DLA form not returned (for good reasons) within 6 weeks. DM decided not to allow such longer (than 6 weeks) period as he /she may consider reasonable, as could have done under SS(C&P)Regs Reg 6(8) (c). So no backdate.

The decisioin doesn't seem to be one against which , under SSCS(D&A) Regs Sched 2 ,no appeal can lie . Seems to me therefore we can appeal the DMs decision even though it involves DMs discretion (taking into account, of course, that a tribunal could raise other issues , but reasonbly happy on this one).

Confirmation of right to appeal on start date would be appreciated!

I'm not sure your reading of the reg is correct. Reg 6(8) provides for the date of claim for the purposes of DLA/AA where a claim form is requested and returned within the time specified. I cannot see anything there which allows the SoS to determine "such longer period as the SoS may consider reasonable".

There is such a power in reg 4(7) where a claim, or a document that might be treated as claim is received at the office but does not meet the requirements of a valid claim in reg 4(1). I would expect decisions of this type to appear in the list of schedule 2 to the D&A regs, but it doesn't.

S.76 SSCBA is quite clear that no entitlement to DLA can arise for a period before the date of claim (with specific exceptions), and since the claim was returned outside of the time specified provided for by reg 8 D&A regs and there is no discretion to extend that period, then, regardless of the reason, the date of claim cannot be before the completed form was received by the BDC.

That said, I've just gone on to read the definition of " the time specified" in reg 6(9), which says that the time specified is six weeks or such longer period as the SoS may consider reasonable. That does indeed suggest that disrection is conferred. Playing Devil's advocate, I might suggest that given the tense of the regulation as a whole, the discretion must be exercised at the point the form is issued, rather than after the form has been returned beyond the time already specified. So for example, a person who wants to claim, whose hands are in plaster for eight weeks and who has no-one else to help, might be given a 'time specified' of ten weeks.

An interesting question; I'm surprised it hasn't attracted much interest.

Yes I thought there would be more feedback too! I HAVE now lodged the appeal so we'll see how it progresses..

I am not sure I agree with the Devil's advocate interpretation as, in practice, the DWP issue forms and are often happy to accept a date after 6 weeks if the claimant subsequently notifies them as to good cause for return after the expiry of 6 weeks (eg they can't get an apointment with a welfare rights officer for help in form completion until after the 6 week period because of backlog!). And I have attended a tribunal where not only were we given an award but it was backdated by several months to the date of issue of the form : the DWP had initially only awarded from the late date of receipt. I didn't go into the legal arguments in that tribunal as we were concentrating more on entitlement but neither the tribunal nor the DWP challenged the invitation to backdate.

This time it is different though as it is the only issue we are trying to appeal so need to be certian there is indeed a right of appeal.

All will be revealed as the issue progresses!

I'm sure the DBC will soon tell you if they think there is no right to appeal. Let us know how you get on?

Tony

Update:
We lodged a formal appeal quoting SS(C+P) Regs 1987 Reg 6(8) (c) and (9) . The decision has been changed without the need for the matter to go to tribunal . The result is a much earlier DLA start date for the claimant and a large backdate. Very satisfactory!

Sue

Nice work! I must admit that I probably wouldn't have run such a case in the past, but will definitely do so now. Thanks for highlighting it.

Tony

On the possibility of the Tribunal considering other issues, I take that to mean possibly reconsidering the award. I have a concern about "reasonably happy on this one." I'm not sure how you could eliminate the risk to the award (assuming there is one, as your comment applies) of raising an appeal. I would need "utterly certain" rather than "reasonably happy" if I was going to decide whether or not to put an award up for reconsideration by way of an appeal. Bear in mind, not only the Tribunal, but firstly the DM, gets a crack at reconsideration whenever you appeal.

As far as I can tell, the only way you could have anything approaching such certainty is with HRM for inability to walk( e.g. full time wheelchair user or amputee) or HRC/HRAA with a DS1500. Otherwise the only safe appeal regarding the start date would be againsta refusal to award (where you could raise both entitlement and start date as two issues).

Yes there is obviously a risk and ultimately it is for the client to decide whether to take it. But then any client takes a risk of the same sort if her/she appeals a lower than hoped for award : there is always a danger of losing what has been awarded. If you go to appeal only if there is absolute certainty of not ending up worse off, the number of appeals would dramatically reduce!! My client was prepared to take the risk, didn't lose what he had been awarded and is about £2000 better off than had he not appealed the start date.

Yes of course it's for the client to decide, hopefully on the basis of being fully informed as to the risk before making a decision, as I trust she was in this case. I have to say, I don't think the fact that she did end up better off makes any difference whatsoever to the issue. The fact that the result went the right way in the end doesn't mean that it was a safe bet in the first place. It's similar to saying, the fact that you won a bet does not mean it was a sensible choice to gamble your money in the first place.

I was not suggesting we make decisions for people about whether or not to appeal where there is a risk. I just wanted a bit of clarity on what "reasonably happy" meant.

I have seen the endpoint of a number of cases where people had disputed decisions, with very good grounds (and apparently "safe" awards) but ended up with less money. I think it's absolutely vital we emphasise this risk to clients, and make it clear that the outcome can never be predicted with any certainty.

If your message is simply to highlight the risks involved and the need for us as advisers to emphasise those risks, then of course I agree. It all depends on the client's wish to take the risk; the client's particular circumstances and the supporting evidence make it more or less of a risk, albeit always a risk. Risk taking must involve considering the level of that risk.
My client was prepared to take that risk in the light of his well evidenced problems in daily living and I dont think it can reasonably be suggested that he did not make a sensible choice.

Yes, I agree. And you have accurately assessed the intent of my message. All too often I come accross cases where the risk element appears to have been either overlooked or misunderstood. I just wanted to highlight the vital role that we advisers have in presenting a balanced picture of risk versus possible gain. With risk emphasised, I don't think there would be a "dramatic" reduction in the number of appeals, as most appeals (in my experience at least) tend to arise from nil entitlement decisions. Or maybe others have a different experience, I don't know.

Sorry, felt I must reply as my experience certainly is different. We seem to get a lot of bad decisions where the client is given a low award despite major health problems. Often medical evidence is so supportive that going to tribunal carries very little risk. Obviously it is the role of a good rep to fully prepare the client, including advising risk of a lower, or nil, award.It is also important to support and encourage them when DWP have made a bad decision. Remember that a tribunal decision can also be appealed if it is unlawful. An experienced rep should be able to assess the risk level and advise accordingly.
Sorry, don't mean to rant - just have some experience of badly trained or inexperienced welfs who will accept any award and close the case, to the detriment of the client. Personally I know what level of award to expect after completion of the form, so will discuss appeal with client if award lower.

I'm in agreement with most of what you say. I would certainly deplore the practice of closing a case without further consideration, merely because some award had been made, no matter what the amount.

I'm mostly in agreement that an experienced rep can judge the level of risk, to some degree. But I'm not sure I would put that capacity at so high a level. Your assessment almost seems (and please accept my apologies if I've got this wrong) to hold with the notion of their being an objectively defined "correct" entitlement to DLA. The reality is that, for any given claim, there will often be a number of different outcomes, all depending on the decision makers judgement and opinions on matters that are not objectively defined, e.g. questions of degree, questions of reasonableness etc. Many different outcomes will be equally valid within the law. Neither legislation nor caselaw creates any rigid benchmarks of entitlement.

I hope you see where I'm going with this. I just think there is a danger of assuming a little too much capacity to predict the outcome. In very few cases is there only one legitimate opinion as to satisfaction of the test of entitlement.