DLA Appointee’s
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Did you know that if you are the appointee of a child on Disability Living Allowance (DLA), by law your appointee status automatically ends when the child applies for Personal Independence Payment (PIP), unless you apply for it to continue? Read on to learn more…
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THE LEGAL BACKGROUND
All children (that is people aged under 16) on DLA must have an appointee by law, just because they are children. It doesn’t matter whether they need an appointee or not – all children on DLA must have one. This child appointee status is made under regulation 43 of the Social Security (Claims and Payments) Regulations 1987 and gives the appointee all the legal rights to deal with the DLA claim on behalf of the child, including the right to receive and spend the benefit money.
Once the child is close to the age of 16, the DWP will send the appointee a letter saying that the child’s DLA is going to end and that the child (not the appointee) must now apply for PIP. Most children’s’ appointees assume that they will continue to be the child’s appointee under PIP as well, and often DWP act as if this is the case.
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However, as was pointed out in a recent Upper Tribunal decision, Regulation 43 only applies to DLA, not PIP. So, legally, the DLA appointee status under Reg 43 automatically ends on the day that the child’s DLA ends. That means the former child will become legally completely responsible for their PIP claim as soon as their DLA ends - unless you can be made an appointee under another legal rule.
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The good news is that there *is* another legal rule by which you can be made an appointee. The less good news is that it is a much tougher rule.
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Regulation 33 of the 1987 Regulations allows someone to be an appointee of someone – an adult or a child - on DLA who is ‘unable to act’ in relation to their DLA claim. This power is typically used to make appointees for adults on DLA with learning disability, mental health issues, autism or brain injuries – ie people who lack some mental capacity. It tends not to be used for children who lack capacity because Reg 43 is a much simpler automatic process.
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Regulation 57 of the Universal Credit, Personal Independence Payment etc (Claims and Payments) Regulations 2013 is the same thing for PIP – someone can be made an appointee for anyone who is ‘unable to act’ in relation to their PIP claim because they lack capacity.
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Importantly, if someone has an appointee for DLA under Regulation 33, that person *automatically* becomes an appointee for PIP under Regulation 57 if the claimant moves from DLA to PIP.
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So, to sum up the legal position, if you are an appointee for a child on DLA under Reg 43, you automatically stop being the appointee when the child’s DLA claim ends. But if you are an appointee for a child or adult on DLA under Reg 33, you automatically stay as their appointee when they move to PIP.
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WHAT DWP IS DOING
According to DWP evidence given to the Upper Tribunal in case CPIP/2208/2017, this is how the system is SUPPOSED to work:
Firstly, DWP are supposed to write to the appointee of all children on DLA about 5 months before the child’s 16th birthday saying that they will need to apply for PIP before they turn 16. This ‘‘PIP Initial Contact Letter’ is supposed to include an ‘appointee enquiry form’. The form asks whether the child will need an appointee to act for them when they turn 16. If you do not return this form, or never get it, the DWP will assume that the child can manage their own affairs and writes only to them about their PIP claim.
Secondly, if you do return the ‘appointee enquiry form’ saying the child will need an appointee for their future PIP claim, the DWP is supposed to arrange for a ‘Visiting Officer’ to visit the child to see if they do lack the mental capacity to manage their PIP claim. If the Visiting Officer is satisfied that the child won’t be able to manage their PIP claim, the DWP will convert the child’s existing Reg 43 ‘child appointee’ into a ‘unable to act appointee’ under Reg 33. You will still be the appointee with exactly the same rights and responsibilities, but under a different legal power. You should get a DWP Form BF57 confirming this.
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Thirdly, and crucially, when the child transfers to PIP, you as a Reg 33 appointee for DLA will automatically become a Reg 57 appointee for PIP. You should get another DWP Form BF57 confirming this. Remember, if you had stayed as a ‘because they’re a child’ Reg 43 appointee for DLA, you would have stopped being the appointee when the child’s DLA stopped.
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THE PROBLEMS
Problem 1 is that, unlike for children, you can only be the appointee for someone on PIP if the DWP agree that the person is ‘unable to act’ for themselves. This is a test of mental capacity and the fact that someone is a teenager or young adult is NOT enough reason for them to have an appointee. Inexperience or irresponsibility is not a disability. There has to be other good reasons which will persuade the DWP Visiting Officer, such as learning disability, mental health issues, a neurological or neuro-behavioural condition like autism, or a brain injury. So, a lot of 16-year-olds might suddenly find themselves having to make decisions about complex benefit issues, as well as managing the money which will become legally theirs to do with as they wish.
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The DWP Visiting Officer will expect to see and talk to the child as well as you, and may want to see medical evidence too. Do not assume that the Visiting Officer will agree with you as the parent– be prepared to persuade them with evidence.
Problem 2 is that DWP rely on YOU to tell them that you would like your child to have an appointee when they move to PIP. If you don’t do this, DWP will allow your appointee status to automatically end. So, you need to think about taking control of the process, and not relying on DWP to ask you about this. As we all know, DWP make lots of admin errors and lose a lot of documents.
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Problem 3 is that DWP themselves may be breaking the law by illegally carrying forward DLA child appointee status into PIP claims even though there is no legal power for this to happen. BuDS is aware of lots of PIP appointees who just ‘carried on’ being the appointee when the child switched to PIP. However, the Upper Tribunal decision which exposed this issue will spur DWP to look at all PIP appointees for young people to check that they are in fact legal. Again, we think you would be better to take control of the process, and not rely on DWP to sort out the issues in their usual muddling way.
