When being paid too much hurts

    Neil Bateman looks into the vexed question of overpayment of
    disability benefits.

    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
    basis.

    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
    holidays.

    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
    resolve.

    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
    salary?

    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
    care.

    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
    ombudsman.

    – 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.

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