Commissioner’s case no:  CDLA/5106/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Claimant, brought with the leave of the Chairman, against a decision of the Plymouth Appeal Tribunal made on 5 April 2001. For the reasons set out below the Tribunal’s decision was erroneous in law and I set it aside. In exercise of the power in s.14(8)(a)(ii) of the Social Security Act 1998 I find that throughout the material period of the Claimant’s stay in the care home referred to below the Claimant was a person for whom accommodation was provided in pursuance of Part III of the National Assistance Act 1948. In the light of that finding I substitute for the decision of the Tribunal a decision to the same effect as that which it made, namely that from 27 April 2000 to the date when she ceased to be entitled to income support attendance allowance was not payable to the Claimant. In substance this appeal has therefore not succeeded. 

2.	The facts giving rise to this appeal were as follows:

(1)	The Claimant is a woman who attained the age of 100 on 20 June this year. 

(2)	By a decision made on 17 February 1997 the Claimant was awarded attendance allowance at the lower rate from 11 January 1997.

(3)	On 27 March 2000 the Claimant went into hospital. She was transferred between several hospitals, and was then discharged to a residential care home not owned or managed by the local authority on 11 April 2000. 

(4)	The local authority made the arrangements for the Claimant to go to the home, and accepted liability to the home for the home’s fees (see p.42) of £225 per week

(5)	It appears that the Claimant was initially assessed by the local authority (possibly on an interim basis) as liable to pay the local authority the sum of £124.30 per week in respect of her stay in the home, the expectation being that the Claimant would pay the difference between that sum and the £225 per week being paid by the local authority to the home when her house was sold (see the Claimant’s son’s letter cited in (7) below, and his submission to the Tribunal at p.129).

(6)	On 27 June 2000 decisions were made, by way of supersession of the decision of 17 February 1997, (i) that the Claimant was entitled to the higher rate of attendance allowance from 19 October 2000 and (ii) that attendance allowance was not payable from 27 April 2000 because the Claimant had been in hospital and then subsequently in “certain accommodation.” 

(7)	By letter dated 14 July 2000 the Claimant’s son, her appointee, appealed against both those decisions. As regards the payability decision, the appeal was on the ground that “[the Claimant] is currently paying £124.30 per week towards her accommodation costs, and expects to be paying the full cost when the sale of her house iS completed.”

(8)	By letter dated 26 July 2000 the Claimant’s son wrote: “[The Claimant] has now been charged the full cost of her accommodation. I enclose a copy of the statement of account from Devon Social Services which charges her not only with the full cost of her accommodation from now on, but includes a retroactive charge for the period commencing 11 April 2000.” From about the middle of July 2000 the local authority continued to pay the home’s fees as they fell due, but was reimbursed on a monthly basis by the Claimant’s son.

(9)	On 17 August 2000 a further decision was made, by way of revision of the entitlement decision made on 27 June 2000, that the Claimant was entitled to the higher rate of attendance allowance from from 1 July 2000. 

(10)	On 23 January 2001 further supersession decisions were made in respect of both entitlement and payability, but they do not seem to have altered the substance of the decisions already made.

(11)	The Claimant’s house was sold on 19 January 2001. The Claimant was in receipt of  income support throughout the material period until, in effect, 25 January 2001. 

3.	The Claimant’s son’s contention to the Tribunal was that the Claimant “was billed an interim rate of £124.30 a week until 11 June 2000, when she was assessed the full cost of £225 a week with retroactive effect to 11 April 2000. This retroactive charge was paid promptly, and the full cost has been paid ever since.” He contended that attendance allowance should have been payable as from 11 June 2000 (i.e. that the payability decision was correct up to that date, but not thereafter). There is some inclarity as to the precise date from which the Claimant can be considered to have been reimbursing the local authority on an ongoing basis (rather than by way of a lump sum substantially in arrears), but in view of my conclusions below the precise date is of no significance. 

4.	The material part of the Tribunal’s Decision Notice reads that “Attendance Allowance is not payable from 27 April 2000 to the date when she ceased to be entitled to income support because she was admitted to hospital on 26 March 2000 and then became resident in a nursing home paid for partly by the local authority.” In its statement of reasons it concluded, in effect, that Regulation 7(1) of the Social Security (Attendance Allowance) Regulations 1991 continued to prevent the Claimant being entitled to payment of attendance allowance even after about the middle of July 2000 because the local authority was after that time “still providing bridging facilities.”

5.	It is accepted on behalf of the Claimant on this appeal that attendance allowance was not payable until about the middle of July 2000 because until then (i) Regulation 7(1) applied and (ii) the Claimant could not benefit from the exception in Reg. 8(6) because the Claimant was in receipt of income support. However, it is contended that none of the three limbs of Regulation 7(1) applied after the middle of July 2000, so that from that date there was nothing to prevent payment of attendance allowance (and no need to rely on the exception in Reg. 8(6)). 

6.	Reg. 7(1) provides as follows:

	“……………………. A person shall not be paid any amount in respect of an 
	attendance allowance for any period where throughout that period he is a person for 
	whom accommodation is provided – 

(a)	in pursuance of 

(i)	Part III of the National Assistance Act 1948, or
(ii)	Part IV of the Social Work (Scotland) Act 1968 or section 7 of the Mental Health (Scotland) Act 1984;

(b)	in circumstances where the cost of accommodation is borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability; or

(c)	in circumstances where the cost of the accommodation may be borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability.”

