HRM Appeal

[maxman51]

Hi, any advise and help with our daughters appeal would be much appreciated.

 

She is now 16, we have had DLA higher rate and Mobility lower rate for some time, she has no diagnoses as to her condition except for Global delay.

 

Because she became 16 we had to re-apply for DLA, it was issued again at the old rates, we appealed the Lower rate mobility, she has problems walking any distance. However we looked on the net and found advise relating to appeals under Section 73(3) of the Social Security Contributions and Benefits Act 1992.

We appealed the original decision using the above, our daugher has an under delveloped cerebellum.

We have just been refused by the DWP and want to appeal this latest decision.

In it`s refusual the DWP state, to get higher rate mobility, you need to have all of these conditions. Stopped or incomplete developement of the brain

A severe impairment of intelligence

A severe impairment of social function

Need someone to watch over you whenever you are awake

Satisfy the conditions of Higher Rtae of care

Severe behavioural problems

Show very disprutive behaviour and regularly need someone to physically

restrain you

Apart from the last two the DWP concede she meets all of the above. Of the last point we would suggest the ruling in CDLA/2054/1998 applied theDWP clearly did not.

Our daughter has needs such as she has no conceptaul awareness, no awareness of danger, would walk into the road without looking if not restrianed, no awareness of starnger danger, would go off with someone if offered a sweet.

Any ideas on how to format an appeal please:-x

john

[Roblynmouth]

I'm sorry but how does any of this mean that she should continue to get mobility allowance?

I suspect that there is a big difference between adult and child needs for Mobility? Besides which she will be able to access other benefits to assit her with her mobility such as Access to Work for instance which children don't qualify for? There are also allowances to get her to school from the local council I suspect.

Have you checked with you social worker or CAB to see what other replacement benefit would apply also to see what additional benefits you can get now that she is 16??

I get virtually all my benefits through my War Disability Pension, this means that for many of the other help benifits I am excluded from applying for nor can my wife get carers allowance.

Hope this helps

[louloutinks]

Hi John, there are so many 'sub' criteria that the DWP look at, so it is not just the criteria in the SSCBA. Take a look at the Decisions Makers Guide[/url] starting at 61276.

 

There is also a flow chart and if one criteria is failed then the claim will not be awarded. I have been fighting for HRM for over 2 years now, and was given the most ludicrous reasons as to why it was turned down.

 

Did you quote the case law within your application? The Commissioner decisions do hold weight but it can be veered from yet a Reported decision holds much more weight and is more of a ruling than a Commsioners decision. What stage are you at now? Have you been to the First Appeal yet or have you just completed the application stage?

 

Mobility allowance high rate is awarded for Virtual inability to walk and/or Severe mental impairment (and some)!

 

If it is at the application stage then you must request a full Statement of Reasons within 4 weeks of the decision. Then send your argument back in paper form rather than a review by telephone.

 

If you check out the link that I have attached then you can go through each criteria from that within your document. Include any reports that back up your claims. It can be wise to include a doc 'Mobility Considerations', that will bullet point all the criteria, evidence to back this up and also what the DWP have already agreed to.

 

Hope that helps, Tinks

 

Sorry but cannot include the link as have not submitted more than 20 posts on this forum. I will try something else hang on.....

 

Google Decisions Makers Guide and it will take you to the DWP website. Go to volume 10, chapter 61.

[maxman51]

Tinks

 

Thank you for reply, had no idea about the Guide very interesting.

 

Have had to send off for appeal, but had a reply form DWP saying that

they were looking agian, third time now, so will see. Did make several

references to case law, it looks as thought it will fall or stand on what

intepretation is given to extreme behavioural problems.

In the second refusal DWP state our daugther is at risk of dangerous

behaviour, so will have to wait and see.

 

Had no idea either about the right to see statement of reasons.

 

Will post outcome when we get it

 

Thanks again for your advise very helpful

 

John

[louloutinks]

Hi John, just reading through your post again and was wondering how often your daughter shows severe behavioural problems and needing to be restrained? Have you any evidence of restraint whilst at school? Does she attend a special school and can they provide evidence - make sure that they do not focus on the positives and gloss over the true difficulties that is often the case. They need to write the real down nitty gritty stuff that is so often omitted (probably due to admitting not coping in many schools!). As I say ' et suppositio nil ponit in esse'....('saying it - doesn't make it so') hence evidence evidence evidence!! Think the DWP need to take a look at their own decision making and criteria matching based on the little excerpt of Latin lol!!

 

Also the restraint should be of regular occurrence (however the decision maker defines regular - some may say every day - another...every week!!) and a 'touch on the shoulder' can be classed as such. The lack of awareness of danger was a cdla decision and covered the criteria of SMI. Needing someone to watch over you whenever you are awake is usually followed by 'to avoid substantial danger to themselves and to others' which is covered by high rate care hence covered by SSBA 72 ©(ii). They seem to have agreed to everything else so you just need to address the other 2.

 

What part of CDLA 2054/98 are you looking at with regards to your daughters case? It failed on one part and succeeded in another....just out of interest?

 

 

 

So what the DWP are saying is that your daughter does not have severe behavioural problems or needs restraint. Just hope when they are looking at it again they reach the appropriate conclusion - did you request a review again then John- or was any more evidence supplied over the phone by yourself as they usually only review if that is the case - gosh because my mouth runs away with me over the phone I had many reviews lol!

 

Your refusal letter may have been the DWP's SOR seeing as it stated that you were refused on the last two on your list - personally I do not feel the explanations in the SOR from DWP are ample enough. Maybe you should give them a call and ask if this is the case - that this refusal letter is the SOR. .I (can't quite remember now as it was so long ago I was at that stage of the claim).

[Nystagmite]

I'm sorry but how does any of this mean that she should continue to get mobility allowance?

I suspect that there is a big difference between adult and child needs for Mobility?

 

The criteria is the same for adults and children.

[maxman51]

Our understanding of Mobility is for the person in need to be able to access thier

right to movement, or as put by a Commissioner: "dependence for out of doors

mobilty on other people, on mechanical equipment or both.

 

Our daughter is unable to access out of doors with out supervision.

 

As our daughter, being 16 even if she were 26, she is still and always

will be our daughter, is deemed by law an adult not a child.

[Nystagmite]

What you've said, would also apply to LRM though.

[maxman51]

With respect not correct.

 

LRM applies to assistance with familar surroundings. Not the need for

restraint because of danger.

[Nystagmite]

You didn't say that in your previous post. You said supervision outside - that's what LRM is for.