CHC

Out of the main office at present so don’t have the legislation to hand, so does anyone know whether the government legislated to reverse the effects of the CA’s decision in Slavin and what is now the general position, particularly how care in a care home such as changing catheters and checking for bed sores done by by care home staff where the home also employs qualified nurses, counts as nursing or relevant care to prevent the paymentof the mobility component?

hi paul - to partly answer your question - yes they did legislate to reverse slavin -

here’s rightsnet story on dmg memo about it -

http://www.rightsnet.org.uk/news/story/miscellaneous-amendments-to-disability-and-carers-benefits

and regs themselves -

http://www.legislation.gov.uk/uksi/2013/389/made

cheers ros

Thanks Ros

So, am I right in thinking that the fact that a person in a care home completely funded from continuing health care under the 2006 NHS would, in itself, stop the payment of the mobility component?

no, i don’t think so. my understanding is that counts as care home as long as provides accommodation as well as nursing care (rather than being in hospital) and so would lose care but not mobility comp.

as far as i can see, changes to regs after slavin were because before that, care provided by NHS did not count as ‘qualifying care’ for removal of care comp but after it did as long as was for accommodation, board and personal care.

anyone else agree/disagree?

cheers ros

After reading Slavin again and poring over the DLA amendments I’ve concluded that the amending legislation, apart from inserting new references, only really reversed the effect of the decision with regard to the care component by removing reg (9)(6)(f) from the DLA Regs.  So, with regard to the Mobility component the issue remains the same.  Is the claimant receiving medical or other treatment, which is more than marginal or ancillary, funded by the NHS, in a hospital or similar institution by a medically qualified person acting in that capacity, or from someone acting under medical supervision?  What do you think Ros?

hi again -

well, hmmm, i’m not sure there’s a straightforward answer to that - it’s a very fact specific thing i think and depends on the care he’s getting -

in the final UT decision of slavin (CDLA 3638 2008) after it came back from the Court of Appeal, Judge Turnbull found that - 

‘... the Claimant was not at any material time undergoing sufficient treatment at The Lodge by or under the supervision of healthcare professionals to mean that he was “undergoing medical or other treatment ….. as an in-patient in a hospital or similar institution”, within the meaning of regs. 8 or 12A.’ (para 3)

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3660

you say that your client’s care is by care workers but is it under the supervision of health professionals? how much of that medical type care does he get? all a matter of degree i think.

I agree that it’s the facts on the ground that count.  I’m currently gathering evidence on that.  But, do we agree on the interpretation of the law as it currently stands?

Yes we do.

Thanks Ros.  You’ve been a great help.  My head was battered with this yesterday.

oh good, cheers paul.

hi again paul-

just seen this decision (CDLA/254/2009) -  sounds like it could be similar case to yours, don’t know if you’ve seen it but unfortunately not favourable - maybe your client doesn’t receive such a high level of medical intervention though…

here’s link to decision -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3995

and briefcase summary -

http://www.rightsnet.org.uk/briefcase/summary/claimant-receiving-treatment-in-supported-residential-centre-funded-by-nhs

cheers ros

Thanks Ros, I’ll take time out to read it.  Unfortunately, my client decided not to pursue the matter but I’ve since been asked a similar question from one of our social workers regarding one of our service users.