Expert Comments On Secretary of State for Work and Pensions -v- Alexander Slavin

A recent Court of Appeal decision means that some people in care homes, who were not previously entitled to Disability Living Allowance (DLA), are now eligible.  However their eligibility will depend upon the level of qualification of the staff working in the care home and whether or not they are deemed to be receiving medical treatment or not.

In the case of the Secretary of State for Work and Pensions -v- Alexander Slavin, three appeal Lords all held that Mr Slavin was not undergoing “medical or other treatment” and therefore he was eligible for the mobility component of his Disability Living Allowance.

The appeal was only in respect of that component so the ruling was not made in respect of the care component, although the Judges thought that he would be eligible for the care component as well as a result of an amendment to the regulations in 2002.

Mr Slavin had been diagnosed as having a number of medical conditions including an autistic spectrum disorder, challenging behaviour and severe learning difficulties.  In November 2007 his behaviour became too difficult for his parents to manage and he moved into a specialist home for people with autistic spectrum disorders.  He was assessed under the Continuing Healthcare Framework and found eligible for NHS funding.

Prior to moving into the home Mr Slavin was receiving the highest care and mobility rates of DLA.  However, when he moved into the care home, a decision was made by the Department for Work and Pensions that he was no longer eligible for either component.

The Upper Tribunal had looked in detail at the Regulations governing the payment of this benefit, and concluded that the question of eligibility would be determined by whether he was receiving “medical or other treatment” in the home. 

It was concluded that if care was to be called “treatment” it must be provided by professionally trained and qualified medical staff and, while Mr Slavin was receiving specialist care, it was being provided by staff qualified to handle challenging behaviour not nursing care.  On that basis they concluded he was not undergoing “medical or other treatment” and dismissed the appeal, meaning Mr Slavin could claim DLA. 

Polly Sweeney, a solicitor in Irwin Mitchell’s Public Law team who specialises in cases related to health and social care, said: “This decision is not going to affect everyone living in a care home receiving Continuing Healthcare Funding. Whether it applies or not will be dependent on whether the applicant is receiving care or treatment from the staff at the care home.

“This is likely to be considered in line with the qualification of the staff working in the home. Clearly the staff in a care home need to be trained; however many care homes are staffed by carers who are trained to NVQ standards but not to nursing standards. 

“A resident in a care home, where the staff are not trained nurses, should now be eligible for this benefit following this decision.   However a resident in a care home staffed by predominantly trained nurses under the supervision of a medical practitioner may not be eligible.”

The public law expert added: “Whilst this decision is to be welcomed, as it will ensure that many individuals in residential care will be able to access vital benefits that they need, the circumstances when DLA will or will not be payable are still not straightforward.

“It is important that the facts of each case are considered individually when determining whether the placement is for the purposes of medical treatment.

“It is also important to consider the impact of proving that you are not undergoing medical treatment may have on your ongoing eligibility for continuing healthcare funding and specialist advice should be sought if you are concerned at all.

“Ultimately, it is a real shame that there are these disputes over whether government-funded Health or Social services pay for care. DLA aims to help meet some of the needs of a disabled person and if he is not entitled to this – the needs must be met in some other way.”

If you, a loved one or someone you care for depends on health or social services has a dispute with an NHS Trust or local authority, our healthcare & social services solicitors could help you to claim. Visit our Protecting Your Rights section for more information.