ESA LCWRA (mobilising descriptor) and DLA HRM

Client receives DLA HRM/LRC and has just been placed in the WRAG for ESA. They want to appeal to be placed in the Support Group, the only of the post March 2011 descriptors that appears to be relevant is 1. (a) Cannot mobilise more than 50 metres without stopping to avoid significant discomfort. This would ‘appear’ to be supported given the HRM DLA award, however as there is no specified distance in the DLA regs for entitlement to HRM, and many claimants getting DLA HRM are still placed in the WRAG group, I know it’s not grounds in itself to be placed in the SG.

In this particular case, I am also quite concerned of a potential risk to the HRM, as I did the review for the HRM and the evidence was very weak and I was quite surprised by the outcome. I have seen a few cases where following a negative LCW decision, DLA entitlement has been affected, and am concerned by how closely related the mobilising descriptor is to the HRM criteria that a negative decision regarding it may affect the DLA.

Has anyone had a similar case, either in relation to this descriptor specifically, or where an appeal against a SG entitlement has impacted on the DLA award?

Tricky one as I know for a fact that ESA50s are read by the folk at DLA and vice versa. I have had DLA refusals often where the letter said something like : “we have disallowed your claim using the information supplied on :  1) your claim form 2) A medical report from (whoever) 
3) the ESA50 form you filled in recently…...”

What annoys me is that in some cases the ESA50 they are using to deny DLA is 18 months old (different use of the word “recently” than the rest of use use!) yet if i send a medical report that is 5 or 6 months old supporting a DLA claim it is rejected as being “out of date”.
I think they just use whatever suits them at the time. As long as he passes the descriptor (1(b) i think) regarding walking 50 yards then there will be no basis for withdrawing HRM. I have had clients who won ESA tribunals on this descriptor, claimed DLA HRM and had it refused, even though i put in the claim pack a copy of the tribunal award notice allowing the appeal on that very descriptor.
Thank god for revisions and reconsiderations.

I assume your client hasnt scored 15 points under the WCA sch 2 p1 ? If not you will need to also appeal this , for it to carry over potentially to sch 2 p2.

Thanks for the responses.

Yes they have 15 points and are currently in WRAG. They wish to appeal because they believe they should be in the support group.

Hi Krissie,

What descriptor/s was your client awarded under Sch 2?

I have had loads of cases where the DLA DM used the ESA85 medical report to refuse DLA. These reports are often over 12 months old and the ESA decisions based on these reports have been overturned.
Surely these reports a]must be deemed as not fit for purpose when considering DLA.

Regarding you ESA mobilising query, surely schedule 3 (1) is satisfied if a decision were to be made on the facts??

I reckon that ones as broad as it is long Dan. Its down to the first stop but ‘mobilising’ so it could be the first stop in a wheelchair wheras VUTW is only concerned with walking.

I have a client in the same situation as Krissie’s: gets HRM and LRC but my client has scored only 9 points for mobilising.  That means he has been found to be able to walk 100m (it is accepted he would be unable to use a wheelchair because of arm problems).  He has also scored 6 points for another descriptor.  He is appealing to get into the support group as he can actually walk only about 20m with crutches before having to stop.  It is difficult to see, from the WRA report, why he was not awarded 15 points for mobilising.

If he loses his appeal or decides not to contest the decision, what are the chances of HRM being stopped?  I have a number of clients in a similar situation but some are not keen to appeal for fear of losing some of the points they have, which would mean they could lose entitlement to be in the WRA group. 

Another factor is that entitlement to c-based ESA is due to cease after one year. It is tempting to advise clients who would not be entitled to income-based ESA to appeal to get into the support group, but this needs to be weighed against the risk of losing what they already have.

AC - unsure of descriptors awarded under Sch 2 yet, only a telephone conversation so far. Will be interesting to see.

Thanks for the discussion, very useful. I don’t think I would be ‘as’ concerned in this particular case if it wasn’t for the HRM award coming as a bit of a surprise as the condition claimed is mostly associated with fairly mild symptoms and in addition we didn’t manage to get any decent evidence. There seems to be enough dodgy decision making going on at the moment when the facts are clear, so it does feel more risky than usual. Statement of reasons at the time of award may have been useful to establish the reasons for the HRM decision etc but as client was happy with award we didn’t request them. As it stands though, client maintains that they can only walk a few steps before they need to stop, and factual supporting evidence must have come from somewhere to award the HRM, all indicating that the mobilising descriptor may be satisfied.

Yes I agree, thank goodness for reconsiderations! ;-)

Hi Krissie

Might be worth having a look at CE/1992/2010, where Judge Trunbull states: “the award of the higher rate of the mobility component of disability living allowance would imply 15 points under the walking descriptor 1(b) and goes on to say -

‘In my judgment the Tribunal should have had before it the evidence on the basis of which that award was made. Although the Claimant’s representative had not, it seems, made this point, the First-tier Tribunal should in my judgment have done so on its own initiative. The Secretary of State has had no opportunity to comment on this point, but I do not see what could have been said in answer to it.’ (paragraph 8).

Alos have a look at CIB/1639/2009 which discusses the use of medical evidence obtained in connection with one benefit in support of a different one.

Peter