I have a bit of a dilemma here which has been eating at my brain for ages. I have a client who basically came to us previously. Previously client had had high rate moility and highest rate of care. Now what happened was on renewal he was just given the high rate of mobility and the high rate of care. Now what happened is that on renewal he was just awarded the high rate of mobility and no high rate care. the decision was made on the basis of the GP report. Later he was also examined by the EMP which was not supporting in anyway the highest rate of care. He basically stated that the client woud have the odd bad day in a week and can self care. Anyway, this appeal came to us after he had been represented by someone else at the tribunal in the clients absense!!! Apparently, the rep at teh time did not even request an adjournment...this is according to the chair on the day and the statement of reasons that the rep was adamant that the tribunal should continue in the absense of the client. Anyway, the tribunal decided to keep the HRM in payment but obviously decided in the absense of the client for the high rate of care.
Client then came to us and requested that we request reasons and we also requested setting aside unfortunately, the setting aside request was refused and so we oculd not pursue anthing further because we had no supporting information to counter the EMP report or GP report. Therefore advised client to make a new claim.

Client then made a new claim (which is actually a supercession)and his high rate mobility remains in tact but the high rate of care has not been awarded despite supercession claim.

Client has appealed this refused and come back to us for representation. we went to the tribunal and the chair decided that there were no grounds for supercession. because there was no evidence to prove this.

I dont know which way to go because clients doctor has done 2 reports and he has touched on th wrong issues and too be honest i dont think he is too happy about doing a report without pay. Client is not eligible for legal aid so we cannot pay as we are a charity.

Does anyone have any suggestions because we need to get pass the grounds of supersession stage.
thanks

It sounds as though it is unlikely that you are going to get any supporting evidence, in the absence of which it might be best to leave things alone for a while, since every time you ask for a supersession you potentially put your claimant's mobility award at risk, and it is not worth doing so if the chances of getting some care component are not that great.

My own experience is that if two tribunals have made the same award then the prospect of getting anything different from a third tribunal is very poor. Unless there is a significant change in circumstances there are no grounds for a supersession, so unless your claimant takes a hefty turn for the worse my advice would be to let it go and put it down to experience.

Sorry to be negative but there are times when we just have to accept defeat. It's tough on you and your client but you may have to be cruel to be kind and tell him that realistically he is not going to get anywhere with another attempt to increase his DLA in the near future. I agree it is always difficult when someone has had a higher award in the past, but the whole story just goes to show that to a large degree the whole system re DLA is a lottery. Sometimes you are lucky. Sometimes not. There isn't always anything we can do about it.

hi

thanks for the reply. I will try that approach and too be honest i did actually tell the client to leave it for a while but unfortunately he seems determined. The worse thing is that he does actually have care needs/. His mobility is really bad as well.

thanks anyway
salma

I'm afraid Connolly is probably right but you might want to consider if there are any other sources of evidence you could use to show a COC? E.g. statements from carers, social workers, physiotherapists or just frinds and family?

hi

Yes i guess its worth a try trying to obtain a statement from atleast a friend or his wife? i have tried that before, whether the tribunal will put a much weight to the statement from the friend/relative, will just have to be tried and tested i guess.

thanks

Salma

I am concerned about the other rep - if the client did not turn up for the hearing did the rep have instructions from the client as to how to proceed? From your post it appears that the rep decided he wanted the hearing to go ahead rather than the client - this is something that you may wish to raise with the rep/their employer etc