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Neutral Citation Number: 2010 UKUT 345 AAC
Reported Number:
File Number: CIS 544 2010
Appellant: SA
Respondent: Secretary of State for Work and Pensions
Judge/Commissioner: Judge N J Wikeley
Date Of Decision: 23/09/2010
Date Added: 12/10/2010
Main Category: Income support and state pension credit
Main Subcategory: other: income support
Secondary Category: Care standards
Secondary Subcategory: Other
Notes: Reported as [2011] AACR 16. Income – payments to residential college for accommodation costs – whether to be treated as notional income or disregarded because college was a “care home” The claimant, who had learning difficulties, was attending a residential college. The cost of the residential accommodation was partially funded by the local authority. He claimed income support and a decision-maker refused his claim on the basis that his total income exceeded his applicable amount, treating part of the local authority’s payments towards his college fees as his notional income in respect of meals under regulation 42(4)(a)(ii) of the Income Support (General) Regulations 1987 (payments to third parties). On appeal to the First-tier Tribunal the claimant’s representative argued that the college was a “care home”, so that regulation 42(4A) applied instead of regulation 42(4)(a)(ii), with the result that any notional income had to be disregarded in full under paragraph 66 of Schedule 9 to the same Regulations. The tribunal decided that on balance the college was first and foremost an educational establishment and therefore should not be treated as a care home. The claimant appealed to the Upper Tribunal. According to regulation 2(1) of the 1987 Regulations “care home’ in England and Wales has the meaning assigned to it by section 3 of the Care Standards Act 2000, which at the relevant time provided that an establishment is a care home if it provides accommodation, together with nursing or personal care, for, inter alia, persons who are disabled or infirm. Held, allowing the appeal, that: 1. there is no suggestion in either the Care Standards Act 2000 or the Income Support (General) Regulations 1987 that a care home ceases to be a care home by virtue of fulfilling some other function, unless there is an express statutory exception in the primary or secondary legislation, and so the tribunal had erred in law in concluding that the college should not be treated as a care home because it was first and foremost an educational establishment (paragraph 20); 2. there can be no doubt that the college was a care home within section 3 of the 2000 Act because it provided accommodation, together with nursing or personal care for “persons who are disabled or infirm” within section 3(1) and 3(2)(c) and was not excluded by any of the specific exemptions listed in section 3(3)(a)–(c) (paragraph 21); 3. nor did the college fall within the exception for institutions within the further education sector in regulation 3 of the Care Home Regulations 2001 as it stood at the relevant time, because, even if it met the definition of a further education institution, it fell to be excluded from that regulation by paragraph (3) because of its level of provision of nursing and personal care (paragraphs 22 and 23); 4. the funding provided by the county council to cover the claimant’s fees, in so far as it included sums for the cost of meals, counted as his notional income within regulation 42(4A) of the 1987 Regulations, and not regulation 42(4)(a)(ii), and so was fully disregarded by paragraph 66 of Schedule 9 and the claimant was therefore entitled to income support (paragraph 30).
Decision(s) to Download: [2011] AACR 16ws.doc [2011] AACR 16ws.doc