Terms & Conditions

[Anonymous]

Hi y’all,

I am having a debate here just now and I would be grateful for some back up.

The scenario is this:- a claimant advises us that he is now on IS, but does so three months after the award was made. My arguement is that regs 7(2)(i) and reg 8(14) of the Decisions and Appeals Regs apply; the IS is taken into account from the Monday after it was awarded from. My colleague contends that this still doesn’t get past 8(3), regarding late notification of a beneficial change.

So I point to circular A35/03 and say that there was no point in bringing in this change if it has no effect (because of 8(3)). My colleague contends that this still doesn’t get past 8(3).

So I say that the reg needs to be looked at as a whole, not just the bits he wants; reg 8(14) says, in this circumstance, the change is treated as taking place from the start of the award of IS. My colleague contends that this still doesn’t get past 8(3)!

Arrrrrgh! Am I losing it (always a possibility) or is there something to back me up here? I’d be suprised if it has come up before commissioners and I can’t think that there is any further guidance.

Cheers,

Darren

[Anonymous]

I think your interpretation is the correct one – the award of a relevant benefit makes this change ‘exempt’ from the late notification rules.

There is also this in the Manual – the final paragraph clinches it, I think:

“HB/CTB entitlement and relevant benefit

10.410 Regulations allow decisions to be changed in order to take account of the award of a Social Security benefit (qualifying benefit) which is advantageous to the HB/CTB claimant at any time and without restriction on arrears.

“D&A Regs 2001 regs 4(7B),
(7C) (reg7(2(i)) reg 8(14)”

10.411 When there is an existing HB/CTB award, and entitlement to a relevant benefit arises which affects entitlement to, or the award of HB/CTB, the HB/CTB decision can be either

* revised at any time and without restriction on arrears, if the relevant benefit entitlement arises from the same date as HB/CTB
* superseded, if the relevant benefit entitlement arises from a later date than HB/CTB

Note: The revised or superseded HB/CTB decision takes effect from the same date as the award of the relevant benefit regardless of when you were notified of the award.”

[Anonymous]

I agree. Your colleague is not seeing the links between the effective date rules in Reg 8 and their corresponding grounds for supersession in Reg 7. If you make a superseding decision under Reg 7(2)(i), Reg 8(3) has nothing to do with it. Reg 8(3) only applies to superseding decisions made uunder Reg 7(2)(a) (generic change of circs). Given that Reg 7(2)(i) provides very specific grounds for supersession when a relevant benefit is awarded, I don’t see how you can possibly argue that the superseding decision is amde under Reg 7(2)(a) – Reg 7(2)(i) would be completely otiose otherwise. So the ground for supersession is Reg 7(2)(i) and the effective date is governed only by Reg 8(14).

[Anonymous]

Thanx chaps.

I’ve tried to go down the route of “why are you superseding the decision?” As Peter says, in this case, it is not because “there has been a change of circumstances” as defined in reg 7(2)(a) of the Decisions and Appeals regs. If it were, then reg 8(2) would apply and the advantageous change clause in reg 8(3) would take effect.

Instead, the reason for the supersession is the award of a relevant benefit, as per reg 7(2)(i). Reg 8(2)-(3) cannot apply here because you are not superseding for a “change of circumstances”. Reg 8(14) must apply, as it specifically refers to reg 7(2)(i).

So I appear to have convinced my colleague (either that or he’s just given up), now I just have to convince the person he was discussing it with! 🙄

If the job was easy, they wouldn’t need people of our calibre to do it…… 8)

Cheers,

Darren

[Anonymous]

Hi Folks,

I’m reviving this thread because we have been discussing this issue in our office.

I’m trying to convince my colleagues that awards of relevant benefits are not subject to the advantageous change rules.

DWP guidance is treated with a certain amount of scepticism in these parts, so I was wondering if anyone knows of any caselaw that may have touched upon this issue?

[Anonymous]

If there is no caselaw, my argument would be “clearly no one was stupid enough to go to the Commissioners having incorrectly applied the disadvantageous rules to a retrospective award of a relevant benefit”.

Alternatively, instead of relying on the DWP Guidance, ask them to counter Peter Barker’s explanation above.

[Anonymous]

I’m with Andy. There is no caselaw and there is nothing to show the guidance [i:2be05da7b1]is[/i:2be05da7b1] wrong. Unless someone else wants to take it as far as the Commissioners. We should treat DWP guidance with a healthy scepticism, but in this case the original circular and the Guidance manual are pretty unambiguous. I’m happy with it.

