When a claimant is awarded an upgrade of benefit (say from Low rate care to Middle rate)this is often decided months before the actual date of the end of award. Should the upgrade start immediately (as they have now been deemed as qualifying) or from the date of the end of the initialing award?

Thye other side of the coin is hen the claimant is down graded. Should this start immediately? I believe, legally, the DWP have to stick to the date the initial award ends - is this so?

Does this mean that claimants have the best of both worlds in both cases?
1) If upgraded their new award should start immediately because it is NOW that they are deemed to qualify (not in 2 or 3 months time).

2) If downgraded their new (lower) award cannot start until the date the initial award ends.

Any comments you can give on this subject will be much appreciated.

DLA have a tendency to begin the new award from the date following the expiry of the existing award. Whether this is correct in an individual case will depend on the circumstances. If an award is increased on renewal it will often be the case that the evidence relates to the position now, well before the expiry of the current award. Even allowing for the qualifying period there are many cases in which the new award should take affect from an earlier date, and the current award should be revised to reflect this.

This equally applies in respect of awards which are reduced on renewal with the proviso that the onus in on DLA to show that there are grounds for reducing the award from an earlier date. It's good practice in these cases to appeal against both the revision decision and the renewal claim decision.

Its well worth looking at the Irish Decision from Comm. Moya Brown in C12/03-04(DLA) who looks at the question of advance refusals on renewal claims and decides that they are ultra vires. You will need to satisfy yourself that the legislation is comparable ( it is).


This link will hopefully work to the decision:

http://145.229.156.3/dmaucomdec.nsf?OpenDatabase

And you can access the legislation from:

http://www.dsdni.gov.uk/benefitlaw/benefitlaw.asp

A number of years ago I represented a client whose DLA award had been removed a few months before it was due for renewal. Although he failed to get his award renewed at appeal the chairman (a very respected guy, now a QC)instructed payment to continue until the end of the original award period.

I don't remember his reasons for this but I do recall that the department didn't appeal the decision. I would defintely go through the regs with a fine-tooth comb.

A Tribunal of Commissioners in CDLA/2751/2003, CDLA/3567/2003 and CDLA/3725/2003 have considered the issue. There is a discussion of their decisions in the latest Welfare Rights Bulletin - 179.

there's a summary of, and a link to, the tribunal of cmmrs decision in the briefcase area of rightsnet @

http://www.rightsnet.org.uk/cgi-bin/publisher/display.cgi?1715-0104-6214+swopshop