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DLA and PIP after age 65

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neilbateman
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I have a client and I am confused about the law on people with DLA after age 65.  The issue affects any older people already receiving DLA whose needs increase significantly.

Client is 71 and has had DLA HRM for decades.  His care needs have increased significantly so much so that he clearly qualifies for PIP ERDL and would also qualify for ERM.

He rang DWP to claim PIP but has had a letter stating that he does not qualify for PIP because he was aged over 65 on 8th April 2013, (as an aside, the letter contains no MR/appeal rights).

Both CPAG and DRH are not clear about people in this situation. 

S. 83 Welfare Reform Act 2012 puts a complete block on PIP for those over 65, with exceptions to be made by regulations.

Reg 4 of the PIP transitional provisions Regs states that people over 65 cannot opt voluntarily to claim PIP if they already receive DLA.

Reg 27 PIP transitional provisions regs allows an exception if they were aged under 65 on 8th April 2013.

Regs 15, 26 & 27 PIP Regs deal with PIP for people over age of 65 who already receive PIP, so don’t apply to my client

Am I right in thinking that my client can never now get PIP DL or mobility? 

But, could he get AA as well as his DLA HRM?  I’d always thought that it was not possible to get both DLA and AA, but I see that s 64 1A Social Security Contribs & Bens Act 1992 seems to provide an exception.  Am I right?

[ Edited: 22 Sep 2016 at 03:06 pm by neilbateman ]
benefitsadviser
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He cant have pip as he is too old, and cant have AA as he gets DLA

I would just ask for a supersession form and get DLA reassessed.

No new mobility component can be considered for DLA S/session if mobility issues started after 65th birthday, but higher rate of care can be awarded if he meets criteria

As he gets HRM i would only fill in the bit about how his care needs have changed.

As you are only asking for care needs to be assessed then his Mobility should be safe.

An award of hi mob and hi care is the same anyway, wether its PIP or DLA, and all add-ons, like SDP/CA etc are identical also.

[ Edited: 22 Sep 2016 at 04:12 pm by benefitsadviser ]
neilbateman
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benefitsadviser - 22 September 2016 03:39 PM

He cant have pip as he is too old, and cant have AA as he gets DLA

I would just ask for a supersession form and get DLA reassessed.

I’m not sure that is possible post introduction of PIP?

Elliot Kent
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Where a DLA claimant reports a change of circumstances, in the course of things a supersession must be considered.

The only barrier to this happening is reg 20 of the transitional provisions which scoops up changes of circumstances requests by people marked for transfer and turns them into PIP claims. However reg 20 cannot apply to your client because of his age (specifically because reg 3(2) precludes him from becoming a notified person)..

So if your client requests a supersession, reg 20 won’t be activated and the supersession request will need to be dealt with. The rules are the same as pre-PIP so a care award could be considered.

neilbateman
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Thanks Elliott.  That’s clear to me now.

Paul_Treloar_AgeUK
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We’ve just heard about a case of someone receiving AA (HR) and DLA (HRM) and my first thought was that this must be wrong.

However, having had a look at the law, I have to say that I agree with Neil that sec.64(1A) of the Social Security Contributions and Benefits Act 1992 only rules out an AA claim where person is entitled to the care component of DLA.

Why can’t this client have managed to secure an AA award on top of his DLA mobility payment, and if you’re going to reply to say he can’t, please reference the legislation that would prevent this, because as it stands, my instinct is to advise that this isn’t a problem on the basis above and tell them not to worry.

There is nothing that I can see, for example, in sec.71 et seq SSCBA 1992 that precludes DLA mob being in payment alongside AA.

Thoughts?

Mike Hughes
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My only thought is that I have had three clients in the past two years who receive exactly that and I don’t see why it’s not possible either. DWP seem pretty okay with it in my experience.

Paul_Treloar_AgeUK
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Mike Hughes - 17 November 2016 10:39 AM

My only thought is that I have had three clients in the past two years who receive exactly that and I don’t see why it’s not possible either. DWP seem pretty okay with it in my experience.

