We’ve had discussions in the office about the new approach enabled under the Care Act 2014 and the replacement of DLA with PIP.
We’re of the opinon that the Coventry case remains good law insofar as anyone claiming DLA or AA is concerned i.e. that higher rate payments for night time needs should still be disregarded when undertaking financial assessments for day time needs.
Obviously, with PIP, this clear demarcation doesn’t exist. However, we do think that there remains a fundamental requirement for a local authority to idenify any disability-related expenditure of the person concerned if they adopt a policy of taking PIP into account for their means-test. This leeway allows any particular person to highlight expenditure clearly related to nighttime needs to make a case for related payments from PIP to be similarly disregarded.
Schedule 1, section 1, paragraph 4 of The Care and Support (Charging and Assessment of Resources) Regulations 2014.which deals with disregarded income, could not be clearer on this point in my opinion
4.—(1) Where a local authority takes into account in the calculation of income any disability benefits the adult receives, any disability-related expenditure incurred by the adult.
(2) In this paragraph—
“disability benefits” means any attendance allowance (other than severe disablement occupational allowance), disability living allowance or personal independence payment;
“disability-related expenditure” includes payment for any community alarm system, costs of any privately arranged care services required including respite care, and the costs of any specialist items needed to meet the adult’s disability.
The newly revised Care Act statutory guidance states at Annex C, para’s 14-16 that:
14) Local authorities may take most of the benefits people receive into account. Those they must disregard are listed below. However, they need to ensure that in addition to the minimum guaranteed income or personal expenses allowance – details of which are set out below – people retain enough of their benefits to pay for things to meet those needs not being met by the local authority.
15) Any income from the following sources must be fully disregarded:
(a) Direct Payments
(b) Guaranteed Income Payments made to veterans under the Armed Forces Compensation Scheme
(c) the mobility component of Disability Living Allowance
(d) the mobility component of Personal Independence Payments
16) Any income from the following benefits must be taken into account when considering what a person can afford to pay from their income towards the cost of their care and support in a care home:
(a) Attendance Allowance, including Constant Attendance Allowance and Exceptionally Severe Disablement Allowance
(b) Bereavement Allowance
(c) Carers Allowance
(d) Disability Living Allowance (Care component)
(e) Employment and Support Allowance or the benefits this replaces such as Severe Disablement Allowance and Incapacity Benefit
(f) Income Support
(g) Industrial Injuries Disablement Benefit or equivalent benefits
(h) Jobseeker’s Allowance
(i) Maternity Allowance
(j) Pension Credit
(k) Personal Independence Payment (Daily Living component)
(l) State Pension
(m) Universal Credit
Then later on at para’s 39-40, the guidance goes onto state:
Disability-related expenditure
39) Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.
40) In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included:
(c) costs of any specialist items needed to meet the person’s disability needs, for example:
(i) Day or night care which is not being arranged by the local authority
So we’re left with a scenario whereby local authorities can routinely take the whole amount of any PIP payment into account, but within which the person can make the case as to why expernditure related to any night time needs (and indeed any day time needs not being met) should then be disregarded from their financial assessment.
