Hi everyone. I wondered if I could have some advice about whether it was worth pursuing an any time DLA revision in order to get backdating on the grounds of ignorance of fact (or maybe official error).
I discovered that my new client, who is totally blind and had been getting LR mob and MR care for some years, had had her care surprisingly reduced to LR after a renewal in 2005. Neither my client or her carers had realised that this had happened until she was referred to me and no-one could remember helping her with the renewal forms. She wasn't entitled to SDP as she didn't live alone so luckily that wasn't an issue. I ordered a copy of her renewal forms and discovered that the person who had helped her had left the care section totally blank. I am still waiting to get a copy of the other info that was used to decide the claim.
Can anyone think of any grounds for an any time revision so I can ask for backdating back to 2005 and am I right in thinking that an appeal on the grounds of ignorance of facts can only be a supersession with no backdating? I have already done a supersession, but of course that will only be backdated to the date I requested the forms.

Hi
We come across similar scenarios at RNIB.
Sometimes we are aware of situation from the start, other times we only notice when we eventually get DWP submission with details of current award.

In terms of getting increases of care component 'backdated', you can request supersession when there's been a 'test case' (Mallinson, Faraday) that means that existing award is shown to be wrong in light of new interpretation of the law. We still get cases of blind people receiving low rate care since 1992 who've had no review since.

If the current award of benefit dates from after test case, then your only option for arrears back to date of decision is 'official error' and anytime revision under D&A reg 3(5)(a).
I think you're struggling with this case if the care bit of renewal form was blank -- the official error aspect only kicks in if the client hasn't contributed in any way to the error. There isn't any other evidence on the file from the client from around date of renewal ?

Alban

At the risk of over-generalising, a typical benchmark for someone with significant visual loss is to expect to at least see LRM and MRC. I think this is widely accepted among both advice workers and DWP staff dealing with DLA claims.

The client was awarded LR mobility because of need for guidance/supervision and presumably the claim form indicated that they were blind.

It may be worth asking for an official error revision on the grounds that given those facts, and also given the DWP's own guidance about care needs in cases of severe visual impairment, the decision maker should have been put on enquiry and made further enquiries and/or asked to have the care needs section completed.

http://www.dwp.gov.uk/publications/specialist-guides/medical-conditions/a-z-of-medical-conditions/vision/care-and-mobility/#sev

This is supposed to be an inquisitorial system,and decision making should have an element of proactivity, not just rely on what is on the form. Given such a strong prima facie indication of care needs, I think it can be argued that just awarding the mob comp was an official error.

Obviously I haven't seen the form (and the DM may have made appropriate enquiries), but this would be the approach I would consider taking in a case like this.

over-generalise away Neil, tribunals do it all them time ....
extract from one of my recent requests for leave to appeal (application for middle rate care from 1992) --
"The tribunal found that Mr G has for many years coped well with his sight loss and his home is arranged in such a way as to assist him in this, but the tribunal has made no findings of fact about the level and frequency of help he reasonably requires throughout the day as a result of his blindness. Their reasons merely say that 'not every registered blind person is entitled to middle rate care', which may well be true but is a generalisation and does not address Mr G's specific care needs as described in the submission."
This case currently awaiting decision on leave from UT.

I fully agree with Neil's post, but this client was awarded low care, which could be considered a 'plausible' award, although you would expect an award of mid care if client can show need for frequent attention.

In my experience tribunals are usually fairly alert in looking for evidence that client may have 'contributed' in some way to the error being made, which can mean decision not wholly result of 'official error'.
Also don't forget that an any time revision for official error is listed as a non-appealable decision, so I normally wouldn't raise the possibility until submission before tribunal -- if a decision maker considers the request and refuses that's the end of story.

on a related point, you may not be surprised to hear that much of our DLA casework at RNIB involves reduction of care component at renewal from middle to low, often because decision maker takes view that client has become 'adapted to their condition'. Worst cases are where decision maker has (not unreasonably) sought expert advice from ATOS Medical Services 'disability analyst'.
We often complain about quality of this advice -- three complaints upheld last year.

alban

Further to Albans point with regard to "DLA casework involving the reduction of care component at renewal from middle to low" We too at RNID witness the same level of reduction, frequently matched with an unreasoned comment such as person has 'become adapted to their condition' or 'can realistically use sight in place of hearing loss to identify danger'. It is this twaddle that is begining to seriously undermine a level of decision making that one should realistically be able to expect.

Thanks everyone for your advice. I will wait and see if the DM looked at any other evidence. 'Totally blind' had been written on the renewal form so I think the DWP's care considerations guidance on Severe Functional Restriction should have been used. There was no mention on the form that she had suddenly gone blind 19 years before. If I have interpreted your advice correctly, if the DM didn't base their decision on the full facts, should I then ask for leave to appeal rather than ask for a revision?

I think your tactics depend on current state of DLA care award - the problem with an anytime official error revision is that it is not appealable to a tribunal. If decision maker refuses request you are stuck -- R(IS)15/04 deals with this and situations where a supersession might be applicable.

If client's existing award is still low rate care, put in a supersession request / review form; if DM refuses to increase (from date of supersession request) then appeal to tribunal, and raise the issue of official error revision from date of earlier renewal in written submission to tribunal.
If mid care awarded could you find any other grounds to appeal on (length of award) without specifically giving a decision maker any chance to refuse a revision?

If client already has mid care then you can write to decision maker and request mid care for missing period on official error basis -- I've never had any success with this yet ....
I don't think there's any way to get direct to a tribunal on this issue

alban

more caselaw (unhelpful I'm afraid)
http://www.osscsc.gov.uk/aspx/view.aspx?id=2202
CDLA 1945 2006

alban

This is unhelpful but a useful summary. We have twice got lengthy arrears of DLA MRCC using revision for official error. One was for a pre-lingually deaf person, in work at 1995 whio had claimed qute extensive comunication needs on a 'Mallinson' review. We got MRCC backdated at Tribunal and the decision was maintained (with very brief reasons, just saying no error of law) at OSSC. The other was for a blind lady who, the appeal papers revealed, had been registered blind, and informed DLA of this, between claim and decision. We were able to argue succesfully that there wass an official error in not seeking more information at this stage (and the inevitable result would have been ann MRCC award had they done so. That was won at tribunal and not appealed. So it can be done but it is very fact sensitive. And, as Alban says, it needs to be raised for the first time during the appeal process, not before.

Richard Atkinson

Thanks for the tips - I will wait for the results of the supersession and appeal if an opportunity presents itself.