Forum Home → Discussion → Benefits for older people → Thread
Attendance allowance appeal- Entitlements before the date of claim
An Attendance Allowance claim form was submitted in December 2021, to be returned in mid- January 2022. The form was not received until June 2022 and thus it was decided that the claimant could not get Attendance Allowance from December 2021- June 2022 as they did not return the claim form within the 6- week period.
The appointee states she was ill when the form was received and therefore requested a mandatory reconsideration. The decision from the mandatory reconsideration was that the decision could not be changed, stating there can be no entitlement to benefit before the date of claim.
The appointee is severely disabled in her own right and has therefore struggled in actively assisting the claimant, who is also severely disabled. We wrote to the DWP in October 2022 enclosing supplementary medical evidence to justify the grounds for lateness for a mandatory reconsideration.
Upon becoming instructed, we submitted a MRN and appeal submission on 23 December 2022, justifying why we disagree with the decision through reference to the severe disabilities of both the claimant and the appointee and the exceptional circumstances.
We confirmed that we are disputing the start date of the Attendance Allowance, in that the DWP should award entitlement from the date the application was made in December 2021, and not from June 2022.
The DWP responded to the issues raised by the appeal in January 2023, stating that there is no provision in the law for them to award benefit before a claim is made, in this case June 2022, and referred to the Social Security Contributions & Benefits Act 1992, Section 65 (4) 76 (1)
The tribunal has thus been asked to consider whether the claimant is entitled to Attendance Allowance before the date of claim.
A tribunal hearing has been set and based on the above facts, we are enquiring if there are, in fact, any routes to challenge this decision.
What no Claims and Payments Regs?! Regulation 6 has the following provisions for AA claims.
8) Subject to paragraphs (8A) and (8B) where–
(a)a request is received in an appropriate office for a claim form for disability living allowance or attendance allowance; and
(b)in response to the request a claim form for disability living allowance or attendance allowance is issued from an appropriate office; and
(c)within the time specified the claim form properly completed is received in an appropriate office,
the date on which the claim is made shall be the date on which the request was received in the appropriate office.
(8A) Where, in a case which would otherwise fall within paragraph (8), it is not possible to determine the date when the request for a claim form was received in an appropriate office because of a failure to record that date, the claim shall be treated as having been made on the date 6 weeks before the date on which the properly completed claim form is received in an appropriate office.
(8B) In the case of a claim for disability living allowance or attendance allowance made in accordance with regulation 4(6B), paragraphs (8) and (8A) shall apply in relation to an office specified in that regulation as they apply in relation to an appropriate office.
(9) In paragraphs (8) and (8A)–
“a claim form” means a form approved by the Secretary of State under regulation 4(1);
“properly completed” has the meaning assigned by regulation 4(8);
“the time specified” means 6 weeks from the date on which the request was received or such longer period as the Secretary of State may consider reasonable.
Reg.6(9) allows the SOS accept a longer period of time than the standard six weeks as they consider reasonable. As such, I think the FtT simply need to consider whether it was reasonable for the appointee to return the form outside the six week window and if they do, then the date of claim should be the date of issue of the claim form.
Dear Paul,
Thank you for your swift response which we can confirm assisted us to prepare for the Hearing.
To provide an update, we prepared and filed a submission in advance of the Hearing, citing Regulation 6(9) of The Social Security (Claims and Payments) Regulations 1987 which you informed us refers to the timeframe of submitting the claim form, and states ‘or such longer period as the Secretary of State may consider reasonable’.
The crux of the appeal was the start date of the Attendance Allowance, in that the DWP should award entitlement from the date the application was made in December 2021 (the date the form was issued), and not from June 2022 (the date the form was received by DWP). We outlined various exceptional circumstances in this submission that we believe satisfied Regulation 6(9) and based our representations on this during the Hearing.
We drew attention to the element of reasonableness, arguing that the Appellant and Appointee’s severe disabilities in conjunction with a severe mental health deterioration and detainment under the Mental Health Act 1983, amounted to exceptional circumstances and thus it was reasonable for them to have taken 5-6 months to return the form.
We drew attention to the fact that at the time the form was returned, the Appellant’s child was not yet the appointee and thus it was not solely their duty to have actively assisted the Appellant to return the form, however even if it was, it still would’ve been severely difficult due to her own ill health being a PIP claimant (ERDL & ERM) in her own right.
It is important to note that neither the Appellant or Appointee attended the Hearing due to ill health, and we acted upon limited instructions from our client regarding the interim January > June period. We confirmed we could not respond on behalf of the Claimant nor the Appointee and the Tribunal continued despite ambiguity over health and circumstance of both between said dates.
