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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Continuing care and DLA

ruthch
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Senior Welfare Rights officer Tameside Welfare Rights Service Greater Manchester

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I’m advising a severely disabled 18 year old. She is no longer able to live at home and has moved into a privately owned childrens home. Her place is fully funded by the PCT under continuing care payments. Funding is decided on an individual basis so other residents are funded differently. She’s waiting for a decision on whether her DLA can be paid.  My advice is that they are likely to consider that hospital rules apply and refuse to pay both care and mobility components. However I’d like to appeal if there is any chance at all of making an argument because she wants and needs some level of financial independence. She’s been awarded ESA but would like to go to college full time in September and will lose her ESA if she isn’t getting any DLA. Shes not keen on part time study. If anyone has any ideas or useful experience to share, I’d be grateful to hear them. Thanks.

Mick Quinn
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Welfare rights officer - Northumberland County Council

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Hello Ruth,

I have a similar case currently at appeal. Client is 100% CHC funded. I’m arguing that his Res care Home cannot be classed as a Hospital or similar institution.

Using DMG (18020) Hospital In-patient Treatment: As my client is not receiving medical or other treatment I hope to pursued the tribunal that his DLA mobility should be paid.

Cheers

AGodfrey
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Welfare Benefits Adviser, Money Advice Unit, Herts

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Have you seen R(DLA) 2/06? It may be of some use to you.

http://www.rightsnet.org.uk/briefcase/summary/Payment-of-DLA-in-a-hospital-or-similar-kind-of-institution/

[ Edited: 12 Jul 2010 at 01:14 pm by AGodfrey ]
peted
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Social Welfare Dept Stephensons LLP, Leigh, Wigan, St Helens, Manchester and Bol

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My understanding is that because your care is funded under NHSCC framework, then - by definition - you are provided with majority nursing care which is equivalent to being “maintained free of charge .....in a hospital or similar institution” (reg 8).

I have to say though that equally DLA seems to continue for some and not for others in these circumstances…I have had cases where mobility carried on and where care and mobility ended…I have also had cases where continuing care was funding care in the person’s own home and both mob and care were paid….inconsistent to say the least

Interesting one this…....I know the caselaw cited but it wasn’t specifically continuing care funding that was looked at there - it was a complex funding arrangement between local Authority and PCT

Pete C
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Pete at CAB

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Just to act as devils advocate;  if she doesn’t need full time nursing type care why are the PCT funding her placement in this childrens home and under what legislation?

I seem to recall that the hospital or similar institution rules have some sort of list of legislation in them that goes some way to defining what is or is not a ‘similar institution’ but I could be misremembering that..

Mick Quinn
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Welfare rights officer - Northumberland County Council

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Here’s the relevant part of the DMG I’m using in my appeal.

DMG

FREE IN-PATIENT TREATMENT

Deciding free in-patient treatment
18020
There are five points to consider when deciding whether a person is receiving free in-patient treatment. The person must be all of the following

1. maintained free of charge

2. Receiving medical or other treatment

3. in a hospital or similar institution

4. An in-patient

5. Receiving free in-patient treatment under prescribed legislation1 or in a hospital or similar institution maintained or administered by the Defence Council.

Note: A person who does not meet any one of these conditions is not receiving free in-patient treatment. The decision maker does not need to consider the other conditions.
1 NHS Act 77; NHS (Scot) Act 78; NHS & CC Act 90

My client does not receive medical or other treatment. The definition of which the DMG gives as:

Medical or other treatment

18024
To be treated as a hospital in-patient a person must be receiving

1. Medical treatment (for example surgical treatment or administration of drugs and injections) or

2. other treatment which includes nursing services by professionally trained staff in the form of observation, therapy, support appropriate to the persons needs, advice and training in domestic and social skills.

The appellant has not and does not receive any medical treatment or nursing services by professionally trained staff. Therefore the appellant should be treated as in Residential Care with respect to entitlement to DLA mobility.

Alison G
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Welfare rights worker - CPAG in Scotland, Glasgow

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Aside from your main question, and just thinking about the ESA issue, she could continue to be entitled to irESA while a full-time student providing she is entitled to DLA (reg 18 ESA regs), so payability isn’t the issue.