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Mobility element of PIP being withdrawn from young adult in an educational setting

Becky Jenner
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Family Support, Rett UK, Luton

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Joined: 5 November 2018

Hi, scenario is a 19 year who is fully health (CHC funded) in an educational setting (National Star college) as a boarder though not a 52 week placement. DWP have suspended mobility payment with view to withdrawing it but the family use the adapted vehicle to take their daughter to the college (78 miles away from family home) and pick her up again to have her home for the holidays - so she is at college only 33 weeks a year and rest of time the family need to vehicle when she is at home to take her from A to B etc.

The LA adult social care team are advising her this is correct and quoting the case Sec State vs Slavin (2011) at her but this was about someone in a full time residential setting with nursing care.

we know of other students at the college who have not had this issue and are also health funded.

Any experience of this please?
thanks

Kieran Andreson
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Welfare Benefits Team - Springfield Hospital

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I think we might need to know more.

I think what they might be getting at is that because of the Continuing Health Care funding then the placement is at least potentially a patient in a “hospital or similar institution” as opposed to a resident in a “care home or similar accommodation”.

If found to be a patient in a hospital there would be no entitlement to either component after 28 days whereas its only care component that stops in a care home.

Becky Jenner - 05 November 2018 12:32 PM

The LA adult social care team are advising her this is correct and quoting the case Sec State vs Slavin (2011) at her but this was about someone in a full time residential setting with nursing care.

I don’t think so, the whole point of Slavin was that the home did not provide nursing care.

SSWP v Slavin (DLA) [2011] EWCA Civ 1515; [2012] AACR 30 is authority that a claimant is not inherently a patient in a hospital or similar because the placement is funded by continuing health care. It is also necessary for the claimant to be getting “medical or other treatment” in the placement.

Judge Turnbull provides a useful summary of their reasons at para 106 of the UT decision, which the Court of Appeal endorses.

Is this what social care is getting at? Are they suggesting that the services that your client is getting “medical or other treatment” so as per Slavin is an patient in a hospital?

 

Becky Jenner
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Family Support, Rett UK, Luton

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Hello Kieran, many thanks for that - yes they are saying that at Nat Star she does have access to medical support if needed but it is an educational setting not a care home. Also it is not a 52 week placement - 33 weeks there and the rest at home. I know PIP will look at it on a case by case basis but there are other students there who have very similar needs, who have the same access to health support if needed and yet no one has raised the issue of the mobility element being withdrawn. The family knew the care element would be and that they can still claim for part of that as she is effectively a boarder.

I did find a PDF from Contact https://contact.org.uk/media/1039341/pip_guide.pdf - paragraph on page 30

If a young person is in residential accommodation that is paid for out of public
funds, including a residential school, the daily living component stops being paid
after 28 days. This applies to all PIP claimants including those aged 16 or 17.
The mobility component is not affected.’

Ideally, I need to find the part that refers to this in the DWP guidance .

Any other thoughts appreciated,
thanks

MickD
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Welfare Rights Derbyshire County County

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The DMG at 61821 has a good precis of Slavin with a couple of examples (not quoted in this post):


Care homes funded by NHS

61821 Where any of the costs of the treatment, accommodation and any related services
are paid by the NHS under the relevant National Health Service legislation, DMs
should establish if
1. the care home employs doctors, qualified nurses or other health
professionals, and
2. the claimant receives medical or other treatment by or under the direct
supervision of a qualified doctor, nurse or nurses at the care home1
.

Kieran Andreson
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Welfare Benefits Team - Springfield Hospital

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The fact that it is an education setting isn’t really here or there. Someone can attend School, college or university without it affecting their award of PIP.

What is important, is that your service user is being accommodated and provided with qualifying services (accommodation, board and personal care). That they are also providing education in addition to these services, doesn’t really matter. I have assumed from the nature of the college that they are providing some degree of personal care.

While the college is unlikely to call itself a care home, for PIP purposes it likely is because s.85 Welfare Reform Act 2012 defines a care home is defined as being an “establishment that provides accommodation together with nursing or personal care”.  Which the college appears to do. There’s nothing to exclude an establishment that also provides other things, e.g. education, from this definition.

The reason why the Daily Living component is not payable after 28 days is because Reg. 28 Social Security (Personal Independence Payment) Regulations 2013 bars payment to resident in care homes after this period. There is no prohibition of the payment of the mobility component.

In a similar way as the College can be treated as a care home, it can be treated as a Hospital if the conditions in s.86 of the act and Reg.29 of the regulations are met.

Because the place is funded by continuing care, its potentially can be treated Hospital, however only if in addition to being funded by continuing care your service user was “undergoing medical or other treatment”.

So when you say access to medical support, if that’s just a medical staff around in case something were to happen this almost certainty isn’t “undergoing medical or other treatment”. However if there are medical staff, doctors, nurses etc, activity administering and supervising a program of interventions or therapies for your client then its more likely to be “undergoing medical or other treatment”.

What Slavin looked at was that there can be a very fine line between what is personal care and what is medical treatment and the DWP and potentially Tribunal would need to look at all the factors to decide.

And sorry if this point is obvious, but this only applies when your service user is actually resident, so when she is at home in the holidays she is entitled to be paid both care and mobility components.

DWP Guidance is at Chapter P3 para P3062 of the ADM https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570568/admp3.pdf

Edit: Sorry MickD, didn’t spot your quicker reply!

[ Edited: 6 Nov 2018 at 01:47 pm by Kieran Andreson ]
Becky Jenner
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Family Support, Rett UK, Luton

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Thanks Kieran Andreson and MickD - we successfully challenged the DWP decision and the mobility element of PIP was re instated.