The PO attended and challenged reasonableness and confirmed there was no prompts/messages/texts from the DWP after forms sent demanding their return.
No one could give evidence of fact as to why the mental health hospital nor post-admission care failed to assist in facilitating the form filling.
Outcome of the Hearing:
The Judge and panel acknowledged that it wouldn’t have been reasonable for the Appellant to return the form within the 6-week period based on the evidence we provided, i.e. proof of detainment under the MHA, however there is a lack of evidence to prove that the 5 month period in which the form wasn’t returned, was “continually” reasonable.
We believe that the evidence we presented was sufficient and satisfied the element of reasonableness and believe it is erroneous for the respective panel to have referred to ‘Continued Reasonableness’ which is not a statutory requirement.
We are now in process of seeking SoR and RoP.
There is little caselaw or guidance save for brief mention in CPAG.
Any ideas or thoughts of how to prepare for Permission whilst we await SoR.
Any advice/guidance will be much appreciated.
It seems to me that references to “exceptional circumstances” and “continued reasonableness” over-complicate the issue. The tribunal, having decided that it was not reasonable to return the form within the usual 6-week period, simply had to decide what period was reasonable. In the absence of evidence about what happened, or didn’t happen, between January and June 2022, that’s an easier question to pose than answer, but it’s still the question the tribunal had to answer, even with the limited information at its disposal.
If the tribunal’s reason for concluding that return within 6 weeks was not reasonable was that the claimant was detained under the MHA then the obvious issue raised is when did that detention end? When detention ended there would be a prima facie case for concluding that the claimant would have been in a position to submit the form at that time.
Conversely, if the claimant was still detained in June 2022 it is dificult to see how the tribunal could conclude that there was an earlier date at which it would have been reasonable for the claimant to have submitted the form.
@ MMiah - what did the tribunal actually decide? It’s far from clear from your post.
@ Paul - if the claimant was still detained in June, they’d almost certainly not be entitled anyway, would they?
@ MMiah again - have you considered that issue? Payment of AA is suspended after the claimant has been in hospital for longer than 28 days - though entitlement does not end and payment can recommence once they’re discharged. The length of time the claimant was in hospital is important here, because no matter how good the case for the form being returned late and no matter any error of law on the part of the tribunal, if the claimant was in hospital for a period (or periods) of longer than 28 days between December 21 and June 22 significant, they cannot receive payments for those periods even if you win…....
ETA: also @MMiah - there’s no Legal Aid for this kind of appeal (OK, there might ECF for some cases, but this isn’t one of them) so presumably you’re charging this client? How much? Apologies if I have it wrong and you’re doing this for free, but please do say so if I’m mistaken.
[ Edited: 18 Jul 2023 at 12:23 pm by past caring ]@ MMiah - what did the tribunal actually decide? It’s far from clear from your post.
@ Paul - if the claimant was still detained in June, they’d almost certainly not be entitled anyway, would they?
@ MMiah again - have you considered that issue? Payment of AA is suspended after the claimant has been in hospital for longer than 28 days - though entitlement does not end and payment can recommence once they’re discharged. The length of time the claimant was in hospital is important here, because no matter how good the case for the form being returned late and no matter any error of law on the part of the tribunal, if the claimant was in hospital for a period (or periods) of longer than 28 days between December 21 and June 22 significant, they cannot receive payments for those periods even if you win…....
ETA: also @MMiah - there’s no Legal Aid for this kind of appeal (OK, there might ECF for some cases, but this isn’t one of them) so presumably you’re charging this client? How much? Apologies if I have it wrong and you’re doing this for free, but please do say so if I’m mistaken.
If they were an in-patient in hospital when the AA claim was made, then yes you’re correct that entitlement to AA can only commence on discharge, If the AA claim was made beforehand and they were then admitted to hospital, it can remain in payment for 28 days before being suspended. Neither scenario is entirely clear to me from the post above but thanks for highlighting mate.
[ Edited: 18 Jul 2023 at 12:31 pm by Paul_Treloar_AgeUK ]... and the concept of “continued reasonableness” comes from where exactly?
The Tribunal’s job in this case is to determine what period of time (of at least six weeks) ought reasonably to have been allowed for the return of the claim form - which is the slightly clunky way in which the regulations require us to frame the real question - is it, or is it not, reasonable to extend the time for returning the form up to the date on which it was actually returned?
