Legal Matters

HM Courts & Tribunals Service
Social Security & Child Support Appeals
Copthall House
9 The Pavement, Grove Road
SUTTON, SM1 1DA
Phone: 0300 123 1142
http://www.tribunals.gov.uk/

“I am writing about your appeal… if you want a hearing, we currently expect to be writing to you in around 17 to 21 weeks to tell you when your hearing will be… we enclose an enquiry form for you to complete… within the next 14 days.” (Clerk to the Tribunal)
[Oral hearing to take place in FoxCourt, Central London, not Bexleyheath and Sutton]
The Secretary of State’s Response was sent to the Court team.

“The Tribunal may consist of one, two or three members. Each member has a particular expertise, in law, medicine, disability or finance. The number and combination of members depends on the type of case and are set by law. Tribunals are like courts in that they are independent, operate within a set of rules laid down by law and reach decisions on the basis of evidence. However, they are less formal than courts, in that the hearing takes place around a table and the Tribunal will play an active part in the proceedings by asking questions to establish the facts of the matter.”

Personal testimony can count as “evidence” as does [medical] “documentation” and representatives/witnesses who can testify. These issues will be discusses around a table, at the hearing. I will end this by referencing the legal materials which will be disputed and examined at this tribunal. I would simply note the timeline (chronology.) Friday 13 July I received the Secretary of State’s response to my application for DSA. Having received the original panel decision in early June, I appealed against this decision and this was successful. Today (18 July) I received this letter explaining the tribunal process, which, once I return a questionnaire, will be organised in some 17-21 weeks, which would make it a year without DSA. I will now quote the transcribed letter I received, followed by a summary of my symptoms (“physical” and “psychological.”) Again, I only obtained a complete copy of my medical records in February 2012, after repeated complaints I made against the GP and her practice. This is an official document:

[F]

The disputed decision was made in accordance with the following Acts and Regulations

Mobility Component

Higher rate conditions
To be entitled to the higher rate of the mobility component of Disability Living Allowance a person must:
1. be unable to walk or virtually unable to walk because of a physical disability; or
2. be certified by a consultant ophthalmologist as severely sight impaired or blind and are severely visually impaired within the meaning as prescribed in the regulations; or
3. be both blind and deaf; or
4. be severely mentally impaired and display severe behavioural problems and be entitled to the highest rate of the care component; or
5. have both legs amputated either through or above the ankle; or
6. be born without any legs.
Social Security Contributions & Benefits Act 1992, section 73; Social Security (Disability Living Allowance) Regulations 1991, regulation 12 Social Security Contributions and Benefits Act 1992, section 73(1AB) Social Security (Disability Living Allowance) Regulations 1991 reg 12(1A).

Lower rate conditions
To get lower rate of the mobility component of Disability Living Allowance a person must be so severely disabled, physically or mentally that they need guidance or supervision form another person for most of the time when walking out of doors. Any ability a person has to walk on familiar routes without guidance or supervision is not taken into account. A
A person who is able to walk is not to be taken as satisfying the condition of being so severely disabled physically or mentally, that he cannot take advantage of the faculty out of doors, without guidance or supervision from another person most of the time, if he does not take advantage of the faculty in such circumstances because of fear and anxiety.
The above paragraph shall not apply where the fear or anxiety is
• A symptom of a mental disability; and
• So severe as to prevent the person from taking advantage of the faculty in such
circumstances
Social Security Contributions and Benefits Act 1992, section 73(1AB) Social Security (Disability Living Allowance) Regulations 1991 regs 12(7) and (8)

[G]

Unable or virtually unable to walk
People are considered to satisfy this criteria if their physical condition is such that:
(a) they are unable to walk at all; or
(b) their ability to walk out of doors is so limited, as regard the distance over which or the speed over which or the length of time for which or the manner in which they can make progress on foot without severe discomfort, that they are virtually unable to walk; or
(c) the effort needed to walk would put their life at risk or be likely to lead to a serious deterioration in their health
Where a person lives or works, or the nature of the work they do cannot be taken into account.
Social Security (Disability Living Allowance) Regulations 1991, regulation 12

Virtually unable to walk
Virtually unable to walk means unable to walk to any appreciable extent or practically unable to walk. The base point is total inability to walk. This is extended to take in people who can technically walk but only to an insignificant extent.
Social Security Commissioner’s decisions R (M) 1/78 and R (M) 1/91

Danger to life or serious deterioration in health
The exertion required to walk is the only consideration when decision whether a person satisfied this condition.
Any serious deterioration in health is where there was a worsening of the condition from which:
(a) they would never recover; or
(b) (b) they would recover after a significant period of time, for example 12 months; or
(c) Recovery could only be made after medical intervention
Social Security Commissioner’s decisions R (M) 3/78 and R (M) 1/98

