Limiting DLA arrears - Nevip or anyone?

Hi

Yes, the issue, which often confuses decision makers, is between entitlement and payability.  What happens in these kinds of cases, as where people go into residential care, is that a decision maker has to decide whether to supersede the award decision under reg 6 of the D&A Regs or merely to suspend payment of the care component under reg 16(3)(a)(i).

If it is superseded then unless there are grounds for revision, a change of circs does have to be reported within one month of that reg as a further supersession needs to be made.  However, if it is merely suspended then entitlement remains throughout the period of suspension but only the payment is suspended.

As soon as any of the conditions in reg 16 no longer apply then payment becomes due again.  Reg 6 and the one month provisions simply have no application.  The fact that the Department do not become aware of the relevant information until some time later does not extinguish his entitlement for that intervening period.

See the commentary to reg 16 for an example, albeit distinguished, of the principle where payments should continue from when they were stopped.

Hello Nevip

Thank you very much for your help and prompt reply.  Very much appreciated!

Again any contributions gratefully received.

Hearing in 3 weeks.

The original hearing was postponed after I requested directions to be issued to the SoS for further information including a copy of their decision suspending payment of DLA care.  The SoS eventually obliged. 

A decision made in 1992 to award DLA HRM/HRC was superseded by SoS in Nov 2001 to suspend payment of DLA care from May 2002.

The reason for the decision was because a “Change in law means that the LA must pay for stay in residential care from 08/04/02.  DLA care suspended from 08/05/02” Social Security Contributions and Benefits Act 1992, Section 72(8) and Social Security (Disability Living Allowance) Regulations 1991, Regulation 9 and 10.

I believe the change in law was The Care Standards Act 2000 (implemented 2002) which introduced new regulations that required Adult Placement Carers providing accommodation and personal care to register as small care homes. 

But the Adult Placement Schemes (England) Regulations 2004 introduced the registration of Adult Placement Schemes rather than individual Adult Placement Carers.  Consequently the adult placement carer no longer had to be registered therefore adult placements no longer fell within residential accommodation and are no longer provided under Part III of the National Assistance Act 1948.

I believe the Secretary of State applied Regulation 7(30) of The Social Security and Child Support (Decisions and Appeals) Regulations 1999

“Where a decision is superseded in accordance to regulation 6(2)(a)(i) and the relevant circumstances are that there has been a change in the legislation in relation to a relevant benefit, the decision under section 10 shall take effect from the date on which the change in legislation had effect”

Is there any reason why the SoS cannot apply Reg 7 (30) following The Adult Placement Schemes (England) Regulations 2004.  Effective from 1 Sept 2004.

Many thanks in advance.

The key issue here is that because the decision was a decision that PAYABILITY could recommence, rather than a decision about ENTITLEMENT, this is not a supersession at all. What that means is that the rules on effective date of supersession are irrelevant.

This is actually (as decided in Adams) a decision under section 8(1)(c) SSA 1998 rather than a supersession under section 10. Therefore regulations 6 and 7 of the D&A Regs are not in play.

I attach a submission from a similar case. It will need to be amended to reflect the specific facts (dates etc but also difference in your case is not that, as in mine, the claimant left the Res Care, but rather that the place she was living stopped being a care home, but I hope it helps).

You would think that the DWP would eventually realise they constantly get this wrong…

Martin.

I’m not clear as to exactly what the DWP is saying.  The Care Standards Act came into force piecemeal by secondary legislation beginning in 2000.  Adult Placement Providers had previously been registered under the Registered Homes Act.  I was working with Adult Placement Providers as early as 2002, helping them de-register, turning the service users into tenants and claiming HB and getting the DLA care component back.  This was done under the Transitional Housing Benefit/Supporting People Scheme.  The THB scheme ended in April 2003 when SP fully took over.  It was the fact that the LA was paying for the placement that got the DLA suspended and not any registration requirements by themselves (see self funders in care homes, for example).  De-registration meant that the place stopped being a care home and so reg 9 of the DLA Regs no longer applied.  Thus the care component became payable again.

The CSA required registration where care and accommodation were provided together.  The fact that triggered de-registration was when care and accommodation were not provided together or where care was not provided at all.  “Care” was not defined in the Act but in NHS guidance, so non-intimate personal care, such as “support” did not require registration.  Thus I’m unsure of the soundness of the implied reason for the Department’s decision.  You say that the DLA award decision was superseded with effect from 2002.  Was it actually superseded?  I would agree with Martin.

Martin and Nevip thanks for your replies.  Yes I believe the SoS did supersede the decision.

The SoS have provided an event log which records:

C 29
Event:  Supersession – SofS  
Receipt:  23 Nov 2001
Effective:  08 May 2002
Decision Made:  23 Nov 2001
Code:      99
Outcome:  Y15

They have also provided copy form DBD131 – Ending of Preserved Rights Process Action Sheet.

