Client suffered a severe and rare reaction to treatment, which led to care and mobility needs. The effects of successful treatment were known to wear off within a few months so the specialist assumed that the same would be the case for my client when giving the prognosis for DLA, although he also said it should resolve "in the fullness of time". The decision was that she was unlikely to satisfy the 6 month prospective test. Almost a year later, client still has significant care and mobility problems. It now appears that the specialist was giving a predictably optimistic view and actually had no idea how long she would have the problems, although we have no chance of getting him to admit that.

I am aware of CDLA/2878/2000 which states that it is what is expected at the date of the decision that should be taken into account. That case concerned someone who was expected to fulfil the criteria for 6 months, but made a recovery earlier. Any helpful case law or ideas for my case welcome.

Anyway leeway in a late appeal?

Although the 'circumstances not obtaining...' rule might be a source of difficulty, I don't that should apply in your client's case as the circumstances are unchanged and the opinion was obviously wrong - so there should be no problem demonstrating 'reasonable prospects'.

I was reading the latest WRB earlier and (I think) in the article about right to reside and EU issues, was reference to a decision where the commissioner had regard to the benefit of hindsight in arriving at a decision.

I also suggest submitting a new claim at the same time.

There is an appeal pending so it's just a question of how to present the case.
I doubt if we will be able to get evidence to prove that the prognosis was wrong at the time it was given, so I'm worried that the evidence that recovery should occur within 9 months will be accepted as the most likely scenario.
Thanks for the info on WRB: I also seem to remember seeing case law which used the retrospective test for habitual residence.

but your client is the living evidence that the prognosis was wrong. You can't argue that their was any official error as result of it, which is why the benefit of hindsight argument is, I think, the way forward. In essence, with the benefit of hindsight, your client did satisfy the forwards test.

I haven't reviewed CDLA/2878/2000, but the last couple of sentences in Bonner page 147 suggests to me that the interpretation might not be that simple:

" The commissioner allowed her appeal for the reasons stated above after making a full review of authorities across a wide range of ex post facto situations. (this is the important bit)He drew a distinction between those cases where the subsequent event is relevant to establish a fact that might be shown to have pre-existed and those cases, such as this, and the situation in R(A)1/94 where the decision maker must decide what was then a likely outcome."

Obviously there is some overlap, but it seems to me that your client's situation is distinguishable from CLDA/2878/2000 because the subsequent event (your client not getting better) is relevant to estalish a fact that might (not 'did' or 'must') have pre-existed. The overlap then comes because obviously the DM does have to decide, on the information available, how to proceed, but, unlike in CDLA/2878/2000, your client's circumstances have not changed.

Maybe someone can else can put it a bit more clearly, but it is certainly be an interesting case to argue. I'd be interested to know how you get on.