dla appeal - concious decision

[pokhara]

Hi posted earlier in week, i am appealing dla hrm for ds who is aged 4, they only gave one reason on the statement ofdecision and that was that wen ds refuses to walk he is making a concious decision.

I have almost got everything i need to start typing up my appeal letter, i have info from nas website, and some case laws.

I would appreciate if anyopne could give me some more ammunition please. The one thing thats concerning me is that ds has not yet got a dx, he is under paed, and this week we have managed to xfr to another paed as not happy with old one. ds has severe lang delay and in most recent review the report this week from salt she put:

• he is able to follow instructions at 4 word level but his understanding is not consistent below this level and he does not eyt fully understand some concepts such as eg under. His attention is short and he can be impulsive. Expressively he combines words to form short sentences, intelligibility is affected by a fast rate of production. He benefits from visual cues to support his understanding and ability to deal withchange.

paed said ds will be almost defo get dx of adhd in 2 years, and ds has a lot of asd traits but he does think autism but said he will be on spectrum but no sure where.

so i am going to send the salt report with the appeal as is most recent info re ds.

Ds does not make a concious decision when he refuses to walk, or when he constantly runs everywhere, he does not walk at all, anywhere, he is like a toddler, so what im asking is how would you word what im trying say and what relevance the salt report has with concious decision.

dunno if that made sense the last part, but hopefully you will see what i mean, and any help, advice would be gratefully received, as tonight i will be up all hours, typing the letter.
thanks in advance, i feel awful that i have posted lots this week and winged all the time, but it is stressful. I didnt understand 3 years ago when a few people said i would have to fight for ds, i though well if something is wrong te docors will do eveerthing they can to help, was i wrong or what. ill stop waffling now. thanks again

hi pokhara, don't know much about this as I never applied for DLA for my son. I would say the key bit of the SALT report would be where she says "his attention is short and he can be impulsive".

I am not familiar with the case law, but is the bit about a conscious decision even a valid or relevant ground for knocking back DLA?

hopefully others will be along soon who know more, good luck with the appeal!

thanks total chaos. think must be valid if they use as a reason, i have also been looking at severe mental impairement, but cant get my head round this, do you or anyone else know if ds might come underthis?

I think it's to do with IQ/non-verbal intelligence, has an ed psych ever done that sort of testing on your DS?

ed phyc report was utter nonsense, salt are confused by it she put his language and understanding at 4 months advance, which he is certainly no where near, salt have said 20 months delayed. no that was done after an argument with head of ds pre school who said ds wouldnt get statement as his problems where borderline and not so obvious as other children, i honestly beleive these two had words as the head didnt want me to go ahead with statement. ed phyc contradicted herself, by recommeding ds needs special unit to help him rather than ms.

" R(M)3/86 is a decision of a Tribunal of Commissioners. It considers that behavioural problems arising from a physical source can constitute a "temporary paralysis" as far as walking is concerned and therefore be seen as a "virtual inability to walk". See also R(M)2/78, CM/98/1989, CDLA/3839/2007 and CDLA/1621/2009. CDLA/4565/2003 (below) discusses some of the problems contained within R(M)3/86.

CDLA/4565/2003 discusses "could not" versus "would not" arguments i.e. can a child's refusal to walk be resolved by the threat of punishment or promise of a reward. Defers to R(M)3/86. because it is a decision of a tribunal of commissioners but believes their approach was too generalised. Children who suffer from conditions such as autism, Down?s Syndrome, and William?s Syndrome may have a raft of symptoms which are relevant to their ability to walk but which may make them not wish to walk including clumsiness and lack of coordination, high levels of anxiety and fearfulness, short sightedness, poor balance muscle weakness, tiredness, lack of endurance, breathlessness and embarrassment. To say that a child who can be persuaded or coaxed to walk further (after being promised a reward or threatened with punishment) is not suffering from problems which stem from a physical disablement must be wrong and be based on a generalisation without reference to the evidence of the particular case." Cites CM/98/1989 as a possible approach to the problems caused by R(M)3/86. The decision directs a tribunal to pay careful attention to medical evidence.

CM/5/1986 considers virtual inability to walk in the case of an an autistic child. If the child's reaction to walking was to run, stop, lie down and refuse to go any further than these were relevant factors. The tribunal then had to consider whether there was virtual inability to walk and If so, how did it come about - conscious volition or physical disablement?

CSDLA/202/2007 concerned an autistic child, age three, with behavioural problems. The commissioner states that the higher rate mobility component can be satisfied on grounds of being virtually unable to walk, provided the walking problems stem from the claimant's physical disablement and his physical condition as a whole. see also CDLA/1678/1997. "

www.disabilityalliance.org/dlalaw.htm#Higher

Basically, they are saying that your DS 'would not walk' in contradiction to your assertions that he 'could not walk'.

My son is capable of walking but often refuses to. The way he refuses is to sit or lie down wherever he happens to be (middle of road, etc) so this is a serious safety issue. He also runs about like a toddler and has no sense of danger. The powers that be accepted this as a valid reason and we got dla.

