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Neutral Citation Number:
Reported Number:	R(A) 1 02
File Number:	CA 2937 1997
Appellant:
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	09/11/2000
Date Added:	19/04/2002
Main Category:	DLA, AA, MA: general
Main Subcategory:	accommodation costs
Secondary Category:	Revisions, supersessions and reviews
Secondary Subcategory:	reviews under the 1992 Act
Notes:	Attendance allowance - accommodation in private residential care home - financed by local authority pending sale of a house - whether claimant is meeting cost of accommodation Review - limitation of payment - whether limit to backdating if entitlement established retrospectively other than in cases of official error In each of these two cases the claimant was a disabled elderly lady whose principal asset was her house. The local authority social services department had in each case made use of powers under Part III of the National Assistance Act 1948 to make ?arrangements for providing residential accommodation for persons in need of care and attention? pending sale of the house so that, by virtue of section 22 of that Act (which makes the assisted person, subject to exemption by a means test, legally liable to reimburse the local authority in full) and so long as the value of the house was adequate, the local authority was in effect providing only bridging finance albeit over a substantial period. There was in fact never any doubt that the local authority would be reimbursed in full and in each case full recoupment in due course took place. Regulation 7 of the Social Security (Attendance Allowance) Regulations 1991 provides that, subject to regulation 8, a person shall not be paid any amount in respect of attendance allowance for any period where throughout that period he is a person for whom accommodation is provided in pursuance of Part III of the National Assistance Act 1948 and regulation 8(6), on which the payability issue in these cases turned, provides (so far as applicable) that regulation 7 shall not apply ?for any period during which ? the whole of the cost of the accommodation is met ... out of his own resources?. The two questions which arose in each case were (i) whether regulation 7, subject to regulation 8, prevents attendance allowance being payable where the assistance given under Part III is only by way of bridging finance; and (ii) if not, whether the procedural provisions about review of benefit decisions which limit the right to back payments where entitlement is established retrospectively following a change of circumstances nevertheless had the effect of taking the allowance away for some or all of the bridging period. Held, allowing both appeals, that: 1. as to the payability question, following the decision of the Northern Ireland Court of Appeal in Chief Adjudication Officer v. Creighton and Others (15 December 1999) that in the context of regulation 8(6) the word ?met? refers to the person who ultimately meets the costs, not the person or body who makes the payment when the fees are paid to the provider of the accommodation, and ?during? means ?for the duration of?, so that the cost of the claimants? accommodation for the bridging period was met out of their own resources by virtue of the subsequent repayment; 2. alternatively the claimants counted during each week of that period as meeting their own costs by virtue of their accruing liability to repay the local authority, so long as the value of their houses remained sufficient for eventual recoupment; 3. accordingly attendance allowance remained payable for the bridging period; 4. as to the review question, the true basis for the reinstatement of the allowance was not a ?change of circumstances?, but that the decision applying regulation 7 so as to suspend payment had been in error of law within regulation 57(3) of the Social Security (Adjudication) Regulations 1995 so that no restriction on retrospective payment applied; 5. on the actual facts of each case, the only decision to be corrected had been a decision purporting to suspend payment under the original award of benefit, not a decision to make benefit payable or increase the rate of benefit, so regulation 59 had no application at all.
Decision(s) to Download:	a1_02.doc