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Top Disability related benefits topic #7263

Subject: "IB85 = No DLA" First topic | Last topic
roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

IB85 = No DLA
Wed 21-Oct-09 02:36 PM

Hi,

I have a case that I am a little worried about and would be grateful for any indications as to if the DWP can act in the way that they have, which i think they can and if they can any ideas, other then the usual appeal etc, to try and work round this.

Client failed the PCA 0 points on 24-09-09 client helped to appeal this decision - 15-10-09 DLA supersede client’s Disability Living Allowance award of middle rate care component and higher rate mobility component based on the health care professional’s report i.e. the IB85

IS the IB85 alone sufficient to warrant removal of the DLA award i.e. they have evidence to have awarded the MRC-HRM and so for that to disappear must be compelling?

So essentially if the client’s Incapacity Benefit appeal is upheld, which there is based on cl’s multiple and long term health needs that it will, then would this not mean that the evidence used to remove the Disability Living Allowance award is of little if any weight.

I am concerned that this may start to happen regularly. I have had in the past appeals for Disability Living Allowance when the IB85 has been included although only when a new claim has been made.

Thanks in advance.

  

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Replies to this topic
RE: IB85 = No DLA, roecab3, 21st Oct 2009, #1
RE: IB85 = No DLA, nevip, 22nd Oct 2009, #2
RE: IB85 = No DLA, neilcoll, 22nd Oct 2009, #3
      RE: IB85 = No DLA, roecab3, 22nd Oct 2009, #4
           RE: IB85 = No DLA, dab, 22nd Oct 2009, #5
                RE: IB85 = No DLA, roecab3, 23rd Oct 2009, #6
                     RE: IB85 = No DLA, ariadne2, 23rd Oct 2009, #7
                          RE: IB85 = No DLA, roecab3, 27th Oct 2009, #8
                               RE: IB85 = No DLA, ipr, 03rd Nov 2009, #9
                                    RE: IB85 = No DLA, roecab3, 04th Nov 2009, #10
                                         RE: IB85 = No DLA, shawn, 04th Nov 2009, #11
                                              RE: IB85 = No DLA, roecab3, 10th Nov 2009, #12
                                                   RE: IB85 = No DLA, roecab3, 08th Jun 2010, #13

roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Wed 21-Oct-09 03:18 PM

P.s. The DLA award was indefinite from 2006 at HRM-MRC.

  

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nevip
                              

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

RE: IB85 = No DLA
Thu 22-Oct-09 09:49 AM

They can use any evidence they want to alter an award as long as it is germane. The real question is whether the evidence is sufficient to alter an award and that is a question of fact in each case, and, importantly, because the award is an indefinite one it is up to the Department to make out its ground to supersede so the evidence must be robust enough to justify the alteration.

  

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neilcoll
                              

Welfare Rights Officer, Welfare Rights In Primary Care Project - Castlemil
Member since
22nd Jan 2004

RE: IB85 = No DLA
Thu 22-Oct-09 09:53 AM

Was this indefinite award in 2006 on first application.....which would suggest strong evidence of serious health problem AND likelyhood that it would not improve......or given on a renewal application where fresh medical evidence was not used?

This could have a big bearing in this case.

Winning the PCA appeal will be vital thus allowing you to cast serious doubt on the validity of the DLA unit using discredited new evidence to withdraw the DLA award.

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Thu 22-Oct-09 12:17 PM

Thanks to you both for your considered replies.

It was a supersession from the client as she was diagnosed with angina and so her award was increased from LRM to HRM as she had an onoing award of MRC - LRM based on MH problems she has chronic anorexia so what they hell the approved Doctor has said, or not said, makes me wonder.

And on checking the clients old file it seems that the successful application for supersession in 2006 was supported by reports from both the CMHT and consultant cardiologist further she is still under the care of the CMHT as well as now the eating disorder service she is visibly under weight and has been cautioned that unless her eating improves they may ask her to 'come in to hosptial'.

I am very worried about this client and well feel that if this Dr who made this assessment can call himself a professional then so can you or me come to that.

