Neil Bateman looks into the vexed question of overpayment of
I manage a residential home offering respite care for people
with learning difficulties. We continually experience delays and
errors with our residents’ disability living allowance payments.
What can be done about this?
Oil and water. Probably quite a good description for the
relationship between the social security system and residential
care – particularly when care is provided on a short-term
The problems arise because of the public funding rules that mean
that periods of publicly funded care of 28 days or more trigger a
suspension of the disability living allowance care component and
any attendance allowance.
The need to investigate and to make such decisions creates the
need for the Benefits Agency to liaise with residential homes and
things can and do go wrong in the process.
The 28-day rule is further complicated by the fact that periods
of less than 28 days can be added together (“aggregated” to use the
official phrase) and when the 28-day limit is reached, the benefit
gets suspended, unless there is a further 28 days out of care. AA
and DLA care can of course be paid for periods away from the
residential home – useful for long term residents who go on
Matters can become particularly complicated when no one has
notified the Benefits Agency about regular respite care and benefit
then gets suspended. This kind of situation can take an eternity to
Potentially, massive overpayments could arise, repayment of
which will cause immense hardship. Given the importance of DLA to
household incomes, suspension of benefit is not just a bureaucratic
headache, it creates real financial stress.
Imagine how you would feel if someone in your payroll service
failed to do something which meant that you only received half your
Hence the need to plan respite care to take account of the
28-day rule and to ensure that the Benefits Agency is notified by
social services indicating the statutory authority for funding the
care (which, for adults, is almost always Part III National
Assistance Act). The Disability Rights Handbook (page 125) has a
particularly useful section about planning periods of regular
respite care and should always be consulted when planning respite
Communication problems are not helped by the sheer geographical
remoteness of the disability benefits unit in Blackpool so that it
is not a simple matter of picking up a phone and sorting out a
simple misunderstanding with a benefits official whom one knows.
The disability benefits unit operates a customer service facility
but feedback from advisers indicates that this is far from
satisfactory. The unit is also often very difficult to get through
to by telephone.
There are a number of options for resolving problems.
– Write to the disability benefits unit setting out the story
and enclose a copy of the customer’s written consent.
– Involve the customer’s member of parliament. An MP can even
ask a parliamentary question on such a matter, but in practice,
intervention by them writing a letter will usually get wheels
moving. An MP is also the route to access the parliamentary
– In the case of delays, there is always the option of legal
action. The law sets down a general duty on the secretary of state
to conclude decision making on a claim within 14 days. Failure to
hit this deadline when it is not reasonable, is a breach of
statutory duty which in turn triggers remedies for the customer to
enforce their rights. Clearly, specialist welfare rights help will
be needed on this sort of matter.
So no easy answers, but proactive planning of patterns of care
and good written notification in a timely manner to the Benefits
Agency should prevent most problems arising in the first place.
Beyond that, there are the various options I have suggested.