Lougle needs advice, please (DLA)

[Lougle]

Starting a new thread after today's update.

The nice lady at DLA now has DD1's file. There is absolutely no record of my phone calls. At all.

She has spoken with the Decision Makers and they have said that:

"You are within your rights to have it looked at again, but I have to warn you that by asking us to look at it again the award can be removed altogether, or lowered, and that is a risk you have to decide if you want to accept."

Now I truly believe DD1 is entitled to HRM. There is no way anyone could argue that she can walk like a 5 year old. At all. But just looking at the figures:

Back pay from 17/08 to 3/12 would be £747.50.

The award is 3 years, so HRM will total £7776.60

If the DM lowers her award from HRM to LRM, not only will we lose the £747.50 (can't get LRM until 5th birthday), we will lose £4834 in HRM payments, and get £2956.20 in lRM.

In other words, by asking them to look again, we have the potential for DD1 to get £7776.60, and then the renewal date will likely come forward. However, we have the potential to lose £4834.

Then add in the stress of taking it all to appeal, and either winning or losing. Is it worth it?

Don't get me wrong, £747 is a lot of money in our little world. DH has just taken a massive pay cut to take a job that means he can help me more with DD1, and it represents just short of a month's wages. But in real terms, the amount we could lose is like 6 months' wages.

This isn't about us, though, it is about DD1. She can put one foot in front of the other, but falls frequently, trips, stumbles, walks slowly and refuses to walk. Can't take her out without a crelling or mac major. But it isn't as clear cut as 'full time wheel chair user' for example.

WWYD?
£4824

sorry, I'm no expert on DLA (we don't claim it)

what is your gut feel? is their "we could take award away" spiel like the one you get with statementing - you know, the "other children are worse off, and if we give your child this provision, they wil suffer" one?

is it designed to make you worried and go away, do you think?

because, with hindsight, my views on this are that they often start saying things like this when they know you are right, as a last line of defence, iyswim? it is their "big gun" - a do or die effort to get you to leave them alone.

but I understand why you would worry. that is a huge sum of money, and you could do without the stress.

Lougle am not entirely sure about this but someone connected to a charity said that for DLA to remove or reduce award, they have to show that your dd has improved from when they made the award. That makes sense to me but someone more certain might come along.

Have you contacted Carer's?

Carer's, KYMS?

What the woman said was that the DM decided that DD1 qualified for HRC/HRM when they looked at it 'but we are all individuals, aren't we?' and 'another DM may not agree'. Apparently it is the DM decision and if they disagree with the previous DM they could take away her HRM, take away her HRC and lower it or take it all away altogether.

I am scared. If she was a full-time wheelchair user I would just say 'go for it', but because she uses her legs to get around, the 'virtually unable to walk' criteria is full of grey-areas where it is down to a judgement.

butm there are people on here who get HRM for children with ASD.

isn't there a mentall impairment category too (sorry for wrong terminology)

I have been advised before that we would be eligible for HRM if we applied for dd1. whether that is true or not, i don't know. I cannot face the forms. they are not supposed to decide on the basis of whether there is "enough" physical disability or not (sorry, I know you know this)

would your dd's school write a supporting statement?

having a child at Sn school fulltime signals a lot of things, as does having it named on a statement. if they could write supporting the need for it, citing inability to understand the dangers etc as well as the physical side fo clumsiness and fallign - would that help at all?

The thing is, I wrote the form really carefully. I included 26 documents supporting.

But, there are 3 routes to HRM:

1. Unable to walk at all.

1. Virtually unable to walk, given The distance over which you can walk without experiencing severe discomfort; the speed at which you can walk; the length of time for which you can walk; the manner in which you can walk.

1. Severe Mental Impairment, Severe Impairment of Social Functioning and Severe Behavioural Problems.

I thought she would qualify under criteria 3. That is what my form focused on. But the DM decided that she qualified under criteria 2.

What I am worried about is that the new DM may look and decide that she doesn't quite meet criteria 3, but also doesn't quite meet criteria 2, so only qualifies for LRM. Because criteria 2 is all down to a matter of judgement, as is criteria 3, but criteria 3 is very hard to demonstrate on paper because I don't have 'hard' evidence like IQ tests to prove SMI (although R/DLA (100) clearly states that IQ is not a sole indicator for SMI).

WRT the school, it is a double edged sword. She has lots of accidents there. She has slipped on a bike and hit under her eye today, on Friday she was ringing the bell and turned and walked into the fence, banging between the eyes. Last week she had a couple of accidents, and others.

But in the grand scheme of things, within the SS she is one of the more able children (they take PMLD, ASD, MLD, EVERYTHING)

Hi Lougle

That was my concern when you said in your earlier thread that it would be treated as a supercession.

Each DM has their own views and the award could be amended.

I only ever got LRM for DS and he had to have psychiatric nurses with him at one point.

