Best way to get PIP backdated

My client resides in a care home and was in receipt of local authority funding. As he lacks capacity, benefits are dealt with by a deputy. His DLA was suspended whilst receiving care funding but he came into capital and began self-funding his fees. Therefore DLA was payable again.

The deputy was changed in 2020 and was told that he had been self-funding since 20/07/20. This was the date provided to the DWP and they backdated his PIP DL to that date.

It has now been discovered that he begun to self-fund his care on 15/06/18 but the deputy failed to inform the DWP. The DWP are now refusing the additional backdating to 15/06/18.

Can anyone advise on the best way to approach this. The decision to backdate wasn’t made in error as they were given incorrect information. Can they still request an any time review or is there a way to get the decision appealed?

Thanks

This seems to be an error/failure by the deputy who stands in his shoes in such matters ........if the deputy is a professional there may well be a claim against the deputy.
Otherwise you may struggle imo.

Isn’t this a payability issue rather than a backdating issue. Is it correct that he was entitled to PIP the whole time but it wasn’t paid because of the funding issue.

In my experience - which admittedly is a while ago now - it was usually possible to get payability decisions changed going back quite a way. There’s some helpful advice in this thread - https://www.rightsnet.org.uk/forums/viewthread/16190

see the case law in that thread - the summary of which is -

The single issue before the Court of Appeal was whether the decision to resume payment was a decision under section 10 or under section 8. Held, dismissing the appeal and affirming the decision of the Commissioner, that: 1. an “award” of benefit signifies an extant decision that the claimant is entitled to it, and unless there is some legal inhibition on payment of it, payment follows as of right: here there was no such inhibition after 11 May 2000 (paragraph 17); 2. it was more in conformity with the legislative scheme to regard the decision to resume payment as one under section 8 on a claim for a relevant benefit or falling to be made under the enactments which had so far created an entitlement but had inhibited payment, rather than as a decision under section 10 to supersede the decision not to pay while payment was inhibited (paragraph 18); 3. to allocate a decision to resume payment to section 10 or to place upon the claimant an onus to inform the Department of its own decision which could not be found in the legislation would penalise him for the Department’s own failure to readjust the payments according to law and would tend to defeat the objectives of the scheme (paragraphs 19 and 20); 4. accordingly the claimant was entitled as of right to resumption of payment of his invalid care allowance with effect from 12 May 2000 because the decision to resume payment was one under section 8, and should have been given effect from that date.

ICA and overlapping benefit in that case but I think the legislation under which decisions are made would be the same

Nagging feeling that the issue here is a bit of both. Ordinarily it’s just a payability thing. However, once you’ve gone past the 12 month (or was it 2 year) mark then the failure to claim the payment becomes fatal. That most likely does create a potential problem for the deputy at the time.

Thank you all.

Mike is there any legislation I can point them to with regards to failure to claim? The likelihood is they will have to make a claim against the deputy if the can’t reclaim it.

You need to contact the Office of the Public Guardian if you want to complain about the conduct of a deputy.

https://www.gov.uk/government/organisations/office-of-the-public-guardian

CDV Adviser - 01 March 2022 08:34 AM

Thank you all.

Mike is there any legislation I can point them to with regards to failure to claim? The likelihood is they will have to make a claim against the deputy if the can’t reclaim it.

Doing a bit of hit and run posting here but I racked my brain and realised that what I was talking about was the concept of extinguishment. Now, there is likely a much more recent version of this but where I, showing my age, came upon this originally was reg 38 of The Social Security (Claims and Payments) Regulations 1987. So, start with that, which can be found at https://www.legislation.gov.uk/uksi/1987/1968/regulation/38/made and then work forwards.

Apologies I can’t dig deeper at present but this is definitely the concept of which I was thinking and so you end up with the idea that any payment inside 12 months can be grabbed without question but outside of that you have problems. Not necessarily insurmountable but a different approach would be required.

Thanks Mike and Paul.