Social Security Case Law - Spring 2024

Headnote

Award of Carer’s Allowance – the consent of the cared for person is not a necessary part of a claim for and award of carer’s allowance.

Background

The Applicant had an award of ESA from 2009, which included a severe disability premium from March 2014.  The continuance of the severe disability premium depended on no one getting an award of Carer’s Allowance for caring for the Applicant (see legislation below).  The Applicant’s mother was awarded Carer’s Allowance for caring for the Applicant in July 2018.  The Secretary of State made a decision that the Applicant was not entitled to the severe disability premium from July 2020 – December 2020, and had been overpaid same, and the overpayment was recoverable.  It was also decided that the Applicant was no longer entitled to the severe disability premium going forward.

The FfT allowed the Applicant’s appeal.  The FfT decided that the Applicant continued to qualify for the severe disability premium within his ESA award, notwithstanding his mother’s Carer’s Allowance award in respect of her caring for him, as the Applicant had not provided consent to his mother’s claim for Carer’s Allowance.

The FfT stated, (at paragraphs 27 and 34)

‘the issue of competence appeared to the Tribunal to be fundamental.  When an application is made for Carer’s Allowance it requires to be countersigned by the individual who will receiving the care.  That is because, as stated in terms in the form itself, this can impact on the individual’s benefit entitlement.  It appeared to the Tribunal that if the claim pack was flawed in that the form had not been properly countersigned then the individual receiving the care had not acquiesced to the loss in whole or part of his benefits; and that any subsequent decision superseding or revising the individual’s entitlement based on the award of Carer’s Allowance could be challenged successfully.  For example if the Carer’s Allowance form had not been countersigned at all then a challenge to a supersession or revision decision relating to Severe Disability Premium should succeed and similar logic would apply if there was a counter signature by an individual who, in the legal sense, lacked competence to sign.’

…..the Tribunal was in no doubt that, on the balance of probabilities, the evidence indicated that the claimant lacked legal capacity to sign.  On that basis the counter signature was ineffective.’

The Secretary of State did not seek to recover the repayment and appealed the FfT decision that the Applicant was entitled to Carer’s Allowance from July 2020 – December 2020, and from December 2002 onwards.

Relevant Legislation

Employment and Support Allowance Regulations 2008, Schedule 4, paragraph 6(2)(a)(iii),

‘no person is entitled to, and in receipt of, a carer’s allowance…in respect of caring for the claimant.’

Social Security Contributions and Benefits Act 1992, Section 70

’70 (1) A person shall be entitled to a carer’s allowance for any day on which he is engaged in caring for a severely disabled person if –

• • He is regularly and substantially engaged in caring for that person;
  • He is not gainfully employed; and
  • The severely disabled person is either such relative of his as may be prescribed or a person as any such other description as may be prescribed.’

Social Security Administration Act 1992, Section 1 – entitlement to the benefit dependent on claim.

Legal Issue

Whether consent or agreement of person being cared for is a necessary part of a claim for and award of Carer’s Allowance.

Decision

Secretary of State’s appeal was allowed and the FfT decision was set aside.  Held – the Applicant was not entitled to have the severe disability premium included in his award of employment and support allowance from July 2020 – December 2020 and from December 2020 onwards.