DSS balking at back benefits: Despite a test-case win, pensioners are being denied extra payments. Sue Fieldman reports

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THE DEPARTMENT of Social Security is controversially refusing to pay thousands of pounds of extra benefit to pensioners following a test case.

On 2 December, the Court of Appeal upheld a claim by two men who contended that the DSS had wrongly refused them an addition to their state pension in respect of their wives.

A flood of backdated claims for payments as far back as 1988 was expected as a result. It is thought that the decision could cost the DSS as much as pounds 150m in back-payments.

Under the regulations, a man drawing a state pension may claim an extra amount if he has a dependent wife. The increase is not awarded if his wife earns more than a certain amount - currently pounds 32.55 a week.

For some years the DSS has, for this purpose, treated occupational pensions as earnings. However, last year's judgment said an occupational pension should not be treated as earnings if the wife is not inemployment.

Two days after the case, new legislation was rushed through to ensure that occupational pensions would be counted as earnings in all cases.

The question of back-payments remains. An Independent reader from Gwent recently claimed his extra payment. In a letter dated 5 January, the DSS said that he could only apply for an increase in dependency benefit for the period 2-4 December. His application was rejected. He is not alone. The DSS is trying to limit any arrears to the three days from the date of the decision until the date the law was amended.

It is relying on 'anti-test case rules' to justify its refusal to pay any claims dating back to 1988. This legislation was introduced in an attempt to limit the amount of arrears paid after a successful test-case.

Richard Poynter, of solicitors Sinclair Taylor & Martin, specialises in DSS cases and represented the men involved in this case. He said that anti-test case rules do not apply to this particular decision and that the DSS is wrong to turn down back-dated claims.

He advised: 'In my view people are fully entitled to claim back-payments and applicants should not be put off. They should appeal against the decision.'

Age Concern, which backed the Court of Appeal case, has published a useful, free leaflet on the consequences of the case and how to appeal.

For the free leaflet enclose an sae and send to: Age Concern, Astral House, 1268 London Road, London SW16 4ER.