Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/3638/2008

ADMINISTRATIVE APPEALS CHAMBER

1. This is my final decision of this appeal. I made an interim decision on 8 November 2010 setting aside the decision of the First-tier Tribunal made on 11 September 2008. The effect of my interim decision was that, subject to the factual issues referred to in paras. 96 to 103 of the interim decision, the Claimant was not disentitled by regs. 8 (care component) or 12A (mobility component) of the Social Security (Disability Living Allowance) Regulations 1991 to payment of either the care or mobility component of DLA following his move to The Lodge.

2. On 9 December 2011 the Court of Appeal dismissed the Secretary of State’s appeal against my interim decision. (My interim decision and the decision of the Court of Appeal are to be reported as [2012] AACR 30).

3. As regards the issues left outstanding by paras. 96 to 103 of my interim decision, further evidence has been provided by The Lodge pursuant to Directions which I made on 18 January and 7 June 2012. That evidence relates in terms to the years 2010, 2011 and 2012. However, I made clear in my Direction dated 18 January 2012 that the evidence was to be directed to those years because recent evidence was likely to be more easily accessible than that relating to earlier years. In my judgment that evidence is indicative also of what the situation is likely to have been in respect of earlier years. On that footing, the Secretary of State now accepts, as I understand it, and in any event I so find, that the Claimant was not at any material time undergoing sufficient treatment at The Lodge by or under the supervision of healthcare professionals to mean that he was “undergoing medical or other treatment ….. as an in-patient in a hospital or similar institution”, within the meaning of regs. 8 or 12A. As I understand it, the Secretary of State also accepts, in my judgment rightly (see paras. 8, 9 and 63 of my interim decision) that, down to 28 July 2010 (see below), the Claimant was not disentitled to payment of the care component by reg. 9 of the 1991 Regulations.

4. The Secretary of State, in a helpful submission in relation to the outstanding issues, has presented evidence indicating that from 28 July 2010 the relevant costs of the Claimant’s accommodation and care at The Lodge have been paid as to 80% by the Local Authority and as to 20% by the NHS. As a result, a decision was made by the Secretary of State on 5 May 2011 that the care component was not payable to the Claimant from 28 July 2010 because from that date his costs of accommodation in a care home were partly funded by the local authority and he was therefore disentitled to payment by reg. 9 of the 1991 Regulations. I see no reason to doubt the correctness of that decision of 5 May 2011, but it was not of course under appeal to me, and I therefore have no jurisdiction to make any decision as to whether it was correct or not.

5. My final decision of this appeal is therefore as follows. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the further findings of fact referred to in para. 3 above, and re-make the First-tier Tribunal’s decision of 11 September 2008 as follows:

The appeal against the Secretary of State’s decision made on 18 February 2008 is allowed. The Claimant was not disentitled to payment of the mobility component of disability living allowance by reg. 12A of the Social Security (Disability Living Allowance) Regulations 1991 and was not (down to 28 July 2010) disentitled to payment of the care component by either regs. 8 or 9 of the 1991 Regulations. However, the position as regards payability of the care component since 28 July 2010 is now governed by a decision of the Secretary of State made on 5 May 2011. That decision was not under appeal and its correctness is therefore not the subject of this decision.

6. The practical effect of my decision is that the Claimant is entitled to payment of arrears of both components in respect of the period from 26 December 2007 to 27 July 2010. As I understand it payment of the mobility component has been made from 28 July 2010, so there are no arrears of the mobility component arising after that date. By virtue of the Secretary of State’s decision made on 5 May 2011 the care component is not payable in respect of the period from 28 July 2010, subject of course to any revision, supersession or appeal of that decision.

Charles Turnbull

Judge of the Upper Tribunal

3 December 2012