I'm hoping for a bit of advice on this one as my brain is frazzled and we are at the tribunal next week! i'll try to explain the situation as best I can...

Sept 2006 - I completed an assessment of benefits of Mr, Mrs and their adult Daughter who has learning disabilities and for whom Mrs is an appointee. Daughter receives High rate care and mobility and has done for years. Mr and Mrs are both on Attendance Allowance, Mrs from Dec 2004 and Mr from March 2005. When I checked the relevant means tested calculations for them all I noticed that none included the Severe Disability Premiums.

To cut a long story short I completed an PC10 with a request for backdating to March 2005 for Mr and Mrs' Pension credit and a Is10including backdating for Daughter's Income Support.

October 2006 - Pension service backdated the double SDP in the Pension credit for Mr and Mrs to March 2005.

Income Support however have refused to backdate as Daughter was NOT the one to receive a qualifying benefit.

Has anybody got any ideas on how to tackle this one? Any help will be gratefully received!!! Thank you!

It sounds like Blackpool has failed to notify the local office that she gets DLA. The famous card notification system/computer interface has broken down again. You can verify this by ascertaining whether the DLA is being paid separately by Blackpool. If it is being paid by the local office with the IS then ask the local office to check its own records.

If the DLA is paid direct by Blackpool then documentary evidence of the award(s) should suffice as proof. Or alternatively ask Blackpool to notify the local office directly.

Sorry I don't think i've explained myself very well...

Daughter has been on DLA for many years due to severe learning disabilities, she would not have been entitled to SDP at the time she qualified for DLA because she did not technically count as living alone. This was the case until March 2005 when the other members of the household, ie Mum and Dad, finally became entitled to qualifying disability benefits. At this point all members of the household were entitled to apply for SDP but didn't as they were not aware of it.(ie possible Bpool failed to notify Pension Credit)

Income Support are saying that they cannot backdate the SDP for Daughter as it was not her qualifying benefit of DLA that entitled her to the SDP in March 2005, (it was another member of the household).

I think there has been a possible official error by DWP in that Pension Credit never sent out a PC10 for Mum and Dad, could this be due to failure by Bpool? It was only when I visited the family in Sept 2006 that they found out about SDP and claims were made...

Whether there has been that official error or not isn't really an issue for Mum and Dad as they have been granted the backdating but if it is an official error, could I use that as the reason Daughter never applied in March 2005? (her mother is the appointee for her)

Many thanks for your help!

I don’t agree with the DWP’s interpretation. Reg 6(2)(e) of the Decisions and Appeal Regs allows for supersession of the IS when subsequent to an award a person receives a qualifying benefit or an increase ia a qualifying benefit. The reg says nothing about the supersession being having to be applied for at the same time DLA is awarded or increased. Supersession usually takes effect from the date of the application.

However, where a decision is superseded under 6(2)(e) then it takes effect under reg 7(7)(b) from the date on which the non-dependant ceases to be classed as a non-dependent

So, in my view, if the supersession is under 6(2)(e) then it can take effect from March 2005. I think it is certainly worth appealing and letting a tribunal/commissioner decide.

sorry I'm confused...

the supersession hasn't been asked for subsequent to Daughter receiving a qualifying benefit, it is because her parents became entitled to attendance allowance that she now technically counts as living alone for SDP purposes...

also Daughter has been a non dependant for over 30 years...

Maybe so, but you can ask for supersession now because the daughter receives a qualifying benefit. As I said the reg says nothing about the timing of the supersession application so long as it is after the award of IS and then DLA.

When the daughter first got DLA no supersession application was made because there would have been no point However, now that the parents are not classed as non deps then there is nothing in my interpretation of the regs to prevent a supersession application from being made now on the ground that subsequent to an award of IS the daughter became entitled to DLA.

I don't see the triggering of the supersession application by another event (the award of the parents' qualifying benefit) as being a barrier to that.

I think Paul is right. Reg 7(7) gives two possible dates for a supersession: under para a) the date the 2nd relevant benefit is awarded; under para b) the date when a non-dependant, who would prevent a supersession taking effect when the DLA was awarded, stops getting in the way of the SDP.

I see what you're saying...many thanks for your input, wish me luck for the tribunal!

Good luck and let us know the outcome.

Hollow victory at the tribunal. Chair agreed with my arguement but DWP presenting officer stated she would seek guidance on appealing!

I did not use Reg 6(2(e) due to the definition of 'family' in Contributions and Benefits Act. However I submitted that the circumstances came under Reg 6(2(ee)(subject to reg 3(7ZA)) which allows for a supersession of an existing IS award where a non dependant ceases to be one through an award of a qualifying benefit, which then qualifies the claimant to claim the SDP. On basis Reg 6(2(ee) applies can then use 7(7) to allow full backdating.

It worked on the Chair but got to wait and see what DWP throw back...

Tue 04-Dec-07 11:52 AM by Damian

Just looking at the dates. Dad's DLA was awarded from March 2005, do you know the date of the decision?

I have a feeling that Dad told me he applied the same time as his wife but he had to serve the 6 month qualifying period which took his award date from 25/3/05.

Regulation 7(7) as it once stood was substituted by regulation 5(3)(b) of SI 832/2006 www.dwp.gov.uk/advisers/docs/lawvols/bluevol/pdf/a1_6395.pdf. The explanatory note at the bottom of that statutory instrument confirms that

"it provides that where the claimant, who would otherwise be a severely disabled person, ceases to have a non-dependant, the effective date is the date the claimant ceased to have a non-dependant."

That should be sufficient to convince the decision maker before it goes to tribunal.

Good luck.

Just a thought- was daughter on IS when the parents were awarded AA or did she only become entitled to IS as a result of the SDP being added on? If this is the case then I think I am right in saying that the daughter should probably have made a precautionary IS claim when the parents applied for AA, been refused and then re applied when the AA was decided asking for a backdate to the first IS claim.IS can only be backdated to the award of a qualifying benefit if IS has been claimed, see the handbook on p.977 for details.If this isn't the case then I agree with what everyone else has said!