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Neutral Citation Number:
Reported Number: R(A)1/07
File Number: CSA 164 2004
Appellant:
Respondent:
Judge/Commissioner: Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision: 22/09/2004
Date Added: 19/09/2006
Main Category: DLA, AA, MA: general
Main Subcategory: accommodation costs
Secondary Category:
Secondary Subcategory:
Notes: Attendance allowance – claimant resident in nursing home – whether benefit payable The claimant suffered from dementia and Alzheimer’s disease. After a period in hospital, she became resident in a nursing home. The decision-maker decided that there had been a change of circumstances in that the claimant was in publicly funded accommodation and attendance allowance was no longer payable to her. The tribunal upheld that decision. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. it was necessary in this case to consider legislation of the Scottish Parliament in arriving at a proper interpretation of legislative provisions of the UK Parliament (paragraph 10); 2. in terms of section 1 of the Community Care and Health (Scotland) Act 2002 (the 2002 Act), a local authority is barred from charging for certain types of social care, including personal care, and no charge can be made for nursing care. The phrase “social care” did not include a service which consists in the provision of accommodation (paragraph 21); 3. a local authority in Scotland retained a general power to charge for accommodation provided under the Social Work (Scotland) Act 1968, but the effect of section 1 of the 2002 Act was that the local authority was precluded from charging for the first £145 of personal care and the first £65 of nursing care. The word “accommodation” could include personal and nursing care but the first £145 and £65 of those types of care was specifically excluded (paragraph 21); 4. regulation 7 of the Social Security (Attendance Allowance) Regulations 1991 (the 1991 Regulations) had to be addressed principally with reference to legislation of the UK Parliament and in the context of a United Kingdom jurisdiction. Regulation 7 precluded the payment of attendance allowance in certain circumstances including the cost of accommodation where it was borne only or partly out public or local funds but references to the cost of accommodation did not include the cost of, inter alia, nursing care provided by a local authority for which the local authority was not to charge by virtue of section 1 of the 2002 Act (paragraph 22); 5. “accommodation” and “cost of accommodation” should be given a wide interpretation (Steane v The Chief Adjudication Officer [1996] 1 WLR 1195 and R v North and East Devon Health Authority ex parte Coughlan) [2001] QB 213 (paragraph 22); 6. under the rules of statutory interpretation, the specific exclusion of nursing care from the definition of “cost of accommodation” in regulation 7(5)(g) of the 1991 Regulations meant that personal care was included within the definition and that the regulation must be interpreted as such (paragraphs 22 and 23).
Decision(s) to Download: R(A)_1-07_bv.doc R(A)_1-07_bv.doc