Remember the cock-up DWP made with amending the backdate rules for CTB claims from people of pension age due to be implemented from 6/10/08 with the other backdate changes? For some reason there were two identically worded provisions (reg 53(1ZA) and reg 56) referring to 12 months and the amending regs only amended reg 56 to limit backdating to 3 months. Reg 53(1ZA) was amended to 3 months with effect from 27/11/08. So although the DWP intention was to limit CTB backdating to 3 months from 6/10/08, there was still a reg that allowed 12 months up to 27/11/08.

We have helped people over pension age lodge claims for CTB between 6/10/08 and 27/11/08 and requested 12 months backdating. The decisions we have got back seem to be a cut and paste reply from DWP HQ to the effect that they can choose which reg applies where there are 2 that conflict, the policy intention to restrict to 3 months backdating was clear in the explanatory note to the amending S.I. and "the continued existence until 27 November of an anomalous provision does not affect these changes..." Our view is that if a regulation existed up until 27/11/08 that allowed 12 months backdating then this can't just be made to disappear.

Has anyone else had similar decisions to us or have you had better luck? Are we barking up the wrong tree here? Is our (admittedly common-sense based) interpretation valid or are there more technical considerations that apply (e.g. any legal argument that where there is a conflict in the regs that the older version takes precedence over the newer reg until the anomaly is properly sorted out)?

Thanks for staying with me on this one (if indeed you have). I can see no reason for the continued existence of both reg 53(1ZA) and reg 56 as they are identically worded. Is there any reason why on would take precedence over the other in determining backdating?

Has anyone had one of these cases which has gone to appeal or to the upper tribunal? We have some appeals coming up on the issue and would be interested to hear how other people have got on.

My own feeling is that where you have two different regs, covering the same issue on the same facts, you can't apply both.

That means that you either pick one or apply neither. The latter option is out, as you have to cover the issue in some way, so how do you choose?

I'd go for the most recent change as that demonstrates a positive intention. The alternative argument is that in cases of confusion the status quo ante should apply. Pick your judge carefully.

Anyone tried arguing the age discrimination angle using the HRA? I was thinking of using that as a back up argument to get 6 months if the argument that it should be 12 fails. The obvious problem is needing continuous good cause, any other issues I should consider?