SOCIAL SECURITY — Income support — Entitlement — Claimant’s disabled wife receiving direct payments in respect of care provided by claimant — Whether direct payments to wife “earnings” for purposes of assessing claimant’s entitlement to income support — Social Security Contributions and Benefits Act 1992, s 136(1) — Income Support (General) Regulations 1987 (SI 1987/1967), Sch 9, para 58

Casewell v Secretary of State for Work and Pensions; [2008] WLR (D) 86

CA: Tuckey, Rix LJJ and Sir Robin Auld: 11 March 2008

A direct payment of carer’s allowance made to a disabled person for securing the provision of care by her husband formed part of the husband’s earnings for the purposes of assessing his entitlement to income support.

The Court of Appeal so stated dismissing the appeal of the claimant, Stephen Casewell, from the decision of Mr Commissioner Charles Turnbull dated 14 March 2007 allowing the appeal of the Secretary of State for Work and Pensions from the decision of the Social Security Appeal Tribunal which had on 5 January 2006 upheld the claimant’s appeal against the review of his income support assessment made on 7 October 2005 reducing his income support by £5350 on the ground that the claimant was in receipt of additional income by way of payments of £7350 per week made to him by his wife, Nicola Casewell, in respect of care which he provided to her.

S 136(1) of the Social Security Contributions and Benefits Act 1992 provides: “Where a person claiming an income-related benefit is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of that person.”

SIR ROBIN AULD said that under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003 (SI 2003/762) and s 57(1) of the Health and Social Care Act 2001, a local authority could make direct payments to a disabled person in respect of her securing the provision of care. Under those regulations the local authority had paid carer’s allowance of £7350 per week direct to the claimant’s wife to purchase care services which were provided by the claimant. The claimant argued that the effect of s 136(1) of the Social Security Contributions and Benefits Act 1992 was that the direct payments received by his wife were treated as received by him in the form of direct payments under the 2001 Act and were therefore required to be disregarded under para 58 of Sch 9 to the Income Support (General) Regulations 1987, so that there was no scope for treating that income as having then been paid to the claimant a second time, but this time by his wife in the form of “earnings”. S 136(1) of the 1992 Act lumped together all the incomes of a family where one or more person claimed income support. But in his Lordship’s judgment it was irrelevant for the purpose of lumping together earnings which went to him from his wife. The payment of £7350 was the payment to the claimant by his wife for the services which he provided to her. If he had not provided those services the local authority would have had to engage someone else to provide them and to pay that person.

TUCKEY and RIX LJJ agreed.

Appearances: Daniel Kolinsky (Solicitor, Child Poverty Action Group) for the claimant; Martin Chamberlain (Solicitor, Department of Work and Pensions) for the Secretary of State

Reported by: Ken Mydeen, barrister