Turned down for Attendance Allowance
Question: "I've just been turned down for Attendance Allowance because I don’t need constant night or day assistance. If I had claimed PIP when I was first diagnosed, I would have got it! What do I do now?"
Gary's answer: "Sorry to hear that your claim was unsuccessful. The decision often hinges on how DWP interpret the phrases and words used in the legislation, and that's not always done correctly.
The legislation (Regulation 64 of the 1992 Social Security and Benefits Act) refers to a person qualifying if they need either "frequent attention throughout the day in connection with his bodily functions" or "continual supervision throughout the day in order to avoid substantial danger to himself or others”.
In addition, they also qualify if they need, during the night, “from another person prolonged or repeated attention in connection with his bodily functions”, or “in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him”.
If you meet the day or night conditions, you get the lower rate of Attendance Allowance (or Pension Age Disability Payment in Scotland). If you meet both conditions, you get the higher rate.
As you can see, I have highlighted in bold some of the more contentious words. For example, ‘continual’ isn’t the same as ‘continuous’. My neighbour may continually play loud music, but it’s not continuous, i.e. it’s pretty regular but it’s not non-stop without a break.
I’ve summarised the key words and their meaning as established by case law:
Frequent (day). Meaning in Attendance Allowance regulations: repeated attention throughout the day. Typical threshold: several times across the day.
Continual (day). Meaning in Attendance Allowance regulations: ongoing supervision with short breaks allowed. Typical threshold: breaks up to an hour okay.
Prolonged (night). Meaning in Attendance Allowance regulations: one long spell of attention or supervision. Typical threshold: at least 20 minutes.
Repeated (night). Meaning in Attendance Allowance regulations: two or more separate spells. Typical threshold: 2+ episodes.
Frequent intervals (night). Meaning in Attendance Allowance regulations: regular checks to prevent danger. Typical threshold: usually 3+ intervals.
Armed with this insight into the official reasoning, you can decide whether to ask for a mandatory reconsideration of the refusal or make a fresh application, using the above summary to describe the frequency of the help you need with bodily functions or staying safe. Being precise over timings, frequency etc is therefore crucial.
These are the regulations that apply to Attendance Allowance and to Disability Living Allowance (PADP and CDP in Scotland) but not to PIP (ADP in Scotland) which has its own assessment criteria. But because PIP/ADP includes help with mobility, which AA/PADP doesn’t, I always advise people to get a thorough benefit check from an established advice service if in their mid-60s to avoid the scenario you faced."