Part 1 – Registration – Team Member Action

Date decision last made:          15 June 1992
Date decision started/receipt of CATP/DLA609D:  23 Nov 2001

Part 3

I have made a decision

Part 4 – Decision

Decision on Supersession of a decision dated 15 June 1992

[Boxes ticked]

DLA care component
Is not payable
From and including 8 May 2002     Payability adjustment reason code: 102
Because the claimant is in certain accommodation.

Part 6 – Reasons for decision

DA/AA115   Yes
Change in law means that LA must pay for stay in residential care from 8 April 2002
DLA care suspended from 8 May 2002

Part 7 – Law (Sec 50, Health and Social Core Act 2001)

[Boxes ticked]

C&B Act Sec 72(8) DLA Regs 9 & 10 (cert accom)

That looks like a spectacular own goal to me.  Section 50 of the Health and Social Care Act 2001 is simply the ending of preserved rights and transferring responsibility for payment to LA’s.  Section 72(8) of the SSC&BA; states:

“Regulations may provide that no amount in respect of a disability living
allowance which is attributable to entitlement to the care component shall be payable
in respect of a person for a period when he is a resident of a care home in circumstances
in which any of the costs of any qualifying services provided for him are borne out of
public or local funds under a specified enactment.”

Reg 9 of the DLA Regs is in identical terms.  So that looks like payability and suspension to me.  They can call it supersession to their hearts content but the legal references don’t point to it.  There is no reference to section 10 of the SSA or to regs 6 or 7 of the D&A Regs.  As Martin said it looks like a straightforward section 8 decision suspending payment but not extinguishing entitlement, specifically section 8(1)(c) which states “subject to subsection (5) below,” “it shall be for the Secretary of State to make any decision that falls to be made under or by virtue of a relevant enactment”.

Thank you both for your thoughts and help so far, especially you Martin for your excellent submission which unquestionably saved me a lot of time and head scratching.

The appeal was adjourned to allow the SoS an opportunity to provide a full response as the Tribunal Judge and PO did not receive the submission until the day before the hearing although it was submitted in advance.

I had a quick chat with the PO (nice chappie) who told me that it was a supersession and does not accept official error.  He also told me that he googled the decisions referenced in your submission and came across this thread!

I will no doubt be posting again on receipt of the response.

It isn’t a supersession: decisions stopping or restoring payability cannot be described as decisions made on an award (eligibility). The Court of Appeal is super clear on that.
You don’t need to rely on official error in any event as it is simply a case of making another sec 8(1)(c) decision and restoring payment. There is no rule limiting the effective date of such a decision as there is for a sec 10 supersession decision.

Again any advice gratefully received.

Please see attached SoS response which has been anonymised.

Interesting- they never put an argument in any case I have seen about this issue before. Looks like you have a First-tier Tribunal with a point of law being argued…

I will have a look at this- on first reading I would say:

1. Their policy argument (that unless one says its a supersession overpayments that occur when a person goes into hospital/carehome and does not disclose this would not be recoverable) is wrong- Section 71(5A) allows for regs to be made disapplying the requirement for revision. Reg 12 of the PAOR Regs 1988 does this when “circumstances of the…. non-disclosure do not provide a basis for [revision]”.

2. I think it can be argued their attempt to distinguish Adams is wrong- I need to think more about why. However, you have a problem in that I think a 3 judge panel of the UT has suggested you can do supersessions on payability issues (without mentioning Adams and without the rep for the claimant arguing this point as far I can see)- Secretary of State for Work and Pensions v JL (DLA) [2011] UKUT 293 (AAC). I was not aware of that decision before and think it makes things considerably harder for you.

It is clear that Adams is distinguished on the facts.  To my mind that is non-controversial but it might still be applicable.  It is also clear that the dicta in CDLA/1340/2009 allow for decisions on payability to be superseded.  It might be arguable that as the original award decision on the claim was an entitlement decision then any subsequent superseding decision must deal substantively with the entitlement question.  However, and this is a massive if, one would have to look at the exact terms of the adjudication regs then in force.  If the argument holds (as Martin says no such argument was put in that case) and entitlement was not in issue then section 8 (or its previous equivalent) allows for a decision as to whether the care component is payable for the relevant period under reg 9 of the DLA Regs.  In such a case there would have been no need to suspend under the previous equivalent of reg 16 of the D&A Regs at all.  However, if that argument has no force then, to my mind, it is still up to the SoS to produce some evidence that the 1992 decision was a supersession decision (an anytime review decision under the old adjudication regime).  A tribunal should not just take his word for it.  This has now got interesting.