Late requests for backdating.

Wonder if anyone could help me with this quick query. Example situation is as follows. Person falls ill and stops work. A couple of months later they claim ESA but do not request any backdating. A year down the line is there anything to stop them from making a request for the backdating that they could have requested when they claimed?

If anyone is able to answer the equivalent question for Pension Credit that would also be very helpful.

Thanks in advance!

Don’t know re PC.
Re ESA, as far as I know you can only request a backdate from 3 months of the date of actual claim. Social Security (Claims and Payments) Regs, schedule 4, para 16, CPAG page 629.

Your client’s only option as I can see it would be to make a request for any time revision, so they would also need to be able to show that there was an official error, a mistake about or ignorance of facts, an award of a another qualifying benefit, or any of the other grounds laid out at p.1278-1279 WBH 2014-15.

If the grounds are simply that they didn’t realise that they could request backdating, I think it’s extremely unlikely to be granted.

The commentary to reg 19 of the Claims and Payments Regs has consistently held that what the provision does is to extend forward by three months the time limit for claiming.  Presumably, the same thinking would inform PC.

So what does that mean in terms of making a late request for backdating?

Initially I felt that the regs were favourable to the claimant as they state that there is a three month time limit from becoming entitled both to PC or ESA to claim. So in the example above the claim would be made after 2 months but entitlement would start from the point that claimant became ill and stopped work. The claim would be made in time, the date would be set and you could ask for your backdating back to the start of entitlement.

However thinking about it further it looks less encouraging. The question that is asked of the claimant (either in the ESA/PC claim forms or in the course of the telephone claim) is which date they want their claim to start from. I think that reg 19 gives a claimant the right to start their claim from date of entitlement, provided this is done within 3 months. So it is not really backdating 3 months back from the date of claim but instead moving the legal date of claim back before the date that the claimant physically claimed. I think this means that it is very difficult then subsequently ask for the date of claim to change from the one you originally gave.

All I can think of is that if you contacted the DWP within a month of their decision awarding benefit you may be able to dispute the decision and get the date of claim changed. The only ground that is excluded for dispute is changes of circumstance. Even if they tried to treat your request for a different claim date as a change in circumstance I would be arguing that this ‘change’ took place on the date of the physical claim and that the claimant then has a month to report it.

Obviously in the three months following the original claim there is nothing to stop the claimant making a new ESA claim and asking for the claim date to be set 3 months back, before the previous claim started.