Operational Guidelines: Illness Benefit - Late Claims for Illness Benefit

Under Section 241 of the Social Welfare Consolidation Act 2005 regulations may be made to provide for disqualifying a person for receiving benefit if the claim is not made within the prescribed time. This section of the Act also provides that such regulations may provide for extending the period in respect of which a disqualification will not be imposed.

The principal regulation governing late claims is contained in the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 ( S.I. 417 of 1994) (as amended by S.I. 55 of 1998) and these regulations were further extended by S.I. 142 of 2007.

In order for any claim for Illness Benefit to be considered, the customer must firstly establish entitlement. This means that they must make the application on the prescribed form and provide medical evidence certifying the nature of the illness and dates or frequency of medical examination since the illness commenced. If the medical evidence supplied is not adequate, the customer should be requested to provide more detailed evidence. A request for medical evidence or additional medical evidence does not commit the Deciding Officer to allowing a claim for backdating of payment.

Under the regulations, the prescribed time for making an Illness Benefit claim is 6 weeks from the date of commencement of illness. For claims received more than 6 weeks after commencement of illness, where good cause has been shown for the delay in making the claim, it may be admitted from an earlier date subject to the condition that no benefit may be paid for any period which is more than 6 months before the actual date on which the claim was received in the department.

"Good cause" is not defined in legislation. However, all circumstances advanced by a customer will be considered by the Deciding Officer as to whether it constitutes 'good cause'. The question to ask is "did the customer act reasonably taking into account their age, educational standard, health, domestic circumstances?"

Customers are expected to take reasonable steps to find out about their rights. Good cause may be shown where the delay in claiming was caused by the customer relying on information given by an organisation which makes available Social Welfare leaflets/claim forms etc. For example: Post Offices, Citizen's Advice Bureau, etc. However, unofficial advice from colleagues, friends or relatives would not normally be considered good cause.

Examples of "good cause" may, depending on the circumstances, be:

• customer hospitalised
• customer living alone
• serious illness
• bereavement

The Claims and Payments Regulations were amended by S.I. 142 of 2007.

Under the amended regulations, the period for which payment may be back-dated may be extended beyond 6 months in the following circumstances and only in these circumstances:

• where the failure to claim within the prescribed time arose as a result of information supplied by staff of this department to the customer or to someone acting on their behalf
• where the delay arose because a customer was so incapacitated by illness that they were not able to make the claim or instruct another person to act on their behalf

Deciding Officers should be careful when dealing with late claims, particularly where a claim is made more than 6 months after the commencement of illness.

If the claim is made within six months of commencement of illness and if the customer has detailed 'good cause' for the delay, a Deciding Officer may at their discretion decide to pay the claim from the date of commencement of illness. If, however, the incapacity commenced more than six months before the date of receipt of claim it will be necessary for the customer to supply additional information or evidence to substantiate their claim for further back-dating.

Information

The amended legislation mentions "information" not necessarily "wrong information". It will be difficult to substantiate a claim for back-dating under this heading as it may be impossible to establish where, when or by whom the information was given. The following questions should be considered:

• how clear is the customer about the information given?
• can customer identify the person who provided the information?
• is it reasonable to believe that the person so identified might have given the information reported?
• was the point at issue unusually complex and one not normally addressed by departmental staff?
• was the information the main reason for failure to notify the claim on time?

Another factor to be taken into consideration is that a customer may have been given correct information but may have acted incorrectly through misunderstanding. The Deciding Officer should consider whether the delay in claiming was due to mistaken belief that was reasonable in the circumstances.

Illness

A claim for further back-dating may be considered where the nature of a customer's illness prevented them pursuing a claim or appointing someone else to make the claim on their behalf. The customer will need to provide very specific medical evidence certifying how the illness of itself prevented the customer pursuing the claim or appointing someone else to do it on their behalf. It will also be necessary to ascertain at what point the customer's condition improved to a degree which would have allowed them to make the claim or appoint a person to act on their behalf.

Where a customer's condition has improved to such an extent as would have permitted them to make the claim, the claim must be made within 7 days of such improvement unless there was further good cause for the continued delay. Where good cause is accepted, the claim must have been made within 6 months of customer's improvement.

A claim for further back-dating cannot be entertained where the customer did not make the claim within 6 months of their condition improving to such a degree as would have permitted them to pursue the claim or appoint someone else to do so.

Example: A claim for IB is received on 1 July 2012 which indicates that the customer suffered a coma on 1 Sept 2011. The medical evidence regarding the incapacity is not in dispute. However, before backdating can be considered, a doctor will need to provide detailed medical evidence as to when the customer regained consciousness and whether or not the customer's condition was such that they could reasonably have been expected to have made the claim or appoint someone to make it. It may be necessary to seek the opinion of the department's Medical Adviser in these cases.

In the above example, it may transpire that the customer regained consciousness on 1 Nov 2011 and that by 1 Jan 2012 they were sufficiently well to be able to make the claim. The claim should, therefore, have been made by 8 Jan 2012, that is within 7 days of 1 Jan. If, however, there was further good cause for the continued delay in claiming, the period may be extended to 6 months.

In this case, provided the claim was received by 1 July 2012, payment would be made for the period 1 Jan 2012 to 1 July 2012 plus the period the customer was too incapacitated to claim, that is 1 Sept 2011 to 31-Dec-2011.

If the claim was not made until after 1 July 2012 then further back-dating could not be considered.

The following circumstances, while they may be considered good cause for back-dating payment for 6 months, are NOT regarded as a basis for further back-dating of payment of Illness Benefit:

Where the delay in claiming was caused by:

• lack of knowledge about entitlement
• lack of knowledge by someone acting on the customer's behalf
• lack of knowledge by third parties
• information supplied or advice given by agencies other than the Department of Employment Affairs and Social Protection
• failure to act by individuals or agencies other than the Department of Employment Affairs and Social Protection

Compensation for loss of purchasing power must be made where there has been a delay of more than 12 months in issuing payment and, where it is established that the department was solely responsible for the delay.

Information regarding procedures for dealing with compensation payments is available in the Claims and Late Claims Guidelines.