I am currently assisting a client with a DLA claim. The client has alzheimers and her husband deals with everything for her as she is not able to do so herself. He signed the claim form for her and has received a call saying that they will be getting a home visit because he will have to become her appointee. I've read that to become an appointee you have to apply in writing to the DWP.
Does this always involve a home visit???

Many thanks,

Sarah

I've now found out that the DWP do in fact visit both the client and potential appointee. This is so they can explain the responsibilities of being an appointee (including the fact that the appointee is liable for any overpayment) and also to make their own judgement as to;
1) whether the claimant needs an appointee.
2) whether the proposed appointee is suitable.

Reg 33 of the Claims & Payments Regs contains the rules -

http://www.dwp.gov.uk/advisers/docs/lawvols/bluevol/pdf/a1_5501.pdf

It may well be that your client would benefit from having an appointee and it may be that her husband is well placed, willing and able to take this on. But the DWP must accept the claim and process it as it stands.

Reg 4 (1B)enables a claim to be made and processed when someone is unable to complete a claim form satisfactorily if no-one else can do it for them (thus meaning that someone else can sign for them without being appointee). Also Reg 32 of the Claims and Payments Regs allows information in support of the claim to be provided on behalf of a claimant - thus confirming this interpretations.

The DWP have no power to refuse to process a claim if someone does not have an appointee nor to require someone to have one nor to require someone to become one. Reg 33 of the same Regs simply states: "the Secretary of State or the Board may, upon written application made to him or them by a person who, if a natural person, is over the age of 18, appoint that person..."

It still seems to be not uncommon for DWP to exceed their powers around appointeeships. This is contrary to all best practice by people working in the mental health and learning disabilities fields who are trying to empower people by helping them to have control over their finances by avoiding appointeeships unless absolutley essential.

DWP staff also have completely insufficient knowledge and training to assess mental capacity.

Thanks very much for this. It sounds like my client could refuse the home visit the...am i correct? What would the implications of this be?

Many thanks,
Sarah

If your client refuses the home visit the DLA claim will not be processed until the claimant has been seen. I have just checked this with the DLA unit as this is what happens with claims dealt with by the Jobcentre and, although I assumed that it would be the same for DLA,I wasn't certain.

Where a claim form has been completed and signed by someone other than the person who is actually 'the claimant',which is within the Claims and Payments Regs,no payment will be made until that person has been seen. This is so that it can be established that the person exists,that they know that the benefit has been claimed for them and that they are able to deal with their claim. If,as in your client's case,the claimant cannot deal with their own claim,the visit will establish that, as well as whether an appointee is needed or whether an agent would be sufficient.Where an appointee is the appropriate option the person to act as such is also seen so that their 'duties' and responsibilities can be explained to them and so that the officer acting for the S of S can decide if that person is 'suitable'.

So basically,although it is correct that a claim can be made on someone's behalf, in reality it is not that simple.

It is not necessary for a visiting officer to be medically trained to decide if an appointee is needed- - - they just apply common sense!!

I just wanted to add that the Regs DO NOT state that a claim made by someone on another person's behalf HAS to be processed. They are valid claims and will be treated as such once the usual checks have been made.

Sorry, but deciding if someone has mental capacity really is not a matter of "common sense"! Let me briefly illustrate why.

People can have variable degrees of capacity depending on a range of factors including the amount of support available, the presence of physical conditions with consequent psychological effects, ambient home temperature, poor diet, etc, etc. A large number of confusional symptoms in older people have an organic origin and can be resolved by treatment of underlying causes - these causes can often be longstanding and previously un-diagnosed. Even in cases such as advanced stages of Alzheimer's disease, it is possible to help peple retain degrees of capacity provided they have the right help and communication and some very interesting and sucessful work on this has been done by various advocacy projects for older people.

This why professionas in health and social care have specific training to help them assess mental capacity and to communicate with peoople with impaired menatl capacity.

It is therefore wholly wrong for decisions to efectively remove someone's rights to be made on the basis of DWP staff's "common sense" - frankly it's little wonder that we get some of the poor decisions we do if this the standard being adopted.

The questions of whether or not an appointee is needed and whether or not there is someone willing and able to become one are completey separate matters and no can be be made to have an appointee unless an appointee asks to become so. This is clearly what Reg 33 of the Claims & Payments Regs states.

