Here is a link to a DLA briefing paper that I wrote to accompany requests for medical evidence for DLA/AA claims. I wrote it in response to the increasing frequency that GP's charge for information to support claims, in the hope they would be less inclined to charge if they knew why we have to write to them.

It's also useful to send to other health professionals to help improve their knowledge, improve the chance of getting a reply, and of a reply containing relevant information.

Please feel free to use at your leisure if it will help your clients.

Please email me with any suggestions for improvement.

Tony

http://www.rightsnet.org.uk/pdfs/DLA_AA_HP_briefing.doc

Hi Tony,the importance of raising awareness amongst health professionals can't be overstated, and i think you've done a great bit of work.

andy

Hi Tony.

No night needs then?

Also, not so sure about this bit:

The patient’s ability to walk is measured until they begin to experience severe discomfort; any walking after this time is ignored.

Thanks for your comments, Martin.

I've attempted to squeeze as much of the most pertinent information as possible into two sides of A4. I didn't inlcude night needs becuase the factual report focuses on day needs and, as you can see, combatting the factual report is a large part of the document. You are right though, night needs are important and probably I've fallen into the trap you mention so I'll look again at that. It is unusual though to find client's with night-time needs only. Does anyone have any examples?

On the mobility question, I disagree, and in the example you give, the client's ability would be no more than 30 metres since that is the amount of walking that can be done "without severe discomfort" - See R(M)1/81; the concept that you raise is similar to that considered by the commissioner in CDLA/805/94 who thought that it should be considered in relation to the "length of time for which" a person can walk. Of course, these issues are quite subjective and in the document I'm aiming to present the simplest, most favourable view.

On whether or not tribunals should see this: In my view the document doesn't form part of the request for medical evidence and so I wouldn't send it to a tribunal - that would be like the DCS having to include the lengthy IB204 with every appeal. If a tribunal asked to see it though I would have no objection. I guess this question is down to individual reps.

Tribunal chairs do frequent these forums and it would be interesting to have that perspective - both on that particular point and the document as a whole.

Tony

Wed 23-May-07 11:18 AM by Martin_Williams

CSDLA/678/1999 takes the "test stops at first onset of severe discomfort" position. It was disapproved of by Comm. Parker in CSDLA/667/02. That decision was reported as R(DLA)4/03. THe header notes to the decision include:

"5. it was not the law that only walking to the first halt required through severe discomfort is relevant. If the claimant recovered after a period of rest and continued walking without severe discomfort, the statutory test did not preclude such continued walking from being assessed in the light of the evidence (paragraph 22);"

in that case, how could one succeed on teh basis of severe discomfort? or do you think it's severe discomfort that won't be releived by having a rest?

taking this to it's logical conclusion, someone who could only walk 30 yards without severe discomfort, had a rest, walked another 30, etc wouldn't be entitled, which can't be right....

Claire- Could succeed on VUTW on the basis that overall the speed at which they walk (when stops included) is such that they are VUTW.

"It is unusual though to find client's with night-time needs only. Does anyone have any examples?"

Yes - got a very independent client who suffers from diabetes and moderate to severe arthritis. I've no doubt that her objective level of disablement might well, if experienced by other claimants, result in day time care needs and a HRM case - the subjective factor you refer to in the document. She prefers, however, to keep mobile and thus walks some 200-250 metres before needing to stop - can then repeat after a 30-60 second rest. Manages to dress, bathe, cook etc.

The arthritis means that she needs to exercise/manouevre her legs whilst in bed in the mornings before she can safely stand/walk. Diabetes leads to increased need to pass urine and, whilst she can cope with the toilet by day, at night frequently finds that she cannot get to the toilet in time - due to the need to exercise before she can stand.

A commode would not obviate the problem (she'd still need to get out of bed/stand) and client is not incontinent - succesfully argued that client should therefore not be expected to use incontinence aids (that would, in any case, need changing) when her maintenance of her sense of dignity is the major factor in her, so far, not needing to claim day-time and mobility needs.

Won this at tribunal a fortnight ago (MRC on night-time attention need) and have several other similar recent cases.

ps - on the substantive question. Very useful - though I agree with Martin's caveats. One very small point - I don't think there's any need to refer to the "special rules" exceptions in the second paragraph if you're not later going to go on and explain these.

I broadly agree with Martin.

In R(DLA) 4/03, paras 22-24 the commissioner had this to say; -

"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)".

Thank you very much everyone who replied with feedback and suggestions about the briefing paper via this forum or by email.

I've made the suggested amendment to the high rate mobility component aspects and added some examples of night time needs to further highlight that side of things. There's also a few very minor adjustments for typo's, etc.

The revised document can be accessed via the same link in my original post.

Thanks again for your comments.

Tony