No condition of entitlement for I/S

Has anyone come across this before and if so can you advise?

Client had been claiming Income Support for 8 years, since she was 18. Her appointee (mother) made the initial claim on her behalf. A random review uncovered the fact that a claim for Incapacity benefit was never made (client could have been entitled to incapacity in youth) and the claim was stopped due to not haing a conditional entitlement. 

Appointee stated that she claimed IS on the advice of the DWP benefit helpline. IS now closed and client advised to claim ESA.

Are there grounds for appeal to enable IS to be reopened? Client may not be much better off anyway other than the fact that if she were part of the conversion she ewould possibly keep transitional protection.

Thanks
dominic

What is the disability? I was just wondering if there is a route to old-rules IS not via incapacity and PCA - I had a client who was reg’d blind and DWP tried to take away his IS recently ‘as he failed a PCA years ago’ but the fact that he satisifed the category ‘blind’ was sufficient in itself at the time of claiming and remains so, no PCA needed.

Or a formal complaint against DWP if it all happened at their behest and the client is going to lose out financially?

client has cerebal palsy, epilepsy and learning difficulties.

This used to be a frequent problem.

There was never a provision within IS regs to require a claim for IB or SDA to determine ‘incapacity for work’ through the PCA process. We persuaded our local DWP office (when they still administered claims) to get this confirmed in writing by DWP legal at Leeds years ago as they would not believe us!

The DWP never had a foolproof method of referring IS incapacity claims for a PCA as this was actually organised through the IB/SDA section. If IS never referred the case to IB/SDA the WCA process may never have taken place. This was simply an admin error and does not mean the claimant never met a condition of entitlement.

Do you know if your client ever attended a PCA or was even required to complete an IB50 incapacity for work questionairre? It could be that the severity of their condition was accepted by Atos within the ‘scrutiny’ process as sufficient to show they were ‘incapable of work’ purely on the evidence on a medical certificate or similar evidence. I have seen cases where this clearly happened but DWP had not recorded this clearly (or at least there was nobody now working in the office who understood how the process used to work before introduction of ESA and could not interpret the information recorded on the IT system. It should be recorded in the paper file! It may be worth asking DWP if your clients claim records show they were exempt from the PCA because of the severity of their condition - this would confirm they had been through the PCA ‘scrutiny’ process at some point.

If the above is the senario in your case the award of IS should be re-instated. An appeal should not be required (but may be advisable to protect your clients interest) however a complaint certainly should be made! It will be interesting to see how DWP will deal with the issue of referral for a PCA - perhaps your client will be put through the migration process PDQ?

I’m with Peter. Additionally, I’ve also had cases where the IB credits claim proved to be clerical (so invisible on the system). If push comes to shove it might be worth a FOI request in order to establish the claim history.