Terms & Conditions

[Chris Cook]

We have just reviewed a case where the Non-dep son (full time work) has moved into his mother’s Council accommodation from Jun06 as his main place of residence .

Claimant 80+, on AA and was receiving SDP. It was anticipated that there would be no change to benefit, however it appears that the claimant loses her SDP once a Non-Dep is input thereby creating an HB/CTB OP.

This seems to be an anomoly, penalising the claimant where as in other circumstances of Non-Deps moving in this would not happen.

The benefits admin team tell me that they cannot do anything to help.

Does anyone have any views, guidance as to whether this is correct.
Could this be dealt with in any other way?

Many thanks

Chris Cook

[Anonymous]

We are talking about Severe Disability Premium, not a typo for Single Person Discount?

If the former, then your benefits people are correct – one of the conditions of entitlement to SDP is that the person must live alone (or can be treated as living alone – some people in the household could be disregarded). Since the claimant no longer lives alone, she does lose the SDP.

[David]

Unfortunately this is correct (SPC regs Schedule 3, para 6(2).

I would agree that this is unfair…the 26 week easement would not apply as this relates to non – dep deductions.

[Anonymous]

Yes I think it is correct.
If there are other non-disabled adults above the age of 18 living in the property, you lose the severe Disability Premium. 8)

[Anonymous]

A non-dep deduction won’t apply in this case, anyway, the claimant receives Attendance Allowance

[Chris Cook]

Thanks for the comments so far.

As per Andy’s last note we realised that there would not be a non-dep deduction as per policy intention/legislation but not that the SDP would be lost (policy intention or legislation oversight?).

Chris Cook

[Anonymous]

Definately policy intention. As I have always understood it anyway. 8)

There have always been three criteria to fulfill for SDP. To quickly summarise
1. Claimant getting qualifying benefit, or having qualifying circs.
2. No able bodied person living in the household (including non-deps)
3. No one getting Carers Allowance

[Anonymous]

I agree – given the relative complexity of the qualifying conditions for SDP I doubt very much if this was unintended.

[chris harvey]

The whole point of SDP and the policy intention was to give some extra benefit to those people who have personal care needs and have no-one else to help them. So the thinking is that if a carer is paid to come and help you make the bed or do the ironing or prepare a meal etc or if you have an able bodied adult (non dep or partner) living with you, then you don’t get SDP.

[Anonymous]

Still a bit harsh when the non-dep is in full-time work.

[Anonymous]

Well, I think the 26-week rule definitely applies.

Here is an extract from HB 60+ Reg 59:

[i:dbd599d688]”(10) Paragraph (11) applies if—
(a) the claimant or his partner has attained the age of 65; and
(b) either—
(i) a non-dependant took up residence in the claimant’s dwelling; or
(ii) there has been a change of circumstances in respect of a non-dependant so that the amount of the deduction which falls to be made under regulation 55 (non-dependant deductions) increased.
(11) Where this paragraph applies, the change of circumstances shall take effect from the effective date.”[/i:dbd599d688]

Paras (12) & (13) then define the “effective date” – a series of variations on the 26-week theme.

Para (10)(b)(i) says the 26-week rule applies when a non-dep moves in. It does not say “but only in so far as this affects non-dep deductions”. So in the absence of an explicit exclusion of the SDP from this rule, I do not see how it is possible to argue that it does not apply to the SDP. Maybe it wasn’t intended to apply to the SDP, but the Reg seems pretty clear to me.

Ask me another time whether, in that case, there is a way for the claimant to wriggle out of having to wait 26 weeks for the size criteria to kick in. I’ll probably try to argue that “change of circumstance” has a different meaning for RO purposes, but for now I acknowledge that’s a tough one.

SDP though: definite 26-week rule as far as I can see.

[Mark]

I’m with Peter – the regs do say this. The DWP have come to this conclusion too (even if they won’t explicity admit it). But they don’t want it this way and from October 2006 they say it won’t be this way anymore.

See the Social Security (Misc Amendments) (No. 4) Regs 2006 available here:

http://www.opsi.gov.uk/si/si2006/20062378.htm

The effect is that the words “referred to in para 10(b)” are added after the words “”change of circumstances” in 59(11). I’ll let you make your own mind up whether this achieves the intended effect.

The explanatory memorandum for this SI says the following:

“7.50 The HB and CTB legislation provided that a claimant aged 65 or over can have deductions from benefit because of the presence of a non-dependant, deferred for 26 weeks when either a non-dependant joined the household or a change in an existing non-dependant’s circumstances resulted in an increased non-dependant deduction.

7.51 These provisions could infer that other changes of circumstances may be relevant (such as a referral to the Rent Officer or the removal of the Severe Disability Premium). The amendment removes any doubt that the deferral stems only from the arrival of a non-dependant or change in existing non-dependant’s circumstances.”

[Anonymous]

I agree with Peter, too. The wording of the regulation allows for any change of circumstances that reduces entitlement to be deferred for 26 weeks. Scant comfort, but better than nothing.

[Author]

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