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Neutral Citation Number: 2011 UKUT 293 AAC
Reported Number:
File Number: CDLA 1340 2009
Appellant: Secretary of State for Work and Pensions
Respondent: JL
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 15/07/2011
Date Added: 28/07/2011
Main Category: DLA, AA, MA: general
Main Subcategory: accommodation costs
Secondary Category: Revisions, supersessions and reviews
Secondary Subcategory: date of effect of decision
Notes: Reported as [2012] AACR 14. Disability living allowance – non-payability while in publicly funded residential care – retrospective self-funding – suspension and supersession On 1 July 1998 the claimant was awarded the highest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA) for an indefinite period. Regulations 8 and 9 of the Social Security (Disability Living Allowance) Regulations 1991 make provision for disqualifying claimants from payment of DLA, though not from entitlement, where they are resident in hospitals or care homes, the general rule being that neither component of DLA is payable after a stay of more than 28 days in hospital, but that only the care component stops being payable after 28 days in a care home. In January 2000 the claimant went into hospital and in February payments of DLA were “de-combined” from his retirement pension. However, the claim was not transferred to the DLA Unit and payment of DLA ceased without a formal decision on payability being made. The claimant moved to a care home but the DWP remained unaware of that until 2006 and no further decision was made until a supersession decision on 22 November 2006 that the care component was not payable from June 2000. The claimant continued to live in a care home with the bulk of the fees being met by the local authority. The claimant was divorced in October 2000 and so the nature of his beneficial interest in the matrimonial home changed with potential effect on his funding assessment, but the local authority were not made aware of that change until April 2007, when the claimant’s family informed the local authority that his wife had died. The authority then undertook a new assessment and the family reimbursed the fees for the period from 5 October 2000 to 21 July 2007, although that may not have been all legally due. As a result the claimant fell within the exemption from disqualification in regulation 10(8) for claimants who are self-funding. Until 5 October 2003 that exception did not apply to claimants in receipt of income support, as was the claimant in this case from 9 August 2000. The regulation 10(8) exemption was held in Chief Adjudication Officer v Creighton and Others, reported as R1/00(AA) and followed in R(A) 1/02, to apply where care costs were refunded retrospectively. In 2007 the DLA Unit sent the claimant arrears of the lower rate of the mobility component of DLA for the previous seven years, but decided that the care component was not payable before June 2007 because there had been no formal agreement with the local authority that, following the sale of the property, he would repay all the costs and therefore he could be regarded as self-funding only once he had actually repaid the money to the local authority and was paying his own fees. The claimant’s appeal was allowed by the First-tier Tribunal and the Secretary of State appealed to the Upper Tribunal. Before the Upper Tribunal the Secretary of State conceded that on the authority of R(A) 1/02 it did not matter whether reimbursement of fees had been agreed in advance and the arguments focused on the mechanisms for putting into operation the principles of Creighton and particularly the application of the rules governing time limits for revisions and supersessions under the regime established by the Social Security Act 1998. Under the version of regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in force, until it was amended with effect from 9 April 2006, a supersession decision taken on the grounds that the claimant had been a hospital in-patient or a care home resident could only take effect from the date on which it was made. Held, allowing the appeal, but substituting a decision to similar effect, that: 1. there were errors in the First-tier Tribunal’s decision, which taken together suggest that it did not adequately address the issues relating to payability of DLA at the various dates and so the decision should be set aside (paragraphs 28 to 30); 1. Creighton and R(A) 1/02 require that an acceptable technical means be found to allow claimants in circumstances like those of the present case to be paid AA and DLA for a past “bridging’ period” once reimbursement is made to a local authority. In appropriate cases that will involve consideration of the option of suspension of payment of benefit as an alternative to supersession. The DLA authorities should routinely seek detailed information on all capital resources from a claimant or representative when payability is put in question by the claimant’s residence in a care home and consider whether a supersession would be premature and therefore either in error of law or subject to further supersession in favour of the claimant that could not be made retrospective (paragraphs 57, 63 to 72); 2. if a local authority’s financial assessment under section 22 or 26 of the National Assistance Act 1948 is wrong in law or was based on some mistake or ignorance of fact, the challenge has to be made to the assessment itself. Unless and until such a challenge is successful the statutory liability created by the financial assessment must be accepted. In the great majority of cases, where it was the local authority’s initial financial assessment in issue, there would have been something in the circumstances at the time to make a decision that DLA was not payable premature (paragraphs 73 to 77); 3. until 10 April 2006 the claimant in the present case had an accrued right of a kind within the scope of section 16(1)(c) of the Interpretation Act 1978 to payability of the DLA to which he was entitled and the retrospective removal of the immunity from supersession by the 2006 Regulations was sufficiently unfair as to give rise to a need for a particular degree of clarity in those Regulations that that effect was intended (Plewa v Chief Adjudication Officer [1995] 1 AC 249, R(P) 2/95 applied). The 2006 Regulations were not sufficiently clear to show that intention and the amendments to regulation 7(2) of the Decisions and Appeals Regulations must be interpreted as applying only in respect of days falling on or after 10 April 2006, although the provision can apply to changes of circumstances that occurred before that date (paragraphs 91 to 125); 5. the decision of 1 July 1998 should not have been superseded on 22 November 2006 since (a) for the relevant periods up to 5 October 2003, supersession on the ground of a relevant change of circumstances would have been appropriate as the claimant was in receipt of income support, but the superseding decision could not take effect prior to 6 April 2006; (b) in relation to the period from 6 October 2003 onwards, supersession was not appropriate and instead the Secretary of State should have suspended payment of the care component (paragraph 137). The Upper Tribunal substituted a decision in relation to the whole period in question leaving intact the awarding decision of 1 July 1998 with the associated right for the claimant to receive payment under the award.
Decision(s) to Download: [2012] AACR 14bv.doc [2012] AACR 14bv.doc  
[2012] AACR 14ws.doc [2012] AACR 14ws.doc