Hi

There are a few points that are puzzling me about a case I am now taking to appeal with my client.

He lives alone and is on renal dialysis at hospital 3 times a week. He has complete kidney failure. He cannot have a transplant or home dialysis at present as he has had a heart attack for which tests are still ongoing and he has no clear diagnosis.

He was turned down for DLA 3 weeks after the claim was made! Which suprised me greatly. I had arranged to see him in 2 months time. So when I visited him, he told me he'd been turned down and so we were out of time then. I asked DWP for a late reconsideration.

They sent a letter out saying they were looking at it over the usual 11 weeks.

After 12 weeks, I contacted them and they knew nothing about it and denied sending out the previous letter.

They then agreed to look at a late reconsideration. After another 11 weeks or so they did not agree to the late reconsideration and therefore the previous decision of turning down benefit was upheld.

I am now appealing and have recieved the papers from the Tribunals Service. It states that their decision has rested solely on my clients capability assessment for his Incap Ben some 6 weeks before the DLA claim was made.

The copy of the capability assessment is enclosed and is incorrect. No mention of his heart attack is made although this was stated in the DLA claim form. Also he answered that he can pick things up etc etc which he can but his issue is that he cannot climb stairs due to arthritis and fatigue also from the dialysis. He does tend to understate things as he is proud.

Do I have a case regarding the 11 weeks letter that they deny sending?

Do I have a case regarding their sole information being from another benefit assessment made previously and so not relevant to the terms of the DLA claim?

I have got letters from GP regarding heart attack and arthritis and from the Council regarding him being housed in ground floor accom due to disability with stairs. Also consultants reasons for not being on transplant or home dialysis lists due to heart conditon.

My concern is that he is depressed and is giving up after living for 2 years on £81 per week after working for 20 years. Some days he has not gone to dialysis and the ambulance had to enter his home and make him go, yet he denies depression so there are no records of it.

Any other suggestions/help would be most grateful.

Terry

Hi Terry

First, if the (lodged) appeal is against the original claim decision, as not revised by a later decision, then I wouldn’t get bogged down in the mud of the DWP incompetence because if the appeal is won then benefit is awarded from the date of the original claim.

Second, it is standard practice to use recent IB medical reports as evidence in DLA claims. Notwithstanding the tests for each are different, albeit with some overlap, you need to fight evidence with evidence. Use the evidence you have to challenge theirs, point by point.

Third, get more information about his dialysis. If he dialyses at least twice a week and no hospital staff assist then he could be passported to the care component under regulation 7 of the DLA Regs. If he cannot be so passported because hospital staff assists then get the details, as any attention/supervision he gets can be aggregated with other attention/supervision to help him qualify.

Finally, and please don’t take this the wrong way, but if you are unsure about how to proceed with this you might wish to get together with a welfare rights specialist in your area to nail the case down.

Regards
Paul

Hi

Thanks Paul for your advice.

I will check Reg 7 as you advice and take it all point by point.

I shall not take offence at what you say! We are in a semi rural area and don't have other agencies to take the case so we have to struggle on ourselves. I did try to involve lawyers on this one but they aren't taking on any DWP cases in my area and wouldn't give me advise either in the affluent South! (land of milk and honey!)

Thanks again Paul
Terry

Hi Terry, it may be worth flagging up which semi rural area you cover on the off chance there maybe someone reading your posting who either cover your area or know a agency that does.

I'm not doubting for one minute that you don't know your local area, but you'll be surprised sometimes what is out their even if you think you really know an area (having said that it could just be me), because not every organisation is necessarily that well publicised, changes in funding etc.

Andy

Terry,

If an ambulance has visited there should be evidence of that. Any friends or family involved who can vouch for his needs?

Sue

Hi All

Just to update you on this.

We went to appeal and Won! Better than I thought! Higher Rate Mobility and Middle Rate Care. It totals about £21,500 award over the life of it until Dec 2010 including HB/SDP etc and a 10 month backdate etc.so that's encouraging.

I am in South Gloucestershire. We have CAB but they are hard to get to and hard to get into (6 week wait for appointments recently) and we've had more success doing our own work. We also have another agency which is very small and helpful but they are not always near enough for clients to get to. We are funded to give benefit advice and assist them in income maximisation, so we have little choice! My colleagues who work in Bristol have a different scenario with agencies aplenty but they will not accept South Glos clients. That is why we are funded.

Yeovil must surely be the same! What happens to those who are housebound and needing a DLA appeal?

Thats an excellent result. Well done!!

"Yeovil must surely be the same! What happens to those who are housebound and needing a DLA appeal"?

Good question.

In brief last bus leaving Yeovil for me is 5.00pm.

We do loads of home visits, do form filling, appeals etc within SSDC land, but yeah we are constrained by resources, but nevertheless we get around (least at the moment funding permitting). Can't speak for local CAB although they have HV worker.

Actually better than some rural areas, but limted though.

gotta go get that bus

PS

Excellent outcome, nice one Terry.

"My concern is that he is depressed and is giving up after living for 2 years on £81 per week after working for 20 years"

He is now due the SDP from Income Support if thats what he is on?

Yes and he was paying £10 ish a week towards rent from his ICB which will now be refunded as well as CTax and SDP also!

He is delighted and a bit shocked but can work towards doing some voluntary work and getting his health better so he can go on the transplant list and eventually work which is his aim.

I think the deciding factor was that he had collapsed about 4 times in a year and was not attended to until someone phoned him on his mobile. Also I submitted the Council report on why they had decided to house him in ground floor only accommodation - which is the mobility element covered.

Thank you everyone for your comments and support.

Terry

I take it you or he had an Income Support claim in from 10 months ago?

Interesting you should say that. He was on ICB until 4 weeks ago. He was not on a high enough rate to go straight over to IS without detriment. I would request backdate of IS to cover where he would have qualified if he had not been refused DLA at the time (or somesuch). Also we could not claim IS sooner as he could not get an assurance that he would have continuous income.

Terry