I have a client who has had his income support reduced to include carers allowance as notional income when he has not cliamed it.

He transferred from JSA to IS as he is looking after his mother who lives alone and is terminally ill with cancer. He did not claim CA as she gets the SDP. In July he was sent a Carers Allowance form and told he had to claim it.

I assisted him in wriitng back advising that he had spoken to his MUM but she will not allow him to claim it so he did not as it will casue her financial hardship. He heard nothing more until October when he received a decision letter gaiving him the carers premium and deducting carers allowance under the notional income rule. I have appealed and also tried to persuade them to interpret this differently but to no avail.
I was told by the IS local manager that this is due to new policy from central governement. Has anyone else seen this being applied?

Thanks Alex

This has got to be wrong and I doubt any new policy exists. This certainly conflicts with their own DWP Decision Makers guide vol 6.

Para 28611 states -

'Carers should not be treated as possessing CA which they give up solely to...increase...IS for someone who is not a mamber of the...IS family'.

See also CPAG handbook page 1005.

I think this is probably just another example of bad decision making by not looking at the 'purpose' of any 'deprivation'.

Yes I have argued this but if you then go onto look at the decision makers guidance it states that it will treat you as having notional income on application if there is a benefit you would be entitled to

I have pointed out that this makes no sense that he could claim it and then give it up and not be adversely affected so why suggest he should be penalised if he does not apply in the first place.
The local decision maker agrees it is contradictory but will not change the decision because of the next para.

CPAG are trying to find out about the policy change bit.

He does not want to claim and then stop claiming to get round the rules as this will be fraught with difficulties and could challenge his entitlement to IS as a carer. I am appealing on the grounds that the DM did not have enough info at the time of the decision to establish that he would definaetly have qualified for CA ( ie they did not know he was caring for 35 hours or more) but this might just act as a delay tactic..

Alex

Hi Alex,

I still think they have got to be wrong here. It is the law that is relevant not any undisclosed 'policy' and the law states that to be treated as notional income the disposal must be made with the purpose of securing intitlement to benefit or increased benefit.

You refer to a 'next para' but i am not sure which one you mean. Whichever, i think it more likely than not that the DWP are reading this out of context and ignoring the 'purpose' of the not claiming CA. This is the problem with the DM guide. It is not the law, just someones guide, and it probably more easily leads to the law being misinterpretated.

As you will know, the law states that someone can claim IS as a carer without claiming CA. What the DWP are saying contradicts this.

Also, i would not say that claiming CA then stopping is a safe route as i have had a client who had been on CA and stopped for SDP purposes and have still fell foul of the DWPs interpretation of the rules (this was challenged but did not get to an appeal)

I think you appear to have a very good case to win this on appeal.

Hi Alex again,

I have looked at the relevant regs and see your point now - my apologies. In my experience the DWP always go for notional income on 'intention' grounds. But here they seem to have got beyond this and are saying they have 'failed to have applied for income' which does not appear to require a 'purpose'.

On a simplier note isn't it Mums decision given she would lose the SDP if the DWP force him too claim C.A. then they are forcing a reduction in her income. Not sure on the appropriate Regs . But she certainly would have a case to take to the Parlimentary ombudsman or even Judical review if they forcibly take away her SDP. Which will happen if C.A. is paid out.Anyone got a thought on this.

Don't the DWP have to prove that he is providing 35 hours a week care? He can be regularly and substantially caring (21 hours plus I think was accepted in a CD) without qualifying for CA.

If they are insisting that he claim, he could enter a claim for CA but indicating that he does not provide the requisite amount of care. He should then get a refusal decision and decisive proof that he is not failing to apply for income.

Now that seems like a good idea, can't see why this would cause undue problems, has anyone ever tried it?

i haven't heard a dicky bird about a new central government policy.

what is it, to take money from the terminally ill by forcing their carers into an aggregated benefit situation and effecting a £20-ish cut, at the worst possible time?

have you thought of asking your client's MP to ask for a ministerial statement on the 'new policy' and the Disability Discrimination Commission's view - there is not much time, afterall?

i'm pretty sure CPAG could brief parliament so that they can cut through any obfuscation.

jj

I agree, it's an appalling policy and by the time this case goes to appeal ( and then probably commissioners due to the wording of the law,) my client's Mum will not likely be around.

