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Feature

posted 24 Jan 2001 in Volume 6 Issue 2

There have been a number of recent changes, brought about both by Commissioners' rulings and by legislative changes, as well as announcements of forthcoming changes which will (mostly) come into effect next April. This article brings together some of the principal changes.

The annual benefits uprating has been announced. Most benefits will rise in line with inflation. However, some benefits will rise at a higher rate. The carer premium, whereby the income support level of a person caring for another in receipt of attendance or disability living allowance is increased, rises by £10 on top of the normal uprating, from £14.15 to £24.40. This is part of a wider range of measures directed at carers, which also includes an increase in the maximum amount which a carer can earn and still be entitled to the benefit, from £50 a week to £67 a week (pegged to the lowest level at which national insurance contributions are payable).

It is also intended to remove the age limit of 65 on claiming Invalid Care Allowance. This will not be done in April as it requires primary legislation. The immediate effect of the change will be minimal for those over 65 on retirement pensions, as they will not be entitled to claim both benefits. However, entitlement to ICA will also give entitlement to the carer premium for those on means tested benefits such as income support.

There are to be increases in the capital levels for those over 60. The Social Security Amendment (Capital Limits and Earnings Disregards) Regulations 2000 (SI.No.2545) amend the rules for Income Support, income-based JSA, Housing Benefit and Council Tax Benefit. At present there is a capital cut-off for income support claimants of £8,000, unless they are permanently in residential care, when the figure rises to £16,000. Capital of over £3,000 is deemed to bring the claimant income of £1 for every £250 above £3,000 (the 'tariff'). The equivalent cut-off for housing and council tax benefit claimants is £16,000, again with tariff income from £3,000. Tariff income for those permanently in residential care begins at £10,000.

For income support, there will be a capital cut-off of £12,000 for claimants who are aged 60 or over, or who have a partner aged 60 or over. The tariff income rule will only apply to capital in excess of £6000. The capital level of £16,000 for housing benefit and council tax benefit will not be increased, although the new tariff income rule will apply. There is also a possibility (not confirmed at the time of writing) that the capital limit for those in residential care is set to rise from £16,000 to £18,000.

There will be an 'enhanced disability premium' to be included in means tested benefits from April 2001. It will be included in the calculation where the highest rate care component of disability living allowance is payable in respect of either the claimant or a member of the claimant's family, providing the DLA recipient is aged less than 60. It will not be payable in addition to a pensioner or higher pensioner premium, nor to a single claimant who has been in hospital for more than six weeks, or to a couple both of whom have been in hospital for that period. The premium is set at £11.05 for a single person and £16 for a couple.

Retirement pension is to rise in April by £5 a week to £72.50 for a single person and by £8 to £115.90 a week for a couple, which will go some way towards addressing the criticism heaped on the Government after last year's 75p rise. Widows and bereavement benefits (see below) will also rise to £72.50.

Also with effect from next April, the new rules which extend widows benefits to widowers will come into effect. Benefit will be payable where the deceased spouse paid adequate contributions during his or her working life. There will be three benefits; the bereavement payment of £2,000, the bereaved parents' allowance for widows and widowers with dependent children (payable for so long as there is at least one dependent child) and the bereavement allowance for those aged at least 45 who do not qualify for the bereaved parents allowance.

New regulations (the Social Security Amendment (Bereavement Benefits) Regulations 2000 (SI.No.2239)) address the relationship between bereavement benefits and means tested benefits. Those aged between 55 and 60 at 9 April 2001, whose spouse dies within five years of that date, and who are also single claimants, are exempted from the requirement to be available for, and actively seeking, work. There will be a 'Bereavement Premium' - of £15.30 - for such persons where they had been, but are no longer, entitled to a bereavement allowance. The premium will be payable with IS, income-based JSA, Housing Benefit and Council Tax Benefit, until 9th April 2006. Finally, there will be a £10 disregard of widowed mothers allowance and bereaved parents allowance to be offset against a claim for income support, and up to a £15 disregard for housing and council tax benefit.

Changes to the rules governing the rights of widows and widowers to inherit their spouse's State Earning Related Pension (SERPS) were made in 1986. However, many people (on the Government's estimate, millions) were given wrong information about the changes (As a result, the Government announced earlier this year that the changes would be deferred to October 2002). Details have now been announced of the way in which the Government proposes to address the problems caused by the lack of information.

All those over state pension age on 5 October 2002, will be exempt from the changes. The new rules will only apply in full to those who are now ten years or more away from state pension age, and will be phased in for others. For example, where the contributor reaches pension age between October 2002 and 2004, the surviving spouse will inherit 90% of their SERPS, falling to 60% where pension age is reached between October 2008 and 2010. Those who are not fully covered by the new proposals will also have access to the Ombudsman and other procedures designed to deal with maladministration.

For some years, people who have sought to take their entitlement to attendance allowance or DLA to another country in the European Economic Area have been advised that they are only entitled to do so if they are receiving another national insurance benefit. The lawyers for the Department of Social Security have now reviewed this guidance and concluded that it is wrong. New guidance provides that AA and DLA may be taken abroad; those who have been denied in the past may be eligible for compensation.

A recent decision by Commissioner Goodman (CDLA/1148/97 (*19/00)) found that telephone contact could count as attention in connection with bodily functions in certain cases. The Government has acted swiftly to overrule the decision. Under the Social Security (Attendance Allowance and Disability Living Allowance) (Amendment) (No. 2) Regulations 2000 (SI - No. 2313), in force from 25 September 2000, the condition of attention is only to be taken to be satisfied where the attention is required to be given in the presence of the disabled person.

(Where a care home resident has a house to sell, the local authority has power under the National Assistance Act 1948 to make a bridging loan available to the resident to pay the bills until the house is sold) A question which has previously taxed English Social Security Commissioners has been whether or not these retrospective self funders are entitled to continue to receive attendance allowance during that time. English Commissioners have held that attendance allowance is not payable in these circumstances. The Northern Ireland Court of Appeal, in CAO (NI) v Creighton has held the opposite.

Commissioner Howell has now resolved the issue in England by following the Northern Ireland Court of Appeal and by rejecting the earlier English Commissioners' decisions. He held that the decision of the DSS was contrary to any notion of common sense or fairness. So long as the care home resident can meet all of the care home charges once they have sold their home, they should be treated as meeting the costs of the care home from the outset.

A Tribunal of Commissioners has considered entitlement to the lower mobility component of DLA. In CDLA/714/98 and others, the Commissioners held that

"decision-makers and tribunals when considering entitlement to lower rate mobility component, and whether the claimant cannot take advantage of the faculty of walking out of doors without guidance or supervision most of the time should ignore the fact that the guidance or supervision necessary, or elements of that guidance or supervision, may also constitute attention or supervision which qualifies, or could go towards qualifying, the claimant to entitlement to the care component".

It is understood that a planned appeal against the decision by the DSS has been abandoned.

A recent parliamentary answer indicates that the DSS plan to amend the regulations so as to exclude from lower rate mobility component those whose inability to walk is a case of "can't" rather than "won't" (as is the case with the higher mobility component), although it will apparently be retained for agoraphobics.

Alan Robinson,
Legal and Welfare Rights Training