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SMI - over pension age
Looking for some advice regarding a client who has been SMI according to GP for over 2 years but only receiving exemption from early this year as that was when AA was awarded. I am trying to make sense of the provision for people over pension age who would have been entitled to one of the qualifying benefits but for their age. Can anyone give me some examples of who this provision would cover? Is it possible to argue that someone who is over pension age would get ESA but for their age if I have substantial medical evidence even if they did not receive any kind of benefit prior to reaching pension age?
Support for Mortgage Interest ?
Severe Mental Impairment (CT exemption).
Severe Mental Impairment, for council tax exemption.
edit: too slow ..
From our council tax factsheet, for the SMI discount to apply to someone they must be
someone:
who has a severe mental impairment. To qualify, a doctor has to provide a certificate confirming that the person has a severe mental impairment. They must also be entitled to (although not necessarily receiving) AA, middle or higher rate care component of DLA, either rate of PIP daily living component, Severe Disablement Allowance, Incapacity Benefit, ESA, Income Support (with a disability premium), Working Tax Credit (with a disability element) Constant Attendance Allowance payable with Industrial Injuries or War Pensions scheme, unemployment allowance payable under the Industrial Injuries scheme or would have been entitled to one of these benefits if they were under State Pension age. The cause of the mental impairment is not important –it could be an impairment from birth, like a learning disability, or a condition such as Alzheimer’s disease
If you’re also asking about whether it’s possible to get the SMI discount backdated, I have to profess to not knowing this.
I don’t think backdating in principle should be a problem, see Arca (which would generally limit any refund to 6 years).
Doing a bit of digging, the relevant amendment to the Council Tax (Discount Disregards) Order 1992 appears to be SI 636/1996:
2.—
“(3) The requirements in this paragraph are—(a) that the person in question has reached pensionable age as defined for the purposes of Parts I to VI of the Social Security Contributions and Benefits Act 1992(3), and
(b) that had he not reached pensionable age he would have been entitled to one of the benefits listed in paragraph (2) above.”.
[..]
Explanatory Note
[...]
The amendments in article 2(2) and (3) of this Order ensure that severely mentally impaired people eligible for certain benefits do not cease to be disregarded when they reach retirement age.
I don’t find the explanatory note helpful, because it seems to imply that you must have been receiving the benefit before you reach pension age, but I can’t read that into the wording of the Order itself (the Order doesn’t say “he would have remained entitled..”, it just says “he would have been entitled”).
Given the potential age discrimination here, I think I’d be pushing for the favourable reading, but I have no experience in practice.
[ Edited: 25 Nov 2016 at 10:22 am by Jon (CANY) ]My reading has always been “entitled to” rather than “receiving”. The one case I tested this on some years back involved IIDB and no opposition was raised.
A couple of other observations.
1 - Has the person really only been SMI for over 2 years or is it a much longer period? If the latter then it’s possible to query the date provided by the GP either by writing directly; asking for a copy of medical reports and then challenging if evidence clearly there, or, getting other evidence from a medical professional also involved with the client.
2 - Arca v Carlisle is held up as the authority on backdating and appears to limit backdating to a brick wall of 6 years. There are a couple of things to be said about that.
a - The Limitation Act only comes into play if a LA raises it. Many LAs see no point in applying a 6 year brick wall, especially where, for example, the person being denied SMI was being cared for by someone effectively employed by a LA to care for them e.g. adult placement. It’s shooting yourself in the foot to not lift the limit as they should have been advised to claim that and Carers Discounts from day one and the level of disillusion it can engender can be enough to make people walk away from fostering etc. Clearly a policy whereby the left hand damages the work done by the right within the same organisation will ultimately have some leeway once you find the right people to acknowledge that.
b - AvC was not asked, and chose not to address, the issue of s28 of the Limitation Act. This is where the applicant is themselves disabled and allows the 6 year brick wall to be demolished. I am biding my time waiting for a case to take to VT to establish definitive caselaw on this. As we’re getting a slow increase in the numbers to whom this is happening I expect one will be along soon enough if one of you doesn’t beat me to it 😊
Thanks very much for your replies. The person may have qualified for SMI even earlier but I have no evidence for that. My problem now is convincing our CT dept that they have to make a judgement call on the basis of the medical evidence that this is the case. I am struggling though to convince them this is the case. The fact the person did not get any benefits prior to Feb this year is the major stumbling block but I cannot for the life of me think why that provision would be there if it doesn’t encompass people like my client. Surely if the only people it covered are previous benefit claimants then it would be written as “was getting one of the above benefits but it stopped when became pensionable age” or something along those lines.
I have a client was in receipt of DLA higher care prior to being diagnosed with dementia,
CT asking for date DLA awarded but we are only seeking SMI from date dementia was diagnosed. Council already have DLA dates as currently receiving CTR..
The date of diagnosis is not necessarily relevant, as the symptoms will presumably have already been present. It sounds like they may be willing to accept SMI from an earlier date than the diagnosis given that there was already a qualifying benefit in place.
As regards the council already knowing the date of award. Unfortunately, you can’t assume that.
1) There are restrictions on sharing of data held for CTR purposes. They are easily overcome but they will undoubtedly be cited.
2) It sadly remains a leap to assume that CT and CTR are related; talk to each other; understand each others functions and so on.
3) You could always take the line that there is a broad public law principle that an organisation should use information already in its possession. However, likelihood is that they will throw DPA in to complicate matters and, time-wise, it’s probably just easier to give them the info.
As an aside, this provides the opportunity to remind people that Arca v Carlisle no longer applies following the judge at the heart of it explaining that their intent had been misunderstood. I have the link somewhere.
As an aside, this provides the opportunity to remind people that Arca v Carlisle no longer applies following the judge at the heart of it explaining that their intent had been misunderstood. I have the link somewhere.
Yes please! (is it this?)
i do a huge amount of smi, carers status and disability reduction applications due to my client group being people with learning disabilities.
ive never had an issue getting these backdated more than 5/6 years.
Yes Jon that IS the decision I was thinking of. Thank you.
Steve, most people had no problem until Arca v Carlisle came along. Some LAs took it as gospel. Some decided to just pretend it didn’t happen; some were just plain ignorant that it had happened and some simply believe there is no higher authority than themselves. All change now.
I know the officer dealing with it Steven, its personal..
There will be an official complaint going in against him to SLC
I know the officer dealing with it Steven, its personal..
There will be an official complaint going in against him to SLC
im surprised glasgow’s financial services are able to conduct a vendetta. things must be improving.
i do a huge amount of smi, carers status and disability reduction applications due to my client group being people with learning disabilities.
ive never had an issue getting these backdated more than 5/6 years.
In Scotland although Arca might be persuasive, it’s not binding precedent. More importantly under the Prescription and Limitation (Scotland) Act 1973 the period of limitation in most civil claims is 20 years so even if it was to be applied you’d have rather more ‘wriggle room’!