Severe Mental Impairment, Council Tax discount and over pension age

It’s always the simple things that seem to be the trickiest.

DRH p.198 lists various benefits that bring about entitlement to SMI reduction in CT, including DLA, PIP, AA, ESA etc but also has a bullet to the effect that you can qualify if you’re over pension age and would have been entitled to one of those benefits if under state pension age.

This provision was enabled by SI 1996/636 which amended The Council Tax (Discount Disregards) Order 1992 as follows:

“(3) The requirements in this paragraph are—

(b)that had he not reached pensionable age he would have been entitled to one of the benefits listed in paragraph (2) above.”.

An adviser has asked us, how does this work in practice? How can someone show they would have been entitled if they haven’t claimed the benefit in question previously? Putting aside having an underlying entitlement to something, is this intended only to cover, say, someone claiming ESA who reaches pension age so ESA stops?

Any advice gratefully received, I’ve checked CPAG’s Council Tax Handbook and that’s confused me even more as it states “you must be entitled to (though not necessarily climing or in receipt of) one of the following benefits”

Thanks as ever.

“Would” or “Could” might be argued here (warning -I’m very fond of splitting hairs, often wrongly).

I’d suggest that ‘would’ means that - age aside - all conditions have been met.  That would (cough) include, for example, having had a WCA.

Could would (cough, cough) have meant that all conditions would (cough, etc.) have been met if they were then tested.

Given that I can’t find any way to get a WCA on PC, I suspect the practical effect is to limit it to previous entitlement.  Same argument applies across other benefits.

Thanks Gareth. How would or could someone show they would have been entitled to PIP, except for the fact they’ve reached pension age though? Surely, in essence, that would require a claim to establish eligibility?

I think that’s my conclusion.  The guidance note to the 1996 regs says “... ensure that severely mentally impaired people eligible for certain benefits do not cease to be disregarded when they reach retirement age.”

See also https://www.rightsnet.org.uk/forums/viewthread/10525/#53392

It’s a long long time ago, but…

I persuaded a local authority that it was impossible to obtain a declaration that a person would qualify for Incapacity Benefit due to them being of pension age because they do not meet the age criteria.  But if they had been of working age they would have qualified with a diagnosis of dementia. I referred them to Regulation 10(2)(d)(ii) of the Incapacity for Work General Regs 1995 1995/311

As the reference to Incapacity Benefit hasn’t been removed from the Council Tax legislation I would still think it is worth a punt

10.—(1) Where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment a person shall be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him.

(2) The circumstances are—

(a)that he receives, in respect of the day in question, a payment of—
(i)the highest rate care component of disability living allowance;
(ii)an increase of disablement pension by virtue of section 104 of the Contributions and Benefits Act and regulation 19 of the Social Security (General Benefit) Regulations 1982 (increase of disablement pension for constant attendance) at a rate greater than that specified in paragraph 2(a) or at the rate specified in paragraph 2(b) of Part V of Schedule 4 to that Act;
(iii)a constant attendance allowance by virtue of article 14(1)(b) of the Naval, Military, and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983;
(iv)an increase of constant attendance allowance at a rate payable by virtue of article 14 of, and paragraph 3(a) of Schedule 3 to, the Personal Injuries (Civilians) Scheme 1983;

(aa)that he is entitled to—
(i)a disablement pension by virtue of section 103 of the Contributions and Benefits Act by reference to a degree of disability of not less than 80 per cent.;
(ii) a disablement pension by virtue of Part III of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 or of Part III of the Personal Injuries (Civilians) Scheme 1983 by reference to a degree of disability of not less than 80 per cent.;

(ab)that evidence in accordance with regulation 10 of the Social Security (Severe Disablement Allowance) Regulations 1984 establishes that he suffers from a loss of physical or mental faculty such that the extent of the resulting disablement amounts to not less than 80 per cent.;

(b)that he is suffering from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months;

(c) that he is a blind person whose name is on a register compiled and maintained by a local authority under section 29 of the National Assistance Act 1948 (welfare services) or, in Scotland, has been certified as blind and in consequence is registered as blind in a register maintained by or on behalf of a regional or islands council;

(d)that he is suffering from any of the following conditions—
(i)tetraplegia;
(ii)persistent vegetative state;
(iii)dementia;
(iv)paraplegia or uncontrollable involuntary movements or ataxia which effectively renders the sufferer functionally paraplegic;

(e)that he is suffering from any of the following conditions, and there exists medical evidence that he is suffering from any of them—
(i)a severe learning disability (which, for the purposes of this regulation, means a condition which results from the arrested or incomplete physical development of the brain, or severe damage to the brain, and which involves severe impairment of intelligence and social functioning);
(ii)a severe and progressive neurological or muscle wasting disease;
(iii)an active and progressive form of inflammatory polyarthritis;
(iv)a progressive impairment of cardio-respiratory function which severely and persistently limits effort tolerance;
(v)dense paralysis of the upper limb, trunk and lower limb on one side of the body;
(vi)multiple effects of impairment of function of the brain or nervous system causing severe and irreversible motor, sensory and intellectual deficits;
(vii)manifestations of severe and progressive immune deficiency states characterised by the occurrence of severe constitutional disease or opportunistic infections or tumour formation;
(viii)a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person’s mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment.

edit - it appears that (d) and (e) cover most things!

Nice one Simon, thanks.