Benefits Bulletin. Children in Hospital

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1 Benefits Bulletin Registered Charity Summer 2016 Children in Hospital In 2010 an article by Dr Ruth Davies was published in the Journal of Child Health Care. In that article she concluded that since the 1980 s hospitals have increasingly recognised that there are both humanitarian and financial reasons for allowing parents to care for their child when they are in hospital and in some cases to reside there themselves, to be at hand for them. It is now accepted practice for this to happen. Similarly, a report by the Children s Trust Tadworth and Contact a Family found that the majority of carers of disabled children provide the same level of care, and sometimes more, when the child is in hospital as when they are at home. Most importantly, 93% of those parents have increased costs when they are staying in hospital. The issue took a legal turn when a case climbed up the ladder to the Supreme Court, eventually being heard in July It was known as the Mathieson case. Mr Mathieson received Disability Living Allowance on behalf of his child. The award consisted of high rate care and mobility components. The child was admitted to hospital. The Court s case record makes it crystal clear the amount of care the child s parents were giving at this time. It included administering twice daily physiotherapy, giving nebulised antibiotics, feeding the child via a nasogastric tube, and changing his stoma bag up to eight times a day. What the earlier reports and articles had been saying for some time had at last reached the ears of the highest judges in the land. And the issue that got it to the Supreme Court was the 84-day rule. This rule prevents payment of DLA for a child after they have spent more than 84 days in hospital the rationale behind the rule being that after such a length of time it is the hospital staff that are providing most of the care, not the parents. Mr Mathieson s experience was quite different, as the court heard. And his argument to the court was that suspending a child s payment of DLA after 84 days in hospital breached the child s human rights under article 14 of the European Convention on Human Rights. It s the Article that prevents discrimination on a number of grounds, sex, race, colour, etc. At the end of the list of grounds there is a catch-all category or other status and this is the one that assisted Mr Mathieson s child. The Supreme Court ruled unanimously in favour of the Mathiesons stating that suspending payment of the child s DLA violated his human rights under article 14. Four of the five judges hearing the case also found that the 84-day rule breached international law including both the United Nations Convention on the Rights of Persons with Disabilities, and the United Nations Convention of the Rights of the Child. After an interval of almost a year, during which time the Secretary of State carefully considered the terms of the judgement and evidence contained within an equality analysis, the government decided that the 84-day hospitalisation rule should be withdrawn. From 29th June 2016, both Disability Living Allowance and Personal Independence Payment paid to children or young people under the age of 18 on the day they enter will not be affected by a stay in hospital. 1 Advice Publications Training

2 CE/288/2016 health care professionals and their qualifications. A claimant enters an examination room for an ESA medical and before matters proceed demands to know the health care professional s qualifications and credentials. The exchange gets heated, voices are raised, and eventually, the assessment is abandoned. The claimant s Employment and Support Allowance is subsequently terminated on the ground that they failed to participate in the examination without good cause. The claimant appealed to a first-tier tribunal who found in favour of the DWP. The case then went to the Upper Tribunal and came before Judge Hemingway. Here s what he had to say about it. Firstly, he determined what the issue was: did the claimant fail to submit to a medical examination without good cause when a health care professional did not provide details of their qualifications on request? Then he went straight to the law. The appellant hadn t actually refused to submit to the examination. What they d done, in effect, was to seek to impose conditions upon the medical, before it could commence by asking the HCP what their qualifications were. In doing this, had the claimant acted unreasonably? Judge Hemingway asked. In other words, what exactly can a claimant ask of a HCP in regard to their qualifications prior to a medical taking place, and still maintain the reasonableness of that request? Judge Hemingway set the following boundaries: I do not think there can normally be any sensible objection to a nonaggressively put request for the name of the healthcare professional who is to conduct the examination, a verbal assurance from the health care professional that he/she has been properly appointed as a health care professional such that they are authorised to carry out the examination, and an indication as to which category within the definition of healthcare professional as contained within regulation 2 of the ESA Regulations 2008, they fall within It seems to me, though, that any demand for additional information.is likely to go beyond what is reasonable. It s difficult to know what properly appointed means here, or what response would be forthcoming were a claimant to ask of a HCP whether they were authorised to carry out the examination. If they haven t been properly appointed, they shouldn t even be sitting in the same room as the claimant. Judge Hemingway also mentioned regulation 2 of the ESA regulations. With this, we are on slightly firmer ground. Regulation 2 contains the following definition of health care professional : health care professional means (a) A registered medical practitioner; (b) A registered nurse; or (c) An occupational therapist of physiotherapist registered with a regulatory body If registered nurse was quoted at a claimant with mental health problems and the healthcare professional stuck rigidly to the definition, and could be seen in doing so to be acting reasonably, the claimant with mental health problems might very well continue to be worried about the outcome of their medical examination not knowing whether the nurse specialised in mental health, or not. Anyhow, Judge Hemingway sent the case back to the first-tier tribunal for re-hearing. 2 Advice Publications Training

