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[2002] UKSSCSC CIS_1544_2001 (26 April 2002)

 


R(IS)9/02


Mr. M. Rowland CIS/1544/2001

26.4 02

Applicable amount – claimant temporarily in a residential care home while his wife was in receipt of attendance allowance – whether applicable amount to include an amount representing a severe disability premium

The claimant was in receipt of income support for himself and his wife. His applicable amount included a severe disability premium of £79.50 under paragraph 13 of Schedule 2 to the Income Support (General) Regulations 1987 because he and his wife were both entitled to attendance allowance and they had no non-dependants living with them. The claimant was admitted to hospital in December 1999. After four weeks he ceased to be entitled to attendance allowance, and the severe disability premium was reduced to £39.75. He then moved from hospital to a residential care home on a temporary basis. Under paragraph 9 of Schedule 7 to the 1987 Regulations, his applicable amount was re-assessed by aggregating amounts for himself and his wife calculated as if each of them was a single claimant, but no amount representing a severe disability premium was included on the ground that the claimant normally resided with his wife and was to be taken as being a non-dependant within her household. An appeal tribunal dismissed the claimant's appeal. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

paragraph 9 of Schedule 7 to the 1987 Regulations required the tribunal to consider the possibility of the claimant's wife notionally satisfying the conditions for a severe disability premium based upon her own entitlement to attendance allowance (para. 11);

for the purpose of calculating the applicable amount under paragraph 9 of Schedule 7, the claimant and his wife were to be treated as normally living apart so that they were not to be treated as non-dependants of each other (para. 12).

The Commissioner set aside the tribunal's decision and substituted a decision that the claimant was entitled to income support calculated on the basis that his applicable amount included £39.75 representing a severe disability premium to which his wife would have been entitled had she been claiming as a single claimant.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Manchester appeal tribunal dated 16 January 2001 and I give the decision the tribunal should have given which is that the claimant is entitled to income support calculated on the basis that his applicable amount from 31 January 2000 to 15 March 2000 was £263.71.

REASONS

2. Prior to 21 December 1999, the claimant was in receipt of income support in respect of both himself and his wife and his applicable amount was calculated so as to include a severe disability premium of £79.50 because he and his wife were both in receipt of attendance allowance. The claimant was admitted to hospital on 21 December 1999. After four weeks, payment of his attendance allowance ceased and the severe disability premium was reduced to £39.75. On 31 January 2000, he was discharged from hospital and went to live in a residential care home on a temporary basis. (There is no clear evidence that the home was a residential care home, rather than a nursing home, or that the claimant had ceased to be a "patient", but I adopt the approach taken by the Secretary of State throughout these proceedings.) His entitlement to income support was reassessed by aggregating the amounts of income support he and his wife would have received as single people but no disability premium was included in his applicable amount in that calculation. On 14 March 2000, he became a permanent resident in the residential care home and so, from 16 March 2000 (the next "pay day"), he and his wife were awarded income support separately. There has not been any dispute about the claimant's entitlement to income support before 31 January 2000 or from 16 March 2000. However, he appealed against the Secretary of State's determination that no severe disability premium was applicable to him while he was living in the residential care home as a temporary resident. The tribunal dismissed his appeal and he now appeals against the tribunal's decision with my leave.
3. By section 124(4) of the Social Security Contributions and Benefits Act 1992, the amount of income support to which a person is entitled is his applicable amount or, if he has any income, the amount by which his applicable amount exceeds his income. Section 134(2) provides that, except in prescribed circumstances, entitlement to income support of one member of a family excludes entitlement to income support for any other member for the same period. By section 135(1), a person's applicable amount is the aggregate of such amounts as may be prescribed by regulations. By section 137(1), "family" includes a "married couple" which means a man and woman who are married to each other and are members of the same household and section 137(2)(l) enables regulations to be made as to the circumstances in which persons are to be treated as being or not being members of the same household. Regulation 16 of the Income Support (General) Regulations 1987 is made under section 137(2)(l). Regulation 16(1) provides that members of a married couple are to be treated as members of the same household during any period when they are temporarily living apart. Regulation 16(3) is not happily drafted but subparagraph (e) appears to have the effect that members of a married couple are to be treated as living apart once one of them is permanently in a residential care home.
4. Normally, a claimant's applicable amount is calculated in accordance with regulation 17 of the 1987 Regulations, which makes provision for, inter alia, personal allowances in respect of the claimant, or where he is a member of a couple in respect of the both of them, and for certain "premiums". By paragraph 13(1) of Schedule 2, a severe disability premium is applicable if a claimant is a severely disabled person. Paragraph 13(2) provides –

"(2) For the purposes of sub-paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if –

(a) in the case of a single claimant …. –

(i) he is in receipt of attendance allowance …., and

(ii) subject to sub-paragraph (3), he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing, and

(iii) no person is entitled to, and in receipt of, an invalid care allowance under section 70 of the Contributions and Benefits Act in respect of caring for him;

(b) in the case of a claimant who has a partner –

(i) he is in receipt of attendance allowance ….; and

(ii) his partner is also in receipt of such an allowance ….; and

(iii) subject to sub-paragraph (3), he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing

and either a person is entitled to, or in receipt of, an invalid care allowance in respect of caring for only one of the couple …. or, as the case may be, no person is entitled to, and in receipt of, such an allowance in respect of caring for either member of the couple …."

