PIP and Carers Allowance

I have a client who is very unwell mentally and physically. He has tried to claim PIP and been unsuccessful and wants to go to appeal. He claims Carer’s Allowance (CA) for his daughter, who is in a wheelchair so obviously the subject will come up at appeal. I warned him about this and asked what type of things he does do for his daughter. He was doing a lot up until last year however his daughter moved into supported accommodation and has people help her with her with her daily needs. He does take her shopping and to doctors appointments in his car but it clearly doesn’t take up to 35 hours or more of the week and hasn’t since she moved out of his home. He did realise this himself when the change happened and took himself off CA, I can see that in his UC journal. However it started up again within the month - apparently he was told from someone at JCP that he was eligible and should claim so put him back on it. Client knows he doesn’t care for her for 35 hours but the note in the journal explicitly states he does, implying that it was discussed at length.

I don’t really know what to suggest as it could cause financial depravation. Ideally he should come off it immediately, but while he doesn’t have PIP, this money is proving useful as he is struggling with bills and, as incredibly unwell, I would be genuinely concerned for his welfare as he has acted upon suicidal ideation multiple times and still struggles. 

Also; coming off CA now would not help his PIP appeal anyway which is based on when then PIP claim was made, and still claiming CA. If the DWP look into this more/PIP appeal successful etc - they could state that he ha been overpaid CA and ask him to pay it back.

Only other solution I can think of is getting off CA and making a fresh claim for PIP now? So it won’t be an issue during application and a potential appeal process? That would take ages though and again, cause financial strain.

I must add that I think this client is genuine and has just been messed around by the system.

I know any solution or advice someone provides could ultimately harm his mental health and financial situation which I need to be prepared to tell him, I just want to bounce this off some people and get some opinions.

Thank you for any help/advice in advance.

When I was in a similar situation (advising that there’s no good news) I kept the referrer, who was based in MH services, in the loop. That worked well, but I’m not sure if you have an equivalent?

So long as your client is aware of the risks and what to do if/when consequences arise, there’s nothing more you can do. Just refrain from saying ‘I told you so’ and reassure them you’re there to answer any Qs - which I’ve no doubt your professional attitude already has covered!

Hi

This might, or might not, help! When the DM refers to CA in a PIP appeal I refer to this, usually leads to minimal, if any, questions at the hearing.

[2017] UKUT 493 (AAC), published today, from Judge Gray says -

The receipt of PIP and the receipt of a Carer’s Allowance

9. I say this, regarding the Carer’s Allowance issue, because it has been a feature in a number of appeals which I have dealt with recently.
10. If a Carer’s Allowance is in payment to somebody claiming a disability benefit on their own behalf it is understandable for a tribunal to wish to examine that. However it is not axiomatic that the receipt of Carers Allowance precludes entitlement to PIP, and the enquiry cannot start from that premise.
11. Although the facts will be for the tribunal rehearing the case, the circumstances set out by Ms Gilfoyle refer to the appellant’s partner suffering from a psychotic illness, and the possibility, in those circumstances, that the care given is in the nature of verbal support for her mental health problems, rather than physical care. It will be for the tribunal to decide whether the care provided is inconsistent with the physical difficulties claimed.
12. The case cited by Ms Gilfoyle, a decision of Upper Tribunal Judge Wikeley dating from 2011 (DLA/2499/2011) makes this very point.

“I am also concerned about the comment on page C of the Respondent’s submission concerning the Appellant’s entitlement to Carers Allowance (which is for her husband whom she lives with).  This strikes me as being motivated by bad faith and prejudice.  As the Respondent should be aware, there is no definition of “care” being provided in order to qualify for Carers Allowance and it includes companionship and supervision which is easy to satisfy when someone lives with a partner.  See paragraph1.200 Social Security Legislation 2015/15 Volume 1.”

For what its worth CDLA/2499/2011 cited by Judge Gray is also known as MC v SSWP (DLA) (2012) UKUT 337(AAC)  and I have used it several times.