My angle has been, “that’s why the legislation was changed in 2003; there was no point doing that if it were to have no effect!” My exasperated expression at this point seems to have worked and I have got people here singing from my hymn sheet.

For now.

Cheers,

Darren

[chris harvey]

Peter’s earlier analysis is spot on. The law is very clear and this is most probably why there have been no cases that have got to a Commissioner.

[Anonymous]

I shall just have to persevere then. I think its one of those situations where people have done things a particular way for quite some time and are resistant to change.

[chris harvey]

Try this analogy on them –
The law says that when a claim is made you start their benefit from the Monday after. There is another law that says for pensioners you can treat their claim as if it was made a year earlier. Now because there is a law that says the Monday after, do we ignore the other law when we get a pensioner claim and insist their claim starts the Monday after receipt. Does the Monday after law negate the 12 month rule for pensioners? Of course it doesn’t and the same principles apply here, there is a law that says apply the change from the time notified and another that says apply it from an earlier date. The second law can and should be applied if the rules are met and is not over ruled by the first. If that were to be so the law would make the second rule subject to the first but it doesn’t.

[chris harvey]

Had another thought on this. The list of qualifying benefits where we should go back even if the change is beneficial includes Guarantee Credit. However the SPC regs tell us that where the claimant is at fault for notifying the Pensions Service late then we should not go back. It seems to me therefore that the SPC rule is irrelevant because DAR 8(14) will always apply in these scenarios. The guidance we had in the circular when SPC came in suggested we checked the ETD for the late notification marker to identify cases where we do not go back. This guidance would appear therefore to be wrong as the presence of the late notification marker on the ETD will have no effect on the start date.

[APT]

[quote:c3b73b3af2=”chris harvey”]Had another thought on this. The list of qualifying benefits where we should go back even if the change is beneficial includes Guarantee Credit. However the SPC regs tell us that where the claimant is at fault for notifying the Pensions Service late then we should not go back. It seems to me therefore that the SPC rule is irrelevant because DAR 8(14) will always apply in these scenarios. The guidance we had in the circular when SPC came in suggested we checked the ETD for the late notification marker to identify cases where we do not go back. This guidance would appear therefore to be wrong as the presence of the late notification marker on the ETD will have no effect on the start date.[/quote:c3b73b3af2]

I’m assuming that you mean this SPC reg.

[url]https://hbinfo.org/menu2/pchbregs06/060_06pc.shtml[/url]

The only reference concerning late notification to TPS appears in paragraph 3 and covers cases where a decrease in SPC also decreases HB so would not be an advantageous change.

ETA: So if they delay in telling TPS you go back, if they have not delayed go to date of change or date we are notified.

Paragraph 7 of that reg also states where GC awarded this is from the Monday following unlike DAR 8(14) which states the day of the week.

Or have I got the wrong reg? 😕

[chris harvey]

Yes APT, you are right. I’ve checked the various scenarios when SPC is altered and as you say its only in disadvantageous cases where the claimant failed to tell the Pensions Service that you go back.
So there is no conflict after all, we can go back in advantageous cases under either DAR 8(14) or HB(SPC) reg 60(7). The only problem is the date the change takes effect from, the Monday after or the actual day.

[APT]

I would hazard a guess at:-

If we are notified of the receipt of GC within one calendar month of date of award then you are not having to go anyway near DAR 8(14) so the effective date is the Monday following.

If the notification of receipt of GC occurs after a calendar month has elapsed, DAR 8(14) comes into play, so effective date is date of award.

[Anonymous]

I think there is double provision for changes of circumstance involving Pension Credit. On the one hand you have D&A Reg 7(2)(i) and 8(14) – relevant benefits, of which Pension Credit is one. The superseding decision takes effect from the exact date of the award of the relevant benefit.

But you also have Reg 7(2)(a) (generic change of circumstance) and the effective date governed by Reg 8(2), which in turn imports Reg 60 from the principal HB Regs. In the case of GC commencing, Reg 60(7) gives the following Monday as the effective date.

These two provisions are in direct conflict with one another; since one makes specific provision for Pension Credit ans the other deals with all relevant benefits, I would lean towards relying on HB Reg 60.

I don’t think D&A Reg 8(3) (late reported change) would ever come into it, because it only applies to changes of circumstance that the claimant is under a duty to disclose. Reg 69 lists the things that a person on HB and Pension Credit is required to disclose, and commencement of entitlement to Pension Credit is not one of them. The whole thing is ETD-driven. Before you say it, yes I know they are not on Pension Credit until they are on Pension Credit, but I say once they are on Pension Credit they are on Pension Credit, like now this second, so there is instantly no duty to report.

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