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DLA claim refused as out of country
I’ve been asked to appeal a decision to refuse DLA.
In a nutshell, the client was away from the country for more than 13 weeks. She was visiting her father abroad. Whilst there, she was undergoing physio for her condition (medical negligence case caused by NHS). The decision to have the therapy abroad stems from insufficient therapy time on the NHS, and it is cheaper for private therapy abroad.
The DWP decision is that the main reason for being abroad was visiting family and not for medical treatment. The father of the child still lives abroad and was hoping to move to this country. However, there are implications for the father moving over as DLA, and subsequently CA, is not in payment for her mother.
On the face of it, the decision is correct based upon legislation, and I’m struggling to find a compelling argument. Can anyone offer any useful arguments?
She was visiting her father abroad. Whilst there, she was undergoing physio for her condition (medical negligence case caused by NHS).
Isn’t this statement at the root of the problem? The client says she was abroad visiting family and also receiving physio.
The 26 week absence rules says the absence must be solely in connection with medical treatment for an illness or disability you had before you left the country.
If the client has already told them she was visiting her father as well as receiving treatment, then I think you’re going to find it difficult to explain that away now I’m afraid.
Yes, that’s the problem Paul. I’ve already told them that I can’t see a way of them winning but they want to proceed anyway. Other than personal statements from the family, there isn’t much more I can put in the sub.
I suppose I was simply trying to highlight that it’s not about deciding what the main purpose of her absence was, as implied by the apparent wording of the DWP decision. The fact that she appears to have said she was visiting her father as part of the trip implicitly means she can’t claim the trip was solely in connection with medical treatment.
So if, for example, she told DWP she’d been abroad for medical treatment and they asked “And who did you stay with?” to which she replied “My father”, then you might have a chance but if she’s already said I was abroad visiting my father and I also had some medical treatment at the same time, then I think she’s not really got a chance.
She visits her father for 6 months every year and has physio whilst she is there. So it’s not really possible to claim the trip was solely for medical treatment.
I actually think there’s maybe some wriggle room here. Almost nobody goes abroad solely for medical treatment in any real sense. Recent cases on children going elsewhere when treatment here was refused or not available show news stories on the other things the child in one case did whilst away from home yet no-one would argue that they went abroad at least in part to do those things. They had to do something with their non-treatment time. The questions here are really about the intent of the legislation and the options available to the claimant.
A bed bound adult or child are pretty much the only people who could meet the threshold as written. What evidence is there that was the intent? Anyone know of any caselaw on the subject?
As regards the claimant element the law is about the intention when going abroad not what they do when there. Was her father abroad before the medical negligence? Any evidence she visited him then? Is the treatment available elsewhere in the EU would be another consideration or is this routine treatment available anywhere and she just happened to combine it with visiting Dad?
Much to ponder on here before a definitive “no” I suspect. I certainly wouldn’t be letting go of it easily.
Edited to add that the reason I make the intent point is that I did have a case about 5 years ago where the claimant went abroad solely for the purpose of but the need for the treatment unexpectedly subsided after a fairly impressive and unexpected recovery. They stayed abroad for the intended duration and DWP did as you would expect. The appeal was won comfortably.
[ Edited: 14 Jan 2020 at 06:16 pm by Mike Hughes ]On the basis of the regulation as drafted, I’m struggling to see that wriggle room Mike.
(3B) Where a person is temporarily absent from Great Britain, he is treated as present in Great Britain for the purposes of paragraph (1)(a)(ii) and (iii) for the first 26 weeks of that absence, where—
(a)this absence is solely in connection with arrangements made for the medical treatment of him for a disease or bodily or mental disablement which commenced before he left Great Britain; and
(b)the arrangements referred to in sub-paragraph (a) relate to medical treatment–
(i)outside Great Britain,
(ii)during the period whilst he is temporarily absent from Great Britain, and
(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment, and“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly.
Of course, if you’re abroad for said medical treatment, there are almost always going to be times when you are doing activities other than the medical treatment. However, on a simple reading of the above, the absence must be solely in connection with medical treatment that is outside of GB for a condition that started before you left the country - that’s why I raised the issue of whether visiting the father was an incidental aspect of the trip (which it appears it isn’t, it’s a regular trip abroad to see the father during which she has some physio.)
In your case, your client did go abroad solely for the medical treatment, the fact that it cleared up subsequently doesn’t undermine the original intention, hence why your appeal was allowed I would imagine. This case feels like it’s almost the mirror image. More than happy to be proved wrong if Phil’s client can make the case successfully.
Yes, that’s the problem Paul. I’ve already told them that I can’t see a way of them winning but they want to proceed anyway. Other than personal statements from the family, there isn’t much more I can put in the sub.
This may assist?
CIB/1956/2001, “Treatment need not be the main purpose of absence”, quite similar.
http://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=582
http://www.legislation.gov.uk/uksi/1975/563/regulation/2
This may assist?
