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capacity to claim Carer’s Allowance

FIT Advisor
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benefit advice officer, three rivers housing association, co durham

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Total Posts: 144

Joined: 18 June 2010

I assisted a customer with an online claim for CA., previously her mother had been her appointee but she had moved in with her boyfriend and was in the process of sorting out her ESA claim in respect of managing her own affairs. She understood the conditions for CA in respect of supervising and using the warden call service should she need to summon help.  However, the Local Authority have carried out an assessment and deemed her not to have capacity and say this claim should not have been made. The intention is that her personal benefits will be handled by the LA. Her boyfriend has claimed for her on his ESA., LA are seeking to have the extra secured for her on this claim (1xSDA and 1xCP) paid separately but I have advised this is not possible. CA has been awarded as an underlying benefit. 

Any advice on this appreciated.

Claire Hodgson
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PI Team, BHP Law, Durham

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Joined: 17 October 2013

see the mental capacity act

and this guidance from the MoJ:

http://www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act

Capacity is looked at separately for each separate decision or field of decision making, so to speak.

For example, a person might have no capacity to deal with their finances, but have capacity to engage in a sexual relationship, or get married.

and vice versa (although one would think that unlikely, since understanding about sex is less complicated than understanding ones finances).

The LA need medical evidence to show she has no capacity, or no capacity for that particular decision.

Also, they can’t, in my opinion, constitute themselves as her attorney/property & affairs deputy.  The LA needs a court order to do that.  Do they have one?

If your client has capacity to instruct you, she has capacity to challenge their decision, one would have thought.

Even if she doesn’t have capacity, that needs to be assessed.

She needs to see a solicitor specializing in the field, if necessary the CoP needs to be involved and possibly the official solicitor.

FIT Advisor
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benefit advice officer, three rivers housing association, co durham

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Total Posts: 144

Joined: 18 June 2010

Thanks Claire, that is very useful advice and reassuring in respect of my role.