Sub-paragraphs (3) and (3A) provide –

"(3) For the purposes of sub-paragraph (2)(a)(ii) and (2)(b)(iii) no account shall be taken of –

(a) a person receiving attendance allowance, … ; or

(b) …. ; or

(c) …. ; or

(d) ….

(3A)For the purposes of sub-paragraph (2)(b) a person shall be treated

(a) as being in receipt of attendance allowance …. if he would, but for his being a patient for a period exceeding 28 days, be so in receipt;

(b) …. "

Paragraph 15(5) provided at the material time that the rate at which the severe disability premium was applicable to a claimant who satisfied the condition in paragraph 13(2)(b) was £39.75 "if there is someone in receipt of an invalid care allowance or if he or his partner satisfies that condition only by virtue of paragraph 13(3A)" and was "79.50 "if no-one is in receipt of such an allowance".

5. Regulation 3 of the 1987 Regulations defines "non-dependant" for, inter alia, the purposes of paragraphs 13(2)(a)(ii) and 13(2)(b)(iii) of Schedule 2. Paragraphs (1) to (2B) provide –

"(1) In these Regulations, 'non-dependant' means any person, except someone to whom paragraph (2), (2A) or (2B) applies, who normally resides with a claimant or with whom a claimant normally resides.

(2) This paragraph applies to –

(a) any member of the claimant's family;

(b) …. ;

(c) …. ;

(d) ….

(2A) ….

(2B) Subject to paragraph (2C), this paragraph applies to –

(a) a person who jointly occupies the claimant's dwelling and who is either –

(i) a co-owner of that dwelling with the claimant …. ; or

(ii) ….;

(b) …."

6. However, regulation 17 of the 1987 Regulations is expressed as being subject to, inter alia, regulation 21, which makes provision for special cases and provides in paragraph (1) –

"…. in the case of a person to whom any paragraph of column (1) of Schedule 7 applies (applicable amounts in special cases), the amount included in the claimant's weekly amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule; …. "

Paragraph 9 of Schedule 7 lists in column (1) –

"A claimant who is a member of a couple and who is temporarily separated from his partner where –

(a) one member of the couple is –

(i) …. , or

(ii) resident in a residential care home, or

(iii) …. , or

(iv) …. , or

(v) …. , or

(vi) …. ; and

(b) the other member of the couple is –

(i) living in the dwelling occupied as the home, or

(ii) …. , or

(iii) …. , or

(iv) …. "

The amount listed in column (2) is –

"Either –

(a) the amount applicable to him as a member of a couple under regulation 17; or

(b) the aggregate of his applicable amount and that of his partner assessed under the provisions of these Regulations as if each of them were a single claimant, or a lone parent,

whichever is the greater."

7. In his submission to the tribunal, the Secretary of State rightly argued that a severe disability premium had been applicable to the claimant from 20 January 2000 to 30 January 2000 only by virtue of paragraph 13(3A) of Schedule 2 to the 1987 Regulations, which is why it was applicable only at the rate of £39.75. He also rightly argued that, once the claimant moved into the residential care home, paragraph 13(3A) no longer applied to him so that no severe disability premium would be applicable to him for the purpose of the calculation under alternative (a) in column (2) of paragraph 9 of Schedule 7. He then submitted:

"Under alternative (b), if assessed as two single claimants [the claimant and his wife] were no longer members of each other's "family" for income support purposes. While [the claimant's] stay at the residential care home was still temporary, he continued to be treated as normally residing at his home ….. He was thus a "non-dependant" of [his wife] as defined in regulation 3(1), and as he was no longer in receipt of an attendance allowance paragraph 13(3)(a) of Schedule 2 was no longer satisfied. Consequently the condition in paragraph 13(2)(b)(iii) of Schedule 2 was not satisfied and neither [the claimant] nor [his wife] was entitled to the severe disability premium."

8. The Secretary of State placed before the tribunal an extract from the Decision Maker's Guide in the following terms:

"23232 A special assessment is necessary where one member is in temporary residential care. The claimant's applicable amount should be whichever is the greater of¹

1. the normal amount for the couple or

2. the total of the applicable amounts assessed as if the claimant and partner were each a single claimant or lone parent living in their present accommodation.

