Hi there

Hope someone can offer help on this one, or suggest any relevant Cmm decisions. My client claimed DLA as she is virtually unable to use her left hand, she is living on the breadline and has number of debts etc. Went to tribunal and though it was agreed that my client could not carry out some tasks without items such as a slotted spoon, she could if she purchased the items, the tribunal refused DLA on this basis.

As there are a number of tasks that my client cannot carry out without help, including washing her hair, and getting dressed etc, and as she is unable to purchase anything at present I decided to ask for a statement of reasons. This arrived and confirmed the above reason for decision, the SOR stated that financial circumstances could not be taken into account. The SOR did not actually refer to what equipment/items my client would need to purchase, and only reiterated that they felt she could carry out tasks if she had the equipment, which isnt too helpful.

Based on my client's instructions I am assuming they are referring to inexpensive items, as I recall a decision stating that it is not reasonable for a client to purchase an item such as a perch stool due to the expense?

Any ideas as to where I might look to get some more on this?

Thank you

Sarah

I suppose it would depend exactly to what extent your client does have the use of her hand and whether any resulting needs would fulfill the criteria.

I can't find any decisions along the lines you mention but there is a very detailed commentary to s.72 SSCBA in Vol 1 of the SS legislation volumes.

It's always bothered me though that claimants are (or can be) expected to incur an expense to manage thier disability without DLA, when the benefit is designed to assist disabled people with those additional costs. The tribunal say they can't take into account financial matters - but haven't they done just that in assuming the client has the means to provide for those additional costs without the benefit designed for that purpose?

And a slotted spoon might be ok for removing veg from a hot pan, but what about peeling and chopping them, which most certainly requires the use of two hands. What about the safety aspect? Stirring a pan with one hand is inherently dangerous (assuming the other is too disabled to hold the handle).

Did the tribunal consider the other care related issues? You mentioned help with personal hygiene and dressing? Has the tribunal explained why your client doesn't require help for a significant portion of the time - and in that context, help with the bodily function of using one's hand in the kitchen (or anywhere else) counts.

Decision making authorities often focus on the bits that 'don't count' to the exclusion of everything else - domestic tasks being a good example. If the tribunal hasn't identified all the care needs and explained whey they're insufficient to meet the qualifying criteria, then your client will have good grounds.

Just some initial thoughts...

Many thanks for your advice and input, I will definately request leave to appeal on this one.

Sarah

slotted spoon

CDLA/1714/2005 says that tribunals should take into account those aids that might be reasonably used such as, for example, a slotted spoon but must consider the claimant's ability to use them in the light of his or her disability.

Also

Below is the summary of RDLA3/06. Reading this, and noting your client's disability, it seems that regardless of the fact that your client could or could not use a slotted spoon, the tribunal should have actually gone on to establish within the dfinition of disability by the World Health Organisation, whether there was a need for frequent attention. So if the tribunal did not get in to ask appropriate question to establish attention requirment then surely that is also an error of law?

CDLA/1721/2004 — R(DLA) 3/06
Need for a medical diagnosis to determine severe disability

The case related to the need for a medical diagnosis to determine severe disability for the purposes of Sections 72 and 73(1)(d) of the Social Security and Contributions and Benefits Act 1992, and to issues that should be considered when deciding whether to call a child to give evidence

In their decision, the Tribunal of Commissioners reject the previously held view, taken for example in R(A)2/92, that a definite diagnosis or recognised medical condition is necessary to 'count' as disabled. Instead, they adapt the World Health Organisation definition of 'disability' to mean 'any restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being'. Accordingly, they conclude that the tests in Sections 72 and 73(1)(d) of a person being 'so severely disabled that' they require attention or supervision, or have mobility difficulties, cannot be equated with 'has such a serious medical condition that'.

Thanks for you help I have now requested leave to appeal and will let you know the outcome.