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5 year old child DLA with Autism

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Terry Craven
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Does anyone have a skeleton argument/submission for an appeal I have coming up soon. I’ve only just been asked to do it, I’m on holiday on Sunday and not back in the UK until 16.05.17. The hearings on the 17th, the first tribunal adjourned to allow mum to get representation, so a request for a further postponement is highly likely to be refused.

Not sure if it is other’s experience,  I find that autism etc. is not readily accepted by tribunals as a severe disability for a child, which generates copious amounts of extra care and supervision. Any contributions welcomed. I’m not a plagiarist so credit will be given with any arguments submitted.

Thanks

Terry

stevenmcavoy
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its very difficult to give a skeleton argument that will add much value.  i suggest that the best use of resource you do have would be in preparing the client.

what does the evidence at the moment say?  is it a case of the school being overly positive of the child’s abilities (understandably from their point of view)?  can you get evidence that sheds a different light on things?

do you have the reports diagnosing them?  are they of value.

if the child gets additional support at school can this be counted as being in relation to the functioning of the brain?  there is caselaw here ive used thats been helpful before.

i would focus on this and prepping the client for the process rather than a written submission.

stevenmcavoy
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SamW
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I don’t personally deal with many child cases but as a service we have never had a problem with Tribunal panels accepting Autism as a disability.

I think the issue is that ‘Autism’ covers a spectrum of disorders with quite varying levels of assistance/supervision being required along that spectrum. Children at the mildest end of the spectrum may not be entitled to DLA and I don’t think that decisions to this effect demonstrate that Tribunals do not ‘accept’ Autism.

I can’t add a great deal to what Steven has contributed. My only other suggestion is that for child DLA the medical guidance used by the DWP decision makers is always worth taking a look at. Obviously as with all guidance produced by the DWP it needs to be taken with a little bit of a pinch of salt and by necessity it has a tendency to oversimplify things in order to get rules of thumb that can be applied. But it is still useful - especially with unfamiliar conditions - in demonstrating the type of evidence the DWP are looking for (and by extension what you should be looking for if possible) and the way in which they approach their decision making.

https://www.gov.uk/government/publications/medical-guidance-for-dla-decision-makers-child-cases-staff-guide

ClairemHodgson
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what others have said.

but there’s been cases previously where DM’s etc have relied on the school saying it’s all hunky dory, forgetting that that is only at school and matters might, probably will, be totally different at home.

the point of a school is that there is assistance, people experienced, etc but at home a different ball game.

so, evidence of what happens at home, and on the way to/from home, and when out with family, etc etc etc…. plus medical evidence around the diagnosis

Mike Hughes
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I’m no fan of the “always get medical evidence” approach as I don’t think it stands up to statistical or anecdotal analysis. I would make an exception for this as it’s key to establish exactly where on the autistic spectrum someone is sitting but also how far down the line on testing they are. A full diagnosis can take some considerable time and it’s important a tribunal know where that process is up to as tribunal members are unlikely to know enough about the condition to comment with any accuracy.

I would also say it’s worth pinning the school down. Is there an EHCP? If not, why not? If that explanation might be up for debate (and it usually is) then a conversation with IPSEA might be in order. Ofsted reports can be interesting too. I have one at the moment where the school has a disproportionately high number of children with disabilities/special needs and a disproportionately low number of EHCPs!

I agree with all the foregoing posts but would add that it’s worth actively challenging what has been said by the school on a number of fronts.

1 - the child is 5. In most cases the school simply won’t have known them that long.
2 - teachers without personal experience or very specific training simply can’t usually distinguish between an inquisitive 5 year old; a naughty 5 year old and one with a medical condition.
3 - talking to the parents about what happens at home is valuable but talking to them about incidents at school which directly contradict the school line of “all is well and they cope fine by themselves” is very important. Hard, because 5 year olds don’t tend to tell you when they’ve been placed in naughty corner etc., but you’d be surprised what you can glean.

Childrens cases are often difficult because this stuff is often new to parents and they have few tools to be able to distinguish between what is their childs personality and what is a trait of a medical condition. They will need assistance with that and you may need to talk to them in detail about autism v ADHD v Aspergers etc. as few medical professionals will have done that. Once they have begun to think that aspects of their childs behaviour are not necessarily a personality thing you’ll find a lot more information comes your way about the practical issues in and out of school.

Appreciate this is all very short notice but it’s also doable.

On a side note, I don’t see why a further postponement is not possible. In my experience it’s just a case of explaining in detail why no colleague can sub for you in your absence as well as the considerable gaps you need to fill in order to present a full case to the tribunal. It’s rare, but if needs be, I’ve had no issue getting second or even third postponements out of Liverpool. Ask explicitly for it to go before a DTJ too. The failure of a clerk to do that can be very helpful.

Terry Craven
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Does anybody have a copy of CSDLA/894/01

Thank you very much for all your contributions. Brill, I am very grateful.

