Official use only DMG Memo Vol 10 – 4/01

DLA/AA: CERTAIN ACCOMMODATION –

RETROSPECTIVE SELF FINANCERS AND NEW LOCAL AUTHORITY CHARGING RULES

INTRODUCTION

1This memo gives guidance following a recent unreported Commissioners decision (CA 2604/98 (with CA 2937/97)). It also gives guidance about new local authority charging rules.

THE COMMISSIONER'S DECISION

2AA and DLA care component are not generally payable when the claimant is living in certain

accommodation. Certain accommodation means residential accommodation provided or subsidised in whole or in part from public or local funds where powers to subsidise the cost of accommodation exist (SS CB Act 92, sec 67(2); sec 72(8)). One exception is when the whole cost of accommodation is met by the claimant or by another person or charity on his or her behalf and where there is no IS, JSA(IB) or HB entitlement (DMG 61735).

3The Commissioner has decided that this exception applies in cases where the accommodation is

funded by the local authority pending the sale of a house or other release of funds and the authority will be repaid after the sale or when funds become available.

4The effect of the decision is that where a claimant is

1.in certain accommodation being funded by the local authority pending the sale of a property or other release of funds and

2.the fees will be repaid to the local authority out of the proceeds of the sale of the property or release of funds

benefit should be paid unless and until the point is reached where there is a real risk that the proceeds are inadequate to make full repayment. This is subject to the proviso that there is no entitlement to IS, JSA(IB) or HB for the period in question.

NEW CASES

5For the purposes of paragraph 4 it may be accepted that the conditions for payment of benefit are satisfied where there is written evidence that an agreement exits to repay the authority from the proceeds of the sale or the release of funds.

6If the conditions in para 4 are satisfied, benefit should continue in payment. If the local authority is funding but the condition in paragraph 4.2 is not satisfied, payment of AA or DLA care component should be removed from the appropriate date in accordance with DMG 61851-62 (SS (AA) Regs, reg 7; SS (DLA) Regs, reg 9). Where the claimant already has an award of AA or DLA, this should be superseded to remove payability. (SS Act 98, sec 10)

PROPERTY NOT SOLD

7At a later date, if the intended sale arrangements fall through or are excessively prolonged, there may be a real risk that the proceeds from the sale will no longer cover the whole repayment. In these circumstances, the benefit award may be superseded to remove payability.

8The new decision will take effect from the date of change as in DMG 04104. AA or DLA care component may however remain payable for the first 28 days of local authority funding in accordance with DMG 61851.

EXISTING CASES - BENEFIT ALREADY WITHDRAWN

Benefit withdrawn by a decision made before 9.11.00

9The following guidance applies to any cases affected by CA/2604/98. The Commissioner's decision is a relevant determination (SS Act 98, sec 27(1)(a)). Decisions of the S of S withdrawing payment of benefit made before the date of the relevant determination, 9.11.00, can be superseded for error of law (sec 10, SSCS (D&A) Regs, reg 6(2)(b)(i)). The effective date of the new decision is the date of the relevant determination, so that no arrears of AA or DLA care are payable before that date (reg 7(6)).

Benefit withdrawn by a decision made on or after 9.1 1.00

10Any decision made on or after 9.11.00 can be revised for official error (SS Act 98, sec 9; SSCS (D&A) Regs, reg 3(5)(a)). Although the Commissioner’s decision is a relevant determination, it is included within the definition of official error where the decision to be revised was made after the relevant determination (reg 1(3)). There is no limit on payability of arrears.

OUTSTANDING APPEALS

11Where

1.an appeal against a decision on payability is outstanding, and

2.the decision was made before 9.11.00

the DM should prepare a further submission drawing the Commissioner's decision to the tribunal's attention. The decision should not be superseded. This is because the DM could only restore payability from 9.11.00. The tribunal is not affected by the limitation in paragraph 9.

12Where the decision under appeal was made after 9.11.00, the DM should

1.revise the decision as in paragraph 10, and

2. lapse the appeal.

Guidance on lapsing appeals is at DMG 06160-06162.

NEW APPEALS

13Where the decision was made before 9.11.00, the DM should prepare a further submission drawing the Commissioner’s decision to the tribunal's attention. The decision should not be superseded. This is because the DM could only restore payability from 9.11.00. The tribunal is not affected by the limitation in paragraph 9.

14DMs are reminded that a late appeal should not be supported where the only reason for lateness is that the appellant has become aware of the Commissioner’s decision (reg 33(6)(b)). However, the DM should still consider whether the decision can be revised and the appeal lapsed. If a late appeal is not admitted, the DM should consider whether the decision can be superseded.

NEW LOCAL AUTHORITY CHARGING RULES

15From 9.4.01 local authorities will disregard the value of a person's home for the purposes of assessing the resources available to pay residential care or nursing home fees. This will apply for the first 12 weeks from when permanent admission to residential care accommodation commences; it may follow a temporary stay. It gives claimants a breathing space before deciding on how to fund their care.

16This new financial support means that if the local authority is funding someone in a residential care or nursing home whilst their house is being sold, the person will not have to repay the cost of the first 12 weeks.

17The effect of the change is that during such a 12 week period where the local authority is funding the stay in certain accommodation, the condition in para 4.2 above will not be satisfied.

18Where a person's house is being sold but the fees are being paid from other resources available to the claimant, benefit may continue as in DMG 61735.

ANNOTATIONS

19Please annotate the number of this memo (DMG Vol 10 4/01) against the following paragraphs

DMG 61773 (main heading), DMG 61775, DMG 61776

Distribution: Holders of DMG Volume 10 Advice & Guidance Unit May 2001