carers Allowance- what constitutes ‘Caring’

Rather unusual question here and I don’t mind admitting that the more I think about it the less sure I get.
Client has physical problems but cares for a child with a severe sensory impairment (deaf but some hearing with a cochlear implant) and who gets DLA because of this. The client gets CA and has now been moved from their own DLA award to PIPS SR- DL but no Mobility

Client went to a PIPS appeal for the Mobility part of PIPS but it was put to the tribunal that the award of SR DL was incompatible with the role as a carer. The tribunal , very properly, adjourned at that point to allow client to get advice and make further submissions.

My first thought was that there is nothing incompatible about this at all , just because the client has physical problems won’t stop them providing care in connection with sensory impairment.

All well and good but I understand that a second issue was also raised in that the client could not be providing 35 hours a week in connection with the child’s hearing loss, there simply wasn’t any credible need for that much care to be provided. When questioned the client did not seem to be able to say much different, most of the care provided was of a type that any parent would provide for any child regardless of disability.

This brings me to the question, is there any definition at all of what does and does not count as care for CA purposes - is it limited to those thing which the care for person would do for themselves but for the disability (which is presumably the basis of the DLA award) or is it any care at all including what the carer would normally do anyway?

The commentary in Sweet & Maxwell only discusses two cases but neither go toward a definition or what is or is not care, just that it should have some degree of immediacy.

If anyone can point me to any case law I would be most grateful!

Hmm.

This is a line occasionally thrown in by POs. It’s irrelevant and tends to muddy waters which really are fairly clear. If the tribunal are accepting that care was not being done then there’s no incompatibility! Whilst they are not there to determine what care the client does, it could legitimately come into play if there’s a suggestion it involves a physical element, which doesn’t appear to be what you’re describing. So, what exactly are they saying? I think they’ve simply misdirected themselves.

Danger of misdirecting yourself here too though. A definition of care is irrelevant. All that matters is what care is provided. That will very much depend on the age of the child and the level of their hearing impairment. 35 hours is hardly much. 5 hours a day over a 7 day week. That’d be at least 1 hour before leaving for school and 4 or more from what, 4pm say? Hardly beyond the realms of possibility. 

In terms of credibility it will turn on the facts but it’s entirely foreseeable that a child will have problems communicating with their parents and siblings and others in school. It’s entirely possible the school will have made no alternative provision at all and will describe them as “coping”. It’s entirely possible the child will bluff their way through. 

Big thing to remember is that the child most likely can’t articulate the issues and the parent may not know. Ask about how the child copes with communication when their siblings are watching TV; how they do their homework with other noise in the house; how they cope on noisy corridors in school and so on. How do they cope in poor lighting conditions when it’s harder to see? Plenty to go at I’d have thought.

Activities 7 to 9 should be the focus and in terms of 8 it’s well worth remembering that 8 is signs, symbols and words. People tend to focus on words and forget the other two but it will very much depend on levels of English and/or lip-reading/BSL.

Can’t help but thinking that any new tribunal may not even consider this an issue though.

Hold tight Mike - I’m with you up the point of Activities 7 - 9. The cared for child (with the hearing loss) receives DLA. The carer is the PIP claimant…...

Otherwise, yes - if the child lives with the carer (parent?) then it’s easy to see how 35 hours p/w care could be provided. Entirely run of the mill things like play, watching television, reading, getting the child’s attention etc. etc. will all be impacted…...

Also, whilst there may be no definition of ‘care’ it is certainly much wider than the defintion of care for DLA/AA purposes - so whilst help with housework or shopping won’t (generally) count as care for DLA, it can certainly count toward the 35 hours for CA.

Lastly,

Pete C - 15 May 2017 04:34 PM

All well and good but I understand that a second issue was also raised in that the client could not be providing 35 hours a week in connection with the child’s hearing loss, there simply wasn’t any credible need for that much care to be provided. When questioned the client did not seem to be able to say much different, most of the care provided was of a type that any parent would provide for any child regardless of disability.

I might be tempted (time permitting) to seek further directions on this specific point in advance of the adjourned hearing. If I’ve read this right this is entirely irrelevant to what the appeal is about - the claimant’s entitlement to PIP. This seems to be about whether the level/nature of the child’s disability could possibly ever give rise to care needs amounting to 35 hours p/w. Even if that were the case and could be established (and it’s for the DWP to make its own decision on that, outside of the present appeal process, should it wish) it gets the tribunal no further forward with the matter it has to decide - the claimant’s entitlement to PIP.

In other words, I’d be giving some examples of the nature of the care provided and showing how these were in no way inconsistent with the client being entitled to SR DL - but absolutely resisting any exploration of the question of whether the care equates to 35 hours p/w.

Duh. Yes. had a lapse there. Apologies.

General point holds. Plenty to go at and yes, wholly irrelevant to the determination of the Carers PIP.

Random thought. Is this not a case of “discrimination by association” under EA 10? Rejecting one thing because you’re concerned about the impact of another.

Potentially, but….

a) this nonsense was raised by the PO and did not inform the original decision under appeal, so far as we can tell…..

b) client hasn’t lost her appeal yet

c) so as things stand I’m not sure (I mean I’m genuinely not sure) there’s any recourse other than a complaint about the adjournment - and prospects on that would depend on what’s in the RoP and adjournmment notice.

Still, might not be a bad idea tactically - i.e. puts them on notice that any such nonsense informing the eventual decision is likely to be robustly challenged

Complaining about an adjournment is a difficult one. On the one hand you will make friends with your regional judge as statistically they are not fans of pointless (or indeed any) adjournments.

On the other hand, on the occasions I’ve done this I’ve found

- some resistance from clients who fear it may impact the final outcome.
- a kind of despairing attitude from TS, which could be summarised as “Sorry about this but why don’t you wait and see what happens when it’s relisted?”.

I’ve done several complaints at this stage over the years and never felt that the process or the outcome was satisfactory. It felt as though I ought to do something but the effort was excessive in relation to the conclusion.

I guess I’m in the “genuinely don’t know” camp too but my feet are sliding towards “maybe don’t bother”.

It feels like we are increasingly seeing tangential evidence from Appellants’ lifestyles being thrown in to Tribunal submissions to cast doubt on their PIP entitlement. 

Driving is a common one which is used assertively by DWP to allege that people are more able than they say.  I usually deal with that by evidence of how infrequently someone drives, the variations they have made and pointing that that DWP staff are not qualified to comment on driving ability and that in any event different anatomical processes are involved in (eg) changing gear and braking every few minutes with most of the body weight on a seat rather than repeated downward pressures of the full body weight when walking or standing.

As regards caring, here is what I wrote in a submission some time ago where a PIP Appellant was carer for her husband.  The Tribunal went no further than to confirm that she was not doing things such as lifting him

“I am also concerned about the comment on page C of the Respondent’s submission concerning the Appellant’s entitlement to Carers Allowance (which is for her husband whom she lives with).  This strikes me as being motivated by bad faith and prejudice.  As the Respondent should be aware, there is no definition of “care” being provided in order to qualify for Carers Allowance and it includes companionship and supervision which is easy to satisfy when someone lives with a partner.  See paragraph1.200 Social Security Legislation 2015/16 Volume 1.”