Residential care and removal of premiums.

Hope someone can check if I am thinking straight on this. I have a client with appeal against an IS opyt because she failed to disclose hospital admission.

The copy of the IS notes screen shows on 27/07/2009 IS became aware client had her DLA care suspended from26/11/08, I am assuming on this date she was admitted into care home under mental health act (will confirm with DLA) IS decided she should not be receiving her Enhanced Disability Premium from this date and have recovered an overpayment from her from 26/11/08.

Client subsequently moved to different care home in Jan 2009 from where she was admitted to hospital for 18 months in June 2009. IS claim they only became aware of this admission on 7/03/2011 and have decided her Disability Premium should have been removed 52 weeks after the hospital admission so client has been overpaid because of failure to disclose.

My queries are 1. If client was in funded care from 26/11/2008 should the EDP have remained in payment untill 52 weeks when she became a long term patient as per IS Regs 13A? so she is actually due arrears of this from 26/11/2008 to 25/11/2009?
                  2. If the IS section knew throughout the relevant period client was still not receiveing care component of DLA then the liklihood was she was still in funded care (hospital or otherwise) so leaving the DP in payment and not checking on circs was an official error so the overpayment is not recoverable?

I always was under the impression that it was a duty of a claimant to “disclose a change of circumstances that he/she would be reasonably expected to know that must be disclosed” (or something like that), If the client had been sectioned under the mental health act then they may be on shaky ground regarding recoverability. Just a thought….

I would certainly say that it’s arguable that someone admitted under a MHA section can’t be said to have reasonably known their responsibilities to inform of a change in circumstances at that time. I remember having similar disputes when I worked in the WRU at a psychiatric hospital, with DWP then trying to adopt a fall-back position to try and ascertain at which point the client could said to have become more lucid and therefore expected to know that the money should have stopped.

My understanding is that the 52 week rule for EDP only applies to hospitalisation.  If someone is admitted to funded residential care, EDP stops in line with the suspension of the DLA care component.  As far as the DP is concerned, would not your client qualify for this under a different route, that is the incapacity condition i.e. incapable of work during the qualifying period of 52 weeks.  I am assuming they had no entitlement to DLA mobility component when in funded residential care as this would passport to a disability premium also.

The main problem is that if the relevant changes to be disclosed were clearly and unambigously notified to her then her mental capacity is irrelevant as a matter of law, following B v DWP.  The duty to disclose under those circumstances is absolute and not open to qualification.