Can anybody please help? I have a client who resides in a residential care home and has underlined entitlement to DLA care at middle rate. As we all know, when time is spent away from residential care, DLA pay the care element of DLA to cover the period as border dates, which in this case has happened. An application for payment of SDP was submitted to Pension Service to cover the same period, using guidance from DMG Volume 1, Paragraph 4 chapter 04558; however this applies to Income Support and allows SDP to be paid using special rules for residential care home clients. The Pension Service has disallowed my client, whose circumstances are exactly the same as someone of working age in residential care with the exception that she receives Pension Credit. I am now at the stages of appeal as IS & PC guidance would normally mirror each other, but it appears that the DMG – IS and residential short breaks, does not apply to a pensioner in a residential care home. Pension Service has quoted the following;
SCH 3A Para 3(H) SS+CS (DA Regs) – Social Security and Child Support Decision and Appeal. Unfortunately I do not have a current updated CPag, can anyone help with this please?

These, on the face of it, are somewhat complex, or hastily drawn provisions. There appears to be no problem with the regulation quoted, schedule 3A, paragraph 3(h). This deals with Income Support and provides that a person’s Income Support is superseded from the date he comes out of care and is superseded again from the date he goes back in, which, in effect, makes the SDP payable in respect of the relevant benefit week.

For Pension Credit, the relevant provisions are schedule 3B, paragraphs 1(b) and 2. In my view, in spite of the “; and” between limbs (a) and (b) of paragraph 1, I read those limbs as disjunctive rather than conjunctive (permissible statutory drafting). This allows changes of circumstances to take effect as for Income Support (above).

The problem seem to lie with paragraph 2 which states that changes in income, other than tariff income or WTC, if occurring within the same benefit week, a period of seven days beginning on a Monday, to all take effect from that Monday, thus disallowing the payment of the SDA.

In my view, this would lead to absurdity because a person who came home on the Thursday and went back into care on the Saturday would not get the SDA but a person who came home on the Friday and went back on the Sunday would get the SDA.

I said that the problem “seems to lie with paragraph 2”. This is where The Pensions Service seems to have got itself tangled up. I believe that it has confused change of circumstances (payment of DLA) with the change of circumstances (coming in/out of care).

While the coming in/out of care might occur in the same week, the payment of the SDA is a payment for the whole of that week and thus there is only one change of income for that week. Thus the removal of the DLA because the person goes back into care is actually effective for the purpose of the payment of the SDA for the following benefit week (from the Monday to be precise). Thus on that following Monday the Pension Credit award is superseded to remove the SDA. The subsequent re-instatement of the DLA in that week then allows for a further supersession reinstating the SDA for that week, effective from that same Monday.