I have a client who applied for his DLA award of MRC and LRM to be superseded as he had a stroke. He applied in March 2008 and a decision was not made until September 2008 and the decision was not changed. I assisted the client to appeal and the decision maker contacted us to state that there was no evidence, apart from the clients claim pack of course, that the client had further reduced mobility problems. This is as his main condition is mental health and both his former and current GP’s even when asked specific questions about mobility focused on client’s mental health.

The decision maker sent an EMP to see client on 17th, November 2008 and the appeal was lapsed and the higher rate of the mobility component was awarded however it has only been awarded from the 17th, February 2009 i.e. three months after the date the EMP saw the client? We have yet to see the EMP report and are waiting for the decision to be reconsidered but in the meantime this is a little confusing as his date of claim is March 2008 and it has been changed but only from February 2009 i.e. 11 months later?

Any ideas welcome, as I am sure I am missing something straight forward.

I'm not saying that this is the right way to have dealt with it but my guess is that the thought processes were as follows:

"We don't see any corroborative evidence of reduced mobility.

Let's send in an EMP.

OK, th EMP has now provided us with evidence of reduced mobility.

We can only be certain that this level of disability will have existed for three months in three monhts' time from getting this evidence."

Hang on though - this man had a stroke long before all this. Unless something else happened to him since his mobility must have been at least as bad as this since the date of the stroke. People who have had strokes will usually do almost all the recovering they are going to do withing about 18 months to 2 years.

Like I say, I can just about imagine the thought process, but it is one that bears litttle relationship to the reality of the stroke process. Have you got any medical evidence from his own advisers?

I presume he was hospitalized with the stroke. If so, what about his consultant's discharge letter?

"the appeal was lapsed..."

I don't think they should have lapsed the appeal, because the new decision does not meet the grounds of the appeal in full. I think you should ask for the appeal process to continue. It seems to me you have an excellent chance of having the decision overturned and the award made from the original claim date. If they have awarded increased DLA based on the EMP report from a later date, and the client suffered a stroke hence the request for reconsideration, it stands to reason his condition was probably at its worst in the past when the reconsideration was requested.

We've recently had a 'lapsed appeal' scenario which we posted on the decision making and appeals bit of the discussion forum. Very different case issues, but nonetheless has parallels with this case i.e. it appears to be a 'supersession' decision as opposed to a 'revision' decision which is the only way the DM could have lawfully lapsed this appeal.

The decision does not have to be revised fully in the claimant's favour for the appeal to lapse (section 9(6) of the Social Security Act 1998). However, under subsection 3 the revised decision should take effect from the date of the original decison (that is the date of the decision apealed against) unless allowed from a different date under regulations.

To do what the Department has done amounts to a supersession of its own accord and so the original appeal should still stand for the period beginning with the date of the original supersession request and the date that the new decision takes effect.

thanks everyone and sorry for not getting back earlier i have been off sick.

I will look into the issue further especially the 'lapsed' issue as it seems to me that they have only accepted what the client has said from the day they saw him, which is crap.

Check the EMP date as to when needs occured as that indicates the effective date of when needs arose. Allow for 3 months(QP) and then that should be the date of benefit being awarded.

I think it may be a misapplication of the date.
Best of Luck