Advance Awards of Mobility Component Tribunal Problems

My client was sent a DLA 434 supersession form for her child as he was coming up for 3 years old dob 22/02/2008.  The form was filled in and returned to them and was received on 27/02/2010.  It seems to be common practice for DWP to send out such forms about 6 months before a child is 3 if there is likely to be a mobility issue.  The claim in this case is mainly based on severe mental impairment grounds but there is also a refusal to walk issue.  The child had an existing award of the high rate of care component and the care parts of the form were marked no change in needs and were not completed. The Disability and Carer’s Service on receipt of the form sought more evidence from the child’s consultant on 5/1/2011.  Further evidence was sent in by the claimants mum on 8/2/2011.  The Disability and Carer’s Service then sought an opinion from their Medical Services on 12/2/2011.  This was quite detailed and the advice they sought was whether the child could be considered severely mentally impaired with severe behaviour problems and whether the refusal to walk could be considered a conscious decision.  A decision was made on 17/2/2011 that the child was not entitled to the high rate of the mobility component.  The reasons for the decsion are given as ” C of C-  A has some behavioural problems but they are generally mild in nature, he cannot be considered Severely Mentally Impaired, he is not unable or VUTW. Unable to consider L/R mob as under the age of 5”.  An appeal was made on 31/03/2011.

It has taken until todays date 5/3/2012 to get a hearing date and when we got there we were advised by the Tribunal Chair that they were not able to hear the appeal as the supersession date was logged as 27/10/2010 which is more than 3 months before the child’s 3rd birthday. 

Can anyone advise if there is anything that we can do about this.  As I said it appears to be common practice for the forms to be sent up to 6 months before a child turns 3 (or 5 in the case of lower rate being an issue).  However if the child is turned down we are left with an unappealable decison.  All this has obviously also been compounded by the delays in the tribunals system as the child is now actually 4 years old.

Help!!!

A claim subsists until it is decided.  See CDLA/59/2009:  http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2661

I might be missing something here, but why is the talk of claims when it was an application for supersession. A decision to award DLA can be superseded on the grounds that “it is anticipated that a relevant change of circumstances will occur” (regulation 6(2)(a)(ii) of the Decisions and Appeals Regulations), and I am not aware of any limitation in terms of time. It was entirely open to the Tribunal to decide that, on balance of probability, a relevant change of circumstances would occur (i.e. the child became 3) and that, if the criteria for HRMC were likely to be met at that point, an increased award of DLA could be made from the third birthday.

It appears that the tribunal has wrongly considered the supersession as an advance claim. I dont think the claim does subsist, because it was decided when the highest rate care component was awarded. That decision can only be altered during the course of the award (and I assume the care component was awarded beyond the child’s third birthday) by revsion (i.e. from the outset) or supersession.

Don’t think you are missing anything and are quite right.  The award of high rate care component actually runs to 21/02/2013.  The high rate mob was a request for supersession.  Childs 3rd birthday was 22/2/2011.  Supersession form received by DWP on 27/10/2010 and date of decision 17/2/2011.  Thanks for your time and trouble. Will get on and fight the good fight!