Can anyone help me with this one?

A client in receipt of IS is awarded DLA at the middle rate for care, but fails to tell his local IS office about it for nearly 2 years. Assuming that there was no internal notification from DLA to IS, when the client does tell IS, should this be superseded under the general power in 6(2)(a) (as it would be notification of a COC) or should it be superseded under the specific rule in 6(2)(e) so that it takes effect from when DLA was awarded?

My view is the latter one is appropriate but a recent tribunal decided that the IS office were correct to treat it as a COC and so, he has only got his backdated SDP up to the date he notified them. We're looking to appeal now and I can't find anything which says the more specific rule should be used rather than the general COC rule. Vol 3 of the legislation books says it is suggested the subparagraph which is more beneficial to the claimant should apply but it doesn't give any basis for the suggestion.

Any help or comments are greatly appreciated.

Hi Lee

A decision “may” be superseded under reg 6(2)(a) but Reg 7(7) which allows for the SDP to be paid from the date of the DLA award uses the phrase “shall be superseded……from the date on which entitlement arises to the other relevant benefit…”

I would therefore argue that this provision takes precedence as it has mandatory force.

Regards
Paul

Thanks Paul but that phrase is still prefaced by "A decision which is superseded in accordance with 6(2)(e)...". So it still looks like it's open as to which reg is used to supersede it. There's no doubt if 6(2)(e) is used then it must be backdated to the date that DLA was awarded, it's just that I cannot find something which clearly states that 6(2)(e) should be preferred over 6(2)(a). Cheers for the help though.

Thats a fair point. I would fall back on the "ground that is more favourable to the client" argument and that the claimant should be given the choice of which provision to rely on. Where a provision is not explicitly expressed (because the claimant is not aware of the legislation, for example) then the most favourable provision should be used as it would be inequitable as against those who(because they were represented in the application, for example) benefited from reg 7(7).

On a similar thread, I have a client who is in receipt of IB with an age addition so therefore there was no IS in place.

Client has Mid Rate Care, and up untill end of November 2007 was living with mother. No one was claiming Carers allowance for him. He then began to live independently, and was unaware that he was entitled to SDP.

Came to see me in Feb 08, and we applied for IS.

The DWP are refusing to backdate. Have an idea that we may be better off cancelling the SDP for now, getting the mother to make a claim for CA and have this backdated for the allowable 3 months, no questions asked period (Mother does care for him for at least 35 hrs per week) & then re-applying for the SDP again!

Long way round, but can't see any other option, unless someone out there has a better idea?

There is a principle implicit in most (if not all) jurisprudences that “what the law allows the law should allow”. It is not the role of public authorities to ‘stand in the way’ of a person lawfully seeking to exercise a right or advantage open to him by law, unless expressly allowed to do so.