As to the visit, well Reg 4 is clear that someone can make a claim on behalf of another, so it would be unlawful not to process it just because someone else has signed it. Even an invalid claim must be determined and a decision issued.

While normally claimants are required to provide evidence in connection with the claim, as I stated earlier, Reg 4 clearly enables an alternative approach when someone is unable to provide that evidence beacsie of mental incapacity. Therefore it is possible for a claim signed by a third party to be a valid claim (see the words "such other manner being in writing..as sufficient in the circumstances of any particular case"). If DWP practice is to do otherwise, sorry but this is contrary to the legislation. CIS/540/2002 also gives a right pof appeal on such matters.

However, Regs 7 & 8 of the Claims & Payments Regs do give the DWP the right to ask for an interview if this is "reasonably required", and I woud suggest that if a third party has signed a claim form that a visit is therefore reasonable given the end to verify evidence and identify. But if at the visit the partner is unwilling and/or unable to be appointee, the claim must still be processed on the basis of the information which is available. Also note the commentary in Mesher on p 378.

Personally, I would ring the DWP to ask why they are visiting, what info is needed, do my best to supply it if this is reasonable and put these points in writing. I'd also try (if poss) to attend the visit to get these points across. Appeal if claim refused because husband has signed it.

This assumes he is unwilling and/or unable to act as appointee and assumes that an appointee is actually required.

What I (and many advisers) object to, is the simplistic "must have an appointee" mantra which some DWP officials repeat as if it has the force of law and giving the impression that there are no alternatives. This results in many people who are perfectly entitled and able to handle their own benefit having a fundamental right removed from them. It is a particular problem for people with a learning disability and people may thus have a significantly worse quality of life when appointee is allowed to continue acting as such for years after one is not appropriate and in extreme cases this may even lead to financial abuse of the claimant.

With regard to the duty to process a claim.

Reg 4(9) - In the case of a claim for income support or jobseekers allowance, a properly completed claim is a claim which meets the requirements of paragraph (1A) and a defective claim is one which does not meet those requirements.

Reg 4 (1A) - In the case of a claim for income support or jobseekers allowance, the claim shall -

(a) be made in writing on a form approved by the secretary of state for the purpose of the benefit for which the claim is made;

(b) unless any of the reasons specified in paragraph (1B) applies, be made in accordance with the instructions on the form; and

(c) unless any of the reasons specified in paragraph (1B) applies,include such information and evidence as the form may require in connection with the claim.

Reg 4(1B) - The reasons referred to in paragraph (1A) are - .......

(i) the person making the claim is unable to complete the form in accordance with the instructions or to obtain the information or evidence it requires because he has a physical, learning, mental or communication difficulty; and

(ii) it is not reasonably practicable for the claimant to obtain assistance from another person to complete the form or obtain the information or evidence;

Seeing as the commissioners long ago decided that sub-para (ii) means that it is the capacity of the claimant to seek assistance that is the critical factor in whether it is practicable for him/her to seek assistance. The determining factor is not whether people surrounding the claimant are able or willing to offer assistance or not.

Therefore, in accordance with reg 4(9) it is difficult to see how if all the above paragraphs apply a claim either unsigned or with some information or evidence missing is not a properly completed claim and if so it must be processed. It may well result in a negative decision but it must be processed to give rise to full appeal rights.

Of course to co-operate as fully as possible with the requuirements if in the claimant's best interests is wise but there are always cases that fall through the cracks because the claimant has no-one, or does not appreciate the need for the requirements, or does not understand how s/he is to co-operate. Where a lot of the injustices I've seen lie, is where a Decision Maker, not fully conversant with the law, refuses to process a claim, it then lies dormant for a while, then gets "closed". The claimant goes without benefit for a while, finally comes to the attention of a voluntary organisation or the local social services, a new claim is made but benefit for the previous period is not paid and there is possibly no grounds for backdating under reg 19.

A claimant may then have a long legal fight on their hands either on late appeal or civil action for maladministration (often hard to prove).

Obviously, I should have said no grounds for backdating outside the 3 month time limit.

The home visit is nothing to worry about. I have recently become my disabled son's appointee, it was a 10 minute visit to verify my identity and explain the responsibilities of being an appointee.Tell your client not to worry. Cheers