Client claimed DLA for the first time in Feb 03 for her 4 year old daughter. The claim was refused on the grounds that she could reasonably be expected to improve within six months. Client appealed unsuccessfully, went to Commissioners and got the decision set aside. In November 03 she reapplied and MRC/LRM were awarded.

At the rehearing the appeal was again unsuccessful. Although in retrospect the tribunal accepted that client's daughter had been entitled at the time the decision was made, the balance of probabilities then was that she would improve and therefore the decision had been made correctly.

Surely this is nonsense? We're not talking about someone's medical condition that must be looked at exclusively at the date of the decision. The only issue is whether the correct decision was made at the time. As information was available to the second tribunal that showed that client's daughter was actually entitled throughout the relevant period, surely they should have overturned the decision?

I had a case where a similar sort of issue came up. My client had two main disabling conditions, claimed DLA, was refused, appealed. By the time of the tribunal, one of the conditions had been successfully alleviated by medication so her needs were reduced. The tribunal had to consider our submission that at the time of the original decision it was likely that both conditions would have existed for at least 6 months. We lost on this point.

When preparing my submission I found the commentary in 'Bonner' helpful (SS legislation vol 1 non-means-tested benefits), which refers to Commissioners decisions CDLA/3324/2001 and CDLA/2878/2000.

Unfortunately in your case I think the second tribunal's reasoning is correct.

Jo.

Have a look also at R(DLA) 3/01 - particularly paragraph 62. This seems to say that the Tribunal can take account of actual rates of recovery in some cases.