Thanks Mike. As I said, instinctively, it didn’t feel correct but I’ve checked the SSCBA and the C&P and DLA regs and it’s difficult to see why AA and DLA mob awards can’t co-exist.

Requirement to report CoC’s under C&P are in respect of “continuance of benefit” and “payment of benefit” and if this client develops care needs post-DLA mob award and these don’t impact upon the DLA award, then I’m not convinced that he has a duty to report under these therefore.

Also the various DLA regs around post-65 entitlement don’t appear to provide an obstacle. At the very worst, if DWP did come back and say it shouldn’t have happened, reg.9 of the C&P regs allows AA claim to be interchanged with DLA anyway, so that would suggest they’d have a duty to revise and reaward anyway. This client has all sorts of other problems going on and we’re anxious not to cause him anymore, hence wanting to be convinced we can reassure him there’s nothing wrong with this situation.

Tom H
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Paul_Treloar_AgeUK - 17 November 2016 10:58 AM

it’s difficult to see why AA and DLA mob awards can’t co-exist

Agree and thanks Neil for raising this (and Paul for re-raising it).

Paul_Treloar_AgeUK - 17 November 2016 10:58 AM

Requirement to report CoC’s under C&P are in respect of “continuance of benefit” and “payment of benefit” and if this client develops care needs post-DLA mob award and these don’t impact upon the DLA award, then I’m not convinced that he has a duty to report under these therefore

I suspect client may be under a legal duty here Paul to report the care needs under either Reg 32(1) and/or (1A) C&P.  The DWP do require the info concerned in the notes accompanying a DLA award (eg, tell us if things get more difficult - can’t remember the exact wording).  Such info would be relevant to whether the HRM award was superseded to include the care component.  As we know, reporting care needs for DLA could prompt DWP to look at the whole award including the mob again which could potentially result in a loss of that mob.  Nothing wrong in failing to report info that DWP definitely require (eg re care needs, especially if you can apply for AA instead) provided the mob award is safe, and that, unfortunately, is often the known unknown as it were. 

Paul_Treloar_AgeUK - 17 November 2016 10:58 AM

At the very worst, if DWP did come back and say it shouldn’t have happened, reg.9 of the C&P regs allows AA claim to be interchanged with DLA anyway, so that would suggest they’d have a duty to revise and reaward anyway.

I’m not sure there would be such a duty Paul.  I don’t think Reg 9 authorises a DM to treat a new claim for AA as a DLA supersession application made by the client which is, I think, the risk we’re discussing here.  After all, we’re talking about where an award of HRM is up and running and the person subsequently claims AA.  Reg 9 in general would, I think, rarely apply between DLA and AA despite the express provision for interchange between the two benefits in Sch 1.  That’s because 9(7) would treat the claim for the alternative/additional claim as made on the same date as the original claim.  I could see that being possible, eg, where a person aged over 65 makes a “renewal claim” for DLA under para 3(1)(b) of Sch1 to the DLA Regs.  In those circs, a DM might, under Reg 9 C&P, treat that renewal claim as a claim for AA or, where the person had in fact claimed AA rather than make a DLA renewal, treat that AA as a claim for DLA.  But rare indeed. 

Reg 9, however, does suggest that a DLA and AA claim can be allowed to subsist simultaneously (ie, its reference to one claim being treated as “additional” to another).  That could happen where a person was renewing their DLA under para 7 of Sch1 to the DLA Regs and also making a claim for AA at same time.  DWP could, conceivably, under Reg9 allow both claims to continue, the former to allow HRM to be awarded, the latter to allow an award of AA.  Perhaps this is why, as Mike, suggests, the DWP are ok with the idea: it’s legally permissible.

Where someone already has an award of HRM and makes a claim for AA, there seems nothing in the law that could prevent that AA being processed.  All the DWP could do in those circs is apply, on its own initiative, for a supersession of the DLA and if the person was found to qualify for the care component, the AA could, if already awarded by that point, be superseded due to section 64 SSCBA or, if still being processed, refused.

Paul_Treloar_AgeUK
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Thanks Tom.