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WHAT YOU SHOULD THINK ABOUT IF YOU ARE THE DLA APPOINTEE OF AN OLDER CHILD WHO *HAS NOT* BEEN TOLD TO APPLY FOR PIP
If you are the appointee of a child on DLA who is approaching age 16, you should think about immediately checking what sort of appointee you are. You should have a DWP Form BF57 about this. If you don’t, consider ringing up DWP and asking them to send you one.
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If you are shown on the BF57 as the child’s appointee under regulation 43 of the Social Security (Claims and Payments) Regulations 1987, by law your status as appointee will automatically end with your child’s DLA claim.
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If you don’t think your child can manage their PIP claim themselves BECAUSE of their disability or medical condition, you should think about contacting DWP and asking them to send a Visiting Officer to assess your child for an appointee under Regulation 33 of the 1987 Regulations, because they are ‘unable to act’ in relation to their DLA claim and will be ‘unable to act’ in relation to their future PIP claim. Remember, you can’t be a Reg 33 appointee just because the child isn’t mature or experienced enough to manage their claim. They have to have a good reason why they lack mental capacity because of their disability or medical conditions.
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If you are successful in converting your Reg 43 appointee status to a Reg 33 appointee status while the child’s DLA is still being paid, then you will stay the child’s appointee when their DLA stops and their PIP starts, because your Reg 33 status for DLA will automatically switch to being a Reg 57 for PIP. If you don’t get a Reg 33 appointee status because the Visiting Officer doesn’t agree that your child lacks capacity, then you will remain appointee until the child’s DLA ends, but after that the child will have to manage their PIP claim themselves.
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If in due course the young person proves unable BECAUSE of a disability or medical condition to manage their PIP claim, you can re-apply for Reg 57 appointee status for PIP. This will involve another Visiting Officer visit and assessment.
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WHAT YOU SHOULD THINK ABOUT IF YOU ARE THE DLA APPOINTEE OF AN OLDER CHILD WHO *HAS* BEEN TOLD TO APPLY FOR PIP
First of all, you might want to quickly check your current appointee status by looking at the last DWP Form BF57 you have. If you don’t have one, consider ringing up DWP and asking them to send you one as soon as possible.
If you are still the child’s appointee under regulation 43 of the Social Security (Claims and Payments) Regulations 1987, and haven’t already started to change your status to a Reg 33 appointee, by law your status as appointee will automatically end with your child’s DLA claim. If you don’t think your child can manage their PIP claim themselves BECAUSE of their disability or medical condition, you should think about acting quickly. Consider ringing DWP immediately and asking for a Visiting Officer to call as soon as possible, saying that the PIP claim is already underway. Remember, if you haven’t changed your status from a Reg 43 appointee to a Reg 33 appointee by the time your child’s DLA claim ends, your appointee status will automatically end when the DLA claim ends.
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Also remember, though, that you can’t be a Reg 33 appointee just because the child isn’t mature or experienced enough to manage their claim. The Visiting Officer has to see a good reason why the child lacks (and will lack in the future) mental capacity because of their disability or medical conditions.
If you are successful in converting your Reg 43 appointee status to a Reg 33 appointee status while the child’s DLA is still being paid, then you will stay the child’s appointee when their DLA stops and their PIP starts, because your Reg 33 status for DLA will automatically switch to being a Reg 57 for PIP.
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It may be that you start the process of converting your Reg 43 appointee status to a Reg 33 appointee status during the PIP claim, but the DLA ends before DWP make a decision on changing your appointee status. If this happens, legally, your appointee status ends the day the DLA ends, and this may cause problems if your child is not ready or able to manage their PIP claim. All you can do is ring DWP and ask them to make an urgent decision to make you the PIP appointee under Reg 57 of the 2013 Regulations, using the DLA evidence about capacity. This might or might not work.
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If you don’t get a Reg 33 appointee status because the Visiting Officer doesn’t agree that your child lacks capacity, then you will remain appointee until the child’s DLA ends, but after that the child will have to manage their PIP claim themselves. If in due course the young person proves unable BECAUSE of a disability or medical condition to manage their PIP claim, you can re-apply for Reg 57 appointee status for PIP. This will involve another Visiting Officer visit and assessment.
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WHAT YOU SHOULD THINK ABOUT IF YOU ARE THE PIP APPOINTEE OF A YOUNG PERSON WHO HAS ALREADY MOVED FROM DLA
DWP may have wrongly treated you as your child’s appointee for PIP just because you were their appointee for DLA, forgetting that there’s no legal power to carry forward Reg 43 DLA child appointee status into PIP claims. If this applies to you, you might suddenly get a letter stripping you of being appointee for a young person on PIP. This might happen even if the young person does in fact lack capacity, because the young person might not have been assessed for capacity in the proper way if DWP made a mistake.
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You might like to think about checking your current appointee status by looking at the last DWP Form BF57 you have. If you don’t have one, consider ringing up DWP and asking them to send you one as soon as possible.
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If your Form BF57 says that you have been appointed as appointee for DLA under Regulation 33 of the 1987 Regulations or PIP under Regulation 57 of the 2013 Regulations, your appointee status remains valid and you don’t need to worry. If, on the other hand, your BF57 says that you were made appointee under Regulation 43 of the 1987 Regulations, then your appointee status has in fact already ended. You would need to think about asking DWP to urgently make you the PIP appointee under Reg 57 so that you could continue to manage the PIP claim on behalf of the young person. While this would involve a Visiting Officer visit and capacity assessment, it could prevent a sudden and unplanned loss of appointee status in the middle of a claim.
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FINALLY
This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information, not legal advice, and you should take advice on your own case. Feel free to share this, but if you do, we require that you share the complete document and make sure BuDS is given credit. Sharing extracts or sharing without giving credit is a breach of copyright and BuDS’ intellectual property rights and action may be taken against you. .