CPAG have emailed the relevant bods in policy to find out what is going on there and they are involved on that level.I will talk to them about your suggestion. Thanks

Shawns entry on the new carers allowance claim form appears too confirm it is not your clients decision on whether he claims CA as the new form requires the DLA/AA claimant to sanction A CA claim.

shawn's posting to the changes to the CA claim form thread is available here -

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=100&topic_id=2553&mesg_id=2553&page=

Alex. refer the decision-maker to DMG 28615

reg 42 (3) looks like the successor to the old supp. ben 'failure to avail' rule. the reg makes a distinction between deprivation (giving up CA which is in payment) and not claiming it in the first place. (not sure how deprivation would work for CA???)

Carer allowance is an exception, according to the DMG.

jj

We have also been told by JS plus that there has been a change in policy - in one case client had to apply for dependants increase of Carers Allowance - client on IS and no financial advantage but client advised if did not apply they would treat as notional income for IS purposes

Thanks for that.

Unfortunately from what I have read, the exception applies to income due but not paid and this cannot apply in this case as he has not and will not claim CA.

I have since had a letter from the local DWP manager stating that the policy changed in 2004 as prior to that they were not applying the regs in full and got away with it on the basis that they were writing it off as a procedural error and did not pursue.
Since April 2004 she states that nationally they have to treat it as a payment error and apply the income available on application rule. This is in total contradiction to the deprivation point in the DMG.

Alex

Hi Alex,,

Just wondering what happened with your case. Please let us know.

ATB

Nothing much as yet.
Decision was not reversed internally so awaiting a date for an appeal.
Carolyn George has spoken to some policy bods within the DWP. They believe that Bradford may be interpreting the internal policy harshly and feel it was implemented to deal with cases where dependant increases were not being claimed rather than this type of circs ( which seems to tie in with the previous entry on this dicsussion forum).

However until this is resolved internally my client is caught with very little chance of success at appeal as the law remains clear on notional income on application (not deprivation which does not apply in this case). I have not found any other cases of this happening so may be isolated but no help to my client, whose mother is very ill at the mo.

i will update if there is any progress.

Alex

Further to previous postings, we received the new CA forms and your client cannot claim CA without the Mothers consent. Clearly there is a conflict in the law, have you been in touch with someone like CPAG for some technical advice.

Yes, it appears that the new carers allowance forms are in response to a recent court case and a situation where someone claims Carers Allowance for someone they are not looking after. This will allow them to investigate if the person in receipt of the disability benefit does not sign, but is not aimed at these types of situations.

The regs have not changed and so noone can answer what would happen if the claim went ahead with no consent in a case such as my client's??

Mrs Commissioner Parker clearly did not think that Carers Allowance should be considered to be notional income when she decided R(IS)8/02. She wrote at para 31:

"31. There are claimants who will not satisfy paragraph 4(b) who nevertheless fulfil heavy caring commitments. For example, some IS claimants might choose not to claim ICA because the person they care for receives the severe disability premium which they would lose if the claimant was awarded ICA. Other carers might not be entitled to ICA because they receive an overlapping benefit, such as retirement pension under regulation 4 of the Social Security (Overlapping Benefit) Regulations 1979. Conversely, if a person falls within paragraph 4(b), is entitled to and actually receiving ICA, this provides a shortcut to that person’s eligibility for IS, subject to the other conditions of entitlement, without further adjudication on the merits."

The signifcant operative purpose of not claiming Carers Allowance in these cases is surely not to secure entitlement to IS or an increase in it.

The purpose is to protect the interests of the person being cared for, and to maintain the level currently paid to that person

Yes this is clearly not what was intended.
Sadly my client's Mum died today. re the carers allowance expect we could put in a claim and have it backdated for 3 months which will cover the whole disputed period.

Came late to this one. Reading the thread it seems if you kick CA into touch you dont fall foul of the notional income rules but if you dont claim in the first place you do.

What would be the position if I applied for CA but only for the closed backdated period of three months and tell them that I'm not caring from the date of claim as my dogs just died and I' mourning. This would protect the SDP for that time and presumably satisfy the condition of having had CA and then got rid of it.

Or is that just too cheeky.

I do it once in a while because it provides carers premium for the three months and the run on of eight weeks with no SDP loss to the disabled person. Ruffles feathers but if its there to use.

If you want to be really cheeky, you do the CA claim, and then say you are not caring for 35hrs because of other commitments but you are still substantially engaged in caring (theoretically up to 34hr 59 min 59 sec I suppose.)

That way you get the CA but after you loose it you keep the carer premium.

If you want a Commissioners Decision to support this its the one I cited earlier R(IS)8/02