nevip
welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since 22nd Jan 2004
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RE: Income Support / appeals
Fri 18-Apr-08 01:36 PM |
There is a crucial difference here. In your client’s case the appeal was determined so he fits squarely within pragrapgh 25 of schedule 1B of the IS Regs. But in the case in the other discussion the appeal was withdrawn so was not, in the literal sense, determined.
Ariadne makes an interesting point in that discussion. The new form of paragraph 25 of schedule 1B states “a person……who has made and is pursuing an appeal against the decision which embodies a determination that he is not so incapable but only for the period beginning with the date on which that determination takes effect until the determination of his appeal”.
While I stand by my original view in that discussion I can see how someone in the DWP might isolate that piece of the regulation and try to impose a literal interpretation of it.
That might have worked years ago but since movements in legislative interpretation down the years came more and more to adopt purposive constructions then I don’t see it working now. The intention of the reg, in my view, was to provide a safety net for those pursuing a legitimate appeal right but who, for one reason or another, could not claim JSA and who might other wise starve.
If the words are considered carefully in each other’s context then they are merely saying that a person can be paid IS but only for a period ANYWHERE IN BETWEEN the date of the decision under appeal and the final determination of the appeal. That can be for the whole of that period or simply part of that period. It does not require that the appeal actually be determined.
I derive further fortification for the “anywhere in between” interpretation by the CD that says IS cannot be paid for that part of the period between the decision under appeal and the lodging of the appeal (which includes a request to receive IS with a penalty).
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