Discussion archive

Top Disability related benefits topic #7661

Subject: "Distance Highest Rate DLA Mobility" First topic | Last topic
Y K
                              

Advicer Worker (PCT Team) Manchester Advice, Manchester Advice
Member since
01st Apr 2010

Distance Highest Rate DLA Mobility
Thu 22-Apr-10 01:51 PM

Hi Everyone reading this...

I am wondering if anyone is aware of any caselaw / legislation relating to qualifying conditions for highest rate mobility.

I helped a client request a Supersession as her condition has deteriorated.

The DWP appointed an EMP to carry out a report that has confirmed limping gait, pain in back, knees and ankles, wheeze, cough and breathlessness, veryslow walking (30m /min) however it states the customer is likley to be able to walk 70m before onset of severe discomfort, the DWP refused HRMC based on this.

GP is not interested in providing evidence.

Am I right in thinking

1 - Wih above evidence it is likley the DM has used the 70m figure to decline HRMC?
2. If so, Is there caselaw that would support my clients reconsideration claim?

Thanks

Yasmin

  

Top      

Replies to this topic
RE: Distance Highest Rate DLA Mobility, chris orr, 22nd Apr 2010, #1
RE: Distance Highest Rate DLA Mobility, Y K, 22nd Apr 2010, #2
RE: Distance Highest Rate DLA Mobility, donewithwr, 23rd Apr 2010, #3
RE: Distance Highest Rate DLA Mobility, nevip, 23rd Apr 2010, #4

chris orr
                              

welfare rights officer, appeals team, social work department, glasgow
Member since
02nd Feb 2004

RE: Distance Highest Rate DLA Mobility
Thu 22-Apr-10 04:04 PM

The answer to question1 is probably yes they seem to use a rule of thumb of 40 50 yards but it doesn't really matter it is a question for the tribunal. The Commissioners have said 40 yds but 60/ i 70 yards if there is some other factor.

Your client seems to have lots of other factors manner speed and what about recovery time before she can move on again they always forget to include that

In CDLA 7327/89 the Judge said
"the most that a commissioner can decide is that on a particular combination of facts a tribunal acting judicially and propeerly instructed on the law was or was not entitled to conclude that the claimant was virtually unable to walk. Commissioners decisions are authority on the principles of law they lay down but similarity of facts must not be confused with legal principle and questions of fact must not be elevated into legal principle"

As you describe the case I would not be pothered that there is no further medical evidence it is good description from the client about time and manner etc.

  

Top      

Y K
                              

Advicer Worker (PCT Team) Manchester Advice, Manchester Advice
Member since
01st Apr 2010

RE: Distance Highest Rate DLA Mobility
Thu 22-Apr-10 04:55 PM

Chris.. I'd like to avoid the tribunal however it may have to happen to get a good result. I'll keep working on it. Thanks

  

Top      

donewithwr
                              

macmillan welfare rights officer, rotherham metropolitan borough council
Member since
20th Aug 2009

RE: Distance Highest Rate DLA Mobility
Fri 23-Apr-10 07:53 AM


remember distance is not the only criteria for deciding if someone is virtually unable to walk. Reg 12(1)(a)(ii) of the DLA regs talks about distance,speed and manner of walking.

So someone who can walk 70m but only very slowly( 30m/per min is very slow) should still be considered virtually unable to walk.

  

Top      

nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Distance Highest Rate DLA Mobility
Fri 23-Apr-10 09:08 AM

I regard R(DLA) 4/03 as the lead case on this matter, particularly the following:

"22. All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made. This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time. This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as "virtually unable to walk".

23. If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises. But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed. The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.

24. Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk. If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes. Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).

25. All of these are matters for the good sense of tribunals. It is not, however, the law that only walking to a first halt required through severe discomfort is relevant. This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors".

  

Top      

Top Disability related benefits topic #7661First topic | Last topic