Some local authorities, appreciating that DLA (mobility component) is definitely not able to be treated as part of assessable income for charging purposes, aim to achieve virtually the same result by regarding service provision as ‘unnecessary’ where they know that people have access to the benefit. They maintain that they are not taking it into account with regard to an assessment of means, but merely setting criteria for provision of a service, below which it will be necessary for the person to make their own arrangements.
Section 73(14) of the Social Security Contributions and Benefits Act 1992 provides that both payment of the benefit and also the right to it shall be disregarded in applying any enactment under which regard is to be had to a person’s means. This provision obviously prohibits taking the benefit into account, when an authority is functioning under an Act which requires consideration to be given to people’s means. It must be right, therefore, to ignore mobility component for the purpose of deciding whether or not someone has more than certain levels of income or capital so as to decide whether they have care and attention ‘otherwise available’ to them. This is because the courts have declared that the question of whether it is otherwise available actually depends on someone’s means, to a certain extent.
It would also, obviously, prevent reliance on the benefit when assessing someone’s means under s17 of HASSASSA 1983, the foundation for domiciliary charging.
However, when the necessity for transport is considered, is the authority always to be taken as applying an Act ‘under which regard is to be had’ to the person’s means? It all depends, we think. Under the CSDPA, s2, the authority is required to set criteria of what constitutes a need, and criteria of how badly off one has to be in terms of one’s situation before LA intervention is ‘necessitated’. After the criteria have been met, there is a duty to provide the service.
We do not think that the LA function under the CSDPA of deciding whether its intervention is necessitated is actually a function under which regard ‘is to be had’ to a person’s means – indeed, quite the opposite is likely to be the judge’s approach, bearing in mind the emphasis in guidance that the client’s resources are not relevant to the question of need. Given that financial assessment only arises once a person has ‘availed’ him or herself of a service, (which will, by definition, have already been offered), it is hard to see how the authority would even know of the person’s access to the benefit, (or any resources) in the general run of assessment situations.
Since it is our advice to authorities that they are not entitled to have regard to financial means unless volunteered, when considering necessity, how could they then take MC into account, even if it is not contrary to the Social Security legislation to do so? We think that if the authority were to set its criteria for necessity by reference to those who appear to them to be entitled to the mobility component, as opposed to making the test the actual receipt of the benefit, an authority might just get away with saying it is not even setting the criteria with regard to a person’s actual means – but rather, with regard to their profile being such as to entitle the client to help through other available mechanisms.
Advice from government in 1993, to the RNIB, regarding entitlement to concessionary travel, suggested that it is not a contravention of the Transport Act 1985 to set criteria for eligibility for local schemes so as to refuse a pass to a person receiving mobility component. That Act is said to be an Act which allows authorities freedom to decide on their criteria, just like the CSDPA.
However, the advice goes on to assert that to do this is a breach of s73(14) of the aforementioned social security statute. The reason is said to be that s73(14) prevents the mobility component from being taken account of in assessing a person~s entitlement to benefits and services such as concessionary travel. This reasoning is arguably wrong – these are not the words used in the section at all. Reliance is only prohibited when applying an Act under which regard is to be had to a person’s means.
A word of warning – any authority which used this approach to setting eligibility criteria would have to be careful not to be unreasonable, even if it managed to stay on the right side of the law. To deny someone transport to services which perhaps only take up a very small part of each week, but which would use up all of the mobility component, would leave the person incapable of going anywhere else all week. That would probably be a breach of their right to respect for private life, under the Human Rights Act 1998.