Question At Issue:
Carers Allowance is not payable on the grounds that full-time care is not required and that the carers are resident in an institution.
The appellants (husband and wife) made an application for Carers Allowance for two men aged 32 and 58. The application was disallowed on the grounds that full-time care was not required and that the carers were resident in an institution.
The Social Welfare Inspector who had visited the house and met both men was of the opinion that full-time care was being provided for them. The Medical Adviser had not approved the cases and had noted his assessment “further information required”. The Social Welfare Inspector submitted her report to the Deciding Officer for a decision on whether the appellants were resident in an institution as defined in legislation.
The relevant legislation prescribes that “institution” means a hospital, convalescent home or home for persons suffering from physical or mental disability or accommodation ancillary thereto and any other establishment providing residence, maintenance or care for the persons therein; or, a private dwelling wherein a person is boarded out under an arrangement with a health board. The legislation stipulates that the carer must not reside in an “institution”.
One of the appellants attended the oral hearing accompanied by his three-year-old daughter. He stated that his wife was unable to attend but that she wanted him to represent her at the appeal hearing and he felt he could do this, as the issues were the same in both cases. The Appeals Officer agreed to proceed on condition that he provides a letter from his wife confirming that she consented to this.
The issues were explained, referring to relevant documents on file including the Deciding Officer’s decisions. The legal definition of “institution” for the purposes of Carers Allowance was read out for clarification. The issue of whether full-time care was provided was addressed first.
Appellant stated that he and his wife provided full time care for the two men who have a profound intellectual disability. He said that neither of these men could ever be left alone, they can’t cook for themselves, can’t understand money or deal with their personal hygiene unaided. He has to help them wash and dress each day. The certifying doctor was of the opinion that both men had a severe problem with mental health and learning and moderate problems with speech. The man for whom the appellant has primary care has a moderate problem with manual dexterity and lifting and both men have a variety of other mild problems. The appellants were not aware of the Medical Adviser’s note “further information required” and had not therefore submitted further information.
Appellant stated that the house in which they were resident was set up as a limited company for the purposes of availing of special status for charitable organisations for taxation reasons. All the carers are directors of the company. There are four full-time carers and a part-time carer in the house and five carees. He said that care was given on a one to one basis, 24 hours a day, 365 days a year. He said that this house was part of a wider organisation of people who had made a lifestyle choice to care for disabled people. He said that the house was not an “institution”, it was his home. He lives there with his family in an environment committed to caring for disabled persons. He said he did not think that this constituted an “institution” as defined in legislation as he was not receiving funding for the two carers in question. Funding had initially been provided by the HSE but then had been refused while they had visited Belgium for a time, the funding was not restored on their return. He stated that the decision not to fund the two disabled men was made on the basis that the accommodation was not acceptable, it was not in a rural setting. He said that he had taken legal advice and had been advised that the HSE had not fulfilled its duty of care to the two men. He added that he believed that funding for the two men should be provided by the HSE and that it was not his preference to seek Carers Allowance but that he had no choice but to do so.
Consideration of the Appeals Officer:
Based on the available evidence, including that adduced at the oral hearing the Appeals Officer is satisfied that full-time care is required and given in both cases.
The Appeals Officer states that the available evidence does not indicate any clear reason why care is not funded by the HSE. The appellants have apparently sought Carers Allowance because the HSE has not provided funding. A substantial house is rented for the purpose of providing residence and care for some of the persons therein and residence for the carers. The appellant has stated that the purpose of establishing the house as a limited company was to avail of charitable status for taxation purposes. The house does not appear to be run on a business basis, no salaries are paid to the carers, no fee is payable by the carees. However, in the Appeals Officer’s opinion it is still an establishment providing residence, maintenance or care for the persons therein. Even though the cost of maintaining the two carees in question is not met by the HSE, it would appear to be an “institution” as defined in the relevant legislation. The carers in this case, live in this “institution” and in the Appeals Officer’s opinion, they are not entitled to Carers Allowance.
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Page Updated 26/05/2006