A thought came to mind. Would it be possible to have a data bank of submissions, which have been successful at tribunal? Over to you Shawn.

Daphne
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Pete C
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ClairemHodgson - 25 April 2017 06:51 PM

what others have said.

but there’s been cases previously where DM’s etc have relied on the school saying it’s all hunky dory, forgetting that that is only at school and matters might, probably will, be totally different at home.

the point of a school is that there is assistance, people experienced, etc but at home a different ball game.

so, evidence of what happens at home, and on the way to/from home, and when out with family, etc etc etc…. plus medical evidence around the diagnosis

Over the years I have had a number of DLA appeals where the school says that the child is very lovely and no bother at all. In a recent appeal the parent’s evidence was so at odds with the school report the District Judge actually wrote to the school asking that they clarify their rather bland statements about the child. What came back was somewhat different to the school’s original statement and I can’t but wonder why schools seem to give so little thought to their replies.

nevip
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I have done scores of DLA appeals for kids with autism and some DLA/PIP appeals for adults with autism.  The last one was two days ago.  I’ve never done a written submission and never had a problem.  I fully endorse what everyone else has said so far.  I remember one particular case where the DWP had sent a pro forma questionnaire to the school and got one of those “little Johnny has no problems whatsoever” replies.  I then wrote to the school explaining the issues at stake and got a report from the same person who replied to the DWP which was, you guessed it, the complete opposite of what he told the DWP.

If I had one piece of advice to give it is this.  Do your homework.  Spend time getting to know what autism is, and equally importantly what it is not.  Research your backside off.  Learn how kids (people) with autism think and relate to others in ways different from those others.  Fundamentally though, listen carefully to what the parent is telling you.  This is where you really start to learn.  Once you start doing these cases you quickly realise, apart from the variations from child to child, that you have heard the same story before, often told in the same world weary way.  How it’s like world war three trying to get ‘little Johnny’ ready for school each morning*, how the parents have battled the LA for years trying to get the child the right educational provision and how, in the meantime, ‘little Johnny’ has gradually slipped back from his peers.

Eventually, you will be able to do these cases in your sleep.  And boy are they rewarding.  I once witnessed a tribunal member say to my client who struggled over one particular question “don’t worry Mrs x, we know what the problems are we just need you to confirm them”.  However, don’t run the risk of taking that for granted.  Be ready to have to spell things out to tribunals yourself.

*behavioural difficulties with kids can vary tremendously.  Don’t make assumptions

[ Edited: 28 Apr 2017 at 01:37 pm by nevip ]
past caring
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Nothing to add to what others have already said. But do want to re-emphasise what Mike said about another postponement.

The appeal is doable if the evidence and EHCP etc is already available. If not, it’s a tough job - not saying the appeal is necessarily inherently diffcult - just difficult for you to get all your ducks in a line.

Previous hearing adjourned for mum to obtain representation;

a) she has done that
b) that is recognition that both mum, the tribunal and justice are all best served by an experienced rep presenting mum’s case.

If, realistically, there’s no other viable option for mum (no other organisation or colleague that could take it on) I see no reason why there shouldn’t be a further postponement in order to allow you to prepare the case properly.

nevip
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Kids with autism struggle with conceptual thinking.  Thus saying to an autistic chilld “get dressed” means nothing.  You have to break it down into component parts such as put your vest on, then now put your shirt on.  It’s all about the extra effort required.  Including education. Incidentally, I was the rep in CDLA/1983/2006

[ Edited: 29 Apr 2017 at 12:04 am by nevip ]
stevenmcavoy
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nevip - 28 April 2017 11:17 PM

Kids with autism struggle with conceptual thinking.  Thus saying to an autistic chilld “get dressed” means nothing.  You have to break it down into component parts such as put your vest on, then now put your shirt on.  It’s all about the extra effort required.  Including education. Incidentally, I was the rep in CDLA/1983/2006

i think you were the one that put me onto that decision many years ago now when i had a client with autism that was at college/uni but had extra support.

Mike Hughes
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I would like to take paragraphs 2 and 3 of Nevip’s post #9 and give it every new WRO of whom I have had the acquaintance over the years as for me it’s a lovely summary of the pleasure of doing something properly on any type of case whether autism or anything else. I remain tight-lipped around anyone where the conversation is around the claimant not having supporting medical evidence, as though it were the be all and end all. I win more cases without medical evidence than with simply because it’s about understanding what the thing is and the practical consequences. However much pressure of time we’re under, getting people to really talk gives you insights that win tribunals because you’ll have a real understanding of happens in any given scenario.

Wensleyfoss
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Hi, can we help? We are an autism charity and I obviously only represent children and adults with ASD.  We have lots of literature and sample letters we wend to schools etc.
If the child has an EHCP, do make sure you include that with the submission.

Mike Hughes
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Place your bets now on the likelihood of an EHCP.