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[2002] UKSSCSC CIS_4267_2001 (07 October 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Stockport appeal tribunal, held on 1^st August 2001 under reference U/40/125/2001/00999, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Williams. The Secretary of State does not support the appeal.

The facts

3. The claimant was born on 25^th July 1931. He attained 65 on 25^th July 1996. He received income support from June 1992.
4. Before attaining 65, the claimant was receiving invalid care allowance. From that age, he was no longer paid the allowance on account of the Social Security (Overlapping Benefits) Regulations 1979.
5. The person for whom the claimant was providing care ceased to be entitled to a disability living allowance from and including 26^th May 1999. At the time, the claimant had the advantage of the carer premium in calculating his income support entitlement. He retained that advantage for 8 weeks. But from and including 26^th July 1999, it was removed.
6. The person for whom the claimant was providing care died on 27^th April 2000.

The issue

7. The issue is whether the claimant retains the advantage of the carer premium in calculating his income support entitlement.

The income support legislation

8. The conditions governing the carer premium are set out in paragraph 14ZA of Schedule 2 to the Income Support (General) Regulations 1987.
9. Subparagraph (1) provides that the premium applies if the claimant is entitled to an invalid care allowance under section 70 of the Social Security Contributions and Benefits Act 1992. This is subject to subparagraphs (1) and (2).
10. Subparagraph (2) provides for a person to be treated as being entitled to an invalid care allowance. This only applies if specified circumstances apply. Two are relevant in this case. First, the claimant would be in receipt of the allowance if it were not for the Social Security (Overlapping Benefits) Regulations 1979. Second, the person for whom the care is provided is in receipt of a disability living allowance. Those circumstances applied until 26^th July 1999, the date from which the disability living allowance ceased.
11. Subparagraph (3) supplements subparagraph (2). It provides for the premium to continue to apply for a further 8 weeks after disability living allowance ceased.
12. On the basis of that legislation, the claimant remained entitled to the advantage of the carer premium despite losing payment on attaining 65, but only for so long as the person for whom he provided care remained entitled to disability living allowance, plus a further 8 weeks.

The invalid care allowance legislation

13. The claimant's representative argues that the income support legislation is in conflict with the invalid care allowance legislation and that the latter must be given priority. The effect of this is that the claimant retains the advantage of the carer premium.
14. Section 70 of the Social Security Contributions and Benefits Act 1992 provides for the possibility that a person entitled to an invalid care allowance immediately before attaining 65 may retain the allowance, even if care is no longer being provided. This is put into effect by regulation 11 of the Social Security (Invalid Care Allowance) Regulations 1996. It provides that a claimant who attains 65 does not cease to be entitled to the allowance 'by reason only of the fact that he is not caring for a severely disabled person'.
15. I reject the argument that this legislation is inconsistent with the income support legislation. They make different provisions, it is true. But those provisions are made for the purposes of different benefits. There is nothing inconsistent in providing differently for the carer premium and for invalid care allowance itself.
16. I reject the argument that the invalid care allowance legislation should be given priority over the income support legislation. To begin with, no question of priority arises if there is no conflict. Also, if there is a conflict, the legislation that should be given priority for the purposes of income support is obviously the income support legislation.

The Human Rights Act 1998

17. The claimant's representative has presented an argument, based on detailed examples, designed to show discrimination between claimants in comparable circumstances when Article 14 is read in conjunction with either Article 8 or Article 1 of Protocol 1. I am not persuaded that the claimants in the examples are in comparable circumstances. The differences between the examples justifies different treatment, according to whether or not the claimant qualifies for an amount of income support.

Summary

18. The claimant's representative has presented a detailed and closely reasoned argument in support of the claimant's case. I am not persuaded by that argument. The tribunal was correct in law to apply the plain meaning of the income support legislation. It came to the only decision open to it in law on the undisputed facts. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 7th October 2002