DLA APPEAL AND NEW CLAIM TO AA

A client of mine had her DLA ( MRC and HRM) stopped by the Fraud dept after she had a period where her mobility improved due to a cortisone injection.This was only temporary and she is now back to where she was , with restricted mobility and needing help with personal care due to rheumatoid arthritis. This has resulted in an over payment which she intends to repay.
Initially we put in for an appeal against the decision to withdraw her DLA. She is now over the age of 65 and all this is causing her a great deal of stress which is making her condition much worse as the medication is not as effective as it would be otherwise. She is asking should she put in a new claim to AA , and if so how would this work if the DLA appeal was a success. I don’t think this would be the case as they have video evidence of client’s much improved mobility over a period of 3 months , when the injection was having a beneficial effect.But if this appeal succeeded , how would it sith with the AA claim? The AA claim should succeed in normal circumstances but in view of client’s recent history of alleged fraud , then I wonder if this would have an adverse effect on the AA claim too.
Thanks for any advice you can give me.

With regard to the mobility thing : Are the DBC claiming fraud due to the client not notifying them of the cortisone injections or because she has been found guilty of the crime of being able to walk?
I thought the 6 months forward qualifying period may apply here unless i am mistaken (all contributions greatfully received!). If she had any procedure, but the procedure meant that 6 months later she still became unable to walk (as the relief only lasted 3 months) then surely she would have passed that test and still be entitled to HRM or am i misinterpreting the whole thing?

Legally DLA mobility fraud should have no bearing on her care needs with regard to AA claim as there is no mobility in AA anyway, however the DBC will have it on her file and it “may” affect the decision, even though there is no legal basis to do so. She will IMO require concrete medical evidence for an AA claim to succeed anyway, but no DLA inferences can be made unless i am mistaken.

I believe that due to age an AA claim is OK but I would close it if DLA appeal won. Bear in mind if she does win her DLA appeal then any AA money granted while appealing would most likely need to be repaid, as DLA and AA cannot exist at the same time.

I would think that any award of DLA that may be made on the appeal would run up until the date of the AA decision (whether it be postive or negative), as this is the case where people make a fresh claim for DLA before an appeal on an earlier claim has been decided. 

However in this scenario what is less clear is what would happen to the AA claim.  Would it become a supercession of a DLA award and thus a DLA claim rather than AA?

A further thought… If she is going to go ahead with the DLA appeal then it would be more straightforward to hold off on any AA claim until after the appeal has been decided, if it is unsuccesful.  Obviously the downside of this approach would be the client losing out on AA by delaying the claim, and you seem to be quite pessimistic about the prospects of the DLA appeal suceeding.  I guess it will also depend on how far along the appeals process she is.

There is nothing in statute to prevent an award of DLA care running past an existing award of AA.  Res Judicita has little value in social security law because of s17 of the 1998 Act (finality of decisions).  S17 cannot apply as there are two separate benefits at issue.

However s64 of the SSC&B Act prevents an award of AA where there exists an award of DLA care.  So, if the appeal is won and the care component re-instated the DWP simply supersedes the awarding AA decision on grounds of change of circumstances and deducts the amount of AA paid from the DLA arrears.

The six month forward qualifying period only applies at the beginning of the award.  The statute, however, does specify that the care he needs or the mobility problems he has should be for “any period throughout which….”

Where there is an improvement in the claimant’s condition it should be a matter of taking a broad judgement.  What caused the improvement?  How long has the improvement lasted?  Has this happened before and how long did it last?  What is the expectation this time?  A three month period of recovery after, say, two years of being hardly able to walk followed by total relapse would not, in my view, disentitle the claimant.  A six month period of recovery, however, after a six month period of being hardly able to walk followed by relapse might.

It is common knowledge that cortisone injections only usually provide temporary relief and there is a limit of how many times they can be given.  If the DWP have failed to ask the right questions and have not got all the facts then its decision is probably not sound.

edited for grammar

I have a very similar case to this and will try to argue that a closed period supersession should apply. See CIS/2595/03 which applies to social security benefits in general.

Good luck.

Thankyou all for your help and advice. It is much appreciated.

I have a slightly different situation of a client having had HRM removed by a Tribunal last week after applying for a supersession due to his care needs increasing. He was warned and he elected to go ahead, as there seemed to be no evidence contradicting his mobility difficulties.

I have requested the statement and we will try and appeal as at the hearing; the MQTM denied the presence of one of his diagnoses even though the GP had clearly stated it in a letter.

The client is 67, and I’m not sure he should apply for AA as if he succeeds with the DLA appeal; that is more beneficial to him. Am I right?

Jane W - 04 October 2012 09:22 AM

A client of mine had her DLA ( MRC and HRM) stopped by the Fraud dept after she had a period where her mobility improved due to a cortisone injection.This was only temporary and she is now back to where she was , with restricted mobility and needing help with personal care due to rheumatoid arthritis. This has resulted in an over payment which she intends to repay.
Initially we put in for an appeal against the decision to withdraw her DLA. She is now over the age of 65 and all this is causing her a great deal of stress which is making her condition much worse as the medication is not as effective as it would be otherwise. She is asking should she put in a new claim to AA , and if so how would this work if the DLA appeal was a success. I don’t think this would be the case as they have video evidence of client’s much improved mobility over a period of 3 months , when the injection was having a beneficial effect.But if this appeal succeeded , how would it sith with the AA claim? The AA claim should succeed in normal circumstances but in view of client’s recent history of alleged fraud , then I wonder if this would have an adverse effect on the AA claim too.
Thanks for any advice you can give me.

I am personally seeing more of these types of cases especially where the claimant has been honest enough to keep the DWP advised of continuing treatment. Almost all result in the loss of the relevant benefit - mainly HRM.

In this particular case, I have a personal interest as I too receive HRM & MRC and have cortisone injections into my spine in order to help relieve pain.

Medical opinion as advised to me follows that of most cases, 30% see some relief for a period of up to 3 months & 70% see none or very little improvement.

In my case it is hit and miss.

With the therapy and if it works, of course there is an improvement - I could carry out a range of activities that would be impossible before the therapy - does that actually mean that there is an improvement in my mobility that I will no longer require or be entitled to HRM? Personally I would be applying, re-applying and notifying of improvements/deteriorations every time I took my various medications including Opiates when I need them!

I always argue that it is not a permanent improvement and any improvement is not guaranteed. If as in this case there was an improvement for 3 months, it should not be treated as a good enough reason to remove the benefit.
Other improvements, using this ridiculous argument, such as a change in pain relief medication, resting more hours in bed, could well then be said to be a change of circumstances.

Reversing the argument the other way, are the DWP suggesting that if someone was to refuse cortisone injection therapy they could be held to making their condition worse? Where does that stop?

The DWP are certainly at the bottom of the barrell over this one.

In my own set of circumstances, sometimes the therapy works, sometimes it doesn’t. When it does work, I know full well that it will not last. My opinion is that as any improvement will not last beyond 3 months and the disability will return. Much the same as taking any medication - there is always a limit on the time that relief is obtained.

Unless there is an expected improvement in the longer term, then no, any improvement such as has been described is not needed to be notified.

Where does this really end - should one be continually advising the DWP on a daily/weekly basis on how well or otherwise the medication or therapy is working or not?