Terms & Conditions

[anthony]

Our claimant first claimed in May 2006. We paid them from this date.
In August 2006 they requested backdating to September 2005.

He is required to show continuous good cause from September 2005 until The date the [b:86347ce5fb]backdating request[/b:86347ce5fb] was made in August 2006, according to reg 83(12).

Because he made a succesful claim in May 2006 is it possible for good cause to be shown for the period May-August 2006?

The fact that a claim was made would seem to negate the possibility of good cause for not making one.

We are thinking that as the good cause isn’t [b:86347ce5fb]continuous[/b:86347ce5fb] covering any period earlier than the backdate request claim was made, the whole request must fail. This is from a close reading of the regs but obviously quite a common scenario – We can’t find any sign that this has come up before in commissioners decisions etc, so are we barking up the wrong tree? – How so? – Which tree is best?

For the sake of argument lets say we agree good cause for the period September 2005 – May 2006.

Thanks in advance.

[seanosul]

Where the claimant makes a claim in respect of a past period (a “claim for backdating”) and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on-
(a) the first day from which he had continuous good cause; or
(b) the day 52 weeks before the date of the claim for backdating,
whichever fell later.

I would suggest that as it refers to the claim for backdating, that refers to the period being claimed.

[anthony]

[i:f65774295a](b) the day 52 weeks before the date of the claim for backdating,
whichever fell later. [/i:f65774295a]

This would be August 2005.

[i:f65774295a](a) the first day from which he had continuous good cause; or [/i:f65774295a]

This is the tricky one – think about the day before the backdate request was made. How can it be argued that good cause for not making a claim for benefit existed on that day when a claim [b:f65774295a]actually had been made [/b:f65774295a]before that?

[Anonymous]

I’ll give you a screnario Anthony, but it obviously may not be the same as yours.
If the person claiming had taken advice from what we would consider to be a good source, and they informed him of his right to claim, but either did not inform or misinformed him of the possibility of backdating, then he subsequently found out and then claimed backdating straightaway, then I believe there would be continuous good cause. 8)
This may be miles away from your case, but you said in your post
“How can it be argued that good cause for not making a claim for benefit existed on that day when a claim actually had been made before that?”

I feel that the above is a valid example.

[jmembery]

My view is that all references to “claim” in reg 83(12) must be read as referring to a claim for backdating.

So the claimant must show good cause for not having made a claim for backdating at an earlier date.

It is therefore possible for a claimant to continue to show good cause for not having made a claim for backdating despite having made a claim for an ongoing period.

As in the above post, being mislead by official information (I.E being told there was no provision to make a backdated claim) would be one good example.

[petedavies]

In theory I can see nothing to prevent it. You are looking at why no claim was made between the start of the backdating period and the date the claim (for backdating) was made.

In practice the vast majority of claim forms invite a claim for backdating- I suspect that the failure to take advantage of this invitation would, generally, lead to an uphill struggle to demonstrate good cause.

The claimant would not merely have to demonstrate good cause for not having made a claim earlier but not having made use of the invitation.

[Julian Hobson]

The good cause wouldn’t need to be the same throughout the period in question but it does need to be continuous.

If between august 2005 and may 2006 he was in hospital and can show good cause, he would then need to show good cause for some other reason from may to the claim for backdating. He might argue that his good cause for the second period is that he was unaware that he could make a claim for backdating before the date on which he did so. Whether you accept that as good cause is upto you and his circumstances.

The length of time for the second period might be important.

I think most cases involve this scenario. I can’t think of any backdating case in which the original good cause persists until the last minute of the claim. I accept that in most cases the second period amounts to days rather than months but the principle applies irrespective of that.

I think you need to explore what the reasons are for the lack of a claim in the May to August period and establish whether it amounts to good cause.

[janish]

Hi anthony
‘fraid I disagree with most of the replies, and think you are correct with your initial interpretation i.e. good cause is required for the failure to make a claim for benefit, in your example it’s required until August 06, but their failure to claim benefit was remedied in May 2006—-so his backdating claim can’t be treated as being made on any other day than the day it was actually made i.e. Aug 06 ( so no backdating).

His last day for making a claim for backdating that had any chance of success was the day he claimed benefit in May 06 (IMO)

[Kevin D]

Earlier threads may be of interest:

http://hbinfo.org/forum/viewtopic.php?t=7507
http://hbinfo.org/forum/viewtopic.php?t=1915

As suggested in the “7507” thread, I have tended to look at the fact that [b:63ea247d28]HBR 86(12)[/b:63ea247d28] refers to the failure to make [b:63ea247d28][u:63ea247d28]a[/u:63ea247d28][/b:63ea247d28] claim – not “that”, or “the”, claim. But, I accept it may be arguable.

I have a feeling that this was touched on in one of the backdating CDs – but I can’t for the life of me recall which one (or if it’s just my memory playing tricks….!). If I can locate such a CD, I’ll post again.

Backdating CDs (in case anyone else cares to delve….):
new.hbinfo.org.com/menu2a/list_bdtg_comdecs.php

Regards

[petedavies]

I still think that it is up to the date of the claim for backdating that is important:

[i:31e12c1824]”(12) Where the claimant makes a claim in respect of a past period (a “claim for backdating”) and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on–
(a) the first day from which he had continuous good cause; or
(b) the day 52 weeks before the date of the claim for backdating,”[/i:31e12c1824]
The subject is the date of claim for backdating rather than a claim for benefit.

There are two cases I am aware of:

5015/2002 – The old R74 as a means to amend the original claim. My first thought that this tended to butress Janis & Anthony’s interpretation. Having thought further it does make sense to use it as an argument anyway since it reduces the period during which good cause has to be shown to exist and overcomes the point about a claim form which may invite backdating.

1584/2004 – This seems to have simply considered the “good cause” from the date of the claim for backdating to the start of the period it was claimed for. The assertion that backdating cannot apply post a decision being made on a claim does not seem to have been argued.

The finding itself does, however tend to butress the argument that good cause is far less likely to exist after a claim has been made: “..[i:31e12c1824]a sensible person would, when making the new claims for benefit, at least have asked about the position before that…[/i:31e12c1824]”

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