My client was in hospital at the time of her claim for DLA. She has been there for 18 months plus. She is spending time at home on a weekly basis, pattern settled to around 2 consecutive nights at home.

I expected her benefit to be paid for both the day she leaves hospital, and the day she returns.

However Blackpool say they are treating her as a hospital boarder, as distinct from being discharged and then readmitted, and therefore she is only paid for an overnight stay at the rate of payment only for each night at home.

Eg Comes home and stays the night of the 10th, paid as one night at home, not paid for the 10th and the 11th.

If I've explained this clearly enough, can someone explain this, and perhaps point me to some regs so I can see why this is done? I did ask for a reference to the regs, and am pending a call back.

But feel a bit stoopid as not come across this before.

Jo you are not being stupid, check out social security (hospital in-patients) regs 1975 page 449 to page 455 vol 1 social security legislation.

Andy

Fanx for replying, but I am feeling thick, because I don't see how these regs interact with the DLA regs. None of the CDs discussed in the notes refer to DLA, and they also only appear to be cases where it is part of the day that is spent at home, not an overnight stay.

And I've been reading the in-patient regs a lot this week for the same client for a different reason. Her partner remains at home with children, and I've been looking at these because we are trying to get him entitlement to claim IS as a single person (partner in hospital more than 52 weeks) but there is a concern that her nights at home break the stay for IS purposes.

You're gonna have to lead me through this one, which bit did you think was helpful to me re the DLA query (you don't have to attempt the IS one unless you really want to?) (She smiles winningly!)

Hi Jo i'm feeling thick for similar reasons, particularly as the parallel AA regs on page 527/528 inparticular the general note cites R (S) 4/84 despite different wording of the relevant regs that " the overall conclusion reached by the commissioner appears to be relevant here " ie for AA and presumably DLA.
the claimant was able to attend college during the day but received treatment from the hospital at night". " the commissioner held that she was not receiving free inpatient treatment because " any period " and " period " must relate to a period of not less than one day".

then they cite CDLA 11099/95 which talks about midnight to midnight and then CSS 617/97 cited in the hospital inpatient regs commentary which is specific to SDA but has the friday to monday overnight scenario you've got.
sorry to be so useless it's just definitive caselaw regardless let alone for DLA in this scenario seems to conflict or be thin on the ground, but i would be very intrigued to explore CSS 617/97 further ie read it.
I'm intrigued by the IS scenario why were they not treated as separate claimants after 52 weeks ?

I don't understand the logic behind the DBU's decision here. If the person is in hospital at the time of the claim then DLA is clearly not payable.

If the DBU decide that the person is not in hospital and are paying the benefit then I do not see how they can escape the ambit of Reg 8(2A)(DLA REGS) which clearly states that the care component is payable for the day the person comes out of the hospital and the day the person goes back in.

The case law discussed above is not really really relevant to Reg 8(2A) as the DBU are (not) applying it, as this Reg was inserted in 1999 which is after the handing down of the above decisions.

Of course, the argument is largely academic for your client as the case will be about linking periods. As your client's spells in hospital are linked by periods of less than 28 days then the care component will stop as soon as 28 days at home have been clocked up.

Or have I missed something?

Regards
Paul

I appreciate all responses, any more?

Paul, my thoughts were the in-patient regs are irelevant for the DLA and agree Reg 8 should apply.

However I'm sure you know what it's like when a DWP employee is so certain that this case is being treated differently (hence phrases such as "hospital boarder" and "boarder payments" which were blithely bandied about) that make you doubt yourself, and I am always open to the possibility that I don't know everything (stop sniggering at the back there!).

Their opinion is that she is not being discharged, it is just time at home. I am still waiting for the call pointing me to the relevant regs. Will let you know when I get to the bottom of this.

The in patient regs are however something I've been looking at for the IS as separate claimants issue, as my colleague is concerned as to whether, for IS, a night at home would break the 52 weeks for continuous inpatient treatment. Of course the DLA position, if they are not treating her as being discharged, may work to our advantage with this one. (My head hurts)

Cheers

Jo

(Paul, did you get a bit confussed or was there a typo in your posting as to when care stops?! I think I know what you meant!)

Having reread your posting Paul, I think you have got the wrong end of the stick. Or I might have the wrong tree.

Claim made while in hospital so not payable until at home. The linking rules are not an issue, as it is anticipated each time she leaves that she will return within 28 days, so she does not benefit by the automatic 28 days of entitlement, but instead comes under provisions paying at a dialy rate. (That caught me out too - neat and nasty little reg about what is the expectation when you leave hospital - would have been fine if she hadn't anticipated a return, cos then even if you do go back in within 28 days you keep the 4 weeks entitlement!)

Jo

(Can anyone see the wood? What are all these trees doing here?)

Hi Jo working in the grounds of a hospital we have many trees, infact anyone arboreally minded would be in tree heaven and we have loads of parakeets as well, voles and badgers apparently.

As for wood i'm all confused, but going back to your last posting i think your right if that makes sense and may be the answer lies somewhere in the commentaries in volume 2 social security case law if only because just as the various regs conflict so do the cd's conflict, which makes the DWP'S response (as to which regs) even more intriguing.
andy