PIP refused because claimant getting Carers Allowance

Nope- nothing to say you can’t receive both (just as you could receive DLA and CA simultaneously). It’s perfectly possible to be both disabled/have health related issues and be a carer (and is, indeed, very common). They’re just trying it on.

Agree but remind client when discussing case issues , it is not necessarily unreasonable for a decision maker (DWP or HMCTS) to use ‘analogies’ to help understanding of a claimant’s functional diffculties .
At risk of teaching grandma to suck eggs , if a claimant states they meet a certain level of difficulty when doing a particular activity from the prescribed list but , then state they regularly take part in an activity not on the prescribed list which uses the same functions or part of the body , you will have to advise on the apparent contradictions .
Its all in the day-to-day detail and the golden rules I use to help client focus on the relevant issues so they can decide whether to proceed with an Appeal and , if they do , the type of questions to expect from a Tribunal panel , are : ‘what , when and how often ’ and ‘repeatedly , reliably , safely , within a reasonable time period and to a reasonable standard for more than 50% of the time’ .

To someone unaware (i.e. a PIP DM) it may seem odd that one can provide care under the regulations worded as follows

.... a person shall be treated as engaged and as regularly and substantially engaged in caring for a severely disabled person on every day in a week of…

The meaning of “regularly and substantially engaged” in caring is provided for in
reg.4 of the CA Regulations.

But then it isn’t defined.

There are two unreported decisions cited in the relevant book.

ones here >>>> http://www.rightsnet.org.uk/pdfs/cmmr_upload/cg/cg01291.doc

Can’t see the other >>> cg/006/1990

The long and the short of it is that claiming CA would not exclude someone from PIP it would depend on what care was provided -

1. Is it physical hands on care at odds with the PIP claim?

Or

2. Is it less hands on watching over and then calling for attention from another?

In either case I don’t see how the PIP DM would know or the CA DM as the CA form is just a tick box to say do ‘I provide 35hours care per week.’

The notes refer to ‘many things including cooking meals and shopping.’

** On reflection I suppose it is possible that claims could be linked up?

i.e. PIP form person A says my carer does this/that and PIP form person B says I cannot do this/that and need someone else to do it?

I’d doubt that as that would require a lot of joined up working by the DWP that hasn’t been observed to date…..

It’s an MR/appeal and see.

Dear SeanM,

This is an issue that I have seen before for ESA and DLA (but this is the first PIP case) and there is case law directly relevant to the point. Look at R(IS) 8/02 and specifically Paragraphs 35 and 36. In the Carers Allowance Regulations, there is no prescription of the term “caring” for Carers Allowance and the DWP cannot create one by by importing a definition from DLA entitlement conditions. If this was the intent of the Secretary of State’s statement in the decision, it is wrong. As long as Mum is in sufficient close proximity to her child (the DLA claimant) for 35 hours per week and providing supervision, she can quite properly claim Carers Allowance i.e. she could be sitting in a chair opposite the child for the required period and quite properly claim the benefit. This is not relevant to the proper assessment of Personal Independence Payment entitlement.

Good luck with your challenge.

Regards

Chris Browne

John Birks - 11 November 2015 03:43 PM

** On reflection I suppose it is possible that claims could be linked up?

i.e. PIP form person A says my carer does this/that and PIP form person B says I cannot do this/that and need someone else to do it?

I’d doubt that as that would require a lot of joined up working by the DWP that hasn’t been observed to date…..

It’s an MR/appeal and see.

Potential data protection issues with this in many cases I’d have thought? i.e. if a friend (no other connection) is receiving CA for caring for me, can what I say about my care needs be put in evidence in an appeal about what the carer says about their own?  and as others have suggested, if I’m receiving DLA care on the basis of my statements that I need attention with x, y and z, it cannot be assumed that the friend who is claiming CA for looking after me is actually helping with x, y and z - the care could well be with things that don’t qualify as a care need for DLA (shopping, housework) but which would for CA.

There’s more potential for ‘joining up’ in this case though - it’s not stated, so my assumption could be wrong, but mum is probably not just receiving CA for looking after the child, she’s very likely also claimed DLA as appointee for the child. And if that’s the case, the DLA claim form very likely contains statements along the lines of “I need to help [insert child’s name] with x, y and z…..”

Not saying that the DM will have done this, of course, but it does create the possibility of the direct comparison of statements…...most likely they’re chancing it.

In a case like this, I’d be tempted to make an exception to my usual rule and get a very early submission in so that there is sufficient time for the Secretary of State to respond (and a specific invitation to do so - might even chance a request for a direction from the tribunal) - and ask what specific tasks is that they are saying mum carries out as a carer that are at odds with PIP entitlement.

Thank you all for these posts, I appreciate your help.
Regards
Seán

I’ve actually had a recent case where the assessor has told my client at the end of his PIP assessment that he is ‘unlikely’ to be awarded PIP because he cares for his wife; so to be ‘prepared’.
I challenged his statement, explaining the purpose of the assessment is to identify what the client can or cannot do for himself, not another person, and given that my client suffers from clinical depression, his claim for PIP is largely based on his need for prompting and encouragement, not a physical inability to do things; the fact that his wife, frequently and repeatedly prompts and encourages (nags) him to do things should in fact support the claim and a DM should only make the decision according to the regs and what is recorded from the assessment.
Interestingly my client has been awarded 6 points based on his need for prompting and encouraging to budget, prepare food and wash/bathe, and wasn’t awarded any points for engaging with other people, despite the fact that he was visibly shaking and sweating, couldn’t make eye contact and mumbled his way through the assessment - so I am currently at MR stage - but there was no mention of his ability to care for another person within the decision notice.
But I could have just booted the assessor when he mentioned it to my client because it nearly caused a full blown breakdown on the way home!

You should have reminded the assessor that they are not the DM and have no right to pre-empt the DM’s decision.

Oh i did. I think I said something along the lines of that it will be for a DM to make that decision based on the assessment report and the questions asked during the assessment relate to what the claimant can do for himself not another person…and that people with depression are still often capable of looking after other people whilst neglecting to look after themselves.

Of course, now we know that there are no “decision makers” but just “case managers” who simply adopt the HCP report without giving consideration to the Regs!

This ties in with the Universal Credit rules. No entitlement to a work capability element AND a carers element. It’s one or the other.

Gone are the days when us advisors hit the bonus ball…....getting a couple with 2 x the SDP and 2 x Carers premium. :)
Sad times   :(