3 Carer s Credit Carer s Credit is a National Insurance credit which can be paid to close gaps in your National Insurance contribution record. Your entitlement to your State Pension depends on your National Insurance record. You will be receiving credits if you are in receipt of Carer s Allowance or you are getting Child Benefit for a child under the age of 12. To be eligible for Carer s Credit you need to be caring for someone for at least 20 hours per week. This means that you can be a carer and not have to worry about your ability to qualify for your State Pension. You must be aged 16 years or older, under State Pension age and looking after one (or more) people for at least 20 hours per week. The person you are caring for must be in receipt of a qualifying benefit, these are: Disability Living Allowance, care component at the middle or higher rate; Attendance Allowance; Constant Attendance Allowance; Personal Independence Payment, daily living component; Armed Forces Independence Payment. If the person you care for does not receive a qualifying benefit it may still be possible for you to receive Carer s Credit. The claim pack will contain a Care Certificate. This needs to be completed by a health or social care professional and returned with the completed claim form. If you do not qualify for Carer s Allowance you may still be eligible for Carer s Credit. If you receive Carer s Credit it can continue if you have a break from caring for someone. You can still receive it for up to 12 weeks if you: Take a short holiday; Stop caring for someone because they have gone into hospital; Go into hospital yourself. You can apply for Carer s Credit by downloading a form at: or by ringing the Carer s Allowance Unit on Carer s Allowance Digital Service (CADS) This service began in October 2015 and allows carers to make online claims for Carer s Allowance or notify a change of circumstances to an existing claim. The Department for Work and Pensions have admitted that this is a new approach for them inasmuch as it focusses on carers and not the process, allows flexibility and is based on continuous improvement. The main features for CADS are that it is available 24 hours a day 7 days a week. Information is sent directly to the Carer s Allowance Unit once it is submitted. The service can also be used on smart phones and tablets. According to the official figures (April 2016) 40% of users used a desktop computer, 21.2% used a tablet and 38.5% used a smartphone no information was available about the remaining 0.3%. The digital claim form has less questions than the paper based system and does not require a password or signature. The digital form has a number of questions that must be answered before you can move on to the next section. This ensures that the correct information is entered to allow quicker processing and payment. Once a claim has been made using CADS any changes of circumstances can be notified using the system. Any information sent will result in an notification confirming the contact. The service can be accessed at: 3 Advice Publications Training