Aids and appliances
People cannot normally be treated as unable or virtually unable to walk if they can use an artificial limb or aid to help them walk unless they are without both legs.
Social Security (Disability Living Allowance) Regulations 1991, regulation 12 (4)

Guidance
Guidance may be physically leading or directing the person or by oral suggestion or persuasion

Supervision
For the lower rate of the mobility component supervision can be:
(I) when another person is monitoring the disabled person’s physical or mental state for signs that some intervention may be needed to encourage the person to continue walking; or
(II) checking the route ahead for obstacles, dangers or places or situations which may upset the person
Coaxing, encouraging, persuading or providing distraction by way of conversation may come within the meaning of “supervision.”

Care Component

Lowest rate conditions
To get Disability Living Allowance for help with personal care at the lowest rate a person must be so severely disabled physically or mentally that they:
• Need attention with bodily functions for a significant portion of the day; or
• If aged over 16, are unable to prepare a cooked main meal.
Social Security Contributions & Benefits Act 1992, section 72 (1)(a)
Day Conditions:
To satisfy the day care conditions for Disability Living Allowance for help with personal care a person must need from another person either:
Frequent attention with bodily functions through the day; or
Continual supervision throughout the day to avoid substantial danger to themselves or others.
Social Security Contributions & Benefits Act 1992, section 72(1)(b)

Night conditions
To satisfy the night care conditions for Disability Living Allowance for help with personal care a person must be so severely disabled physically or mentally that they need from another person either:
Prolonged or repeated attention at night in connection with bodily functions; or
Someone to be awake during the night for a prolonged period or at frequent intervals in order to avoid substantial danger to themselves or others
Note: there are special conditions for some people on renal dialysis
Social Security Contributions & Benefits Act 1992, section 72(1)(c)

Significant portion
The word “significant portion” should be given its ordinary meaning of not negligible or trivial. It refers only to the length of time a person requires attention. What amounts to a “significant portion of the day” depends largely on a person’s individual circumstances. An hour may be considered reasonable in many cases.

Bodily functions include such things as:
• Eating and drinking
• Washing and dressing
• Using the toilet
Help with bodily functions does not normally include help with domestic duties, for example, shopping, cooking, or cleaning, but it could, for example, include help with laundry where this forms part of a continuous episode of attention of a personal and intimate nature in connection with a bodily function.

Social Security Commissioner’s decision R (A) 2/80 Appendix, Cockburn v Secretary of State for Social Security

Attention is some personal service of an active nature, which is reasonably required in connection with bodily functions and is given in the physical presence of the severely disabled person. This can include help by means of the spoken word, for example, persuading a person to do something like eating, or warning a visually impaired person of danger outdoors. Attention to enable a disabled person to take part in a reasonable level of social activity can be included.
Social Security Commissioner’s decision R (A) 2/80 Appendix, Secretary of State for Social Security v Fairey
Social Security (Disability Living Allowance) Regulation 1991, regulation 10C

Unable to cook a main meal
This is a hypothetical tset of whether a person has the ability to perform the various tasks necessary to make a meal, if they had the ingredients. This includes the mental ability to plan a meal. It has nothing to do with a person’s actual domestic arrangements.
Social Security Commissioner’s decision R (DLA) 2/95

Frequent throughout the day
Frequent means several times not once or twice. Attention must be required throughout the day. The ordinary definition of frequent is “occurring often or in close succession”. Whether attention is given frequently depends on the length of time which passes between each spell of attention. A person cannot get the middle or highest rates of the care component of Disability Living Allowance if the only help they need is with getting in and out of bed, or if they only need a little help when dressing and undressing in the morning and at night.
Social Security Commissioner’s decision R (A) 2/80 Appendix

Continual means going on all the time, subject to brief interruptions only.
Social Security Commissioner’s decision R (A) 1/88 Appendix and R (A) 5/90

Substantial danger
The phrase “substantial danger” should not be too narrowly constructed. Substantial danger can result form a fall, exposure, neglect and in many other circumstances. The word “substantial” is left to discretion in each case.
Social Security Commissioner’s decision R (A) 1/73
Watching over means that another person has to stay awake at frequent intervals or for a prolonged period during the night to be able to intervene and prevent or deal with substantial danger. It is not enough for the attendant to be asleep and ready to wake up and intervene when required.

Prolonged and repeated means that someone must need help at night for more than a few minutes, or that it is needed several times. ‘Prolonged’ has been interpreted as meaning 20 minutes or more; ‘repeated’ as twice or more.
Social Security Commissioner’s decision R (A) 2/80 Appendix

About omalone1

I live I die I write
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