I really think we're right but this is the second one we are having to take to tribunal.

Clients claimed IS and DLA at same time. No IS due to excess income. DLA then awarded and subsequent IS claim made within 3 months of decison awarding DLA.

They are refusing to pay arrears of IS and using SS (C&P) Reg 6 (16)-(26). I am rubbish at finding stuff. Got Reg 6 in front of me but can't find 16 - 26.

Can anyone point me in right direction of where I can see 16-26 in black and white.

Thank you

Hi Sue

The relevant paragraphs are 16-18 on page 388 of the 2006 legislation.

Regards
Paul

2006?? you avin a laff? I work in the private sector. We don't have new fangled up to date stuff like that. I thought I was doing well with the 2003 one. I'll have to nip over to the library.
Cheers Paul

Lol. Save your shoe leather!

(16) Where a person has claimed a relevant benefit and that claim ("the original claim") has been refused in the circumstances specified in paragraph (17), and a further claim is made in the additional circumstances specified in paragraph (18), that further claim shall be treated as made -

(a) on the date of the original claim; or

(b) on the first date in respect of which the qualifying benefit was payable,
whichever is the later.

(17) The circumstances referred to in paragraph (16) are that the ground for refusal was -

(a) in the case of severe disablement allowance, that the claimant's disablement was less than 80 per cent.;

(b) (revoked)

(c) in any case, that the claimant a member of his family or the disabled person had not been awarded a qualifying benefit.

(18) The additional circumstances referred to in paragraph (16) are that –
(a) a claim for the qualifying benefit was made not later than 10 working days after the date of the original claim and the claim for the qualifying benefit had not been decided;

(b) after the original claim had been decided the claim for the qualifying benefit had been decided in favour of the claimant, a member of his family or the disabled person; and

(c) the further claim was made within three months of the date on which the claim for the qualifying benefit was decided.

xxx

I cannot believe I've made such a calamatous pig's ear of this and it serves me right for being cocky.

My client claimed IS in April at same time as asking for DLA anytime review. IS refused due to excess income. Qualifying rate of DLA awarded 6 months later in September with award back to cover period of April's IS claim. All well and good. IS reclaimed. All nicey nice...all within time limits BUT and it's a big BUT...it's just come to light husband had made the IS claim in April but his wife made the IS claim in Sept. I couldn't undertand why DM wouldn't award IS to April and would only give 3 months. We've had numeous exchanged phone calls and letters and it was never mentioned !!

Penny's only just dropped...Argh

I might be living in cloud cuckoo land but is there any way round this one -interchange of claims; claiming for each other...anything?

Sue

I'm back!!!

After his DLA decision in August I told my client to make new claim for IS. However he is hard of hearing and so I suggested his wife spoke to JCP first to explain about this. They told her it wouldn't make any difference who made the claim. It's ironic that the computers were down at JCP and they sent paper claim form out to her. If she had not been wrongly advised by them in the first place he would have made the paper claim.

Obviously now he has no link to the IS claim he made in April. So it seems there is a couple of options left:-

1 Although his wife is now IS claimant, they should swap claimant roles and he should reclaim it himself. However for it to be 'linked' to his first April IS claim he should have made his second claim within 3 months of the decision of the qualifying DLA component (Aug) So even if they agreed to accept his new claim be extended back 3 months it still only takes him back to December when he should have reclaimed IS by November.

2 financial redress for maladministration.


I think the latter might be easier (well it was certainly easier to type) but what do you think?

Sue

Para.16, cited above, doesn't actually say that the "further claim" has to be made by the same member of a couple as the "original claim". It just says "a" further claim is made, in the conditions specified in paras. 17 and 18. Given that paras. 17(c) and 18(b)require that the qualifying benefit be awarded either to the claimant or a member of the family, it doesn't create any absurdity for Reg.16 to apply whichever one of a couple made the respective claims. The IS due will be identical either way, assuming they both meet the conditions of entitlement, which they must do. Reg.16 could easily have said "that person makes a further claim" instead of "a further claim is made" - maybe the passive tense was chosen precisely to allow for this situation

I would take the claims line at their word - that it makes no difference who claims - and appeal the refusal to backdate - use financial redress for maladministration as a backup.

Richard Atkinson

Thank you Richard. The DM has said she's looked at this and it's still a no no. However we've lodged an offical appeal with these grounds. I'm also about to write about the maladministration and run this parallel with the appeal.

I just love the CMS

Sue

A strict interpretation of reg 6(16)-(18) would be as follows.

If a person is already in receipt of DLA when they make the claim for IS then reg 6 (16)-(18) cannot apply as the reg deals with claims for qualifying benefits and not supersessions of existing awards. Reg 6(16)(b) states that the relevant benefit (the IS) can be awarded from “the first date in respect of which the qualifying benefit was payable”.

This suggests that it is the date from which the award of the benefit itself which is being referred to and not the date that an increase of the benefit takes effect. Paragraph 17(c) bears the same construction as it states that “in any case, that the claimant a member of his family or the disabled person had not been awarded a qualifying benefit”: the phrase “awarded a qualifying benefit” being the telling part of the sub-paragraph.

If you could argue that the reg should be read as if the word “rate” were to be inserted at the appropriate points; as in “in respect of which the ‘rate’ of the qualifying benefit was payable” then you may have an argument.

However, you may still have a problem with pararaph 18(a) that states “a claim for the qualifying benefit was made not later than 10 working days after the date of the original claim and the claim for the qualifying benefit had not been decided”. Thus you would have to argue that claim could be taken to mean supersession, a harder thing to argue.

Might be worth giving it a go though. What is there to lose? After all commissioners in the past have said that new claims for benefits can be treated as requests for reviews, so why not the other way around? There is some flexibility in there somewhere, it may be just a question of teasing it out.

If the reg does apply though I entirely agree with Richard. It matters not who the claimant is.

Paul, it's Friday and my brains in meltdown. I'll have to have a look at this on Monday morning

Tahnks (I can't type etihter)

Sue

Oh yeah, never thought about it like that. Thanks Paul. I'll just have to hope for the best. I've lodged an application for maladministration as well. Hopefully we'll get somewhere as it's not just actual IS payments, it's relevant for waiting period for housing costs as well.

Sue