4 CPIP/193/2016 Regulation 4 and effect of pauses and halts on ability to move around when applying PIP mobility descriptors Here at the Welfare Benefits Unit we ve been keeping a close eye on case-law developments to regulation 4 of the Personal Independence Payment Regulations. It s the one that sets out the criteria that apply to all the descriptors, and, as such, has a bearing on the whole PIP assessment regime. If a person cannot perform a task safely, to an acceptable standard, repeatedly and within a reasonable time period (the key consideration here), then they may score points for the descriptor concerned. In this case, decided by Judge Hemingway, the mobility descriptors were at issue. The appellant had multiple sclerosis. The first-tier tribunal found that she was able to walk between 50 metres and 200 metres on a reasonably reliable and repeated basis. Therefore, descriptor 2(b) can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided applied. Judge Hemingway framed the issue directly in relation to regulation 4: were the tribunal s findings adequate, taking into account the requirement to apply the reliability criteria and the claimant s tendency to pause or stop when walking? I fear many more cases from first-tier tribunals will Farewell Carron come before the Upper Tribunal with exactly the same issue, as regulation 4 affects the range of descriptors in different ways. Hemingway found in favour of the appellant, stating that the tribunal had not made adequate findings of fact. And here s how he did it. The tribunal s reasons lacked clarity in relation to what constitutes a pause or halt. An earlier case (CPIP/2377/2015), which Hemingway endorsed, found that a brief pause or halt did not necessarily mark the end-point of a claimant s ability to walk. However, while such a pause or halt may not engage the descriptor, it may well be relevant to the application of regulation 4, and there will be times when a halt has persisted for such length that it cannot realistically be said that any resumption is part of the same period of walking. Our Carron (Carron Whorley, that is, our administrative assistant and an invaluable staff member) left the Welfare Benefits Unit recently. She informed us that she was moving on to pastures new. But we didn t believe her. We think and hope she is sipping ice-cold Shandies on a beach in the Caribbean In addition, the tribunal erred in law in failing to make specific findings on the speed of the claimant s walking, which has a bearing on whether they could walk the appropriate distance in a reasonable time period. A reasonable time period is no more than twice as long as the maximum period that a person without a physical or mental condition.. would normally take to complete the activity. Thus, logically, a person unable to walk the distance prescribed in the descriptor in a reasonable time period is treated as not able to walk the distance at all. Celebrating 30 Years Service If you re lucky you ll have a go to person in your organisation - just as we have with Jane. Celebrating her 30 years with the Welfare Benefits Unit gave us all the opportunity to say thanks for her support and wish her all the best for the future. 4 Advice Publications Training

5 CPIP/3573/2015 safety and supervision distinct This case went to a tribunal, where the DWP s decision was upheld, and then on to the Upper Tribunal, where it came before Judge Bano, allowed the appeal on 27 April The essence of the issue in this case was the effect of the meaning of the word safely in regulation 4 of the Personal Independence Payment Regulations in relation to the need for supervision as it appears in several of the descriptors. For example, where a claimant has been found to be able to prepare food safely (in which case regulation 4 does not help them), does this nullify any need for supervision found in descriptor 1e? Descriptor 1e reads as follows: Needs supervision or assistance to either prepare or cook a simple meal If a person can do something safely, surely, they don t need to be supervised? So, does this view of the matter make the 4 points in this descriptor unavailable to the appellant? The appellant in this case experienced non-epileptic seizures and memory loss. Judge Bano first looked at the concept of safety as it has so far been discussed in existing case-law. A fellow judge, Judge Hemingway, had already looked at it, and had come to the following conclusion. The concept of safety in regulation 4 is related solely to the likelihood of a harmful event occurring and not to the seriousness of the consequences of such an event if it takes place. Judge Bano accepted this definition, and went on to make a crucial distinction based on it. As he said himself, Regulation 4 and supervision descriptors may in many cases raise common or overlapping issues of fact, but they are in my view analytically and conceptually distinct. Really? How so, exactly? Well, Judge Bano utilised a longstanding and accepted principle established during the days of Disability Living Allowance. It can be found in a reported decision, more than 25 years old: R(A)2/89. It states that where appropriate, an assessment must be made of the possible seriousness of the consequences of engaging in an activity if supervision was not provided. Judge Bano concluded that the tribunal had erred in law in its approach to preparing food by not considering whether, having regard to the risk of seizures and the claimant s condition after such seizures occurred, the claimant needed supervision in order to prepare and cook a simple meal, safely, taking into account the full range of tasks needed to prepare food for cooking, cooking it in a microwave, and getting it out of a microwave and ready to eat. Thus, safety in regulation 4 of the PIP regulations, an overarching issue that must be considered with all the descriptors, is distinct from supervision as found in just a few of the descriptors. They are two different measures and as such, tribunal judges at first-tier level must make it clear in their decisions that they have considered both. Stepping out with Yorkshire Legal Support Trust Trustee and advisers, Robert, Andrew and Liz, took part in a sponsored walk to fundraise in late April. Walking around York after work we encountered all types of weather - snow, sleet and sunshine. We welcomed the opportunity to take part and raised 240 towards our service. 5 Advice Publications Training

