Grounds for not awarding DLA

Afternoon all. I have a tricky case that I would really appreciate an outside opinion on.

My client was previously receiving DLA for her son at LRM/HRC for Autism and Epilepsy. He was reassessed as an adult last year when turned 16 and both components refused. The claim form and medical evidence (hospital letters, statement of needs etc) made, what I believed to be straightforward case for LRC/LRM due to the Autism, with a possibility of MRC for the daytime needs arising from the Autism, and possibility of MRC/HRC depending on how they viewed the needs arising from the Epilepsy. He has had no seizures for over a year now, and previous to that they were only occurring 2 - 3 times per year. However, due to a number of factors, clients mother was advised by the paediatrician that he was under at the time that he was in an ‘at risk group’ for Sudden Death in Epilepsy Syndrome. This is mentioned in a letter that mother received from the paediatrician without any further guidance about the level of supervision needed as a result, but some information I downloaded does specify that the risk of sudden death is increased when seizures occur when the person is on their own.

Mum believes that he needs continual supervision during the day both due to the risk of fits and due to lack of insight into danger, awareness of how the world works etc due to Autism. She also checks on him 3 times a night due to worry about if he has had a seizure. Mum was insistent from the start that she wants LRM/HRC and wants to go to tribunal if these are not awarded. Throughout the review and appeal processes as we have gathered increasingly more evidence, there has been lots more support for needs consistent with an award of LRC/LRM, but no support for any supervision needs arising from the Epilepsy, mainly due to length of time it has been since the last seizure.

I am happy to accept that the argument around the potential needs arising due to the risk of seizures and therefore entitlement to MRC/HRC is not a straightforward one and therefore one for the tribunal to consider. However, I cannot believe that no award has been made for LRC/LRM given the available evidence. I have previously gone through the whole appeal bundle trying to look for points that he could possibly have been turned down for LRC/LRM on and the only thing that I can see is, amid all the evidence in support of his level of need, a sentence in a report from 2011 within which he expressed an interest in learning to drive. On a later page, this had indeed been cited as the single ground for refusal.

Following a complaint that I submitted about not taking into account all of the available evidence when reaching a decision, an EMP visit was requested for the purpose of getting a more current assessment of the level of need. The report did not support the Epilepsy argument, but clearly stated that claimant had ‘significant disability in respect of the Autism, would not be able to cook a meal unsupervised due to lack of insight into danger, and would not be safe to go outdoors unsupervised due to lack of insight into danger and severe anxiety’. However, despite this the decision remained unchanged. Looking through the newest appeal bundle, the decision maker states that ‘whilst the EMP report appears to support some level of entitlement, in the interests of customer service this will not be awarded as it is at a lower rate than the claimants mother and rep are arguing for’. Am I missing something or is it not completely wrong and unjustified to withhold an award for which it has been acknowledged there is an entitlement? My understanding is that the award should be made, and the client has the option of appealing against the new decision if they disagree with the decision not to award a higher rate?

I am thinking that the best way forward would be a further complaint letter against the decision not to award the rates that they implied that they have decided that he is entitled to, but I just wanted a second opinion as I have never come across a situation like this. I think the mother will still want to go ahead with the appeal even if LRM/LRC are awarded now, however she is really struggling financially since the loss of the DLA, CA and IS, especially as they are totally reliant on taxi’s as son can’t use public transport due to anxiety and so could do with these rates now as the tribunal wait is likely to be at least a year from now..   

Thanks in advance for reading.

There are, I suppose, two ways of looking at the issue of the refusal to award LRM and LRC following the EMP report;

1) The DM has been utterly unreasonable and a complaint should be made.

2) If the evidence for LRM and LRC is as overwhelming as you suggest then an award of at least this level should be a formality at tribunal - with the real possibility that a higher level of award might result. However, to an extent I can sympathise with the DM - you have said that mother is insistent on LRM/HRC and wants to go to tribunal on any award short of this. This appears to have been communicated clearly to the DM and they might well be approaching the issue from the standpoint that an award of LRM/LRC (or even just one of these) will have the effect of lapsing the appeal without having the result of restoring entitlement to CA or IS, though of course they won’t have been directly concerned with anything other than the DLA. They may, in other words, think that they are doing mum and client a favour….

I’m inclined to agree. I had a similar appeal case recently (child DLA) where HRM had been removed on renewal. The DM conceeded, following our sub & additional evidence being circulated, that the child met the criteria for LRM but preferred not to revise decision & lapse appeal on basis we had argued for reinstatement of HRM and a motability car was at stake. Had DM lapsed decision it would have taken longer to get the case to appeal so I had no issues with the DM’s stance (appeal was ultimately successful).

Thanks for the views, so useful to get an outsiders perspective. I can see more clearly now the pro’s of the decision not to revise at the current time. I’m not sure that Mum will feel the same as she is struggling financially so much with meeting the son’s disability related costs that she may be willing to add a further 4 month wait for the hearing if it meant an extra £40 a week in the meantime, if there were any possibility of doing so.

Thanks also for the caselaw, much appreciated.

Tony Bowman - 09 July 2012 02:57 PM

You’ll find this commissioner’s decision (R(A)1/88) helpful re epilepsy and supervision. In particular the appendix (Moran -V- SoS SS (CoA)).

http://www.rightsnet.org.uk/pdfs/R(A)_1_88.pdf

Edit: fix link

I have a similar case regarding a DLA claim on the basis of regular epileptic seizures. DWP have removed MRC and LRM upon renewal of claim. Unfortunately the above link no longer seems to be active, and I am struggling to find the decision anywhere else. Can anyone guide me to it?

R(A)1/88 available from this page of toolkit -

http://www.rightsnet.org.uk/toolkit/attendance-allowance/

cheers ros