The local Pensions Service have told me that a couple both in receipt of AA can claim CA and have both the Carers Premium and tHe SDP included in their Pensions Credit assessment. This is because the CA isn't payable due to the overlap with Retirement Pension . ie they have an underlying title. Can someone please confirm that this is correct? we were under the impression you could have either the CP or the SDP but not both.
Thanks

Yes, it's true you can get both in the circumstances you refer to.
Details are in IS (general regs) Schedule 2.
Briefly,
Carer premium depends on entitlement to CA.
SDP is lost if someone is in receipt of CA.

Double SDP can be paid for a couple, both in receipt of either AA or middle rate DLA care or above, live alone and no-one is actually paid carers allowance. If they claim CA for looking after each other, if their pensions are higher than the rate of carers allowance, they will receive the underlying entitlement, therefore it is not actually in payment, and they therefore get the additional premium.

thankyou both very much for your replies.

We have been doing this for some time now with no major difficulties, but have discovered a potential problem. We understand that it is not the total pension amount which counts, it is the BASIC pension. Where the BASIC pension is higher than the CA there is no problem. However, where the BASIC pension is lower than CA the CA is payable and SDP is lost. Thus it is important to get a breakdown of the pension components and ensure that the BASIC pension is higher than the CA.

Fortunately, category B RP for a wife is £47.65, compared with £44.35 CA level. That takes care of most couple cases where the wife doesn't get category A pension. But Calum's point is particularly important where there is less than 100% category A pension for the husband - that means a reduction in the wife's category B pension too. Quite a small percentage reduction would reduce the latter to below £44.35.

Jim

The information from Calum on the 16.11.2004 (compare basic state pension level to carers allowance rate) is interesting. What if a person (possibly on the wrong advice) claims carer responsibilities amount and manages to succeed because of a low category A state pension etc? Presumably they would be able to withdraw the carers allowance claim, and re-start the state pension. Then a possible risk of notional income regs being wheeled out, but any loss through that would probably be eclipsed by the value of the severe disabilities amount gain. Is this correct?

Steve

Hello Steve

I've considered this issue several times, and discussed with colleagues (anyone i can find to listen!)

The notional income issue has intrigued me, that whole thing about not claiming one benefit to increase your entitlement to another - but when the carer is not the partner of the cared for, technically they may be not claiming in order to increase not yours but someone else's entitlement.

In relation to withdrawing a claim for CA, I think it is interesting how to prove you no longer qualify! The obvious route is if you now find you are no longer caring for 35 hours each week!

I've checked out the DMG on this issue. In para 28611 it is stated categorically that people giving up CA to enable the cared for person to get SDP should NOT be treated as getting CA, as long as the cared for person is not one of the benefit family. Also, 28615 advises the DM not to assume CA where it's not been claimed. 28641 says not to take CA into account where it's due to be paid.

Overall, I think it's now safe not to claim CA, or to give it up if in receipt, if the purpose is to get SDP for another claimant.

Jim

Jim is right when, as he says, the carer is not part of the disabled persons claim. But what if they are? Reg 18(6)of the main SPC regs says...

"6) A person shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to state pension credit or increasing the amount of that benefit."

Who is a "person"? The word does not seem to be defined in the regs or SPC Act. I assume it includes carer partners of claimants. Same problem arises by the use of the word "person" in the notional capital rules (see reg 21(2)of the main regs, for example).

In cases where the carer is part of the disabled persons claim, the active termination of your carers allowance award would be linked to the establishment of severe disability amount (because of it is part of the same overall claim), so notional income regs can bite, as paras 26808 to 26810 of the DMG confirms (I assume these apply equally to SPC). Therefore, this issue could still be a problem for many.

Do couple have to split up before the severe disability amount can be rescued?!

Steve

If the CA (or underlying entitlement to) were given up because the beneficiary stated that they were no longer able to satisfy the 35 hour rule (as per Jo's reply on 22/11) would this not get around the notional income regs?

I suppose this could work, but the nature of care required for CA is so vague, that it is unlikely that any carer would really change behavior. Would this not then require the carer to fib?

If the carer is getting AA/DLA cp anyway I don't think it would be difficult to justify a reduction in ability to fulfil the 35 hour rule on the grounds of a deterioration in their own health and it would be up to the DWP to prove otherwise.

I agree with housing21, I don't think this would be too hard to justify either a reduction in ability to care and or an increase of the care required.

I recently dealt with a couple who were in this situation with the carer receiving £0.57 Carers Allowance. Carers Allowance ceased, no notional income was invoked and the increase to Pension Credit went through quite painlessly.

Imo Reg 18(6) limits notional income to the amount of income they have deprived themself of and does not extend to the disallowance of premiums that then become payable. So anyone who has less than 18.60 Carers Allowance would be better off even if there was notional income.

The welfare rights team had a similar problem recently; a claim was made for carers allowance on the basis the client would get underlying entitlement only, however they were awarded carers allowance. Carers allowance unit advanced the arguement that it was the basic pension that was only taken into consideration, and not the full retirement pension.

However we argued that this approach was wrong for the following reason:-

Social Security (Overlapping Benefits) Regulations 1979

Regulation 4(a) retirement pension includes additional pension / graduated pension

and Regulation 5 (a)when calculating entitlement it is contributory minus non contributory.

The decision makers guide, chapter 60, Carers Allowance, 60109 deals with overlapping benefits.

60111 in making the adjustment the following benfits should be taken into acoount.

1. personal benefits payable to the CA claimant
1.1 NI benefits - JSA (Cont), UB. IB, SDA, MA, RP (No mention of basic pension)

The arguement was accepted by carers allowance and the client was granted underlying entitlement only.

I have a couple of clients who have recently moved into a property as joint tenants.

The old lady was receiving state pension credit with no SDP because her son was a non dependant. He received contibution based JSA which disqualified him from carers allowance under the overlapping benefit rules. The carer premium was not paid with JSA and we are still arguing about it, but I am confident that it will eventually be paid

I advised him to renounce the carers allowance claim, stop signing on and claim IS. The IS adjudication section in Derry told us at first that he could not claim IS because he was not getting carers allowance, but we gave them chapter and verse from the Regulations and also a full test copy of R(IS)8/02. (The fax was 20 pages in all)

Para 31 of R(IS)8/02 may be somewhat obiter in relation to notional income, but I think the Commissioner clearly does not think that it would be income available if applied for in relation to a claimant who did not wish to claimm because the person being cared for would lose the SDP:

"31. There are claimants who will not satisfy paragraph 4(b) who nevertheless fulfil heavy caring commitments. For example, some IS claimants might choose not to claim ICA because the person they care for receives the severe disability premium which they would lose if the claimant was awarded ICA. Other carers might not be entitled to ICA because they receive an overlapping benefit, such as retirement pension under regulation 4 of the Social Security (Overlapping Benefit) Regulations 1979. Conversely, if a person falls within paragraph 4(b), is entitled to and actually receiving ICA, this provides a shortcut to that person’s eligibility for IS, subject to the other conditions of entitlement, without further adjudication on the merits."



A simple phone call dealt with the carers allowance issue

We are still awaiting a decision of the SDP. The pensions service needed to be given chapter and verse about other occupants and SDP because they had not come accross it before.