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Autism sufferer in home can claim mobility allowance

13 December 2011

A man with autism and a severe learning disability can claim the mobility component of disability living allowance even though he lives in a home and the NHS pays for his accommodation and care, appeal judges have ruled. The mobility component is worth up to £51.40 a week.

The Court of Appeal heard that Alexander Slavin, aged 30, needed to be continuously supervised by one and sometimes two care staff to prevent him causing injury to himself or others because of his “extremely challenging” behaviour.

Giving the leading judgment in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515, Lord Justice Richards said the issue was whether Slavin was being “maintained free of charge while undergoing medical or other treatment” in a hospital under regulation 12A of the Social Security (Disability Living Allowance) Regulations 1991.

Richards LJ said the home did not have any staff with medical or nursing qualifications, but the “very substantial” costs of Slavin’s care were paid by the NHS.

Slavin had claimed both the care and mobility element of the disability living allowance while living with his parents. Both were stopped when he moved to the home.

However, Richards LJ said the home was not a nursing home and did not “purport to provide nursing care”.

He went on: “Its staff are trained to handle challenging behaviour and to support in other ways the particular needs of residents. They are given an initial induction and ongoing training and are encouraged to work towards NVQs.

“But they do not have professional qualifications or training as nurses, nor do they work under the supervision of qualified nurses.

“It is true that they look after residents who, in the case of the respondent at least, suffer from a disability of the mind amounting to ‘illness’, but it does not follow that the care they provide is nursing care, and in my view it can fairly be described as domestic care (or ‘personal’ care, within the meaning of section 3(1) of the Care Standards Act 2000) rather than nursing care.”

Lord Justice Richards said the management of challenging behaviour was “no doubt a demanding aspect of the care provided”, but of itself did not constitute nursing.

“If I am right that the care provided at The Lodge does not amount to nursing, it follows on the analysis above that the respondent is not undergoing ‘medical or other treatment’ by reason of his residence there.”

Richards LJ said that if the government’s intention had been to remove entitlement to the mobility component in the case of some or all of those in care homes, a provision would have been included in the legislation.

Given his other conclusions, he said that no useful purpose would be served in considering whether The Lodge was a ‘hospital or similar institution’ under the regulations, though he did not think that it was.

Richards LJ dismissed the secretary of state’s appeal. Lord Justices Davis and Pill agreed, for their own reasons.

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