Benefits for Disability - Elderly Client Adviser

Feature

posted 1 Jan 1998 in Volume 3 Issue 2

Benefits for Disability

Alan Robinson continues his series of articles examining the welfare benefits system by focusing on the basics of two key benefits; Disability Living Allowance and Attendance Allowance.

The original welfare state did not provide any benefits for disability, apart from those provided to war pensioners and to those disabled at work. It wasn't until the 1970s that benefits were introduced to cover the extra cost of disability, in the form of Attendance Allowance and Mobility Allowance. While there was no age limit on Attendance Allowance, Mobility Allowance could only be claimed up to the age of 65.

When disability benefits were revised a few years ago, this distinction was maintained. For

those under 65, Attendance Allowance and Mobility Allowance disappeared, to be replaced by Disability Living Allowance (DLA). The new benefit amalgamated the two earlier benefits and also introduced two new lower rates of benefit, one for those with mobility needs and one for those with attendance needs. For those aged 65 or over, Attendance Allowance remained largely unamended. This article considers both benefits; although most elderly clients will qualify for Attendance Allowance rather than for DLA, the availability of DLA should not be overlooked as it is payable in a wider variety of circumstances.

Attendance Allowance

Attendance Allowance is payable in four sets of circumstances:

to those who need frequent attention throughout the day in connection with their bodily functions;

to those who need prolonged and repeated attention with their bodily functions at night;

to those who need continual supervision throughout the day to avoid substantial danger to themselves or others;

and to those who need someone awake at night at frequent intervals, or for a prolonged period, for the purpose of watching over them.

To qualify, a person must have met the condition for at least six months. There is a further route to qualification; someone who is terminally ill can claim the higher rate of attendance allowance without having to complete the six-month qualifying condition.

Neither Attendance Allowance nor DLA is contributory or means tested. There is, however, a residence test; the claimant must be both present and ordinarily resident in Great Britain at the time of the claim, and also must have been present in Great Britain for 26 weeks in the last twelve months. A person whose immigration status is subject to any limitation or condition cannot claim either benefit. People living in certain types of residential accommodation cannot claim; this is considered further below.

How are the qualifying conditions interpreted? It must firstly be emphasised that benefit is payable because someone needs attention, not because they receive it. The fact that there is nobody to provide the attention should make no difference to a claim. Benefit is payable where a person is so severely disabled, physically or mentally, that he or she requires the specified help. "Requires" means reasonably requires, not medically requires - it is not necessary that the help should be essential to maintaining life, but rather that a reasonable quality of life should be maintained. The recent House of Lords cases on deaf and blind people, mentioned below, confirm this interpretation.

The qualifying conditions

The first condition is the "bodily functions - day" condition. "Bodily functions" are not exhaustively defined, but include getting out of bed, washing, shaving, using the toilet, bathing, dressing, getting up and down stairs, eating, breathing, communicating. seeing and so on. Guiding a blind person is attention in connection with their seeing, not their walking. "Frequent attention throughout the day" implies more than simply attention in the morning and at night, although it is the pattern of needs across the day which is important - the fact that all attention has to be crammed in at either end of the day to meet the carer's needs is not necessarily fatal to a claim.

The second condition is the "supervision - day" condition. To satisfy this condition, there must be a substantial danger arising from the medical condition. and there must be a need for supervision to guard against this danger. The supervision must be continual - not every minute of the day, but sufficient to result in a real reduction in the risk of harm to the patient. Examples of people for whom this may be relevant are those with epilepsy, those who may fall, those who may wander, and those who may be unable to concentrate so that they leave the gas on.

The "bodily functions - night'' condition is similar to the day condition, although the bodily functions may be different (being turned in bed, for example, or being helped to use a commode: sleeping is a bodily function, so soothing back to sleep qualifies). The attention required at night must be "prolonged or repeated". Twenty minutes is usually regarded as prolonged, while repeated means twice or more. It is not necessary for this to be required every night; if it is fairly regular, the condition is likely to be fulfilled.

Finally. the "watching over - night" condition replaced an earlier test of supervision at night. Note that it is not enough for a carer simply to be on call; there must be a need for someone actually to be awake for this purpose. This condition is the most difficult to meet for someone who does not actually receive the care already.

Someone who undergoes supervised renal dialysis twice a week or more qualifies for the day condition.

Recent case law has extended the concept of attention in connection with bodily functions, and has emphasised the rule that attention is to be reasonably required and not medically required. In Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, the House of Lords

held that the help required by a blind man in walking outside in an unfamiliar place, and in reading correspondence, was help that was reasonably required; while in Chief Adjudication Officer v Halliday, on 21 May this year, the Lords, upholding the decision in the Court of Appeal, held that services provided by an interpreter constituted attention in connection with a bodily function. Lord Slynn said, "the test, in my view, is whether the attention is reasonably required to enable the severely disabled person as far as reasonably possible to live a normal life."

