DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC)

For the severe-disability amount in state pension credit, a claimant must be factually in receipt of Attendance Allowance. That expression is not synonymous with entitlement to the allowance or with its lawful payability.

Accordingly, a publicly funded care-home resident remains entitled to the severe-disability amount while Attendance Allowance payments are in fact received, even though the statutory bar on payment after 28 days has taken effect. The decision-maker must determine the date of actual receipt.

DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) concerned a deceased claimant’s state pension credit after she entered a local-authority-funded care home. The Secretary of State removed the additional amount for severe disability 28 days after the asserted admission date, although Attendance Allowance continued to be paid for several months.

The First-tier Tribunal dismissed the executor’s appeal, treating the admission date as the only issue. It also held that it had no jurisdiction to determine his challenge to the local authority’s appointment as the claimant’s social-security appointee.

The Upper Tribunal considered whether entitlement to the severe-disability amount depended on the cessation of lawful payment of Attendance Allowance, or on the claimant’s factual receipt of it.

1. Appeal allowed. The First-tier Tribunal erred in assuming that entitlement to the severe-disability amount automatically ended after 28 days’ residence in a publicly funded care home. Its decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

2. Under regulation 6(4) and paragraph 1 of Schedule 1 to the State Pension Credit Regulations 2002, the material condition was whether the claimant was in receipt of Attendance Allowance. The phrase bears its ordinary factual meaning: payments are actually received. It does not mean that the allowance remains lawfully payable.

3. Regulation 7(1) of the Social Security (Attendance Allowance) Regulations 1991, made under section 67(2) of the Social Security Contributions and Benefits Act 1992, removed the right to payment after the protected initial period. It did not remove entitlement to Attendance Allowance. The legislature could have made payability the condition for the severe-disability amount but did not do so.

4. The claimant therefore remained entitled to the severe-disability amount until 12 September 2012, the final date on which she was factually in receipt of Attendance Allowance. The Upper Tribunal re-made the decision rather than remitting it.

5. The Tribunal had no jurisdiction over the appointment decision under regulation 33 of the Social Security (Claims and Payments) Regulations 1987. The judge’s observations about the careful scrutiny of appointee applications, and the relevance of an enduring or lasting power of attorney, were expressly not part of the ratio.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and re-made it under section 12(2)(b)(ii).
• First-tier Tribunal: on 9 July 2015, Birmingham, dismissed the appeal and held that the additional severe-disability amount ceased four weeks after admission to the care home.