Hello, can't seem to change my profile but am now a HB appeals officer.

I Had a strange request from district chair regarding one of my cases. Claimant is full-time student with epliepsy and wants to claim HB for Hall of Residence. She does not get IS/IB/DLA and so does not have Disability Premium but does get disabled students allowance.

Claim was turned down and she appealed. District chair asked us to write to the DWP and ask whether there's a procedure for referring people to them to decide whether or not they are entitled to Disability Premium.

Does anybody know whether they do have a procedure and what it is?

Thanks

In answer to your question - i don't know.

However as the disability premium only comes as part of a benefit such as Income Support i can't see how this student can be entitled to it unless she claims IS.

That's what I thought and put this in my submission but the chair, who happened to be Richard Poynter, seemed to think that this may not necessarily be the case. I've written to the DWP and await their response with bated breath

The only means by which the Disability Premium can be awarded is (usually) if the clmt (or ptnr) is in receipt of a qualifying benefit (e.g. DLA / Incap / SDA etc). For full details of the qualifying conditions for the DP, take a look at paras 12 & 13 of Sch 3 of the HB regs.

To my knowledge (15+ years in HB admin), there is no provision for the "prodedure" suggested by the Tribunal.

Even if the DWP state a DP is due for HB (or ANY premium for that matter), it is not their decision. HB decisions are made by the LA and the LA alone. A Tribunal cannot lawfully import powers relating to another benefit.

Hope the above helps, even if it isn't the answer you wanted.

This may be completely off the wall, but perhaps Mr Poynter is referring to the provision whereby you can have entitlement to the DP by virtue of being judged 'incapable of work' though not receiving a benefit related to that incapacity.

I guess it does fall to the DWP to determine this (though of course it is the LA's decision to actually award the DP in HB). I would imagine that some LA's might have a procedure for doing this - and probably alot do not.

What about para13(1)(b) of Sch 3 which simply says that claimant has to be incapable of work for 364 days? There is nothing in that para to say the claimant must be claiming any other benefit.

This actually refers to incapacity for work for the purposes of the Incapacity Benefit legislation. I have always understood this to mean that if someone is only claiming HB and they want to be awarded the Disability Premium, they have to satisfy the DWP that they are unfit for work 9and have been for 12 months), rather than the local authority. And they can only do this by submitting medical evidence to the DWP and satisfying the all work test. My reading of the HB Regs (and that of Findlay etc) is that this decision has to be made by a decision maker at the DWP, and can't be made by a local authority.

Therefore, someone in this position will have to make a claim for NI credits based on incapacityl, and submit themselves to the usual tests.

Bob is entirely correct, and Mr Commissioner jacobs confirmed in CH/4424/2004 in the context of old Reg 11 that the determination of incapacity for work is a matter for the Secretary of State

But isn't the point that incapacity for work is the issue, not whether the claimant has made a claim for ICB/IS? Isn't the Chairman suggesting (and the notes in Findlay - which may have been written by Richard Poynter - seem to me to support this) that the DWP can be asked to make a decision on incapacity for work for the purposes of the HB claim without any claim for ICB being made?

The HB regs seem to me to assume that this is possible, since they don't require incapacity to have been assessed in the context of ICB. I have to admit I can't see any reason not to claim ICB, since at the very least a client could get entitlement to NI credits, but it seems to me that the HB regs imply that the SofS can make a decision on incapacity for HB purposes only. Whether there is any administrative structure that would allow for it is of course a different matter.