IS claim from 1993 stopped by benefit integrity project in 2011 for no claim for incapacity benefit

A new client just brought a schedule of evidence for an IS appeal, and I don’t know whether the DWP have gone mad or whether I am missing something here.

Client fell ill about 18 years ago. Was working 18 months – 2 years just before that. He moved on to benefit, cannot remember what he claimed, Schedule of evidence says he claimed IS on grounds of disability since 6.7.1993., DLA claim made shortly after other benefit claim.  Was awarded. DLA HRC and HRM.  Have requested letter from DCS confirming start date of HRC award.

Was reviewed in 2011 by Benefit Integrity Project and IS was removed with effect from 1.1.10 for ‚no condition of entitlement‘ and client was told to claim ESA.  He has done that and appealed the IS disallowance.

The schedule of evidence is very short.  It basically says ’ he has no ocnditions of entitlement,  he has no claim for IB and DLA is not a coe‘  Also contains some computer print out: ‘claim closed pr DMA Leeds Guidance HRC‚DLA care ceased to be a prescribed category from 30 10 09 – no evidence held in the C/P of an IB decision made prior to that date to treat customer incapable of work so customer n/e‘

I have difficulty with the following, has anyone any thoughts about that?

Acc to DWP, satisfying para 7(b) Sched 1B depends on a claim for IB, or a particular person within the DWP making a decision on incapacity.  IMO,  he can be treated as incapable of work under reg 10 IB Regs, and therefore falls „within the scope of para 7“, cf CIS/3781/2002 para 4, cited in Poynter/Wood p 555

Relevance of 30.12.09 changes .  I thought the December 2009 provisions only applied to new claims after 30 12 2009,  so if they accept he was ok to receive IS before, why then not after 1 1 2010?.  Not sure what guidance they refer to, maybe DMG Memo 42/09 misunderstood?

But I have no idea about the law on 1993, before IB was introduced, so I wonder if there could have been any problems with the claim prior to that (or with the transition to IB), that would somehow invalidate his claim before he could have benefitted from the treated as incapable provisions in the Incap Regs?  Or could be there an issue with notional income from an contributory benefit he could have claimed once he became incapable of work?

Finally, client also received OP decision, they are trying to recover because of his failure to disclose a change in his circumstances on 1 1 2010. Appealed this, no schedule of evidence seen yet, will be interesting to see what they think he should have disclosed, the coming into force of S.I. 2009/3 maybe?

Under the original IS Gen’ Regs 1987 one of the conditions of entitlement was that the person was unavailable for employment.  This was detailed in schedule 1.  Para’ 5 covers those incapable of work.  The regs were then amended in 1996.

http://www.legislation.gov.uk/uksi/1987/1967/contents/made

Thanks for your replies to this, I had a couple of weeks off so I have just come back to this.

I have just started doing a submission on this and wonder whether I will have any problems with regulation 2(3) of the IS (Prescribed Categories of Person) Reg 2009

(2)(3) For the purposes of paragraph (2)(a), P is entitled to an award of income support on the basis of a relevant provision only where—
(a) before the appointed day the Secretary of State determined that a relevant provision applies to P; or
(b) in the cases to which regulation 6 (information required for determining capacity for work) or 28 (treated as incapable of work) of the Social Security (Incapacity for Work) (General) Regulations 1995(b) applies,  ......
(c) in any case to which the regulations referred to in sub-paragraph (b) do not apply, the Secretary of State—
(i) before the appointed day received notification from P stating that a relevant provision applies to P, and
(ii) determines on or after that date that the provision concerned applies to P.”

This does seem to make continued entitlement to IS dependant on determination by a DM. I don’t really understand how this fits with reg 10, which says a person ‘shall’ be treated as ifw when in receipt of HRC.

My thoughts so far:
3(a)  SoS says no ‘evidence that determination was made, even though they could & should have, so can they now rely on their own omission/negligence in doing so
3(b)the only one that does not require a determination, does not help, I think reg 6 does not apply to my client
3(c) SoS was aware of DLA HRC (as premiums for it paid), so in theory they could have made a determination under (c)(ii), but they didn’t - would the tribunal have the power to make a determination instead?

Any ideas how to best proceed with this, should I write to JC+ and ask them to review their decision and make a determination under 3(c)?

I had not even thought of his NI credits, so thanks for pointing that out.  Will get client to check his NI record now.