Accidental error?

Hope it’s OK to ask this, it’s something outside of work.  I normally deal with means-tested benefits so DLA appeals are not my regular subject.

An acquaintance has just won a DLA appeal obo their son - been awarded top rate DLA(c) and higher rate DLA(m).  Obviously very pleased with that.  The decision notice from the Tribunal says the higher rate (m) is because he is virtually unable to walk.  This is not the case and not what they expected at all: all the written evidence and all the discussion at the oral hearing was focussed on the severe mental impairment/severe behavioural problems route.

The outcome is the same either way on the face of it, so why worry?  Trouble is, DWP did not attend the hearing so all they will see is a decision notice that makes no sense.  Parent/appointee is worried that DWP will be far more lilely to take it further (and thus further delay payment) on the basis of this decision notice.  So they have asked for a correction on the assumption that it is just a slip of the pen - wrong letter template or careless editing or whatever.  They cannot believe ( and I agree with them) that the Tribunal actually meant virtually unable to walk. 

Even if DWP wanted to challenge further on SMI/SBP, they wouldn’t have a leg to stand on - Tribunal perfectly entitled to award higher rate (m) on the evidence.

My question is: does this happen a lot (wrong letter) and is it usually a quick and simple matter to get it corrected?

Thanks

The term “Virtually unable to walk” is just techspeak for someone in receipt of high rate mobility.

I have blind clients who after the rule change in 2011 were entitled to high mob, and their letters say they are virtually unable to walk, even though they can walk. It is a visual impairment issue

SMI can also grant HRM so i wouldnt worry about it. Its just language in this case

Unless you guys can tell me different…..

Generally, the only point of contention for HRM in appeals at which I have represented was whether or not the appellant is or is not virtually unable to walk. Therefore, the successful appeal decisions reflected that. I suspect most HRM appeals are decided on the applicability of this regulation.

I did attend a hearing last year where I argued HRM prior to someone turning 65 on the deaf/blind provisions. The decision notice reflected the correct reason for the award, because a big deal was made of this to push this appeal through.

I haven’t yet seen a tribunal decision that didn’t reflect the facts of the case.

I’d be doing just as you are. The potential fallout from DWP requesting a statement of reasons and challenging that the decision notice bears no relation to the actual reasons for the decision could tie things up for ages.

Or you could have ignored it. I am not convinced DWP reads all the decision notices anyway.

Another suggestion is that they knew what they were doing. There is nothing to stop a child with autism or Downs Syndrome from qualifying as ‘virtually unable to walk’. This decision is a good starting point: http://www.osscsc.gov.uk/Aspx/view.aspx?id=2871 . This one raises difficulties of multiple diagnoses: http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2431

Cheers,

Jon

Thanks very much indeed for that.  I am inclined to think that in this case the Tribunal has probably used “virtually unable to walk” as boiler-plate shorthand for Section 73(1) as a whole as Bens Advisor suggests, because the SMI route was so much more obvious, rather than consciously invoking the line of cases that Jon refers to (they are interesting though).

Edmund, that was the dilemma - let sleeping dogs lie and keep fingers crossed that DWP will just apply the decision without too much further thought, or risk drawing attention to it by making a fuss.  The family have opted for a very polite suggestion that there might be a slip of the pen error, emphasising that they have no quarrel with the substance of the decision obviously.

I am sure it will be OK. Thanks again