I have a client who looks after her elderly mother who is in receipt of AA. Client gave up work to look after her and was trying to find a part time job. The Jobcentre advised her to claim CA so she wouldn't have to be available for work. Client did so and was granted it from May 05. Unbeknown to her, her mother was in receipt of SDP with her AA.

Mother was awarded full CTB and HB earlier this year, client checked with LA that this was correct and during tel call she mentioned her CA. The adviser immediately picked up on this and said a mistake had been made, mother can't get SDP and client CA at same time. Mother has now received overpayment demand letter of HB and CTB going back to April 05. She is frail, deaf and partially sighted.Client has power of attorney for her. I have already asked her to query the date of the backdating as CA was not granted until end of May 05.

My question is, should the CA unit have linked clients claim with mother's AA and SDP? Are there not initial checks done on claiming CA to prevent this happening? Any caselaw i could quote to get overpayment reduced or written off would be much appreciated.

This has long been a problem with JCP etc advising ppl to claim CA and not advising them to check how it will or if it will affect the benefit of the person they are caring for. We have had successes with using the "misadvised by DWP" route a few times but the difficulty you will have is that your cl has power of attorney for her Mum so is in fact responsible for her Mum's affairs and should have known about or asked about the SDP which is attached to IS or Pension Credits.

Hi,

One thing i do not understand is that how there is an overpayment of housing and council tax benefits. If the mother receives Pension Credit then there would be an overpayment of Pension Credit. However Pension Credit alone passports to full housing and council tax benefits and the premium on top does not mean more housing benefit as once the maximum rent is met no further benefit is paid? Or is it the case that without the SDP that she would not qualify for Pension Credit?

In the scenario roecab2 points to there will be an overpayment of Pension Credit too. Is there?

Hi, no mother is not in receipt of PC although when i did a benefit check it seems she should have been but only when SDP included. It would only have been savings credit anyway as pension quite high, so no automatic right to HB and CTB. The Local Authority used the SDP in calcs as she was receiving it as part of her SRP and AA payment.They also apparently included assumed PC although I've yet to see evidence of this. I've only seen the latest calcs so far from the LA which now have just mothers personal allowance, no SDP, but client is aware of SDP being paid. I'm actually emailing from home at mo so do not have file in front of me.

I reckon this happens quite regularly, i mean SDP and CA paid at same time, until of course they introduced the 'new look' CA form where the person being cared for has to sign to state she knows CA has been claimed and it can affect her benefit. I am still curious as to know what checks are in place to link the two.

Thanks to all for your input so far.

Who completed the claim form for HB/CTB?

In this area the form specifically asks if someone is claiming CA for looking after you.

I know your client may not have known but as daughter has appointeeship/POA (can't remember which one you said earlier!) wouldn't she deal with all forms? If she did why didn't she declare she was getting CA?

Alot of questions i know!!

I'm not sure at this stage who did the HB/CTB forms. I do know that mother was getting AA and SDP for several months before client claimed CA so it possibly wouldn't have been picked up on initial claims. It's a pain as well as although both live near each other, it is a different LA dealing with each so I can't use the argument that the LA should have picked it up when client claimed her CA (as she also gets HB/CTB).

I only had an initial half hour interview with client so didn't have enough time to gather all info and am waiting for her to provide more so i've got something to go on...i hope.

OK.

I am sure you are aware though that if was not declared when first claimed HB that if was a change then not reported it will be claimant error and recoverable as such.

I dont see anyway out of that, although you may want to consider looking at the form to see if when HB was first claimed if there was a question along the lines of 'does someone care for you', which in my local LA triggers, or is supposed to, a seperate spate of questions to see if anyone calims carers allowance or has underlying entitlement. It also seems your client was entitled to carers allowance for a period before she actually claimed it?

Anyway best of luck

REgulation 13Z Claims and payments state that a backdated award of ICA/CA does not affect SDP for that period. Look at it you may be able to argue that same apliees top your situation as JC advised client to claim. This reg came out of a CD which I cannot remember try to get hold of it. Can anyone remember CD and actual reg