So do you think that her interests would be better served by allowing the decision to run, SausageMonster?

See, it is more complicated in a lot of ways with DD1. She is mentally impaired, and social functioning is impaired, and she has behavioural problems. She has no sense of danger, etc.

But she is also physically impaired. Ataxia, low muscle tone, wears piedro boots, currently unable to jump (although could, just, a few months ago), can't balance on one foot at all, finds it very hard to walk down stairs even with a handrail, falls, trips and stumbles, even on steady ground.

But what is hard to communicate effectively is the cumulative effect of each impairment and the resulting lack of mobility. One DM may 'get' that, and another may not.

It's a complete gamble Lougle

Depends how confident you feel about the possibility of going to Tribunal?

Or the 2nd DM may just agree and award it.

Who knows?

I think that the warning they have given you is designed to make as many people as possible go away. I appealed when my ds1's (very physically able but severely ASD) award was reduced from HRM to LRM on renewal. They did a reconsideration and refused and it went all the way to appeal. On the morning of the appeal the DWP rep conceded before we even got in the panel. we went before the panel for them to concede formally and the panel said that the evidence from ds1's GP and social worker confirmed that he qualifies under the severe mental impairment rule. Ds1 is unsafe, overwhelmed by sensory issues and so anxious that he cannot be relied upon to walk. However, the decision maker had decided my ds was not severely learning disabled and was making a conscious reasoned decision not to walk. If you know you are right and have or can get evidence from professionals to support your case I would go for it.

I think the short-term gamble is risky.

I got MRC and LRM for J pre-dx.

When renewal time came, they renewed at the same rates. However, I'd got a bit more clued up and been advised that he met criteria for HRM and HRC, due to the severity of his behaviour etc. and the gap widening between him and his peers.

So, I asked for re-consideration and the fucker of a new DM took the whole lot off us.

Appealed and got LRC back.

Appealed appealed appealed and over a year later, went to Tribunal and got the HRC and HRM that we should have had in the first place. But I was screwed financially waiting for the appeal process to work through and went a number of months without any DLA payments at all.

Not sure if that helps except to re-confirm your suspicion that DMs are a law unto themselves, but I'd think very carefully, especially as dd has the correct award now.

Sorry Lougle Carer's Support or Carer's Association.

They helped me with my forms when I was rejected the first time.

They also help me apply for Blue Badge when I was on LRM.

Thank you all for your wise words. It goes against the grain, but having spoken to DH, we will tell the woman tomorrow that we will leave the reconsideration.

There is too much to lose given that everything seems to be down to the whim of the DM.

Lesson learned.

Thanks, Justabout. The woman today said 'ok, I will put a note on that you did want a reconsideration, but now don't'

Well, I did want a reconsideration, until you told me that the decision would be down to what mood the DM might be in when they open DD's file after spilling coffee down their shirt, or realising that their boiler needs replacing, or feeling bloated... It's a bit hard to fancy your chances in that situation, no?

The stuff about your award may go down is what they have to say it's part of the spiel tbh.
I get HRM for ds on the grounds of "arrested development" which from what I can see is probably the better option as it suggests a permanent brain abnormality.On what grounds does dd get her award? if it was arrested development then I'd go for it. The severe mental impairment/extreme challenging behaviour then I probably wouldn't tbh.

I thought she would get it on the SMI grounds, ASDx2, but she got it on 'virtually unable to walk given time, distance, speed and manner of walking'.

The fact that she has elements which satisfy each set of grounds, but has 'complex needs' means that whoever reads her form has to be able to appreciate the interplay of each factor which potentiates her difficulties. If they took each factor seperately, they might decide none were severe enough. When they look as a whole, she has many factors that combine to make walking one of her biggest needs.

I presume she would count as arrested development because her brain is structurally abnormal (can be seen on MRI), but I think they have to consider the categories in order, so:

Is claimant unable to walk? YES - HRM; No- next category.

Is claimant 'virtually unable to walk?' Yes - HRM; NO - Next category.

Is claimant at risk of death/serious injury by walking YES - HRM; No - next category.

Does claimant SMI with SISF & SBP? Yes - HRM; No - consider LRM criteria.

Arrested development comes within the SMI category in the Decision Makers' Guide.

You see looking at ds he hasn't got severe mental impairment as such because he accesses a mainstream school via ASD unit and will do A levels next year.His behaviour is good now but only because I have got better at handling him and he has learnt how to remove himself.
We went to tribunal when he was five (earliest you could get mobility back then) and the tribunal ruled he had an arrested development and the awards have gone through without them contacting professionals ever since and we now have an indefinite award.Ds has never had a CT scan so no evidence there is any brain abnormality either

But he has ASD, yes? ASD has been accepted in case law to be a 'state of arrested development of the brain', so ASD is blanket covered in that respect. After that you have to prove needs but an ASD sews up that factor.

For DD it will be her MRI that sews that factor up.