Hi,

I have a client who currently receives the low rate of the care component of DLA. She has Lymphodoema following treatment for Breast Cancer. The low rate was awarded because her GP reported that her condition "may affect ability to prepare hot food and carry pans".

She suffers regular flare ups of Cellulitis in her left arm (typically every 2 months), they usually last a couple of weeks and involve stays in hospital. When she is suffering from this she is in extreme pain and cannot lift or move her arm and struggles with self care and would need frequent attention during the day.

she had applied for a supersession which was turned down and has appealed. She has also been diagnosed with depression and hypothyroidism although her GP says these are under control.

My view is her best bet would be to try to go for mid care on the grounds that she requires frequent attention in connection with bodily functions becuase of her needs when her celluitis flares up.

does anybody have any experience of arguing this sort of case when the variability is on this scale.

Thanks

Matthew Finch
Welfare Rights Officer
Leicester City Council

Hypothyroidism should not cause any disability if medication is taken scrupulously at the right dose. Trust me on this - I've had it for years, and so has my sister and so did my mother. It's actually incredibly common in ladies of a certain age...

I would be careful. Seek f.m.e. BEFORE asking for a supersession, ensure that this backs up the existing L.R. Care award better, as some hawkish pewople may take the view that the evidence you currently cite for L.R. Care is not enough. She could use a slotted spoon and avoid carrying pans, and other such tosh.

The M.R. Care case is also, on what you say, possibly tenuous. She is, on this evidence affected severely, but only one-eighth of the time. Thatis not likely to be enough, I would think, unless she is also middlingly-badfor some of the remaining time.

My feeling is that 2 weeks in every 8 is too minimal to satisfy the basic rule that the claimant is entitled "for any period 'throughout which'..."

I thought there was bound to be loads of caselaw on this but a look in the legisation volumes (notes to s.71 SSCBA) and Derbyshire WR's case law pack didn't turn up very much at all.

I haven't dealt with cases of this type very much, but a former colleague had an appeal a few years back where the tribunal agreed to look at the needs over a whole year and found that more than half the year was satisified and made an award on that basis.

I'd certainly mirror the previous contributor in respect of the existing award, but I might go a step further. If your client only meets the cooking test for the same periods of disability, then I'd be wondering if it was properly awarded? Were that to be the case, a tribunal might remove it regardless of the evidence to show how disabled she is during her bad times.

I think, so long as the client gave all the right info (i.e. no failure or misrep), I'd be inclined to leave this one alone.

R(A) 1/73 is a good starting point on the issue. Second, any tribunal which found that because a person did not satisfy the requirements for more than 50% of a period was not so entitled because of that fact only would be wrong in law. As usual, each case will turn on its own facts. One would need to look at how much attention is required during those two weeks rather than the fact that it is only 2 weeks out of every 8. I don't have enough info' about the case to whether there is a case to argue or not. It might be that, in the long run, Tony is right.

Below is an extract from my submission to next week’s tribunal, which, obviously, reflects my approach to the matter.
.
“First, it must be noted that unlike the requirements for the mobility component contained in section 73, the phrase “most of the time” is famously absent and second, the phrase “any period throughout” does not mean that a claimant must have requirements on more days than not (R(A) 2/74, particularly at paragraph 35).

The House of Lords in Moyna v Secretary of State for the DWP recently endorsed this approach. At paragraph 28 the House said that “it was unhelpful for the Court of Appeal to construe the statutory language as if it included words like ‘daily’ or ‘regularly’”. Now although that case involved the main meal test the phrase “throughout a period” was still the test that had to be satisfied. And, even though distinguished, what the House was really trying to get to grips with was how to interpret the phrase “throughout the period” as a matter of law, and its judgement was that a broad approach must be taken of the matter and not just a narrow determination of whether the statute was satisfied by reference to a mathematical number of days, and, that one should not put such an unnecessary gloss on the statute”.

Hi,

Thanks to all the respondants, I'm currently in 2 minds about this one, the Client certainly qualified for the low rate via the cooking test even on her better days because of what her GP said. But there is a nagging doubt about our friend the slotted spoon and the risk of a sceptical tribunal.

The response from her GP to my request for supporting evidence was a printout of her medical records from 2002! It shows 5 admissions to hospital from cellulitis and numerous appointments relating to this condition. which makes me think that R(A) 2/74 would be useful. It just depends on the opinions of the tribunal.

Matt