  

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dab
                              

disability advisor, DIAL lowestoft
Member since
06th Jan 2006

RE: IB85 = No DLA
Thu 22-Oct-09 07:25 PM

i have handled many cases where IB85s have been used as evidence to remove, or not award, DLA. Funny how they dont turn up when they would have been supportive unless we request them. Just a point to add. The District Judge in our area has stated to the presenting officer more than once in tribunals that he will not consider an IB85 as evidence unless it is also accomanied by the IB50 which preceded the medical assessment - on the grounds that if the assessment of ie walking ability is in 'disagreement' with the claimant he wants to see what the claimant assessed him or herself as capable of as well. If the IB85 is produced we therefore have 2 options - argue that it is inadmissible on the above grounds or get all paperwork appertaining to that assessment ie the IB50, GP reports, appeal papers etc and hope that they may prove more supportive. We all know how dodgy IB85s can be....I would also argue that if an appeal is pending against that IB85 that appeal should be heard first because it has implications for the DLA decision.

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Fri 23-Oct-09 09:03 AM

DAB

Thanks very much i will ask them to confirm that they have added or considered the IB50 as this may throw up more reasons why the IB85 is useless, or so it seems. Have now spoken to the CMHT and they are disgusted the psychiatrist wanted to speak to the DM...not sure if that was an 'i'll talk to you outside' kind of talk though....

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Fri 23-Oct-09 05:10 PM

They probably relied on a cardiologist's report about the angina - they enver seem to get the right consultant's report if more than one is involved. Angina is rarely on its own a reason not to work and usually responds well to treatment, and a little gentle exercise.

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Tue 27-Oct-09 08:34 AM

Adriane,

Thanks for your words.

The angina is not improved due to the anorexia meaning that not only is she breathless on sitting but that she is also very weak and even gentle exercise i.e. mild exertion causes he to be (1) breathless (2) fatigued in the coming days and (3) to increase the pain she claims.

I am just lost with this decision, and while it is not the first time that such an obviously seriously ill client has failed the PCA it has just shocked me a little that DLA seem to have jumped the gun.

  

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ipr
                              

Welfare Rights and Debt Advisor, Islington People's Rights
Member since
30th Sep 2008

RE: IB85 = No DLA
Tue 03-Nov-09 02:26 PM

Hi . I'm with Nevip on this one. I think it's very important that you concentrate on whether or not there were grounds for superseding the indefinite award. Under reg 6 of the Decisions and Appeals regs, an award can only be superseded if there has been a change of circs or if it was made in error or ignorance of material fact. The DWP has to make out the grounds for supersession because it is the one instigating the action and because the statutary framework is rightly protective of existing awards.

A new medical report is not a change of circs but new clinical findings may be evidence of a change of circs ((R(IS) 2/97 and R(DLA) 6/01)). To counteract this, I would be inclined to send copies of the medical reports, written when the award was increased, back to the doctors who wrote them and ask if there has been any material change since then. You could also send them a copy of the IB85 report and ask for their comments as to its accuracy. If this all comes back OK I think you'll have an extremely persuasive case for arguing that there are no grounds for supersession since nothing has changed according to the doctors who have known the client well for some time.

Cheers Ros

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Wed 04-Nov-09 10:09 AM

See a new decision, which makes some useful comments.

CIB/1639/2009 — Use of medical evidence obtained in connection with one benefit in support of claim for a different benefit

  

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shawn
                              

editorial director, rightsnet
Member since
28th Jul 2005

RE: IB85 = No DLA
Wed 04-Nov-09 10:50 AM

there's a summary of and link to CIB/1639/2009 in rightsnet briefcase ...

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Tue 10-Nov-09 05:59 PM

Hello

Just a quick update. The DWP have issued their submissions in relation to the IB appeal within three weeks, which has taken me by surprise and shame they don't act as swiftly in the majority of appeals. Anyway seems that they sent client to a medical based on her not having sent back her IB50. Shame they didn't think to issue an IB85 to the GP, it could have saved a lot of hassle.

Thanks again to everyone for their thoughtful replies, I will let you know the outcome when i know it.

Oh and had a DLA appeal where an IB85 was used to remove HRM but the IB85 was effectively set aside as the IB appeal was allowed, which of course the DLA DM has omitted to mention, funny that.

  

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roecab3
                              

Franchise Supervisor, Roehampton CAB
Member since
13th Mar 2007

RE: IB85 = No DLA
Tue 08-Jun-10 01:01 PM

IB appeal was allowed and the Judge stated that he could not accept the report completed by a nurse as evidence in light of the client's conditions, it was an awful report.

Anyway i forgot to update this thread and note that the DLA was also reinstated on 2 appeals as first time they gave her MRC-LRM and 2nd appeal they gave her back HRM both without need for hearings shame the IB DM could not have been so helpful

Thanks again,

  

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Top Disability related benefits topic #7263First topic | Last topic