As I understand it when there are rival SDA and CA claims claimants have a free choice between them - because the Overlapping Benefit Regs don't set out a priority order. SDA is usually more so the choice will be between getting all SDA or CA topped up with SDA. Certainly I have regularly seen a form sent to people claiming CA in this situation asking them to make this choice. If there is an SDP at stake you always choose to be paid all SDA.
However the complication here is that the SDA is already being offset against the adult dependant addition. CA is more than the net SDA and so would be paid in preference, which you don't want. If the CA were also to be offset against the adult dependants addition, this wouldn't matter as the CA would be wiped out. My difficulty is that on a quick read of the Overlapping Benefit Regs and the Dependency Regs, and the relevant sections of the Act, I can't see where the authority is for offsetting either SDA or CA against dependants additions.
Reg.10 OB Regs is the main one but only covers benefits under Part II, SSCBA, ie. not non-contributory benefits. And if it did apply it would prevent payment of the dependants addition. Reg.12 OB Regs makes provision for SDA and CA but doesn't mention Reg.10. On the other hand it seems unlikely there is no provison for this offsetting.
So the preliminary question is why are they offsetting SDA at present? This should enable an answer to the actual question but I don't know the answer. Anyone else know?
But I certainly wouldn't claim CA without being sure, in the circumstances. You could always wait until she is pensionable age if that's noty too far away - then her own SRP would probably make a CA claim safe.
Richard Atkinson
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