Casewell v Secretary of State for Work and Pensions[2008] EWCA Civ 524

This case concerns the circumstances in which the making of a direct payment under the Social Care Act 2001 and associated Regulations constituted income or earnings such that it affected a claimant’s entitlement to income support.  

Mrs C was receiving direct payments from her local council and her husband Mr C was receiving a direct payment under s2 (1) of Carers and Disabled Children Act 2000. His payment was not regarded as “earnings” for the purpose of calculating his entitlement to income support.   When the couple moved, the new council undertook another community care assessment and introduced a new care plan.  The new care plan provided for her to be paid a fixed weekly sum under s57 of 2001 Act to meet the cost of her husband providing her care for 11.5 hours per week.  The effect of this new arrangement was that the fixed sum was treated as Mr C’s earnings in assessing his entitlement to income support which had the effect of reducing his income support award.  C took the case to the Social Security Tribunal which found in his favour, holding that the payments made by the council to cover the cost of Mr C’s care of his wife were essentially payments to both of them as a family unit and there was no employer/employee relationship.  The arrangement was not one under the 2001 Act and therefore did not occasion any reduction in his income support.   The Secretary of State appealed to the Social Security Commissioner who took a different view, holding that the Tribunal’s decision was erroneous in law.  Mr C was in receipt of earnings from Mrs C because he provided services to her for which he received a sum derived from her direct payment and his earnings were not to be disregarded.  It argued there were two payments here; one by the council to Mrs C which fell to be disregarded in computing their joint income, and a second from Mrs C to her husband which were, on a finding of fact, his earnings.  The Commissioner also made the point that if some third party had been the carer instead of Mr C, the payments would have been payable to that third party and therefore not capable of becoming a contribution to the family income.  Mr C appealed.

The Court of Appeal identified 3 ways in which a local authority could provide care to persons in need of care.   Firstly, care provided directly by the authority to the person in need.  Secondly, direct payments by the authority to the person in need to enable him or her to purchase care themselves and thirdly, direct payments to carers.  The statutory scheme excluded provision to close relatives unless the responsible authority was satisfied that securing the service form such a person was “necessary to meet satisfactorily the person’s need for that service”.  The making of a direct payment to a close relative such as a spouse did not bring it within the notion of family income, although the court acknowledged that there was no statutory definition of income or earnings. 

When Mrs C paid her husband from the money she received in the form of a direct payment, he was not receiving a community care payment such as to qualify him for a disregard under the Direct Payment Regulations 2003.  What he received were earnings that went toward his income.  If there was such a disregard, the family income would have increased by virtue of his wife’s direct payment.  If this had been done via a non-family member third party there would have been no such increase.

The Court upheld the Commissioner’s decision and dismissed the appeal.

Leave a Reply

Your email address will not be published.