1 JSA Regs, Sch 5, para 5; IS (Gen) Regs, Sch 7, para 9

23233 For the purpose of the calculation at 23232 2.

1. while in temporary residential care the person is still treated as normally residing at home¹ and

2. each partner is regarded as a non-dependant of the other unless one of the exceptions in 23220 applies.

Note For the purposes of 23220 5. to 7. the partner is not a close relative (23221).

1 JSA Regs, reg 2(1); IS (Gen) Regs, reg 3(1)

The claimant's representative did not challenge that guidance but argued before the tribunal, as she argues before me, that the claimant was not to be treated as a non-dependant of his wife. She relies on one of the exceptions mentioned in paragraph 23233 (based on regulation 3(2B)(a)(i) of the 1987 Regulations) because, she submits, the claimant and his wife jointly occupied her dwelling and were co-owners of it.

9. The tribunal, unimpressed by the complexity of the submissions made to her, looked no further than paragraph 13 of Schedule 2 to the 1987 Regulations and held that no severe disability premium was applicable to the claimant because he had ceased to be entitled to attendance allowance.
10. The Secretary of State's current representative takes an equally simple approach but submits that the tribunal erred in law. She ignores the submission made to the tribunal and the official guidance and asserts that –

"6. Paragraph 9 of Schedule 7 to the Income Support (General) Regulations ('the General Regulations') provides that a couple who are temporarily separated when one member of the couple goes into temporary residential care continue to be treated as a couple and the assessment of income support is the greater of the normal applicable amount for the couple or the total of the applicable amounts for the claimant and partner assessed as if they are both single claimants and living in their present accommodation.

7. In the instant case, the higher amount is the aggregate of what the claimant and his wife would be awarded as single claimants.

8. I further submit that, as a single person, the claimant's wife would satisfy the conditions of paragraph 13 of Schedule 2 of the General Regulations and would therefore qualify for the SDP. This should therefore be added into the calculation and as the aggregate of the two, the applicable amount would increase by £39.75 per week."

Accordingly, she supports the claimant's appeal, although on grounds different from those advanced by the claimant's representative.

11. In my view, the Secretary of State's current representative is right. The tribunal's error was to overlook the fact that paragraph 9 of Schedule 7 required them to consider the possibility of the claimant's wife notionally satisfying the conditions for a severe disability premium, based on her own entitlement to attendance allowance.
12. Paragraph 23233 of the guidance is misconceived and so was the Secretary of State's submission to the tribunal. It was a nonsense to regard the claimant as a non-dependant of his wife. If he was normally residing with her for the purposes of regulation 3(1), his living apart from her was only temporary for the purposes of regulation 16(1) so that they remained members of a married couple and so members of a family with the result that regulation 3(2) applied so as to exclude either from being a non-dependant of the other. However, in my view, the notional assessment required by the second alternative in column (2) of paragraph 9 of Schedule 7, under which the claimant and his wife were to be treated as single claimants, implied that they were to be treated as normally living apart. This was only for the purpose of calculating the claimant's applicable amount. They remained members of a married couple for other purposes, so that the benefit awarded to the claimant was in respect of both of them, their income and capital were aggregated and his wife was not entitled to claim separately. But, for the purposes of calculating the applicable amount, they were not to be treated as normally residing together and so there was no question of regulation 3(1) having the effect of each being treated as a non-dependant of the other.
13. This approach seems to me to be consistent with what I take to be the purpose of the legislation, which is to recognise that the practical effect of even a temporary admission into residential care is that the members of a married couple may have the expenses of two people living separately, rather than the expenses of a couple living together which are usually lower. A glance at the similar provision in paragraph 10 of Schedule 7 (relating to parties to a polygamous marriage) makes it abundantly clear that the assessments are to be made on the basis that the claimant is a single person living in residential accommodation and his wife is a single person living in their usual home. It also seems to me to be quite inconceivable that, in requiring an assessment notionally based on the claimant and his wife being single, it was intended that the needs of the claimant's wife should be assessed as though her husband was on the premises to meet the requirements for attention of supervision implied by her award of attendance allowance, when the circumstance giving rise to the assessment was that her husband was in a residential care home and therefore unable to meet those requirements (which, because he himself had been in receipt of attendance allowance, he had not been expected to meet anyway). It also seems to me to be unlikely that it was intended that entitlement to severe disability premium should depend on the claimant's property rights, as the claimant's representative's submission contemplated.
14. The figure given in my decision in paragraph 1 above is reached by adding £39.75 to the corrected figure for the claimant's applicable amount put forward to the tribunal by the Secretary of State (see paragraph 4.6 of his submission to the tribunal). I have not attempted to work out the claimant's entitlement to income support because I am not sure what his income was. The calculation forms in the file suggest that his retirement pension remained reduced, even after his discharge from hospital, and it seems to have disappeared altogether by the time of the letter dated 26 May 2000, which refers only to his wife's retirement pension.

Date: 26 April 2002 (signed) M.ROWLAND

Commissioner