Afternoon guys

I have had no response to below, posted last week. The hearing was adjourned due to Judges ill health, so i may get another opportunity to argue the case.

I have not represented for several years and would really welcome any guidance that can be given.

Thanks
Dom


It's friday afternoon and my brain has already left the office.

Just seen a client who has an upcoming appeal in early November. He was awarded DLA higher rate mobility only in 2003, completed renewal approx Nov 2005 and further renewal in Nov 2007, stating could only walk 25 metres. Received letter dated 28/01/2008, stating indefinate award of higher mob and low care from 15/03/2008, based soley on claim pack.

Fine so far.

However a second letter dated 31/01/2008 was sent out changing decision to high mob only from 15/03/2008, stating first award letter was sent in error.

Client apparently did not receive second letter and for some unknown reason waited until 12/12/2008 to ask why lower rate care not in payment.

This triggered DWP into sending a change of circumstance form, which resulted in the client attending an EMP visit on 23/02/2009.

EMP report stated client could walk 150/200 metres before severe discomfort and his indefinate award of high mob was revoked from and including 12/03/2009, stating 2008 award made in ignorance of a material fact, namely that client could walk substantially more than 25 metres stated in nov 2007 renewal claim.

I have looked at several commisioners decisions re supersessions but am still unsure if i can argue the current supersession grounds are flawed. CSDLA/251/2007 seems to suggest that a new medical opinion does not in itself constitute a change and i cannot see what facts the DM did not have in 2008 to constitute ignorance of material fact.

All help gratefully received
Dom

These can be very difficult indeed - no matter what degree of protection we may feel is given by the requirement to identify a ground for supersession, I find a lot of tribunals consider that to be a fairly minor hurdle. In truth, under questioning by a tribunal, it is probably fairly easy to show that your client's estimation of his walking ability was flawed at the time he completed the renewal form. Once they establish that the evidence on the claim pack is not reliable, the tribunal will often readily adopt the only medical evidence on show (i.e. the EMP report) as portraying a more accurate reflection of the appellant's abilities. Most people have very little ability to judge distance, or time and distance. Now, EMPs aren't very good either, but the tags of being trained, impartial and expert in disability analysis (and what training genuinely enables anyone to judge the distance a person can walk without severe discomfort?) puts their evidence above that of the average person in the street most of the time. Your client will need some other medical evidence to counter the EMP's findings. If there are clear errors in the report, which can be shown to be errors, that will help. I always remember an EMP claiming that a woman he said was 25st, and 12st overweight, had an SLR of 90 degrees bilaterally. That was obviously ludicrous, and as he hadn't performed an SLR test, threw his conclusions into some doubt. However, normally it is supportive medical evidence that will be of most help.

I would be absolutely astonished if any doctor can confirm his ability to walk, unless that doctor is in occupational or rehabilitative medicine, or has observed him struggling fro the waiting room to the consulting room. A physiotherapist might be better. Best of all would be an unambiguous direct assessment timed and measured say by a representative or carer.

For me, 120 steps striding out is almost exactly 100m, and at my normal brisk walking speed takes me exactly 60 seconds (two steps to a second). It is easy enough to pace out a distance, not telling you cleint how far it is, and ask him to try to walk to you, and time him while he does it. Or you can observe him walking and measure/time it afterwards. He may simply be mistaken.

What I am saying is that this is an issue of fact, not medical opinion, and thus a witness of fact can give it. Do not allow him to say it takes him 30-40 minutes to walk 50m because that is impossible and incredible. That is not walking at all.

Walking distances are a never ending source of curiosity to me.

We have a measured walking distance of 30 metres from our interview room window to a boundary fence, plus a clock at eye level with a big red second hand. I invite people to look out of the window so that they can gain an accurate idea of distance, but habitually they will report 10 -15 minutes to cover said distance.

I appreciate that distance is but one factor in the mobility mix, but can never understand why people over-estimate the time factor. I'm sure the DWP would give reasons, but sometimes I think the psychology of disability is a factor. Last week I had a couple of psychologists visiting our office, but forgot to ask the question, although they were very keen to find out what help we provided with DLA problems!

I've succeeded in challenging grounds to supersede on exactly the grounds you mention but bear in mind Tribunal can make it's own findings rather than simply reject others so you do need to be equipped with the evidence suggested above.