Health and Social Care Law solicitors answer Professional Deputies’ questions about welfare benefits for people with care needs
Deputies have a duty to identify, secure and review all potential state benefit entitlement for their clients. This includes informing the DWP of any relevant change of circumstances, even if it will be temporary, such as an admission to hospital. Some benefits, such as Attendance Allowance, are suspended after 28 days in hospital. You need to contact the DWP straight away to avoid Mrs P being overpaid. The DWP have the power to fine claimants, or you as their formal representatives, £50 for failure to notify changes of circumstances without delay.
Your relative should be entitled to the higher rate of Attendance Allowance (AA) as she has care needs day and night. £58.70 a week is the current lower rate, normally paid where there are only daytime care needs. As Attorney for your relative, you should claim all relevant benefits. You need to call the AA helpline and explain this change of circumstances and ask for a review. When calling the helpline, ask that the review take effect from the date of your phone call so that your relative does not lose out on benefits while you are completing the application forms. The higher rate is worth an additional £28.95 a week.
Whilst it is positive to hear that Mr L’s condition has stabilised, a common consequence of such improvement is that NHS CHC is reviewed and may be withdrawn. This will often result in the person with care needs becoming a self-funder. You may wish to seek a review of the decision to end CHC. In the meantime, you need to call the AA unit and ask them to resume payment of the underlying award. You should not need to make a new telephone claim because the award should have been suspended rather than terminated when Mr L received NHS CHC.
Your client may be entitled to Pension Credit despite her savings. The rules are quite different to other means tested support. The first £10,000 of capital is ignored and there is no upper capital limit for Pension Credit. Entitlement to Pension Guarantee Credit can ‘passport’ the client to other valuable benefits too, such as Council Tax reduction, Housing Benefit and help with mortgage interest payments or service charges. Call the helpline available at the Gov.uk website to make an initial claim and they do the calculations for you. If your client’s needs are complex, she may have a Primary Health Care need rather than just social care needs. See our information page on NHS Continuing Healthcare for further information.
If your client has a DPA then this tells us two things. First, he is a self-funder and so he is entitled to claim Attendance Allowance at the higher rate to help pay towards his care costs. Second, in order to enter into a DPA the person must have no more than £23,250 in capital excluding the value of his or her home. Your client should have had a 12 week property ‘disregard’ in which the value of the home is ignored for that period of time. This disregard only starts when capital has fallen below £23,250 and so that will not necessarily be the day that he entered nursing care. The suspension of AA payments should be lifted once the 12 week disregard comes to an end and the DPA takes effect. You need to notify the benefits office straight away to request that AA is reinstated and refunded.
A person is not paid DLA care component after 28 days in a care home if they are being part funded by the Local Authority. This also applies to Attendance Allowance and Personal Independence Payments (daily living component). However, the DLA mobility component (or PIP mobility) should be paid as normal regardless of how long a person is resident in a care or nursing home. There are some limited exceptions where DLA mobility would not be payable, but it does not sound as though this would apply in your father’s case. You should contact the DLA unit and highlight their error – they may be able to put the mobility element back in payment straight away (and pay any underpayment). If they do not do this you need to request a ‘mandatory reconsideration’ to ask them to look at the decision again. It is advisable to do this in writing but it can be done over the phone as well. It needs to be done within a month of the date of the decision letter but can be requested outside this time limit if you can provide good reason for the delay. If your father is well enough to spend occasional overnights away from the care home, for example, if he stayed with relatives for a couple of days/nights, then you can claim the DLA care element for each of those nights.
The Care and Support Statutory Guidance (C&SSG) sets out circumstances where a property that is occupied by the person in care’s relative may be disregarded as assessable capital. One of the categories is if you have an ‘incapacitated’ relative living in the property. Although your client’s son has never claimed sickness benefits he can still be considered incapacitated if his degree of incapacity is such that he qualifies for such a benefit. He is likely to need to provide medical or other evidence and so may need independent support to do this.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2022