Tue 16-Feb-10 08:51 AM by ros.white

our client first made a claim for Disability Living Allowance 5/2/07 this was refused and it went to appeal on 29/10/07. The appeal disallowed. A statement of reasons was obtained and an application to commissioners made on 30/11/08. District Chair set aside Tribunal decision for a new hearing date to be set.

He was previously on JSA but due to his medical condition he become unavailable for work and so claimed Incapacity Benefit/Income support on 17/01/08 then from 07/02/08 received only Incapacity Benefit because this exceeded the applicable amount for Income Support.


The Disability Living Allowance hearing for 14/3/08 was adjourned and a new hearing date set for 19/5/08. The Decision following the hearing was posted out on 19/5/09 and was received 20/5/09 stating appeal disallowed.

On 20/5/08 a new application for DLA made. This was again refused but on reconsideration he was awarded Low Rate Care Disability Living Allowance. Decision letter dated 9/12/08 awarded Low Rate care as from 20/5/08.

On 15/1/09 he reclaimed Income support and requested backdating of Income Support to 20/5/08 when he became eligible for DLA, the premium gave him entitlement from that date.

He had tried to claim Income Support before the 15/1/09 but was told by the operative that he would have to wait until the 15th because that was the date he became entitled to long term incapacity benefit.

We submited that at the time the client made his first claim for Income Support on 17/1/08 he had put in a claim for a “qualifying benefit” and so should receive the backdated income support to 20/05/08

The Tribunal judge looked at the provisions of the Regs. 6(16) to (18) of the SS claims and payments regs 1987. he states that our clients first claim to IS on 17/1/08 was not refused, the benefit was awarded albeit for only 3days. It ceased after 3days because IB was higher therefore exceeding his applicable amount. Had the initial claim to IS been refused altogether then he considers that the appellant would have fallen within reg 6(16) and it might have been possible to back dating claim to be further considered. However the wording of the reg is specific it uses the term “ refused”

Question has the Tjudge got this wrong in law. The matter in dispute is the backdating of the Dis pre and IS to the date of the first claim for IS in Jan 08. CPAG states that IS can be backdated if cl had put in a claim for a “qualifying benefit”. I cannot find anywhere in CPAG or the SS regs which clarifies the if the first claim for a “qualifying benefit “ is refused then that is the end of that claim and so if the claimant claims again for a “qualifying benefit “ he must reclaim the IS. Please can anyone help.
Thanks.

First IS claim - 17/01/08
DLA awarded from - 20/05/08
Second IS claim - 15/01/09

DLA doesn't invoke a DP until it's awarded and as this was four months after the IS claim it does not help. Therefore, it is not correct to say that if IS had been refused altogether it could now be backdated since there would still be no DLA to give rise to a DP. If would have been a different matter if the DLA tribunal had been successful.

Furthermore, the situation wouldn't arise if benefit was awarded (straightforward supersession), which is why reg 6(16) only refers to 'refusal' of benefit.

In your case, it's pretty straightfoward. IS entitlement legitmately ended in Jan 08. DLA was awarded on 20/05/08 so this could be taken into account when assessing any new IS claim, which happened to be on 15/01/09. Backdating is limited to three months with applicable grounds.

The only way around this would be for your client to have made a 'protective claim' for IS at the point where he reclaimed DLA on 20/05/08. Had he done so, and reclaimed within 3 months of the DLA award, IS could have been backdated to the start of the DLA award. In that case, the circumstances would fit exactly reg 6(16).

Hope this helps,

Thanks for that I just could not get my head round it
frances.