Hi folks

I have a client who had to give up work to care for his wife. She was already in receipt of lowest rate care and had submitted a request for a supersession because her condition had deteriorated. He claimed Income Support on the basis that he was a carer and the person he was caring for had claimed DLA and a decision was pending. This was refused because his wife was already getting DLA. The case goes to tribunal next week.

So, the crux of the matter is: does a supersession request count as a claim for DLA? The annotated regulations don't really address this and I can't find any Commissioner's decision on the point.

It would seem rather perverse to discriminate simply because the cared for person already gets a lower rate of DLA. Can anyone point me in the direction of any cases which decide this point?

(For the record, she was awarded highest care but not for the disputed period - qualifying period and all that.)

Thanks in advance.

I’m not aware of any case law on this point but my view is this. Paragraph 4(a)(iii) of schedule 1B of the IS Gen Regs states; “the person being cared for has claimed entitlement to a Disability Living Allowance….”. That is an interesting choice of words. Why not say “has claimed Disability Living Allowance”. I would argue that the words are wide enough to encompass a ‘claim’ for a higher rate.

Furthermore, the word claim is not defined in the IS Regs, the SS Act 1998 nor in the SSC&B Act. However, Reg 2(1) of the Claims and Payment Regs 1987 (interpretation) states “claim for benefit includes an application for a revision under section 9 of the Social Security Act 1998 or a supersession under section 10 of that Act…..”

My argument would start there.

Thanks for your help Paul.

I know it's along time ago but how did you get on Mairir?

I don't think it would have been a flier because I (being the idiot that I am) when reading the regulation (and trying to do several thousand other things at the same time) forgot to turn over the page and read the rest of the regulation which apears to exclude supersessions of this type.

Ah well c'est la vie