Hello

I have just received written reasons for an appeal decision. I had argued that Reg 27 meant my client should be found fit for work as he had an operation within 3 months of his PCA, but the chairman rejected this on the grounds that at the time the decision was made an operation was not considered LIKELY within 3 months since there was no date set for it and no supporting evidence.

I argued that the chairman now had the benefit of hindsight and the fact that the operation DID take place proves that it was likely to do so. He didn't accept this, saying that the circumstances at the time of the decision did not indicate that there would be an op within 3 months even though, in the event, there was.

Obviously I want to take this to the Commissioner. Does anyone have any thoughts, useful bits of caselaw etc which might assist?

Thanks
CC

Tue 25-May-04 03:51 PM by shawn

Have a look at the article on the effect of Howker etc. on the IFW Regs (current edition of Advisor) by Ken from LASA.

The pre-amendment form of this reg said nothing about likeliness. It said:

"he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure".

There is nothing in that about likelihood or probability (although perhaps it could be inferred). However to argue the old form was the correct one you would need to argue that the newer form has a less positive outcome for claimants. I can certainly think of cases where it would have a more positive outcome (for example the person who was going to but then didn't get the operation).

The other (more obvious) ground of appeal will depend on the Statement-

• has the tribunal taken into account the evidence of what was likely at the time of the decision- what evidence was that (for example did tribunal know client position on waiting list etc). Or has the chairman come to his conclusion of what was "likely" at time of decision on the basis of no evidence.
  
  
• i am less certain on whether this reg allows the operation of hindsight or not- the positions where it does or doesn't is quite tricky- have a look at the analysis to sec 12 of SSA in Rowland (let me know what you think!).
  
  

Thanks for that, Martin. I'll have to take Rowland to bed with me and wade through Section 12!

I hadn't realized that Howker might be helpful in this case. Worth a try, certainly.

Cheers

CC

There is a DLA decision (*13/98) that said that 'for this decision only...' hindsight was not permissable in the question of whether claimant likely to satisfy DLA conditions for 6 months. Have only seen an extract so don't know context. R(A)1/94 seems to be saying the same for the terminal illness question i.e. claimants who had managed to survive for more than 6 months should not be refused benefit.

Also, don't forget that the operation is after the decision under appeal so beyond the Tribunal's jurisdiction.

However, it seems unlikely that, in the days of NHS waiting lists, there was no indication that an operation would be likely at all at the time of the decision, just cos date not set doesn't mean its not likely to be within 3 months.

Try R(DLA)2/01 and R(DLA)3/01, although these relate specifically to the qualifying period and the benefit of hindsight.