I am not convinced that the tribunal can necessarily be criticised for using (presumably at the hearing, rather than in the SOR which has not yet been issued), the phrase ‘continued reasonableness’. I think that is just a way of making the point that it is probably not reasonable to grant someone a 20 week extension on the basis of difficulties which only impaired them for, say, the first 4 weeks. You would want to be able to point to something which would have impeded the return of the form for the entire period, otherwise the notional time extension that the tribunal is granting would only need to go up to the point at which the claimant could first reasonably have returned the form.
But it all sounds like a very fact sensitive issue, all based around a discretionary exercise, and I am not sure that there is much insight to give without the full SOR.
Thank you for the above responses.
For clarity, I have provided a chronology of events which is as follows:
01.10.21- The Appellant was detained under the MHA 1983
02.12.21- The date the AA form was issued, to be returned by 13.01.22
08.01.22- The Appellant was discharged from hospital and no longer subject to s3 MHA, and instead subject to s117 aftercare
28.06.22- The AA form was submitted with medical evidence
30.08.22- The Appellant’s child became the appointee
So the form was ordered whilst the claimant was already detained under section - though perhaps at that point there was an expectation that they might be discharged in the near future.
Who requested the form? Presumably not the client? To what address was the form sent? If was a member of the hospital care staff who requested the form, presumably they had some role (or were expected to have some role) in assisting the client to complete it? What went wrong? I’m not seeing the section in itself as that important here (though doubtless the client had ongoing mental health issues which might be very relevant) - though the client was discharged with only 5 days for the form to be returned, a telephone call to AA at that point explaining the situation would doubtless have resulted in an extension of the deadline. In fact, a telephone call at any point that the client was in hospital would almost certainly have resulted in an extension.
What went wrong?
You’ve referred to ‘ambiguity’ over the claimant’s mental health between discharge and the date the form was returned and also to the fact that you were unclear as to why it was that those responsible for post-discharge care did not assist the claimant. I have to agree with Elliot, this type of case is fact specific. Elliot was also bang on the money with what he said about it being necessary to show that there were circumstances which prevented the claimant returning the form for the entire period up to the point it was returned - I’d not expect to win with this degree of vagueness as to the facts.
How much are you charging the client for all this?
It seems to me that references to “exceptional circumstances” and “continued reasonableness” over-complicate the issue. The tribunal, having decided that it was not reasonable to return the form within the usual 6-week period, simply had to decide what period was reasonable. In the absence of evidence about what happened, or didn’t happen, between January and June 2022, that’s an easier question to pose than answer, but it’s still the question the tribunal had to answer, even with the limited information at its disposal.
If the tribunal’s reason for concluding that return within 6 weeks was not reasonable was that the claimant was detained under the MHA then the obvious issue raised is when did that detention end? When detention ended there would be a prima facie case for concluding that the claimant would have been in a position to submit the form at that time.
Conversely, if the claimant was still detained in June 2022 it is dificult to see how the tribunal could conclude that there was an earlier date at which it would have been reasonable for the claimant to have submitted the form.
@ MMiah - what did the tribunal actually decide? It’s far from clear from your post.
@ Paul - if the claimant was still detained in June, they’d almost certainly not be entitled anyway, would they?
@ MMiah again - have you considered that issue? Payment of AA is suspended after the claimant has been in hospital for longer than 28 days - though entitlement does not end and payment can recommence once they’re discharged. The length of time the claimant was in hospital is important here, because no matter how good the case for the form being returned late and no matter any error of law on the part of the tribunal, if the claimant was in hospital for a period (or periods) of longer than 28 days between December 21 and June 22 significant, they cannot receive payments for those periods even if you win…....
ETA: also @MMiah - there’s no Legal Aid for this kind of appeal (OK, there might ECF for some cases, but this isn’t one of them) so presumably you’re charging this client? How much? Apologies if I have it wrong and you’re doing this for free, but please do say so if I’m mistaken.
Thank you for the above responses.
For clarity, please see below chronology of the matter:
- 01/10/21- Detained under MHA 1983
- 02/12/2021- AA form requested- To be returned on 13.01.22
-08/01/22- Appellant was discharged from hospital, subject to s117 aftercare
- 28/06/2022- AA submitted with medical evidence
- 30/08/202- Appellant’s daughter became the Appointee
Have to concur with others here. This remains vague. If there’s now an appointeeship then at what point was the claimant determined to have lost the mental capacity to handle their own benefit affairs. Presumably it bleeds back into at least some of the period from January 22 to June 22?
That said I see nothing in being under a S117 which would automatically prevent a claimant from making calls etc.