CIB/1956/2001, “Treatment need not be the main purpose of absence”, quite similar.
http://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=582
Doesn’t that actually reinforce the problem here chacha? From the decision linked to (my emphasis):
5. In a particularly helpful written submission, adopted by Miss Haywood, the Secretary of State accepts that the tribunal’s decision is erroneous in point of law. In R(S) 6/61, the Commissioner said of the case before him:
“This was no vague intention or unsettled plan, and in my opinion it sufficiently satisfies the requirement of the regulation that the claimant’s absence must be for the specific purpose of being treated. The regulation does not say ‘for the sole purpose of being treated’, and I do not think that such a restriction ought to be read into it.”
The regulations as drafted at that time was that ”(b) the absence is for the specific purpose of being treated for incapacity which commenced before he left Great Britain hence why the appeal was allowed. Now the regulation does state very specifically that the reason for extended absence must be “solely” to receive medical treatment.
I think the question to be asking client is whether, if they had no family in that country (and setting aside the issue of accommodation costs), they would still have travelled abroad for the treatment.
[edit] Just to clarify - when you talk about the client’s father and the father of the child these are two different people yes?
Doesn’t that actually reinforce the problem here chacha? From the decision linked to (my emphasis)
I just think it’s worth a punt, might as well.
I don’t see too much of a difference in the application of the words “specific”, “sole”, “main” in relation to “reason”.
I think the question to be asking client is whether, if they had no family in that country (and setting aside the issue of accommodation costs), they would still have travelled abroad for the treatment.
[edit] Just to clarify - when you talk about the client’s father and the father of the child these are two different people yes?
Thank you for all the replies. I’ve just received a little more info.
The child requires 2 physio sessions a week due to her condition. This cannot be provided by the NHS (usual cutbacks), despite the disability being as a result of medical negligence at birth. To have the treatment privately in this country, it would cost approximately £80 per session. They therefore asked her father, who still lives in Pakistan, to price it there. The cost in Pakistan is £6 per session. Therefore, a major part of the reason for being abroad is financial. The child needs the physio and her mother cannot afford the fees in the UK.
I think the question to be asking client is whether, if they had no family in that country (and setting aside the issue of accommodation costs), they would still have travelled abroad for the treatment.
[edit] Just to clarify - when you talk about the client’s father and the father of the child these are two different people yes?
Thank you for all the replies. I’ve just received a little more info.
The child requires 2 physio sessions a week due to her condition. This cannot be provided by the NHS (usual cutbacks), despite the disability being as a result of medical negligence at birth. To have the treatment privately in this country, it would cost approximately £80 per session. They therefore asked her father, who still lives in Pakistan, to price it there. The cost in Pakistan is £6 per session. Therefore, a major part of the reason for being abroad is financial. The child needs the physio and her mother cannot afford the fees in the UK.
Just brainstorming here so might be well off track. But if we are talking about a school age child one way of looking at it is this. Given that the issue has arisen in the first place these absences must be more than 13 weeks at a time. If the child is going every 6 months surely this must mean that at some point she is missing school? If this is the case I’d be looking to get confirmation from the school that in their view the child’s absences are justifiable because she is away for medical treatment.
Thank you for all the replies. I’ve just received a little more info.
The child requires 2 physio sessions a week due to her condition. This cannot be provided by the NHS (usual cutbacks), despite the disability being as a result of medical negligence at birth. To have the treatment privately in this country, it would cost approximately £80 per session. They therefore asked her father, who still lives in Pakistan, to price it there. The cost in Pakistan is £6 per session. Therefore, a major part of the reason for being abroad is financial. The child needs the physio and her mother cannot afford the fees in the UK.
Doesn’t that bring us back to the issue I raised above? The argument would be that the sole reason she is going to Pakistan is to receive medical treatment that isn’t provided or affordable in the UK and the fact that she stays with her father whilst doing so is an incidental aspect of that absence?
Thank you for all the replies. I’ve just received a little more info.
The child requires 2 physio sessions a week due to her condition. This cannot be provided by the NHS (usual cutbacks), despite the disability being as a result of medical negligence at birth. To have the treatment privately in this country, it would cost approximately £80 per session. They therefore asked her father, who still lives in Pakistan, to price it there. The cost in Pakistan is £6 per session. Therefore, a major part of the reason for being abroad is financial. The child needs the physio and her mother cannot afford the fees in the UK.
Doesn’t that bring us back to the issue I raised above? The argument would be that the sole reason she is going to Pakistan is to receive medical treatment that isn’t provided or affordable in the UK and the fact that she stays with her father whilst doing so is an incidental aspect of that absence?
That will form the basis of my argument. I’ll let everyone know the outcome. Thank you for all the replies.
I am surprised that given this case was a medical negligence matter would not the damages received have included the cost of having treatment in the UK under the NHS?