DLA when on day release from Hospital

Anyone got any experience of challenging decisions where DLA removed after 28 days as normal but patient is allowed out with mum each day for up to 8 hrs (mental health act admission) and DLA remove entitlement - any “normal” grounds (apart from the discriminatory elements I am looking at) to argue she should get MRC (already on HRC before admission)...mum has to pay for everything and yet the “day-release” is meant to be part of daughter’s treatment etc - she still obviously incurs costs related to her disability when she is out each day but is debarred from using such funds to support herself because DLA is removed???

any help appreciated

This LOOKS as if it is analogous to the facts in R(S) 4/84 - different legislation, but related to a person who was allowed to go to college during the day but spent nights at hospital where she received treatment. The Commissioner held that “any period” during which you are an in-patient cannot mean a period of less than a day.
Note also reg 8(2A) of the DLA regs which says that the day of admission and the day of discharge are both disregarded in calculating the period of being maintained free of charge in a hospital. I think that makes it quite clear that you cannot count any period of less than a day. After all, if you are out of hospital for 8 hours a day, someone else is responsible for providing you with food etc during that time so you are not being maintained free of charge in the hsopital.
I would have expected there to be some case-law on this paragraph, but nothing is mentioned in the commentary in the Sweet and Maxwell orange volume

many thanks - I too could find no information or guidance - hence my posting - thanks in particular for the case law which may be useful

You will need to have a look at CDLA/11099/1995 (available in the briefcase section of this site). Unfortunately in this decision the commissioner found that R(S) 4/84 did not apply. Instead the claimant’s DLA was held to have been correctly suspended despite the fact that they only spent nights in hospital, returning home every day.

The reg originally did not contain the words ““(2A) For the purposes of paragraph (1), a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or other similar institution referred to in that paragraph and to end on the day on which he leaves such a hospital or other similar institution.” This was inserted in 1999, and in 2000 the words “before the day” were added before “before he leaves”.
There was nothing in the regulation before 1999 about these transitional days at all. So any case law on the specific point from before 1999 at least is no longer relevant. The 1984 case was not under these regulations, of course.

Just for an update - I used only R(S) 4/84 and an Art 3 angle in my request for reconsideration and - despite believing that this case law was out of line with subsequent case law - I today received a LRM and HRC award despite there being no evidence of night time care being provided (as client is in hospital each night - as per original posting).

I think it likely wrong on this alone but - hey - I’m not complaining!!

Just shows that its always worth a pop…maybe others should try it if circs apply