Judge Wikeley held in MC v SSWP (DLA) (2012) UKUT 337(AAC) at [14-[17]

Ground 1: the carer’s allowance issue

14. This is the strongest ground of appeal. The appellant’s representative is right to argue, as Ms Pepper is right to concede, that an award of carer’s allowance is not of itself inconsistent with an award of DLA being made to the person who is herself providing the care. However, as Ms Pepper correctly observes, “findings need to be made to establish the type of care provided by her to her husband and the activities involved”.

15. The problem is that in this case the FTT failed to do just that. The only discussion of the carer’s allowance point in the statement of reasons is that noted at paragraph 8 above. The FTT seemed to have simply worked on the assumption that because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. As noted above, that may or may not be the case.

16. Indeed, the treatment of the carer’s allowance issue at the oral hearing was less than satisfactory. Unusually, both the appellant and the Department were represented at the FTT hearing. Both the presenting officer and the representative made opening statements to the tribunal panel at the outset of the hearing. There was no mention then of any issue relating to carer’s allowance (and the point was not apparent from the papers). However, right at the end of the hearing, as if producing a rabbit out of her hat, the presenting officer asked the appellant whether it was true that she had made a successful claim for carer’s allowance in September 2010. The appellant confirmed that was the case. There is no record of any further evidence or questions from the FTT panel relating to the issue.

17. In fact, the FTT seem to have operated on the basis of two quite erroneous assumptions. The first was the assumption that, because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. This was an erroneous assumption as to the law. The second was an assumption, without any questioning, that the appellant was providing hands-on physical assistance to her husband (who it appears was waiting for a kidney transplant). This was an erroneous assumption as to the facts. As noted when giving permission, there was evidence before the FTT that it was actually the appellant’s adult daughter who was providing most of the care. Furthermore, and in any event, the concept of “caring” is not specifically defined in the context of carer’s allowance, but is generally understood to include e.g. supervision as well as active assistance (see e.g. Commissioners’ decisions CG/006/1990 and CG/012/1991

For what its worth CDLA/2499/2011 cited by Judge Gray is also known as MC v SSWP (DLA) (2012) UKUT 337(AAC)  and I have used it several times.

Judge Wikeley held in MC v SSWP (DLA) (2012) UKUT 337(AAC) at [14-[17]

Ground 1: the carer’s allowance issue

14. This is the strongest ground of appeal. The appellant’s representative is right to argue, as Ms Pepper is right to concede, that an award of carer’s allowance is not of itself inconsistent with an award of DLA being made to the person who is herself providing the care. However, as Ms Pepper correctly observes, “findings need to be made to establish the type of care provided by her to her husband and the activities involved”.

15. The problem is that in this case the FTT failed to do just that. The only discussion of the carer’s allowance point in the statement of reasons is that noted at paragraph 8 above. The FTT seemed to have simply worked on the assumption that because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. As noted above, that may or may not be the case.

16. Indeed, the treatment of the carer’s allowance issue at the oral hearing was less than satisfactory. Unusually, both the appellant and the Department were represented at the FTT hearing. Both the presenting officer and the representative made opening statements to the tribunal panel at the outset of the hearing. There was no mention then of any issue relating to carer’s allowance (and the point was not apparent from the papers). However, right at the end of the hearing, as if producing a rabbit out of her hat, the presenting officer asked the appellant whether it was true that she had made a successful claim for carer’s allowance in September 2010. The appellant confirmed that was the case. There is no record of any further evidence or questions from the FTT panel relating to the issue.

17. In fact, the FTT seem to have operated on the basis of two quite erroneous assumptions. The first was the assumption that, because the appellant had an award of carer’s allowance, she therefore could not qualify for DLA. This was an erroneous assumption as to the law. The second was an assumption, without any questioning, that the appellant was providing hands-on physical assistance to her husband (who it appears was waiting for a kidney transplant). This was an erroneous assumption as to the facts. As noted when giving permission, there was evidence before the FTT that it was actually the appellant’s adult daughter who was providing most of the care. Furthermore, and in any event, the concept of “caring” is not specifically defined in the context of carer’s allowance, but is generally understood to include e.g. supervision as well as active assistance (see e.g. Commissioners’ decisions CG/006/1990 and CG/012/1991

Thanks everyone, this has all been super useful