DLC and supervised living

Sorry to report (and this is my first rightsnet posting as an advisor -hope this is not a bad omen) that the case described in 1964’s post has been unsuccessful in the UT. The judge did not agree with our argument for 24 hour supervised accommodation being considered as therapy. I copy part of the response to the appeal as follows:

“THERAPY - The claimant’s representative has accepted that there are difficulties in scoring more points on the basis that the claimant requires his health condition to be monitored. She has argued that the assistance he requires can properly be classified as therapy. She points out that he was placed in supported and supervised accommodation. He is well and living in the community because of the support he receives. Staff give him his medication. They help with his daily life to keep his stress levels to a mimimum. She relies on the Department’s guidance, which refers to safety and to the risk of deterioration that can arise from a failure to carry out therapy.

10. This is an ingenious argument, but I do not accept it. It is necessary to start with the facts. What is it that the staff do for the claimant? I accept what the representative says, but the question is whether that is therapy. There is no definition of what “therapy” involves. No doubt, that reflects the many and varied forms that it may take. But I do not accept that keeping an eye on the claimant to spot deterioration and the support provided with his general living to help keep him free from stress amounts to therapy. It is support, certainly, and important support that has proved effective, but it is not therapy. Therapy may be difficult to define with precision, but it is a concept that has limits. There are many things that are beneficial for a claimant that are not therapy. A job, for example, may help a claimant socialize and develop self-esteem. It might even be described as therapeutic. But it would not generally be properly described as therapy.

11. Something more than a beneficial effect is necessary. I do not propose to lay down what would or might be sufficient to amount to therapy. It is sufficient to say that the evidence in this case does not contain it. “

This last statement seems to suggest that there might be an opportunity for this claimant to apply again -but would need to produce evidence that shows that he is receiving some sort of therapy. My claimant continues to thrive in supported accommodation as his needs are well met and he has continued to be well. However, we maintain that if he had been housing back into the community in normal housing, he may well have declined with his mental health if he had not had this sort of support.

Any thoughts, ideas or similar cases and outcomes welcome. We are very disappointed and concerned about this outcome for many claimants that may be in a similar position or migrating from DLA to PIP with a similar supervised housing arrangement who relied on DLA but may only score one point on this descriptor when applying for PIP.

Unfortunately, we do not hold funding to be able to challenge further on JR but if anyone knows of an organization that may take this case on, please let us know so we may advise our claimant.

Hillingdon Law Centre is your closest if your client is entitled to Legal Aid.

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I must say that I am sympethetic to the Judge’s position; I’d think that such activities that are laid out on the individual’s care plan might be “therapeutic” so long as there has been some recommendation from Health rather than just social care. Sadly that’s usually not the case; even if the housing project has maintained an up to date care plan. Supported Living isn’t necessarily “remedial” and that would appear to be the foundation for arguing that an activity might constitute therapy.

It isn’t material in this case by the look of it, but (unless I’m going completely mad) this is the second time that Judge Jacobs has ignored the possibility of descriptor 3c - see also [2015] UKUT 0681 (AAC) (http://www.osscsc.gov.uk/Aspx/view.aspx?id=4737) at para 48.

The structure of the activity seems clear enough to me to argue that these two cases are wrongly decided on the point that there is a ‘minimum threshold’ of 3.5 hours’ therapy a week to get beyond 3b. I mention this more for the benefit of those who are stuck at 7 points and whose medication/monitoring is arguably also within the definition of ‘therapy’ - on which see [2015] UKUT 0622 (AAC) (http://www.osscsc.gov.uk/Aspx/view.aspx?id=4714)

Whilst the Judge doesn’t mention this case, it still looks like there is a fair way to go to show that there is an entitlement based on Activity 3 alone…

Jon

I’m with you Jon - I think 3c is clear that it is up to 3.5 hours not a minimum of 3.5 hours - definitely something worth persisting on.