DLA/PIP resuming after stay in care
Client came out of care 3+ years ago but only had DLA reinstated in January this year. Client has severe learning difficulties. Is the onus on the family to notify DWP she has left care or as I suspect the nursing home will have notified them on her discharge?
Is/was there no appointee? If neither the family nor the nursing home were her appointee then it isn’t really their responsibility.
Was she getting (and been financially assessed for) non resi care after leaving resi care? If so why wasn’t this picked up at the financial assessment?
If I’m reading the circ’s correctly then you could go with an argument that whenever the claimant/appointee reported the fact she was out of residential care then the DWP should “unsuspend” the DLA care component and pay DLA arrears right from when she left care.
DWP may argue that the claimant is under a responsibility to report changes of circumstances and that by law they can only pay back arrears for 1mth. They are not correct.
Have a look at CDLA/2807/2003 and CDLA/3816/2013 (I have copies of both if you want to DM me with an email address) which basically state that even if the DWP have not suspended DLA care when in residential care but rather have stopped entitlement altogether then they should not have done that and a tribunal can revisit that decision to correct the error.
Have had a lot of success with this at tribunal - but you have to have the patience to push it that far.
Payability when in care is a separate test than entitlement. Payability is not governed by the Social Security Act which lays down rules for revision, supersession etc; there is no equivalent provision for payability. There are no requirements about notifying promptly where payability is in issue rather than entitlement.
I see a lot of this when people are discharged from hosapital but still aren’t particularly well so don’t notify PIP they’ve been discharged. Pointing out the above has never failed to yield payment of the full arrears owing.
Thanks for your advice and assistance
Is there any mileage in the facts that the claimant’s ESA was reduced when in care. Then increased when she left care..
Why did the ESA go down and then increase? The only reason I can think of is the loss of SDP/EDP when the DLA care was suspended, and then gaining an SDP/EDP when she came out and the DLA was put back in place? But I think your initial query was that the DLA was never put back in to payment until much later, so not sure why ESA would increase again. Perhaps worth exploring with ESA department.
However the legal point still remains - DLA care comp. should only be suspended when DWP are notified of someone in care for 28+ days. Entitlement should never end (your client still has the same daily living needs).
This is crucial for what happens when someone comes out of care because whenever they report they are back out, all that is happening is the “un-suspending” of the DLA. This is a different legal process to asking for a supersession, which can only take effect from when it is asked for.
DWP just do not understand this point - but tribunals seem to. I have sent on the two decisions, let me know ifyou do not get them. Best of luck.