular “another natural person”; if a split payment is contemplated in the reg, the split is between the claimant and appointee, rather than two appointees.
In any event, in the instant case, I would seriously doubt that the SoS has ever properly applied his mind to whether it is truly in the best interests of the beneficiary (i.e. the child) for father to be an appointee - a pound to a penny, father has kicked off and the DWP has made a split payment without really considering the regs.
Further, I struggle to envisage circumstances where it would be in the interests of any claimant to have two appointees; efficient administration of benefit requires that the department has certainty in this type of case and that when it is speaking to an appointee, it can be sure that the appointee is authorised to act on the behalf of the claimant - how does one go about doing that where there are two appointees? Even if there might be limited circumstances where it would be in a claimant’s interests for there to be two appointees, a scenario where the appointees are former partners who are at war with one another is not going to be one of them. :)
I don’t think I agree.
The appointee under Reg 43 acts in place of the child. A recipient under Reg 34 is not an appointee, but another person receiving money where it is in the beneficiary’s interest. So the split is between the child (as represented by his/her appointee) and “another natural person”.
I do agree however that it may well not be in the best interests of the child in this particular case.
On your last point, I would say again that there is only one appointee, and only one person dealing with the claim. It is simply that another person is being paid some of the benefit money because that is supposedly in the child’s best interests.
I’ve never heard of this happening in practice, even though I can see where Charles is coming from here.
Certainly SSAC, who you would assume might be deemed to know a thing or two about this type of thing, don’t agree you can split payments however.
3.1 Shared care
The social security system offers some support to most families towards the costs of raising a child. However, when parents separate, the current system generally presumes that there is only one main carer and one non-resident parent, despite the range of shared care arrangements in place amongst separated families. This means that only one parent can be entitled to receive child-related benefits, while the other parent can only receive single adult benefits.
SSAC Occasional Paper 22: Separated parents and the social security system
On reflection, I’ll concede Charles’ analysis shows a mechanism which can permit split payments. Whether that can be done lawfully (in a public law sense) in the face of the objections of the actual appointee - and without even canvassing their views - I am much more sceptical about.
I knew there was a case about this.
R (Barber) v Secretary of State for Work and Pensions [2002] EWHC 1915 (A)
I think this is pretty conclusive that reg.34 can’t be used to split payments between partner/ex-partners.
So that leaves the question of what statutory basis the DWP have been splitting the DLA payment in this case - it would appear to be clearly unlawful, so maybe a letter before action from mum might remedy the situaiton?