Hi

I helped a client fill in his DLA forms, he was refused and I am now assisting with his appeal.

On the forms, I wrote that the client needs supervision continously day and night in case he suffered a heart attack. My argument is that if he suffered an heart attack the supervising person could telephone an ambulance.

The secretary's of state submission says that "no amount of supervision or watching over could prevent a heart attack. The evidence indicates that X may need some supervision at times, but he is not at risk of substantial danger and does not need to be continually supervised during the day, or watched over during the night."

Is the submission saying that my arguement cannot be taken into account or just limiting its range?

Do you think my argument is reasonable?

Thanks

.....""no amount of supervision or watching over could prevent a heart attack"...... cutting edge stuff eh?

The submission is actually saying that the S of S has misguided himself ...again. The purpose of the supervision is to provide attention when it becomes necessary - in this case when and if the claimant suffers a heart attack, prompt action may well save his life. . Were such supervision not available the outcome would probably be much different.

Now, which part of that simple piece of logic does the S of S not understand?

I can sympathise, having been on the receiving end of a DM's statement of reasons for their decision this morning - client with M.E. and Fibromyalgia - DLA application uncerimoniously dumped because...."using the appropriate aids and adaptions as required you can:-
get in & out of bed
dress & undress
move about indoors
eat & drink
take part in social activities
are not unable to walk
Do not need help with personal care
cook a main meal for yourself
don't require attention and/or supervision and can do most anything short of dancing a jig......

I am fascinated to learn what possible appropriate aids and adaptions could be used to assist with the symptoms of M.E and Fibromyalgia...

The question raises a difficult issue about the likelihood of an event occurring balanced against the potential danger should it occur. I have a not dissimilar problem with a client suffering from epilepsy since childhood who has recently had his DLA renewal claim refused. Client stated that he had not had a single epileptic fit for a year, but that fits generally occur in bunches, and he has had 3 in the six months since the decision was made.

I don't think that your argument is totally unreasonable, but is probably not sufficient to convince a tribunal. The danger to the claimant must be SUBSTANTIAL, which has been interpreted in R(A)1/73 as 'considerable, solid or big' but need not be life-threatening. Take a look at the commentary to SSCBA 1992 s.72 in Bonner et al. (in the 2007 edition it starts at the bottom of page 148) for Commissioners' Decisions which will support your argument.

I would have to agree with you Ruth - it is the need to be a substantial danger to the client - ie, there is a recent history of heart attacks, mini strokes, epileptic fits or what-have-you - the hyperthetical what if arguement doesn't get one too far.

What irritated me was the S of S's blindingly obvious (and irrelavent) statement that supervision wouldn't prevent a Heart attack occurring....

... which is why I have ignored it in my response.

Mike does, of course, raise yet another issue, which is the poor quality of many DWP appeal submissions, which are too generic and most of which do not address the particular points raised by the appellant.