Is there a social worker or someone at Contact A Family who could help you with the wording? Good luck.

tallwivglasses is that high rate mobility or low?

thankslougle i got a couple of thos case laws, and i will have a read through the other, god they are so long arent they. CDLA/4565/2003 this one i read through last night and it is a child with a diagnosis of autism, now questions is, my ds does not eyt have a diagnosis, so can i use this kind of case law or not. thanks

I am going to tribunal on 27th Aug for the exact same thing. What reason have they given for that decision? with my ds it was because we were trying to teach him pecs. I now have a letter of paed, salt, camhs, and nursery to say they are wrong, so here's hoping. I never wrote a letter aking for an appeal Irang and asked for an appeal application.

i ranf too and asked for appeal, they sent me an appeal leaflet which said to send my reasons for asking for appeal within 28 days, another 14 days were addedd as i asked for a stament of decision. so another decision maker will look at it and if they too decide no then they auomatically send it to tribunal.
The only reason on the statement they gave me was " dsis not virtually unable to walk, when ds refuses to walk he is making a concious decision". Now this is only a fraction of all the things i put on the application, compared to all the rest this was hardly anything, so im appealing that decision that he made a concious decision and also fact that they dont seem to have considered anything else in the application. It took 22 weeks in total from when they reced change of circs form to them making a decision, and i cant beleive that was the only reason they gave. so hoping that i have a good chance even if goes to tribunal.

:( think ill hav all this to come,my sons pead is refuring him community, thinks he highly likely mild autism but i cant get ds to walk very far.he will throw himself to floor road or path,walk down white line in rd and thats wen ive beeen successful gettin him walk lol,i generally use dble buggy coz it to dangerous to walk him.hes 4 in nov x not looked into dla or anything yet coz not had formal diagnosis x

I am not sure if I will be joining you - I have finished the renewal, and stated my case clearly for HRM, but can't fit the form and evidence in the envelope so will need to buy a fancy expanding envelope on Monday.

I've included all the statementing documents, all the paed letters, ed psych reports, etc. I've also asked them to consider R(DLA)1/00 and got two statements from people who know her, both of whom state that she requires restraint at all times when out.

I literally can't take her anywhere without restraint at all times, we even have to lock the paed's door when we go to clinic to keep her in the room.

I will definitely appeal if we are turned down.

kerry, you don't need a dx to claim DLA.

kerry, lougle is right ds gets high rate care for the last year and was awarded for 2 years, its not about the diagnosis its about how their problems effect every day and night life. You should consider it.

I'm actually feeling a bit sorry for the poor soul whose desk my DLA renewal falls on. They will be gutted when they see the big bundle of evidence they should wade through.

might take 22 weeks like mine did, god help them next week when they get all mine for the appeal, been reading lots of case law files this evening and i cannot see them being able to refuse ds this time, like for example they never mentioned that they had looked into severe mental impairement when they sent the statement, so i shall be asking this and i found in case law cdla/3215/2001 - this is in para 15 " there is adequate, uncontradicted evidence on which i can substitute my own decision and it is expedient that i do so. It seems to me that a child who has no sense of danger (as contrasted with a child who has the ability to take risks deliberately and decides to do so) lacks such a fundamental aspect of human intelligence and that it must be the case (certainly here) that his intelligence is severly impaired."

i was going to start the typing the appeal tonight but have found more evidence.

I have also decided to purchase a good camera phone, incase tis goes to tribunal, i will get a friend to come out with us and video what daily life is like.
im feeling positive, i shall get this awarded for my ds and will go all the way.

Hi i am part way through my appeal letter, and dont want to post the whole thing on here, so wondered if somebody would mind me mailing them so that you can read through for me, and tel me if it makes sense to you, I would prefer someone on here because alot of us are all in the same situation.
thanks

You'd be welcome to mail me on lou031205 at googlemail dot com.

Remember that the test for HRM on behavioural grounds is three-pronged, so you need to show that he meets all the criteria. He could fall down on any one of the 3, and therefore be denied.

So:
-HRC
-Severe behavioural problems
-Severe impairment of Intelligence and (not or) social functioning

Then, if he meets all of those criteria, they look at conscious decision. So the fact that they state he is consciously deciding will mean that they don't even have to consider those above, because they have decided that whatever he is doing, he is doing it willingly.

What are you using as your evidence that he isn't consciously deciding?

You have mail

Hi just looking for some advice. Applied for dla for my son got refused so asked for a reconsideration. Sent in school report where it states he has additional support in school has to be with an adult at all times. Not aware of dangers hes impulsive tendencies no road saftey the list goes on. Sent that to dla with 2 medical reports from his predictions saying been diganosed with adhd serve behavouiral problems doesnt sleep and has chronic sleep problems and it also has the way he actced in the clinic. Put everything in my claim form they bave had the reconsideration for 4 weeks now. Whats the chances i get refused again! Very stressful x

So tricky. Hopefully your appeal will be successful.