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Forum Home  →  Discussion  →  Disability benefits  →  Thread

DLA high care - when does night time start?

biscuits
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Welfare benefits - Disability Law Service, London

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Joined: 29 July 2019

Hiya,

Would be grateful for your help. My client is 83 and gets high mobility and middle care DLA. She needs help to get into bed at night time. She goes to the toilet in the middle of the night and needs help to get back into bed when she gets back.

Does this count as one time she needs help (the middle of the night) or twice (first time she gets into bed and middle of the night)? Twice would count as repeatedly and potentially mean she could be entitled to high rate care.

She wants to know whether she is entitled to high rate care. I have advised her of the potential risks (award decreasing) of her claim being looked at again, but wondered whether she even has a case for high rate care?

Many thanks,

Bez

Ruth_T
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Volunteer adviser - Corby Borough Welfare Rights & CAB

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According to caselaw, “Night” is “that period of inactivity” which begins when “the household… closes down for the night”.    (R v National Insurance Commissioner ex parte Secretary of State for Social Services [1974] 1 WLR 1290 (DC),  reported as R(A) 4/74)

It’s usually assumed to be the period between 11 pm and 7 am.

Paus17
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Epping Forest CAB

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Ruth_T - 17 September 2020 08:14 PM

According to caselaw, “Night” is “that period of inactivity” which begins when “the household… closes down for the night”.    (R v National Insurance Commissioner ex parte Secretary of State for Social Services [1974] 1 WLR 1290 (DC),  reported as R(A) 4/74)

It’s usually assumed to be the period between 11 pm and 7 am.

According to the commentary in Social Security Legislation this case is generally assumed to decide that night-time care is what happens after the claimant has gone to bed so that would rule your client out. But the commentary also says that this is a question of fact so it may all depend on the particular circumstances in your client’s household. For instance, if someone has to stay up late just to help your client into bed that might count as night-time activity.

biscuits
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Welfare benefits - Disability Law Service, London

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Okay, thanks, that’s really helpful! I think in this case, their partner does not have to stay up late to help them.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Have won cases where the household “shuts down” at around 8/8:30pm i.e. older people with no other reason to stay up or awake.

Shutting the household down would not ordinarily start when a person gets into bed. That’s near the end of a long list of things which might include putting pets out/in; locking external doors; checking windows; unplugging devices (still a thing for a lot of older people); putting lights out and setting chimes or full on burglar alarms.

Chrissum
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WRAMAS, Bristol City Council

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It is also worth looking at the length of time it takes. Doe she need help to settle or go back to sleep? Does she actually need assistance / supervision to get to and from the toilet? Does she need help to get out of bed? If she needs someone awake to make sure she can safely perform the activity it might be worth arguing that this is a prolonged period.