http://www.rightsnet.org.uk/forum/otherbenefits/395.html

Please see the above which is in the archive section which outraged many. The appeal was unsuccesful!!!, but there is little to go on at the moment. Will request full written reasons....but if I go to the commissioners is there a danger of creating very damaging caselaw?

In the original thread you said that the local office said that there were "special circumstances" which made this a one-off, and it wouldn't affect policy in general.

Do you now know what the special circumstances were?

He was getting IS as a lone parent, then he moved a partner in and therefore fell outside one of the prescribed groups that can claim IS. He notified IS then they told him he needed to claim JSA. His CA claim and IS re-claim went in the same day. The client says this is co-incidence, and indeed the partner has moved out now anyway so he now falls into 2 prescribed categories of person again. Given those circumstance i wouldnt take issue with CA investigating whether indeed he was regularly and substantially caring for the disabled person. However, in the appeal all sides accepted that he was indeed caring and no query was raised about this point (and if it had i would have argued that it was nothing to do with the appeal). I assume that this is what they meant by 'special circumstances'. I still am not clear however how this then justifies the use of 42(6).
The salient facts to us (and which appeared to be accepted by the chair and DWP) are 1)it is accepted he is caring 2)the carer lives 2-3 miles away form the disabled person 3)the disabled person gets IS and DLA MR care 4)the disabled person is not a family member but the carer has known the disabled person 15-20 years 5) the disabled person asked the client to be the carer.
The PO and poss the chair seemed to place a certain amount of weight on points 2, 4 and 5. There must be hundreds of claimants for who those 5 facts broadly apply. Or do people out there think that on those facts it would be reasonable for the disabled person to pay the equivalent of all their MR care for the service of the carer?

I have had clients who, by choice, pay carers out of their DLA/AA - although this is to carers who for one reason or another have not claimed CA, or who only have the underlying entitlement. However, whether it is reasonable for a person to do so is immaterial, in that there is nothing in the regulations that says they have to.

As to how far away they live, whether they are related, how long they've known each other: I cannot see why these seem to have been so prominant in the minds of the Tribunal - in rural East Anglia, we have sons & daughters, friends etc, we receive CA, and live maybe 10 miles away in the next village.

With the greatest of respect ICA, as it was then, was set up to reward the thousands of unpaid carers throughout the country, without whom many the majority of their "patients" may well have ended up either receiving a large amount of imput from Social Services, or in a residential home: either option was (and still is) far more expensive from the State's point of view: what the State got in return was nursing on the cheap, as more than one one cynic said at the time. In addition, the entitlement to NI credits that came with it was meant to ensure that the carer was protected.

The case being put forward by the original DM, and now supported by a Tribunal (!) cannot possibly have been the intention of Parliament when they passed the relavent Acts.

I really do think this is an important point that should be argued out at Commissioners - might it not be a case that CPAG would consider taking on, or be joined to?