7.	In holding that the local authority was after the middle of July 2000 “still providing bridging facilities”, the Tribunal did not specify which one (or more) of the three limbs of Reg. 7(1) it considered to be satisfied (if indeed it really applied its mind to that question at all). The Tribunal’s failure to consider that question in my judgment rendered its decision erroneous in law. In my judgment it is clear that the three limbs are alternatives – i.e. Reg. 7(1) applies if any one of them is satisfied. That is clear from the presence of the word “or” after limb (b). If the intention had been that it is necessary to satisfy both (a) and one or other of (b) and (c), the words “and either” would have appeared after limb (a). 

8.	In order to determine whether Reg. 7(1) applied in this case, it is helpful to examine the relevant provisions of Part III of the National Assistance Act 1948. Under s.21(1) of that Act a local authority may make arrangements for providing residential accommodation for persons who by reason of age are in need of care and attention which is not otherwise available to them. S.21(4) states that, subject to s.26, accommodation provided by a local authority shall be provided in premises managed by the authority. By s.21(5) references in the Act to accommodation provided under Part III of the Act shall be construed as references to accommodation provided “in accordance with this and the five next following sections” (i.e. including s.26).

9.	S.22(1) provides that, subject to s.26, where a person is provided with accommodation under the Act the local authority shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of s.22. S.22(2) provides that, subject to the subsequent provisions of s.22, the payment to be made shall be in accordance with a standard rate fixed for that accommodation by the authority. However, by s.22(3), where the occupant satisfies the authority that he unable to pay, the authority shall assess his ability to pay and determine at what lower rate he should pay. 

10.	By s. 26(1) arrangements under s.21 may include arrangements with a voluntary organisation managing premises for reward (i.e. in this case a privately owned care home). By s.26(2) any such arrangements must provide for the making by the local authority to the home of payment for the accommodation. By s.26(3) the occupant must in effect “refund” to the local authority the amounts which he would have been liable to pay under s.22 had the home been a local authority home. 

11.	In the present case it is clear that the Claimant went into the home pursuant to arrangements made by the local authority under s.26 of the 1948 Act, and the local authority was therefore liable to pay to the home the charges for occupation, and the Claimant was liable to refund those amounts to the local authority, subject to her ability to pay. The local authority initially appear to have accepted that, pending the sale of her house, the Claimant was unable to pay the full amount. That would be consistent with her receipt of income support. 

12.	There can in my judgment be no doubt that, when the Claimant went into the home, that accommodation was provided for her in pursuance of Part III of the 1948 Act (and more particularly s.26 thereof), so that limb (a) of Reg. 7 of the 1991 Regulations was satisfied. That is confirmed by the answers of the local authority at p.37. 

13.	The Claimant’s son argues that, once the arrangement for reimbursement by him of the local authority in full commenced, limb (a) was not applicable. However, in my judgment it is clear that the accommodation was still provided for the Claimant under s.26. The structure required by s.26  - i.e. of payment of the charges by the authority, and refund by or on behalf of the Claimant – continued to be applicable. The only difference was that the whole of the payments, rather than only part, was refunded. But the arrangements were plainly pursuant to s.26, and thus pursuant to Part III of the 1948 Act. That is confirmed by the local authority’s answer at p.94. Indeed, I am not aware that the local authority had any statutory power, other than that in s.26 of the 1948 Act, to continue to incur contractual liability to the home in respect of the Claimant’s occupation in the manner which it did. The home was entitled to look to the local authority, and only to the local authority, for payment of its fees. 

14.	In his submissions in reply in this appeal the Claimant’s son argues that the documents at pages 102, 103 and 106 of the case papers show that that Part III of the 1948 Act did not continue to apply. As to the Benefits Agency’s note of a telephone call with the local authority at pages 102 and 103, the Claimant relies on the local authority’s reported statement that they “do not consider themselves to be paying for the care accomodation – for the authority to consider paying they would have to receive an application for funding. No application for funding has been made.” However, as I have pointed out, under s.26 of the 1948 Act the primary position is that the occupant is liable to refund to the local authority the sums paid by it to the home, which is precisely what was happening here after July 2000 (albeit that the payments to the authority were in fact being made by the Claimant’s son). In document 106 the decision maker stated (in my judgment rightly) that the local authority was making payments to the home under Part III of the 1948 Act. The Claimant can derive no support from that document either.

15.	In my judgment, therefore, it is clear that limb (a) of Reg. 7 of the 1991 Regulations continued to apply after the middle of July 2000, with the result that the Claimant continued not to be entitled to attendance allowance. The Tribunal’s decision was therefore in substance correct, albeit that its reasoning was somewhat deficient.

16.	I do not know whether it might have been possible for the local authority to have been removed from the arrangements altogether by the Claimant or her son entering into a new arrangement with the home to pay the fees to the home directly. Had that been done, it would then have been strongly arguable that the accommodation was no longer provided in pursuance of Part III of the 1948 Act. But that is not what happened. 

                    (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                              20 August 2002