Feature

posted 21 Nov 2002 in Volume 8 Issue 1

Welfare benefits update:

A summary of recent decisions and forthcoming changes

Welfare benefits remain a complex area for practitioners who must keep up to date with all the latest developments. Alan Robinson, a solicitor at Robinsons and Legal and Welfare Rights Training, helps with any confusion with a regular update on recent happenings in the area.

1. Attendance Allowance and Disability Living Allowance

Cooking test for lower rate DLA care

One of the ways to qualify for the lower rate of Disability Living Allowance care component is that the claimant is unable to prepare a cooked main meal. It has previously been assumed in some quarters that this meant that the claimant could not prepare a main meal at all. This view has now been rejected by the Court of Appeal, which, one commentator says, changes the landscape regarding the lower care component. In Moyna v Secretary of State for Social Security [2002] EWCA Civ 408, unreported, 27 March 2002, the Court of Appeal allowed the claimant’s appeal against the decision of the commissioner that she was not entitled to the lower care rate of DLA because on a certain number of days in each week she could prepare a cooked meal, although she could not do so on other days. The court held that the provision of a cooked main meal was required not on an occasional basis but on a regular basis. Where there is a clear pattern of the person not being able to provide a cooked main meal for him or herself on a regular basis, then the test is satisfied and there is an entitlement to the lower care component. This was such a case. In order to qualify for benefit, the pattern had to have been established for three months and be likely to continue for six months, in line with general entitlement to Disability Living Allowance. Different considerations apply if there is no regular pattern of need.

The point should be made that this only applies to those who are aged under 65 when they make their claim, and that many people who claim will in any case be so severely disabled that they are entitled to the middle care rate. The case is, therefore, not likely to be of great assistance to those advising elderly people, although it will obviously benefit some.

Frequent attention throughout the day

In CSDLA 590/00, the facts were that attention was given frequently during the day, but for small periods of time on each occasion. The claimant, a child, has talipes of the left foot, and falls 5-10 times a day, often resulting in superficial bruising and necessitating the application of cream. His mother also manipulates his foot twice or more every day. The tribunal decided that this was attention for a ‘significant portion’ of the day, because it did not exceed one hour in total.

The commissioner held firstly that, in considering the term: “frequent attention throughout the day”, it is the frequency and pattern of attention that counts, and not its duration. The tribunal had applied the wrong test in simply looking at the total duration of the attention. Any attention at all which is more than absolutely minimal can form part of this pattern. Secondly, “frequent attention” was best described as “attention that is given very often during the period accepted as the day”. The words can best be understood as meaning that the person requires attention (even if very brief) very often over the course of the whole day.

Activities for managing life

A new method of assessing entitlement to Attendance Allowance and DLA is now the subject of a pilot project, known as Activities for Managing Life (AML).

The methods will be familiar to those working with the Personal Capability Assessment. The AML assessment is based on the claimant’s response to a range of descriptors, with points being allocated accordingly. For example, it might be the case that:

Being unable to eat or drink without help from another person, scores 24 points;
Needing help only with cutting meat and similar food items, scores 5 points;
An inability to walk no more than 50 metres, scores 11 points;
Inability to walk no more than 200 metres, scores 3 points.

No decision has yet been taken as to the appropriate level of scores for particular rates of benefit. The pilot will operate as a ‘shadow’ scheme in a sample of 600 cases and applicants are invited to participate if they wish. The hope is that the scores in the pilot will mirror the actual decision making in the claim, which is separate from the pilot. The decision maker will not see the results of the pilot.

Comparisons between the two methods of testing will help to determine whether AML offers a fairer and more objective method of assessing claims than the present system.

2. Invalid Care Allowance

Age limit amendments

Under the former age limit, Invalid Care Allowance was only payable where a claim was made before the claimant’s 65th birthday. Provided the claim was made by that time, it could continue in payment thereafter. With effect from 28 October, a claim can be made at any time.

For most people over 65, retirement pension will be in payment, and the Overlapping Benefits rules prevent payment of more than one benefit at the same time. Where a person qualifies for both, they will get the higher. Those who will benefit, however, are those on means tested benefits. The ‘underlying entitlement’ to Invalid Care Allowance that a successful claim will give them also qualifies them as ‘carers’ for income support purposes, which in turn gives entitlement to the carer premium.

Another change is that, until 28 October, the death of the person cared for did not affect entitlement for a carer. This rule now disappears. Finally, the benefit is to be renamed Carers Allowance from April 2003.

