DLA Qualifying periods, Backwards test

I have a client who requested a DLA application form to be sent to her prior to going into hospital for a major operation; her mobility needs did not arise until after the operation and the most significant aspect of her care needs did not occur until after the operation too.

She sent the form in after the operation but three months had not passed from when her mobility needs arose.

The client had her aplication turned down partly on the basis that she did not ‘satisfy the disability conditions for three months’ before her claim.

If I were to gather medical evidence to establish the client did ‘satisfy the disability conditions’ necessary to recieve DLA, would the fact that the application was made less than 3 months prior to this being the case mean the case could not be won?

If the claimant will satisfy the qualifying period within 3 months of the date of claim then an advance award can be made under reg 13A of the Claims and Payments Regulations 1987.

And if not revised before then a Tribunal on appeal can award from the date the 3 month period was satsfied, as long as there is evidence that the disability is likely to persist for another 6 months from the start of the award.

A claim subsists until it is decided.

I suggest that you read the commentary to Claims & Payments Regs reg 13A in Rowland & White (page 403 of the 2009/10 edition).  Note in particular KH v SSWP [2009] UKHT 54 (AAC)  (CDLA/59/2009) available at   http://www.osscsc.gov.uk/Aspx/view.aspx?id=2661  in which I was the rep.

‘5.  However, in the light of the decision of Mrs Commissioner Parker in CSDLA/852/02 (to which I would add the decision to similar effect in CSDLA/553/05) the Secretary of State accepts, in my judgment rightly, that for this purpose at any rate the claim should be regarded as continuing down to the date when it was decided. The “date on which the claim is made” in reg. 13A should therefore be regarded as meaning every date from that on which the claim was initially made down to the date of the decision on it. If, therefore, the new tribunal were to find that the Claimant began to satisfy the primary qualifying conditions on 13 August 2007, so that (looking at the matter as at 17 October 2007, which the new tribunal would be bound to do) the 3 month qualifying period would be complete by 13 November 2007, the new tribunal could and should make an award commencing on 13 November 2007, because that would be within 3 months of the date of the decision (13 October 2007), which would be regarded as the latest day on which a claim was made for this purpose.’

Am I understanding the above to mean that if ‘the claim should be regarded as continuing down to the date when it was decided’ then it is necessary, for a claim to be accepted for assessment regarding the disability qualifying rules, the client client qualified as disabled 3 months before the decision was made?

My client’s DLA application was stamped 11/1/10 and the decision was made on the 15/5/10.

13A Advance award of disability living allowance
(1)  Where, although a person does not satisfy the requirements for entitlement to disability living allowance on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (“the relevant day”) not more than 3 months after the date on which the claim is made, then the Secretary of State may award disability living allowance from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day.

Am I correct in understanding the above text to mean that it is not relevant that the client qualified with regard to her disability on the date she made the claim, just as long as she qualified with in 3 months of the claim?

As my client’s care and mobility problems occured primarily after her operation on the 28/1/10, this argument would benefit our case more than having to show she met the qualifying needs 3 months prior to the 15/5/10.

Thank you

It appears that the relevant dates are:

Needs began: 28/1/10
Qualifying period of 3 months ends: 28/4/10
Date of decision: 15/5/10

Since the claim subsists until 15/5/10, and the qualifying period has been satisfied before decision, then DLA can be paid from 28/4/10.

‘...therefore, the new tribunal were to find that the Claimant began to satisfy the primary qualifying conditions on 13 August 2007, so that (looking at the matter as at 17 October 2007, which the new tribunal would be bound to do) the 3 month qualifying period would be complete by 13 November 2007, the new tribunal could and should make an award commencing on 13 November 2007, because that would be within 3 months of the date of the decision (13 October 2007), which would be regarded as the latest day on which a claim was made for this purpose.’

Am I correct to understand your reply relates to the above, that the date on which the client staisfied the ‘primary qualifying conditions’, being the 28/1/10, then three months after that, the 28/4/10 is the date it can be paid from, as that is within three months to the date the decision was made; 15/5/10.

The client had a Stoma bag fitted from approx the date of the operation 28/1/10, and had it removed on the 11/3/10. The effects on the client’s need for attention altered since the removal of the Stoma bag.

As a person must ‘satisfy one of the disability conditions for a period of at least 6 months from the start of the award’ SSC&B Act sec 72 (2). Will the period of the claim need to begin from how her condition effected her from the 11/3/10 as that is the state of her health that has continued to the present. (6 months).

The practical effect of three months backward and then a reasonably anticipated six months forward means that, unless the total period of need is (likely to be) at least 9 months, DLA cannot be awarded in normal cases. One result is that the minimum effective award is 6 months.

I understand now ... I think ... The client will be assessed from the 28/4/10 as her care needs and mobility problems began on the 28/1/10, so she fits into having qualified for 3 months.

The Medical Services have estimated that the client will have recovered from the side effects of her operation by the 28/10/10, and so the DWP state that the award would be less than 6 months and therefore can not be awarded.

Q. If the client’s 3 months of qualification is between the 28/1/10 - 28/4/10, is not from the 28/4/10 to the 28/10/10 6 months?

Yes it is. But i think they mean she will have recovered enough not to have any care needs BEFORE the six month period is up.
What does her doctor say?

I am awaiting replies from letters from several Medical professionals. I have informed the Tribunal Service of this but they have refused a post ponement.

The client had her operation on the 28/1/10 and from that date satisfied the disability requirements to recieve DLA, but from the 11/3/10 her Stoma Bag was removed.

Though the client’s circumstances changed, she still has need for attention and problems getting around after the Stoma Bag was removed; will it matter that after the 28/1/10 her circumstances changed regarding the appeal?