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DLA - ESA & learning difficulties,learning disabilities, autism & Aspergers?

Law Centre NI
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Law Centre (NI)

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Does anyone have any history or experience of dealing with DLA and or ESA claims in relation to learning difficulties & learning disabilities like aspergers & autism?
I think they can definitely get ESA or DLA if they fulfill the care / mobility requirements and pass the WCA for ESA?

Any hints/tips or information would be greatly appreciated.

Thanks

Altered Chaos
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Operations & Advice Manager - Citizens Advice Taunton

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Hi

I absolutely agree that DLA and ESA should be considered.
The National Autistic Society has guides for DLA for adults and children see - http://www.autism.org.uk 
The Aspergers network has produced a CD to help with completing DLA see - http://www.aspergersnetwork.org.uk
Not so much about ESA though.

Chaos

Ruth_T
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We have won several cases in relation to IB/ESA for claimants with learning difficulties and autistic spectrum disorders, at appeal, on the basis of the Exceptional CIrcumstances provisions of IfW Regs reg 27(b) - post Howker or ESA Regs reg 29(2)(b).

benefitsadviser
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My biggest barrier to ESA for people with learning difficulties is getting certain GPs to issue sick notes.
“it isnt an illness, its a condition” has been quoted a few times, so no sicknote.
Angina is a condition tends to be my response, and they give sick notes for that.
The whole ESA situation is tricky enough without GPs making life harder. Got there in the end but with a load of unnecessary effort

keith
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When GP’s won’t give a note “because the person isn’t ill” we tell them that entry into the brave new world where people with limited capability for work get the most support to get into work is done via ESA and the only way to get onto ESA is if they sign the note. In the past, with one practice that wouldn’t give a note for IB, we got it completed by a nurse in the LD social work team.

nevip
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I’m only going to address the DLA in this post.  I always carry a handful of ongoing kids’ DLA appeals on my caseload at any given time for any or all of these conditions.  You can also add ADHD, dyslexia and dyspraxia to that list as well.  I don’t come across many adults with autism or aspergers but most of the ones I’ve done have tended to be quite straightforward on their facts.  One example was a thirtysomething man with autism working 2 part time jobs with one to one support throughout the day provided by his employers.  Got the employers to confirm this in writing and decision revised by the DWP and middle rate care awarded.

With children it can be more difficult for several reasons.  First, by and large, the DWP just ‘don’t get’ kids’ cases, particularly very young children.  And second, the Department usually, in the first instance writes to the school which writes back pretending everything in the garden is wonderful.  It then becomes a matter of gathering proper evidence, statements of special educational needs, paediatricians’ reports and accurate evidence from the school (something like, “well now you mention it little Jimmy does have a habit of regularly b*******g off whenever his teacher’s back is turned and is usually found in some dark corner trying to burn the school down”).

However, whether its children or adults the principles are the same.  For DLA concentrate on the facts and don’t worry about the case law.  Focus on the extra effort required to communicate with the person, on the need for frequent repetition and re-enforcement.  People with autism will take things literally, having little understanding of tone of voice, nuance or facial expression, making communication prone to misunderstanding.  What prompting, and why, does he need to say, wash, dress, etc?  Are there any areas where there is a need for more one to one input, say in the class room in order for the child or young adult to learn and not fall behind, or in the workplace to enable the employee to do his job properly?  What sorts of help does the person require to live a normal life, for example encouragement to socialize and mix with others?  Why does he need someone with him when he goes out?  That might seem like an obvious question but ask it and the answers are often obvious.  For example, “because he has no concept of danger and simply walks out into the road without looking”.

Remember, each case is fact specific and there is no template as such although there are marked similarities and familiar signposts across most cases.  Try to get as much evidence from any professionals involved, social workers, psychiatrists and support workers.  Where children are concerned the best source of information and the best asset at the hearing is the primary carer, usually the mother.  Remember, they live with it daily and it is a routine imprinted on their brains.

The golden rule is ascertain the facts (experience will teach you which are likely or unlikely, which are remarkable or mundane, which are relevant and which are not) and try to get the right evidence to support them.  If you can do that and the appellant or his parent or primary carer is credible enough (again, experience will teach you whether they are or not: in most cases anyway) then you have a case on your hands.

Matthew Simpson
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As mentioned above its always the exceptional circumstances route is always a good arguement.

i have had a a couple of similar cases in the past year involving client in there late teans early 20’s.  What i found is that the client got an emense amount of support from the LA’s, who carried out assessments prepared statements,etc, up until the client finshed school at 16 then that support just stopped and it was left to family and the GP to pick it up. Unfortunately, the GP’s donlt seen to record sufficent detail of the problems or provide much support and I found them to not be of much help in identifing the clients currently problems.  What I did find interesting in the case I had was that the condition where unlikley to change significantly. 

I therefore went back to the statements form the LA which i found to be useful in indentifing and building up a picture of the client problems in relation to the various activities.  I appreciate that this may not help in every case but i found it useful where the person caring was arguing that the claimants problems hadn’t changed.

Pete C
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In relation to DLA High Rate Mobility for claimants with an autistic spectrum disorder R(DLA)1/00 (aka Megarry) has often proved helpful, especially as any sort of IQ test seems to have fallen out of favour.

