Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:
Reported Number:	R(DLA)2/06
File Number:	CDLA 3161 2003
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	27/07/2005
Date Added:	09/08/2005
Main Category:	DLA, AA, MA: general
Main Subcategory:	accommodation costs
Secondary Category:
Secondary Subcategory:
Notes:	Suspension of payment - claimant residing in a care home - whether care home is either hospital accommodation or Part III accommodation The three claimants were former long-term hospital patients who were placed in nursing homes under arrangements whereby the health authority channelled payments via the local authority to the homes to make up the fees that the claimants could not pay through disability living allowance and income support. The claimants appealed against decisions to maintain the suspension of the payment of the care component of disability living allowance under regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991, which provided for suspension where accommodation was provided by a local authority under Part III of the National Assistance Act 1948. The tribunal allowed the appeals on the ground that it was more probable than not that the claimants’ accommodation was provided under powers contained in provisions other than Part III of the 1948 Act. The Secretary of State appealed to the Commissioners and argued that if, as had been suggested in the evidence before the tribunal, the payments made by the health authority to the local authority were made under section 28A of the National Health Service Act 1977, the subsequent payments made by the local authority to the nursing homes must have been made under Part III of the 1948 Act and that, in any event, the other powers identified by the tribunal had not been available to the local authority. The health authority was invited to make submissions on the appeals and conceded that at all material times it had been responsible for the care of the claimants because of their substantial nursing needs. It argued that it had not made payments to the local authority under section 28A of the 1977 Act but had merely used the local authority as a conduit for payments to the nursing home under sections 3 and 23 of that Act. The Tribunal of Commissioners raised the question whether regulations 8 and 12A of the 1991 Regulations had to be considered. Those regulations provided for the suspension of payment of, respectively, the care component and the mobility component of disability living allowance where the claimant was being “maintained free of charge while undergoing medical or other treatment as an in-patient – (a) in a hospital or similar institution under the NHS Act of 1977 …”. The health authority argued that the claimants were not being “maintained” in the nursing homes because the health authority paid only the nursing costs and the nursing homes charged the claimants for their accommodation an amount they could pay from their benefits. Held, allowing the appeals, that: 1. the tribunal had erred in not considering the relationship between section 28A of the 1977 Act and Part III of the 1948 Act and in not considering the limited extent of the alternative powers it had identified (paragraphs 47 to 54); 2. as the responsibility for providing the accommodation remained with the health authority, the arrangements for the accommodation were not made by the local authority under Part III of the 1948 Act but by the health authority under sections 3 and 23 of the 1977 Act and so regulation 9 of the 1991 Regulations did not apply (paragraph 61); 3. however, regulation 8 had to be considered because a nursing home could be a “hospital”, a person who had severe learning difficulties and was consequently receiving nursing care was “undergoing medical or other treatment” and the words “under the NHS Act 1977” qualified the words “maintained free of charge while undergoing medical or other treatment as an in-patient” rather than describing the “hospital or similar institution” (paragraph 64); 4. where regulation 8 was capable of applying, it required that a claimant was to be treated as “maintained free of charge … under the NHS Act 1977” if any part of the total cost of accommodation and nursing was met under the 1977 Act, subject to specified exceptions (paragraph 72); 5. regulation 8 could not apply if nursing care provided under the 1977 Act was merely incidental or ancillary to the provision of accommodation so that the need for nursing care would be consistent with accommodation being provided by a local authority under Part III of the 1948 Act, but it did apply where the amount of nursing care provided implied a duty on a health authority also to make accommodation available under the 1977 Act (paragraph 75); 6. in the present cases, the health authority had a duty under the 1977 Act to arrange for accommodation to be provided to the claimants free of charge and, therefore, regulation 8 required payment of the care component to remain suspended and, subject to transitional provisions which applied to two of the claimants, regulation 12A required payment of the mobility component to be suspended as well (paragraphs 81 to 84).
Decision(s) to Download:	R(DLA) 2_06 bv.doc