Welfare Rights: Gary Vaux reviews decisions on direct payments, income support and disability living allowance

Gary Vaux points to benefit cases – one involving direct payments – with a significance outweighing the attention they have received

I know this may come as a shock to some social workers, but the rules and regulations that govern social security are often quite obscure. It is often left to social security commissioners and the courts to flesh out or interpret what the law actually means in practice. Unfortunately, although these precedents can sometimes be useful to claimants, they are often hidden away in the depths of law reports.

For example, in a recent case, a commissioner ruled that access to the lower rate of disability living allowance (DLA) was possible under the so-called “cooking test” for people who suffered from food nausea. Previously, the DWP had always taken the line that you had to be suffering from some sort of impaired manual dexterity in order to be entitled. Yet this important test case has received almost no publicity and it is probable that even the decision-makers at the DWP have yet to take the implications on board.

The case concerned a person with the bowel disorder, Crohn’s disease. He claimed DLA on the grounds that he was unable to cook a main meal because cooking smells made him nauseous. His argument was rejected by the DWP, and by an independent tribunal. However, when the case reached a commissioner (reference CDLA 2991 2007), it was decided that there was nothing in the law that prevented DLA being paid in these circumstances. So the claim was sent back to the tribunal to have another look at possible entitlement.

Of course, not everything works in a claimant’s favour. In another recent case (CDLA 3585 2007), a claimant had argued that the fact he was defined and accepted as a disabled person under the Disability Discrimination Act 1995 should have meant he was also entitled to DLA. The commissioner rejected this argument.

The link between social security and social care legislation is increasingly fraught. In another recent case, direct payments came under scrutiny. This case went all the way to the Court of Appeal before being decided. Joan Smith (not her real name) is severely disabled and qualifies for direct payments of £73 per week from her local authority to pay for her care package. She had chosen to use her husband as the carer, and pay him the £73, for 10 hours’ care per week. The local authority had accepted this arrangement, which they have the discretion to do under Regulation 6(1) of the Direct Payment Regulations.

The complication was that her husband, James, was receiving carer’s allowance, with an income support top-up. The DWP decided that, once he received the £73 payment, he was “working” and so deducted that amount, less a £20 disregard, from his income support. This disqualified him from income support.

The Smiths appealed because direct payments should be ignored when benefits are calculated. The commissioner ruled against them, however, on the basis that the direct payment was only ignored when it’s received by the disabled person. When it’s turned into a payment to someone else, it becomes earnings and would be treated in the normal way.

There is a certain logic to that approach – if Joan Smith had passed the money on to an external carer, they couldn’t have argued that it didn’t count as income just because it was originally paid as a direct payment. Even so, this case illustrates that there is still a long way to go before we get a proper fit between social security policy and social care policy.

It certainly makes it less attractive for direct payments to be used to fund relatives and family members to provide care. Precedents can work both ways and it’s important to keep up to date if you can.

Gary Vaux is head of money advice, Hertfordshire Council. If you have a question e-mail here  

Published in Community Care magazine 31 July 2008 under the heading Decisions on Income Support and Disability Living Allowance