Sharon M
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keith - 16 June 2011 11:42 AM

When GP’s won’t give a note “because the person isn’t ill” we tell them that entry into the brave new world where people with limited capability for work get the most support to get into work is done via ESA and the only way to get onto ESA is if they sign the note. In the past, with one practice that wouldn’t give a note for IB, we got it completed by a nurse in the LD social work team.

I agree, Keith. I don’t understand this notion that if you’re on ESA that this somehow equates to being unable to look for work. People not only get more money on ESA but they get the support in finding employment, so being on JSA with any level of disability/illness/limitations makes little sense. If we have clients who are ready to try some work we still ensure they stay on, or apply for, ESA as it in no way inhibits their opportunity to do this.

dbcwru
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SharonM - 24 June 2011 02:02 PM
keith - 16 June 2011 11:42 AM

When GP’s won’t give a note “because the person isn’t ill” we tell them that entry into the brave new world where people with limited capability for work get the most support to get into work is done via ESA and the only way to get onto ESA is if they sign the note. In the past, with one practice that wouldn’t give a note for IB, we got it completed by a nurse in the LD social work team.

I agree, Keith. I don’t understand this notion that if you’re on ESA that this somehow equates to being unable to look for work. People not only get more money on ESA but they get the support in finding employment, so being on JSA with any level of disability/illness/limitations makes little sense. If we have clients who are ready to try some work we still ensure they stay on, or apply for, ESA as it in no way inhibits their opportunity to do this.

While I agree in essence with what you are saying I wouldnt routinely advise someone with these ‘disabilties’ to claim ESA. Alot of my clients with LD are stuck in the persistent cycle of medical, appeal, appeal won, medical , appeal, appeal won. They are being told all the encouraging stuff by their support workers etc, then they have to concentrate on all the bad stuff for the medical and appeal, they are confused, constanting being scrutised, when often just getting support to apply for jobs and sign on would be so much better for them.

Sharon M
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dbcwru - 27 June 2011 11:24 AM

While I agree in essence with what you are saying I wouldnt routinely advise someone with these ‘disabilties’ to claim ESA. Alot of my clients with LD are stuck in the persistent cycle of medical, appeal, appeal won, medical , appeal, appeal won. They are being told all the encouraging stuff by their support workers etc, then they have to concentrate on all the bad stuff for the medical and appeal, they are confused, constanting being scrutised, when often just getting support to apply for jobs and sign on would be so much better for them.

I guess it depends on your experience of the two benefits at a local level. We’ve had more problems with people getting sanctioned for not being able to meet the criteria for JSA than ESA. People tended to get it every two weeks for not showing enough job seeking evidence or forgetting appointments etc. Benefit stopped, housing benefit goes up the swanny, client ends up ill or in hospital. Not to mention it being less money for people. 

I work for a community MH team and therefore obtaining the supporting medical evidence is perhaps a little less time consuming and more accessible for me. Don’t get me wrong, we’ve had our fair share of the medical - tribunal win - medical roundabout some people seem to get stuck on, but essentially once we explain the two benefits ESA has always been the preferred choice for people looking for work and those who are not. What’s that awful phrase used in social work circles? Informed choice, yeah, that’s the one. I also make loads of complaints to Atos and decision makers when they blatantly ignore the medical evidence, especially regarding conditions that are lifelong. I mean loads. Honestly, my ranting should be considered an art form. I’ve sent stuff to Harrington where decision makers continue to ignore overwhelming medical evidence. I don’t care whose cage I have to rattle when the DWP seems to be targeting certain clients unnecessarily. 

A condition such as Asperger’s is often grossly underestimated by DWP and Atos staff as the person may perhaps present as being very capable. Their support needs are complex and are not easily slotted into either a DLA or ESA form. I tend to ignore the forms and refer to a long supporting letter outlining their needs and trying to match these to the descriptors, explaining that the form does not accommodate the complex needs of this condition. I just use the form to tick the relevant boxes and give specific information. There are usually lots of support needs around communication, inability to cope with change, over focussing and obsessional behaviours, neglect, depression, agitation and aggression, social isolation, thought intrusion, perceived psychosis, paranoia. Obviously there are loads more and not all apply to every individual, but the condition is often agitated by very small events and it is therefore subject to rapid fluctuation making it difficult to offer planned support effectively. People with such conditions are often at risk because you cannot predict what will happen to distress or upset them every day. I know I’ve gone off our original point here but I wanted to get it back towards Asperger syndrome for the OP.

[ Edited: 28 Jun 2011 at 02:48 pm by Sharon M ]
Wensleyfoss
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Welfare Rights Advisor, Autism Anglia

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The Autism Passport ‘About Me’ has been launched by Autism Alliance. I am supporting someone at a F2F today and will feedback. I’m not holding my breath, that it will prompt ‘reasonable adjustments,’ but let’s see!
The Alliance quotes:
“The toolkit will help staff, from all Government Departments, better understand how they can support people with Autism and associated Neuro-Diverse conditions. The Disability Passport aims to support disabled claimants to safely disclose their disability or health condition to their Jobcentre Plus Work-Coach/Adviser with the aim of improving communication and ensuring that appropriate, reasonable adjustments are identified and put in place at the earliest opportunity.”
https://www.autism-alliance.org.uk/news/story/government-department-site-16