DLA treated as income for DHB

One of our members had their DLA Mobility and Carers treated as income
for purposes of DHB, we employed a solicitor and sought Advice from a
Barrister on their behalf.

The law was quite clear in that the carers part could (but should not)
be treated as income but the mobility was for the specific purpose of
mobility and under law could not be treated as income.

The council concerned backdated the appeal (even though there is no
appeal only the right to have the decision reviewed) and only now takes
the carers component as income.

However as our members health has deteriorated they are concerned that
any increase in their carers component will be used as income for their
DHB and therefore they will not be able to hire the help they now need.

Has anyone else had experience of this anomaly?

Can our member apply for additional carers services provided by the
council if this allowance is used for income rather than to allow them
to purchase the care they need?

Chris

The local authority can carry out an assessment of need or a review of an existing care plan based on services that a person might be eligible for reasons of disability.  Financial hardship alone is not relevant to an assessment of need.  If services are provided then the person is subject to a means test.  Fairer Charging assessments do include the care component of DLA in the financial assessment (the mobility component is ignored) but if the person only gets day care services and he gets the highest rate of the care component only half of that component is included in the means test and the other half is ignored.

When you say DHB I presume you mean discretionary housing payments.  If so then he needs to get the DHP decision reviewed if he starts paying toward his care as he needs to put it to the local authority that his care component goes out as expenditure and should not therefore be taken into account as disposable income.

Edited for spelling

Thank you that was my understanding as well but we have found several councils using the Mobility as well in their income calculations which we have now stopped when we are made aware of it happening

I’ve had a similar situation with a client, the Council have treated both Care and Mobility components as income in their reasons for turning down DHP app. Can anyone point me in the direction of the relevant statute?

Any amount of the care component of DLA or direct payments from the local authority under community care legislation that are being used to pay for services should go down on both the income and expenditure side of a financial statement and thus cancelling each other out.

Simon - 16 January 2014 10:45 AM

I’ve had a similar situation with a client, the Council have treated both Care and Mobility components as income in their reasons for turning down DHP app. Can anyone point me in the direction of the relevant statute?

It’s section 73(14) of the Social Security Contributions and Benefits Act 1992.

For FACS; where the Care Comp is being taken as income for DHP I’d argue that any component being paid by way of rent is Disability Related Expenditure and should thus be disregarded in the FACS assessment.

I’ve already posted this in the HB and CTS support topic following another discussion.

——-
Grateful for any advice or thoughts.

We’ve received the following response when we queried the inclusion of DLA mobility as income for DHP:

“We have checked the legislation you refer to, which is section 73 of the Social Security Contributions Act 1992.  Under this legislation, DLA mobility is explicitly excluded as income in any welfare provision under this Act.  Exceptional Hardship Payments and Exceptional Circumstances awards (the schemes in operation before DHP) were embedded in the HB scheme, so we couldn’t count DLA mobility as income.  The DHP scheme however is not a welfare scheme subject to the SSCA 1992, but was brought into existence under the Child Support, Pensions and Social Security Act 2000.  Therefore this issue is still the subject of discretion under each individual council’s schemes.”

The Discretionary Financial Assistance Regs 2001

Analysis
“as s73(14)SSCBA requires the mobility component of DLA to ‘be disregarded in applying any enactment or instrument under which regard is to be had to a person’s means’ it is suggested that any amount of that benefit must be ignored”.

Thanks in advance

Section 73(14) is in the following terms:

“A payment to or in respect of any person which is attributable to his entitlement to the mobility component, and the right to receive such a payment, shall (except in prescribed circumstances and for prescribed purposes) be disregarded in applying any enactment or instrument under which regard is to be had to a person’s means”.

The phrase “any enactment or instrument” seems to me to be self explanatory.  Your LA is not entitled, in my view, to narrow its scope to certain social security legislation only.  The f\act that “the DHP scheme…..is not a welfare scheme subject to the SSCA 1992” seems to me to be wholly irrelevant.  Furthermore, the DFA regs do not prescribe the mobility component as something not to be disregarded for the purpose of those regulations.

There are solicitors fishing for JR work around dubious DHP decision making. Should anyone be interested yell and I’ll make the introduction. You do need be quick though; the courts are taking a very hard line on limitation, at least so I’m told.

Here’s BBC article about JR being launched where DLA taken into account for DHP - solicitors in that case are Irwin Mitchell -

http://www.bbc.co.uk/news/uk-england-birmingham-25876344

Good to hear they are being formally challenged.

Our LA ( Greenwich ) excludes all DLA income for DHP purposes.

Cheers Frank! (that’s an in-joke, sorry)