Carers Allowance

Dear All,

I think this is a, very, long shot but wanted to check if anyone had any ideas or confirm it is a non-starter.

Client claimed carers allowance in 2016 and thought she had claimed her brother, but for some reason the claim was actually made in respect of caring for her brother’s wife (she was helped by a friend to complete the form)

Brother died in 2023, client called CA unit to tell them and they said, thanks for letting us know but it will not affect your claim as you’re claiming for the wife, she then says no, I cared for my brother and anyway she died in 2019.

CA is stopped and overpaid from 2019 to 2023

Assume there is no scope to argue that she was still caring, but just for a different person, who had she had claimed for she would have been entitled i.e. he was getting AA and she was living with and caring for him?

Was thinking, again long shot, that assumed that when the sister-in-law died, so her PIP stopped, that they would have told CA, seems that they did not hence CA continued

Thanks in advance

Might reg.4 be drawn widely enough to give you room to argue?

Circumstances in which persons are or are not to be treated as engaged or regularly and substantially engaged in caring for severely disabled persons
4.—(1)  Subject to paragraph (1A) of this regulation,]a person shall be treated as engaged and as regularly and substantially engaged in caring for a severely disabled person on every day in a week if, and shall not be treated as engaged or regularly and substantially engaged in caring for a severely disabled person on any day in a week unless, as at that week he is, or is likely to be, engaged and regularly engaged for at least 35 hours a week in caring for that severely disabled person.

(1A) A person who is caring for two or more severely disabled persons in a week shall be treated as engaged and regularly and substantially engaged in caring for a severely disabled person only where he is engaged and regularly engaged for at least 35 hours in that week in caring for any one severely disabled person, considered without reference to any other severely disabled person for whom he is caring.

Reg.4(1A) is clear why your client couldn’t be caring for them both at the same time and receive CA for both but I can’t see a requirement that there is a specific severely disabled person they are caring for within the meaning of the regs if that person is receiving a qualifying benefit. As you say, the client was still caring for such a person, it just changed from one person to another.

Paul

That looks like a good start

Many thanks, appreciated

If DWP pursue recovery, the waiver guidance at paras 8.38-9 might help:
https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide

I don’t think this is a long shot.

CA is awarded based on the circumstances of the claimant, not those of the person being cared for. Whilst there is a need to consider the situation of the cared for person, that person is not a party to the claim (as we saw recently in SSWP v GK [2023] UKUT 273 (AAC)) and the enquiries are through the lens of determining whether or not the claimant meets the conditions of entitlement (i.e. by being a carer for a severely disabled person). I don’t think that we need to elevate the conditions of entitlement to being the carer for a specific individual.

A more normal situation which raises the same issue would be if the claimant was claiming CA on the basis that they were caring for person A but they then immediately began caring for person B instead. Would this require a new claim? I would argue that it doesn’t because the claimant was at all times and never ceased to be “caring for a severely disabled person”. Similar to how a change in address does not necessitate a new claim for Housing Benefit - the award follows the claimant.

Contrast this with Child Benefit say, where the entitlement is “in respect of the child”.

The DWP obviously need to keep tabs on who is being cared for in order to consider the SDP and other things, and perhaps the case will create an administrative mess, but I don’t see what the problem is with your client saying that they have not been overpaid as they were still a carer for a severely disabled person, even if not the one mentioned in the claim form.

Thank you both so i will run the still caring for argument and then if fails waive on public interest

Reassuring to know the Hive is alive and well!