My colleague is representing a client who is disputing the date of claim.

Client picked up a claim pack on the 26/10 in readiness for their capital falling below £8,000. They signed and returned their form on the 16th November when their capital was below £8,000. The IS section treated the claim as made on the 26/10 and found the capital to be 8,109 and refused the IS claim. The client has appealed this decision and has not made a fresh claim.

£124 of the capital on 26/10 is a payment of DLA, does this form capital or is there a period that this is regarded as income?

Does anyone know of any useful caselaw that would be beneficial for the clients appeal?

Thanks in advance

Interesting point - more than somewhat tongue in cheek, could you not argue that:

DLA is payable in arrears

Arrears of benefits are ignored for 12 months

Therefore the figure of £124 should have been ignored - it clearly shows on a bank statement as a DLA payment.......

You could run it as part of your appeal submission and watch the Chairman's face closely.........


Or am I not taking life as seriously as I should........

The DLA is income, and income is treated as income over the period for which it is payable R9IS) 3/93. Since the payment period is that period until the next payment is due the DLA payment should not be treated as capital.

R(IS) 3/93

Is there any mileage in a back-up argument: that if they insist on treating the date of the claim as the date on the datestamped form, that it should/could have been treated as an advance claim? Claimant (and DM) knew that their capital would drop below £8k so bringing entitlement within 3 months.

Obviously at the time they claimed they would have shown bank statements to show capital below this figure - the fact that the same info probably showed the earlier date/higher capital and subsequent decrease means DM had all the info.

You kinda get into all sorts of temporal (and grammatical!)difficulties with this; knowing something in the future that has already happened but not at the time the claim is treated as being made.

It's annoying isn't it; if the client had got an unstamped form from anyone other than the DWP, claim could only have been treated from day received. Or if he'd got the form more than a month before he wanted to claim - they'd have "penalised" him by "only" allowing the award from the date received...

I've probably not helped.

Thanks to all who have replied and any contribution is gratefully received.

Simon and Sally

The decision to disallow the claim from 26.10.04 is,strictly speaking, quite correct. However, the feeling here is that it was rather harsh given that your client handed in her claim form after her capital had gone below £8k. Claims and Payments Reg. reg 13(1)(a)says that the Sec of State MAY (my emphasis) 'treat a claim as if made for a period beginning with the relevant day......' but we would normally expect to be told that such a claim was being made. Your client could have said that she knew she wouldn't be entitled from 26.1.04 because of her capital so could it be considered from whatever date it went below £8k.If the S of S decided not to treat it as an advance claim there is no right of appeal against it.

The decision will almost certainly be upheld by the Tribunal- if it wasn't we would query it- so your client must make another claim for IS without delay. If she hasn't already done so she will have lost out on a considerable amount of benefit.

As far as the DLA is concerned,it is disregarded for the period it was meant to cover from the date that it was paid.So if she had been paid the DLA 2 weeks before the IS claim was made it would only be disregarded for another 2 weeks. If paid 5 weeks before the IS claim it would not be disregarded at all.

the tribunal will look at matters down to the date of decision under appeal and can take account of any change of circumstances. Therefore no problem.
S12(8)(b) SSA98

i would have thought appeal rights against reg 13 are generally arguable under R(IS) 6/04 -HRA Art 6. am i missing something about reg 13...?
(apart from my brain - one of _those_ days)

jan

Hi all,

The chair intended to explore the claimants change of circumstances at the date of the decision. We will never know the outcome of this argument because my colleague had discovered arrears of DLA paid to the clients spouse in August, which was disregarded.

Thanks to all for your helpful contributions