Withdrawal of ICA following hospitalisation

The claimant was caring for his mother and was claiming Invalid Care Allowance. She was admitted to hospital but he did not disclose this and went on claiming. The Secretary of State decided there was an overpayment which would be recovered and his decision was upheld by a tribunal.

On appeal, the commissioner reduced the amount of recoverable overpayment, holding that the Secretary of State had the power to continue to pay ICA for 12 weeks, even though the attendance allowance on which it depended stopped after four weeks.

The Court of Appeal allowed the Secretary of State’s appeal. ICA was dependent on the person cared for being a “severely disabled person”, which meant they were receiving Attendance Allowance or Disability Living Allowance. Once the mother’s entitlement to Attendance Allowance ceased, she failed to fulfil the definition of a severely disabled person and ICA could no longer be paid. The Secretary of State’s power to prescribe circumstances in which someone was, or was not, deemed to be caring for a severely disabled person did not permit the redefinition of that term. Pridding v Secretary of State for Work and Pensions [2002] EWCA Civ 306, CA.

Invalid Care Allowance and supervised study

The claimant was getting ICA. She began to study on a degree course. The Adjudication Officer (forerunner of the Secretary of State) decided that her entitlement should cease because she was in full-time education, that is on a course with more than 21 hours a week of attendance and supervised study. She had been overpaid as a result. The Tribunal upheld the Adjudication Officer.

The Commissioner set aside the Tribunal decision for inadequate reasons. However, the Commissioner also said that study at home was capable of being ‘supervised study’ – work in preparation for tutorials, etc., was clearly capable of falling within the definition of supervised study, whereas background reading, etc., was more problematic. (CG 5519/99, February 15 2001, starred decision 42/01; upheld by the C in Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641)

3. Income Support

Prescribed categories – caring for another

The claimant cared for her father for between 25 and 30 hours a week. She claimed income support on the basis that she was in a prescribed category, namely that of “regularly and substantially … caring for [him]”. The Secretary of State refused the claim on the ground that the phrase fell to be interpreted in line with the phrase “substantially engaged in caring” applicable to Invalid Care Allowance. This requires a minimum of 35 hours care a week. The Tribunal upheld the refusal of the claim.

The commissioner held that the ICA definition was not to be imported into the Income Support definition. The question was one to decide on the facts of the case, as no particular test was implied by the regulations themselves. The fact that receipt of ICA was one route to the prescribed category was irrelevant. CSIS 1081/01 (4 April 2002).

4. State Pension Credit

The state pension credit comes into force on 6 October 2003. It will replace the minimum income guarantee (income support) for those aged 60 or over, and will introduce a new savings credit for those aged 65 or over. For an outline of the scheme, see the writer’s article in ECA, Volume 6, Issue 6, page 18. Once the full details of the scheme are available, I will produce an article with examples to enable advisers to see how the new scheme will work in detail.

Details of the scheme are already beginning to emerge. Benefit will be awarded on the basis of income assessed over a five-year period, and it will not be necessary for the claimant to report changes during that time other than life events and changes in household composition. Upratings in benefits will be taken into account automatically. At the end of the five year period, there will be a reassessment, and adjustments made through the next period of assessment. The claimant can, however, ask for a reassessment during the period, which may be worth doing if they have had a substantial increase in income or capital that will result in a substantial overpayment, and hence a substantial lessening of benefit during the next assessment period.

The guarantee credit has an applicable amount, like income support, which will be £100 for a single person and £154 for a couple at the date when the scheme is introduced. This applicable amount will be able to be increased by the amount of a severe disability or carers premium, or by applicable housing costs payable by income support. Those on guarantee credit alone will be entitled to full housing and council tax benefit. Those on savings credit only will also be able to claim housing and council tax benefits when it is appropriate, and their calculation will be adjusted so that their pension credit counts as part of their applicable amount.

The savings credit awards a savings credit to a person who provides for themselves, for example by way of a private pension. For each pound of personal provision, 60p is awarded in savings credit, up to the point at which the claimant’s entitlement to guarantee credit ends (for a single person, this gives a maximum of £13.80 for £23 a week extra provision). From that point it decreases by 40p in the pound until it runs out.

There will be no capital cut-off as such. The first £6000 of capital is ignored, and thereafter tariff income is imposed at the rate of £1 for every £500 above £6000. In exceptional cases, actual income from capital may be taken into account.

The scheme will be administered by the Pensions Service of the Department of Work and Pensions, unlike the other new tax credits which will be administered by the Inland Revenue. Decisions will be taken by the Secretary of State, with an appeal to a tribunal.

Alan Robinson is a solicitor at Robinsons and Legal and Welfare Rights Training. He can be contacted at: alan@lwrt.co.uk.