This is something of a hypothetical question at the moment as I've got to check out a few things first. But I've got an appeal which has been dragging on for over 2 years now, and at the outset of the claim the client had (I believe) a very strong case for meeting the conditions for both the higher rate and the lower rate of the mob. component. However his physical problems with walking have greatly improved and it looks like he won't satisfy the conditions for the higher rate for the whole period under appeal. Where as the conditions for the lower rate should be satisfied throughout.

So my query is this, if my client would only be eligible for the higher rate for say 6 months but would be eligible for the lower rate for 2 years then an award of the lower rate would be worth more finacially. So in this situation I would be inclined to focus on the lower rate only. But if the tribunal felt that there was an entitlement to the higher rate at the outset of the claim, would they be obliged to award this for a limited period because it's a higher award?

Has anyone dealt with a similar scenario?

Its an interesting point, but it may not actually be all that relevant.As far as i know the tribunal can only rule on the evidence that was or could have been available to the DM at the time of the original decision, not what is now known with the benefit of hindsight.Was there any evidence pre-decision that his physical ability to walk wouldn't improve because if there wasn't you are more likely to get the low rate anyway.

2 Years?!!! Just out of interest why has it taken so long?

This is interesting as Tribunal can only take condition at time of decision. If they make a time limited award of high mobility they will have to show that it was based on evidence at that time - if there is any indication of taken current situation into account then could that not be an error of law. If they make it limited the question wouild be where do you stand for a new claim for low mobility, and do you then have a gap in entitlement.

To a certain extent this is always an issue as it is very difficult for Tribunals to ignore obvious imporvements in health but they are always very keen to point out to clients that they are looking at how they were at the time of decision.

This could drag on another two years!!

Having thought about this a bit more the Tribunal would seem to have several options.

(1) If there is evidence in the papers to indicate that the high mobility issue would resolve after a year then they could make a limited award of high mobility. However, I'm not sure there's anything to stop them making an award of low mobility from the cessation date if there is evidence to show low mobility at time of decision and as an ongoing problem.

(2)They could just make the limited award of high mobility - end of story. But they would have to have good reason for this based on the papers. If the award was for longer than 6 months then financially client may not be much worse off.

(3)I'm not sure about the legality of this one but they could make a longer award of mobility based on the papers and advise that you or the client then have to notify of change of circumstances.

My main interest is that I have just entered into a reconsideration for someone with a broken arm and doctor says will last at least a year. If this takes as long as your case could have similar dilemmas!!

This might not be identical but you may find interesting nonetheless.

Some 2years prior to her 65th Birthday, a client of mine was awarded MR care and HR mobility components for a 3 year period. The matter came for renewal and DLA was denied at all levels. Off we went to an appeal. It was clear that the original care and mobility needs were considerably less than they had been and re-instatement was highly unlikely. However, the guidance criteria for the lower rate mobility component was certainly an issue and the cooking test had similalr possibilities. As we are aware, being over 65 these could not be considered. I asked that the tribunal take itself back in time and consider an any time revision of the decision given 3years ealier on the grounds that the Decision Maker erred in point of law by not considering the lower rates. The tribunal allowed this to happen as they accepeted my argument that although the relevent Schedule prevented more than one level of each component from being paid, that Schedule did not prevent a decision to the effect that there could be an underlying entitlement to other levels at the same time and in the same decision. As it was arguable that the conditions for both lower rates had been satisfied at the time of the MR care and HR mobility award, the tribunal investigated the circumstances that existed 3 years earlier to ascertain whether or not satisfaction of the lower rate components had been met. Ultimately they decided that they had the authority to embark upon a reconsideration of the original decision as they agreed with the argument about underlying entitlement. However, they decided that none of the conditions of entitlement to the lower rates were met at that time and the appeal was refused. This decision is of course flawed as if the claimant satisfied the frequent attention throughout the day test, then she must also have satisfied the significant portion of the day test. A leave to appeal request was seeping out of every part of my anatomy; alas, however, the claimant did not wish to pursue the matter further. I hope this helps. Thank you.

Hi, thanks for all your replies. I'm particularly interested in the idea of 'underderlying' entitlement to the lower rate of the mobility comp. being awarded, and payment of this starting after any shorter award of the higher rate may have ceased. A colleague suggested this arguement earlier in the week but I was not convinced becuase I had looked at in terms of DMA preventing a tribunal from awarding different levels of benefit for different periods. I'll give this some more thought, although something else that I have to bear in mind is that the care component is also at issue. The lower rate of the care component was awarded and we are seeking the middle rate. As I understand it a tribunal cannot make fixed awards for both components which differ in length, they have to either be for the same length or one can be an indefinate award.

This case has come back from Commissioners (thats's why it's taken so long bensup!) and is being heard together with an appeal on a supercession claim made in February this year- made on basis of improvement ( as we knew the award we were seeking on the original claim was no longer applicable). Lrc was awarded again and on this claim we are seeking just lrm.

Any further thoughts much appreciated- the appeal is next week!

Thanks

Just spoke to the OT, and it looks like there may be a good arguement that hrm conditions satisfied for the whole of the first period. So that should make things somewhat more straightforward. (Well here's hoping anyway!)

'but I was not convinced becuase I had looked at in terms of DMA preventing a tribunal from awarding different levels of benefit for different periods. I'll give this some more thought, although something else that I have to bear in mind is that the care component is also at issue.'

I think point is that the tribunal does not have to 'award' the benefit. Frequently Tribunals, and Commissioners will make a finding of fact(for instance where someone has already been awarded LRC on the basis of the cooking test) that they 'accept that Mr/Ms X requires attention in connection with Y, however for a significant portion of the day, however we do not find that this attention is required frequently the day' what you need to do is to ask the tribunal to step back in time and ask itself whether had it been considering y it would have made a similar finding of fact in relation to LRM.