According to my trusty manual, the DP should be included in HB if the DWP has decided a claimant is incapable of work for a specified period.

This will involve a claim for IB which can be backdated for up to 3 months.

If there's no entitlement to IB, credits only will be awarded, and my manual says a credit will be given for each complete week during which the claimant was incapable of work or treated as such, or would have been if a claim for IB had been made in time.

Does this mean that, for a claimant who has a gap between claims of IB of more than 3 months (for not good reason) but who can provide evidence of incapacity during that time, it's possible to get the DP on the grounds that IB has been claimed and credits for IB have been awarded for the whole period between claims, or ... not?

Ahhhhhhh... I do so dislike people not getting replies on this site, its been a while since I have been here, but decided to take a break from writing to the LGO to have a flick through these here pages...

First off, it doesn't matter what the DWP say or do with regards to a person is incapable of work. That is a matter for a Dr. (so long as the quack is certified as a medical practitioner that’s all that’s needed). So a person 'signed off' will be entitled to the DP in HB/CTB so long as he has proof, (usually those exact same med certs that would otherwise be sent to the DWP). I have dug out the link from the guidance manual that confirms this...See the top one which reads...

"The single rate of DP is payable to a single claimant or lone parent aged under 60 and they <...> been incapable of work or treated as being incapable of work for 364 days, or 196 days for terminally ill claimants".

See no need for DWP involvement at all!

It is however usual for the DWP to be involved in these cases, as they pay the benefits that automatically hit the qualifying conditions (Incap, DLA etc), so it is very very rare that an LA would expect to receive med certs, and quite likely that any 1st tier decision maker would know what to do with them if they did receive them (training is not what it used to be!).

Also the DP is absolutely payable in HB & CTB whether or not any Incap is actually paid. So long as the N.I. credits are being paid, that is all that is needed. Physical money need not be exchanged, as the qualifying condition is just that the person is incapable of work, not they have to receive Incap or any other benefit. Being in receipts of credit only Incap is a recognition that the person meets the eligibility criteria for Incap, and they are incapable of work...

Hope this helps, now back to my Ombudsman's reply....

http://www.dwp.gov.uk/housingbenefit/manuals/hbgm/parts/ptc_04b.asp#x

But if you read the HB Regs it says, viz the DP:

"... the claimant is, or is treated as, incapable of work in accodance with the provisions of, and regulations made under, Part 12A of the Act (SSCBA 1992) ... and has been incapable, or has been treated as uncapable, of work for a continuous period of ..." etc (Sch 2 para 12)

which sounds like the DWP have to make a decision, altho I admit my research was afterwards hampered by being unable to find a s.12A or any version of the HB Regs which doesn't point to s.12A.

Okay, so the law has changed... You think you know something and the government come along and change it... Cheek!!!

Okay, but all is not lost, my post was right, and the law did not change that long ago, as the above was around for quite a while. I don't have my CPAG guides to hand but below is the reg for the DP as originally written. If you can lay your hands on the 'old style' HB guidance manual (Red Cover), then you will also find it in there... (and possibly in an older DWP ‘Blue Book’ guide too).

A link to the original regs is below, but the part you are looking for is in Schedule 3, para 11 (a) which reads:

"where the claimant is a single claimant or a lone parent, he is aged less than 60 and the additional condition specified in paragraph 12 is satisfied". Schedule 12 para (1) (b) reads:

"the claimant is and has, in respect of a period of not less than 28 weeks, been treated as having been incapable of work for the purposes of one or more of the provisions of the Social Security Act or Part I of the Social Security and Housing Benefits Act 1982<89>".

No DWP involvement needed !!! (or DHSS as it was back in them now 'good ole days - Oh how things change with hindsight!!!!).

What you will need to do is research when S.12A was inserted into the SSCBA as it is not in the Act as originally passed (I had a quick look in the CSPSSA 2000, but could not locate it there). You might find that your client has TP from the newer provisions... The ‘advanced search’ on the OPSI website is quite good at locating the law that you need, just be prepared to spend an hour or so following the resulting links…

However, even with the new regs, if DWP backdate the Incap (even if only contributions level, and that part of my post still holds good!), then HB should re-calc HB/CTB and so the DP will still be payable...

Now where did I leave that slice of humble pie???

http://www.opsi.gov.uk/si/si1987/Uksi_19871971_en_23.htm#sdiv2

"What you will need to do is research when S.12A was inserted into the SSCBA as it is not in the Act as originally passed ..."

It's not in the Act now either. It's a bit of a mystery.

"However, even with the new regs, if DWP backdate the Incap (even if only contributions level, and that part of my post still holds good!), then HB should re-calc HB/CTB and so the DP will still be payable... "

That's what I'm hoping. Thanks for your encouragement!