Under regulation 32(1B), a claimant is required to notify changes of circs that affect “continuance of entitlement to benefit” (reg.32(1B)(a)) and/or “payment of benefit” (reg.32(1B)(b)) – as client was receiving DLA mobility prior to the AA claim, I am not convinced these requirements would necessarily apply as qualifying conditions for DLA care and mobility are distinct and a deterioration in his health that led to care and support needs arising would not, on the face of it, affect either of those two strands of DLA mob, particularly if he was already receiving the high rate mobility component of DLA.

I take your point on reg.9 but thinking this through, the claim from the date of the original alternative claim is clearly aimed to protect the entitlement of someone who claims the “wrong” benefit. As you note, I think it establishes a principle to some degree about the possibility of their apparent coexistence. Further, even if the AA claim were to be treated as notification of a CoC and triggered a supersession of the DLA award after the fact (~21 years and counting now), one would hope that the principle enshrined by this regulation would mean that DWP would simply shift entitlement from AA to DLA now without any fuss.

Tom H
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21 years! Wow, it gets better. Without this thread, I think I would have completely freaked if I’d learned that one of my clients had had AA and DLA for that time.

Still, I definitely think the legal duty to disclose is triggered more generally in this type of case.  Agreed not under (1B) but, as stated earlier, under (1) and/or (1A).  But it’s probably academic as, as ever, with DLA the recoverability of any overpayment in reality turns on whether the claimant could reasonably have been expected to know the change of circs should have been notified (Reg 3(5)(c)(ii) or 7(2)(c)(ii) D&A Regs 99).  As we know, if that cannot be shown then it’s not possible to end the DLA entitlement any earlier than the date of the decision which embodies the new disability determination.  No overpayment exists, therefore, so the question of its recoverability under B v SoS and section 71 doesn’t arise.  I think it’s almost certain that would be the case with your guy.  The fact he’d actually been awarded AA making it reasonable for him to think he would have been entitled to the care component of DLA had he notified the DLA section of his care needs and without it having any effect on his mob.  The DWP would need to prove otherwise. 

Still, strictly speaking, I think the duty to disclose arises but can happily be ignored.  And that is true regardless of the fact that, again strictly speaking, a DLA DM would not, as absurd as it might appear, be bound in any way by the AA decision when deciding whether to award any care component.  Agree also about the spirit/principle of the regulation, ie what should happen.

Thanks again for this thread.  Really interesting.

[ Edited: 17 Nov 2016 at 06:48 pm by Tom H ]
Paul_Treloar_AgeUK
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This bloke is one of the first DLA claimants ever. I suggested that we even need to establish whether he was in receipt of Mobility Allowance, just to make sure the DLA HRM is correct. I’m dead old me Tom/

1964
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Me too Paul. I remember when DLA came in. It was dead easy to get an award in those early days too.

Owen Stevens
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Hello all

I have a lady who had been receiving DLA, went through the PIP transfer process, and was not awarded PIP.  She appealed and is awaiting a hearing to determine PIP eligibility.  Since lodging her appeal she has been awarded the standard rate of Attendance Allowance.

If she were to be awarded PIP daily living component (with or without mobility) then this would be paid up until the date she claimed AA.  So I’m currently thinking that there is no harm in progressing the appeal regardless of the outcome. 

However, what if she were to appeal and just receive an award of PIP mobility component?  As far as I can tell this would enable PIP and AA to be paid alongside each other.

Anyone got any opinions or advice for me regarding this case?

thanks

Paul_Treloar_AgeUK
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Don’t think it’s possible.

Section 64 (1) SSCBA 1992 says a person shall be entitled to an attendance allowance is he has attained pensionable age, he is not entitled to an allowance within subsection (1A) etc…

Subsection 1A The following allowances are within this subsection -

(a) personal independence payment;
(b) the care component of disability living allowance.

So DLA mob and AA is possible but the reference to PIP doesn’t distinguish in the same way so can’t see how dual entitlement would be possible.

Owen Stevens
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I see, thanks Paul