6 Correspondence from the Department of Work and Pensions An increasing number of households will by now have received a letter from the Department for Work and Pensions, warning them that they may be affected by the introduction of the new benefit cap. They will not be told when they might be affected, as a date for the introduction hasn t been set. And the statistics reflect this: so far, only 1% of claimants have been affected by the cap almost half of them in London. When the new rates for the cap come into force, whenever that may be, this figure will climb to 4%, with an increasing number of households outside the capital being affected. Currently, the maximum amount a household can receive in income on benefits is 26,000 for couples or lone parents, and 18,200 for single person households. Once the new rules for the cap are introduced, in Autumn 2016, there will be a two-tier system one for Londoners, and one for the rest of the UK. For those households living outside Greater London, the maximum amount a household can receive in income on benefits is reduced to 20,000 for couples and lone parents, and 13,400 for single people. The threshold is so low that it will affect any household with three or more children, even in low rent areas, or in social housing. More Correspondence from the Department of Work and Pensions The new State Pension has been with us since April Laudable in its long term aims, in the short term getting it off the ground has revealed an information shortfall. And it s left many people a little confused. The confusion was spotted by a Work and Pensions Committee report Communication of the new state pension. In response to this, the Department for Work and Pensions has said it will write to those people who may not meet the minimum qualifying period for the new State Pension. The minimum qualifying period since April 2016 has been ten years of National Insurance contributions. It is estimated that there are over one hundred thousand people who will get less from the new State Pension than they expected. Here s what Frank Field, Chair of the Committee, said about the matter: The Committee has encountered untold confusion among people who wanted to know the value of their state pension, and who had received little or no communication from the government. It looks as though the government will begin to apply the lessons from our evidence, by writing to people who do not meet the minimum criteria for the new state pension. We very much welcome this initiative. 6 Advice Publications Training

7 Reduction in the Temporary Absence Rule for Housing Benefit and Pension Credit We ve been waiting quite some time for this news: the limitation from 13 weeks to 4 weeks of the temporary absence rules for those receiving Housing Benefit and Pension Credit. By absence, we mean absence from Great Britain. It first came to the public s attention back in February 2016, when the Social Security Advisory Committee launched a consultation on the draft regulations. The Committee was concerned that the proposed new rules would have a detrimental effect on people who leave Great Britain temporarily for reasons outside of their direct control. Next came some news in a General Information Bulletin (G3/2016 and G4/2016) published for local authorities in March 2016 advising them that the date the new rules would come into force was delayed.the rules wouldn t come into force until an unspecified date in the summer. The statutory instrument was finally published at the beginning of July 2016 with a coming into force date of 28th July It has incorporated some of the recommendations of the Committee, and included exceptions to the general rule, most notably where there is domestic violence or a need to receive medical treatment abroad, amongst others. Advisers Guide Updates & Amendments Page 18 Permitted work higher limit, the first sentence should read: You can work less than 16 hours a week. Page 94 DLA for children under 16, see article on the front page. Alter wording to: From 29 June 2016 Disability Living Allowance and Personal Independence Payment is not affected when a child, or young person under 18 on the day they enter, has a stay in hospital. Page 44 in the Pension Credit savings credit box, third line should read April 2016 Page 89 pension age table, first line should read: 6 April 1953 to 5 May 1953 Rates List, under Non Means Tested Benefits, Employment and Support Allowance, permitted work higher limit should read Welfare Benefits Unit Advice Line Monday Friday, 10am 1pm (North Yorkshire and York only) Please do not give this number to members of the public BenefitsBulletin is compiled by the Welfare Benefits Unit, 17 Priory Street, York YO1 6ET Registered Charity Advice Publications Training