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Attendance allowance and PIP- Issue of Lateness

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Benefits Department, Crystal Law Solicitors, Leicester

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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)

A hearing took place in July 2023 to consider whether the claimant is entitled to Attendance Allowance before the date of claim. The appeal was refused and it was decided, as stated in the Statement of Reasons, that it is not reasonable in the circumstances to extend the time limit to return the Attendance Allowance Claim Form.

We note that in SN v SSWP [2018] UKUT 210 AAC , the extension of time issue was considered, and it was stated that what amounts to a reasonable period of time will vary according to the circumstances of each case, and must, to some extent, be fact specific to the claimant.

We write to enquire whether there is any other case law in Attendance Allowance or PIP matters around the issue of lateness, that we may be able to utilise in order to appeal the matter, following receipt of the Statement of Grounds. 

Gareth Morgan
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R(A)2/81discusses but may not help.
I’ve seen references to CSA/6/1980 and CSA/1/1981 but don’t have copies.

Elliot Kent
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I thought this seemed familiar, which is because it is a sequel to your previous post at https://www.rightsnet.org.uk/forums/viewthread/19410

I don’t know any specific caselaw, but I do not really think that this matters. Its simply an exercise of judgment as to what is or isn’t reasonable on the facts. You are looking at whether the tribunal reached a rational conclusion, accounting for the relevant and discarding the irrelevant, and explained its reasoning adequately.

As I understand it from your case, the client had made the claim at the tail end of their detention under the MHA for over a year and the time to return the form did not expire until after they were discharged. They then returned the form 5 months later. The issue was then whether to extend the time limit for the 5 months necessary to make the claim effective from the date of the initial call. The appointee wasn’t actually appointed at the material time - you said they were appointed in August 2022.

The extent to which your client’s mental health and other issues prevented them from engaging with the process is clearly a relevant consideration which you would expect to be weighted against the factors pointing away from the extension of time - the need to enforce statutory time limits and for administrative certainty and all that - a five month extension is substantial and would require strong justification. You said in the previous thread that you had been unable to give the tribunal any real assistance as to what had actually happened between January and June, which seems rather unhelpful as you would want to be able to explain why practically your client couldn’t have returned the form sooner. I wonder if you requested an adjournment and if so whether there is some error of law issue in the refusal to grant it.

Error of law appeals against exercises of judgment on what is or isn’t reasonable are notoriously difficult to get off the ground in the absence of some error of principle.

Dan Manville
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Hiya Manik.

Good to see you’re still about, but to flog an ailing horse…

past caring - 18 July 2023 02:28 PM

How much are you charging the client for all this?

£300 an hour? That’ll be a chunk more than certain fee charging providers round here would take and Don’t Get Me Started on Fightback… /me tics

Now if they’re in receipt of Pension Credit and including an SDP with lower AA that’ll be about 8 grand give or take, but that’ll soon erode at those rates. .. Is it worth it to the client when it’s been a pricey job already?


[ Edited: 19 Dec 2023 at 09:24 pm by Dan Manville ]
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Dear Dan,

Hope you are well.

We can confirm that we are assisting this Client on a pro-bono basis.

past caring
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Late to this - perhaps because I was expecting some follow up on the original thread…..

Good to know the work is being done pro-bono.

But have to agree with Elliot, this is not a case in which caselaw is the key - the real issue is whether it was reasonable to extend time. And that question is one which is fact specific. On an appeal to the FtT, it means;

a) presenting a clear explanation as to why it was the form was returned 5 months late
b) evidence to support that explanation and why, in the circumstances, it was not really possible for the form to be returned sooner - i.e. why it was reasonable to extend time

And on an appeal to the UT it is really going to boil down to;

a) showing that the above evidence was in fact presented to the FtT but that it failed to give it due weight
b) or that it failed to consider it entirely (which is really the same thing as above, just writ larger).

Alternatively, as Elliot suggests, in circumstances where you were having some difficulty obtaining that evidence and requested an adjournment to give more time to obtain it, a refusal to adjourn might constitute an error of law.

Assuming the refusal of an adjournment is not in play, the real difficulty is that unless you were able to be clearer with the tribunal than you’ve been on here, you are on a hiding to nothing. As I said previously;

past caring - 18 July 2023 02:28 PM

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.