Claims and appeals

Claims are made by completing a form DS2, which is available from DSS offices and advice centres such as CABs. The form is a long one which may require help for its completion. A medical examination may be called for, or the adjudication officer may contact another person (such as a doctor) for information. If benefit is refused, there is a right to a review within three months on any ground (simply write to ask for a review) followed by a right of appeal to the Disability .Appeal Tribunal. Benefit may be awarded for life, or for a limited period.

In the case of someone who is terminally ill, the claim may be made by the person themselves

or by another person on their behalf (thus avoiding the problem of those who do not know they are terminally ill). The claim is referred to as being made under the "special rules". Form DS 1500 is completed by the patient's doctor. A person is terminally ill if they are suffering from a progressive disease and can be expected to die within six months.

A person who fulfils one or both of the day conditions, or one or both of the night conditions, receives Attendance Allowance at the lower rate. A person who fulfils both a day condition and a night condition (in any combination) receives the higher rate. Someone who is terminally ill gets the higher rate.

Disability Living Allowance

Disability Living Allowance has five different claiming categories. These are the higher, middle and lower rate "care component", and the higher and lower "mobility component". The higher and middle rate care components are identical to the higher and lower Attendance Allowance conditions, except that the qualifying period is three months and not six. The lower rate care component is payable where someone is so severely disabled that they require attention for a significant portion of the day, or they are unable to prepare a cooked meal for themselves if they have the ingredients.

The higher rate mobility component derives from Mobility Allowance. To claim this, a person must be unable to walk, or virtually unable to walk, owing to a physical disability; or be both deaf and blind so as to be unable to walk out of doors without the help of another person; or have been born with no feet, or be a double amputee; or be mentally impaired, with severe behavioural problems, so as to qualify for the higher rate care component. The first of these, and the last three, are reasonably clear; problems which arise tend to do so over the question of virtual inability to walk.

The test is whether someone is virtually unable to walk even with any aids he or she habitually uses. This would include a stick or a frame, for example. However, someone who. for example, propels themselves around on crutches cannot be said to be walking. Virtual inability is defined as follows:-

"his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, or the exertion required to walk would constitute a danger to his life or would be likely to lead to a severe deterioration in his health."

Note that the test is one of outdoor mobility; that any distance walked which involved severe discomfort should be disregarded; and that the test depends on physical and not mental disability - the question is whether the claimant can walk, not whether they will walk.

Finally the lower rate of mobility component is payable where a person's disability (physical or mental) is such that, although they can walk, their capacity)to take advantage of this without the help of another person is limited.

For both higher and lower rates, the claimant must have satisfied the condition for at least three months, and be likely to do so for at least a further six months.

DLA is claimed in a similar fashion to Attendance Allowance, and the appeal process is the same. For those coming up to 65, it may well be worth claiming DLA rather than waiting to claim Attendance Allowance. There are more options available with DLA, which may be awarded for a period after the claimant reaches 65 (indeed, for life). This is particularly relevant where mobility is in question, as there is no possibility of a claim for help with mobility after someone's 65th birthday.

Benefits in residential care

As a general rule, DLA and Attendance Allowance are not payable when someone is living in accommodation where their care is publicly funded. After 28 days of in-patient treatment in hospital (which need not be continuous) both DLA and AA cease. This does not apply to a hospice, which is not a health service hospital. Where someone lives in publicly-funded residential or nursing care, the rules are more complicated. It seems that, where a person is resident in Part III accommodation, they cannot receive either benefit after the first 28 days, the Regulations apply the hospital rule (no benefit after the first 28 days) to "a person who is residing in a home owned or managed, or owned and managed, by a local authority.'' This seems to apply even if they are paying their own fees. However, the language of the regulation is quite impenetrable, and there may be room far other views. This applies to Attendance Allowance, and to the care components of DLA, only; the mobility component is not affected. Someone who lives in a private residential home can continue to claim both care and mobility components.

Neither DLA nor attendance allowance is taxable, and they are ignored as income for means tested benefits. The higher rate of DLA care component and of Attendance Allowance is currently set at £49.50 a week, and the DLA middle care rate and the Attendance Allowance lower rate at £33.10. The DLA higher mobility component is £34.60. Both the lower rate of DLA care and DLA mobility are set at £13.15.

A successful claim for either Attendance Allowance or for the middle or upper care component of DLA may also give rise to a claim by a carer for Invalid Care Allowance. Amanda King-Jones set out the qualifying conditions for this benefit in the last issue of ECA. It is also important to note that. if a person's disability is caused either by an accident at work or an industrial disease, or through military service, a claim should be considered for an Industrial Disablement Pension or a War Pension. These benefits provide a more generous system of payments than the "civilian" equivalents discussed here.

The next and final article in this series looks at means tested benefits for people over 60.

Alan Robinson, Welfare Rights Training