HRM SMI Tribunal success today however..

[Gunnermom]

Afternoon

As stated in title, I was today successful in my appeal for HRM under SMI however it has a caveat

My son initially received HRC LRM

I filed a COC in February 2023 which along with MR were both rejected with DM stating that SMI criteria not met.

I appealed this decision in November 2023

Fast forward to July 2024 and my Sons care dropped to middle rate. This was my fault as I wasn’t very thorough in my renewal, I assumed that as nothing had changed I’d basically just be going through the motions on the renewal. I filed a comprehensive MR in July of this year and now waiting a response.

Today I was successful in my HRM appeal with the judge stating that it is clear my Son is SMI however can only award up to July 2024 due to care no longer being high rate.

I’m unsure of next steps, given the judge’s ruling would the DLA automatically increase mobility from low to how if my MR is successful? Do I wait for result then file another COC or do I file a COC now and hope that by time it’s reviewed, care will have increased to high ?

For anyone wondering, I have waited pretty much a year from appeal to tribunal

Hopefully the above makes sense and any questions re tribunal are welcome however wasn’t really much to it as made sure I covered all of the SMI tests in my witness statement and evidence therefore it appeared that the decision was made pre video hearing

The sceptic in me also thinks I should do nothing re COC on the mobility aspect for now as could hinder the decision making process when my MR for HRC is finally looked at (SD 17 July)

Given that the judge has explicitly stated SMI is met, I don’t anticipate any issues going from low to high mobility should HRC be awarded

You will need to wait for the outcome of the MR from July 2024. The MR will look at the whole award again. Not just the care component. Then, appeal if necessary if DS is not awarded HRC/HRM.

If you end up appealing the decision that is currently at MR stage and you now submit a COC, there are circumstances where the Tribunal decision would again have to be limited from the renewal award date to the date before the COC award date. Then potentially leaving you having to appeal a third time with the COC decision.

Oh thanks for that, I wasn’t aware that even though my MR is for HRC, they would also look at mobility.

I’ll ensure that as and when I receive confirmation from the court, I’ll add it to my MR evidence as I can’t trust that DLA will do this automatically.

thank you again

Your MR isn’t only for HRC. That may be what you have focused on, but a mandatory review looks at the whole award. It is why people need to be aware an award can decrease as well as increase, and why some decide not to do a MR when they have e.g. been awarded HRC but not HRM or vice versa (only SMI requires HRC for HRM to be awarded. The other ways of qualifying for HRM don’t require HRC).

Thanks guys I understand now x

It’s just too bad the court couldn’t have looked at both, I guess in hindsight my hearing came too early as I assume despite overwhelming evidence, the MR will be rejected.

If the above rings true I’ll have a much longer wait for tribunal than the 12 months I just endured!

It depends where you are, but the wait for tribunal (if you need to appeal) won’t necessarily be longer.

Although the Tribunal was about the circumstances from the date you previously made the COC up to July, it is worth pointing out the outcome of the Tribunal as part of your current MR.

@Gunnermom glad to hear about the HRM award and sorry to they have messed you around on the care element. It is such a messy process and they really need to train the assessors properly.

Do you mind me asking about the HRM award? My son is mobile and may be similar to your child if you had to argue SMI. We have requested an appeal as we have HRC as my son is a poor sleeper and needs changing and supervision at night. He has severe ASD and is very learning delayed and like a baby really at 5 years old. He has a diagnosis of severe GDD and has PICA which we thought would be enough for the SMI (he has no sense of safety, absconds, refuses to walk and is at risk of harm from eating anything). The DWP says this isn't evidence for SMI or social impairment. My son is bloody non verbal ffs and we sent Ed Psych report saying he is low functioning in all areas.

What evidence did you send? We literally have a book of evidence in the bundle. Statements from school and professionals, but the MR assessor cherry picked some info from his nursery days 18 months ago and ignored the overwhelming evidence since then. The assessor clearly didnt understand what they were assessing. They said that because he can press a button for a biscuit on an AAC he isn't socially impaired. AAC are what people with severe ID use to communicate. 🙄The funniest bit was the assessor saying as he was classed as 'emerging' in his nursery assessment, he isn't intellectually impaired. It is the lowest grade, there isn't anything beneath it, and it means you haven't achieved the objective yet.

Sorry for the rant. It annoys me to hear other people having to go through what we have because basically the DWP want to see if they can get away with not awarding. It is shit because it is our second appeal in a year after an LA section I appeal.

Did you provide any evidence of case law outcomes awarding HRM for similar children from previous tribunals?

Best of luck getting them to change the MRC. I hope it is a good outcome for you. Having to care at night is bloody exhausting and in a way HRC at least feels people recognise this.

@Soukmyfalafel a diagnosis of GDD, PICA, being non-verbal and using AAC is not enough to prove SMI.

You need to prove every part of the test. You can see the flowchart is in this document. Also look at Contact’s leaflet.

I am not saying DS doesn’t qualify, I am saying you need to evidence each part of the test, not just focus on one test and DS’s diagnoses. For example, you make no mention of DS regularly requiring someone “to intervene and physically restrain the child to prevent them causing physical injury to themselves or another, or damage to property.” And ultimately some have to appeal.

Hi

we were originally rejected as the DM asserted that our mobility issue was due unwillingness and that my son does not satisfy SMI as it was noted in a school letter that he can take and receive coins!

To be honest, looking back I didn’t provide enough at MR stage however I changed approach pre appeal. No rush as you’re not likely to get a hearing for some time. I sent my witness statement and evidence 2 weeks before hearing.

I quoted the SMI case law widely available however I made sure that every part of the tests were covered and evidenced as much as possible without directly posting test and responding directly if that makes sense.

fwiw my son has autism and suffers extremely anxiety in unfamiliar environments.

i spoke about what happens in the unlikely event that we do get to go out ie meltdowns/danger to himself/others

I had evidence from school confirming the nature of meltdowns/triggers and confirmation that he requires 1/1 care.

Also worth exhibiting letters from family/friends health care professionals etc.

feel free to message me when you have drafted a letter/witness statement etc and I’ll offer any pointers but the key is that you have to fully satisfy ALL of the tests comprehensively

Thanks. I think we did cover this in the MR bundle as he need reins and buggy when outside (and indoors) and and needs frequent intervention to stop himself getting hurt. We included risk assessments that identified he put himself at risk in the school environment and that on the usual bell curve of functioning in his EP assessment he was in the bottom 1%. We also mentioned extreme behaviour. I did literally write out all of the five tests and told them what to look at in the evidence and that it was in home, out of home and at school. I'm thinking of just providing a reference sheet a few days before evidence deadline and some case law examples of similar children. The consultant will also write a statement.

The MR assessor just did my terrible job I think or they were hoping I wouldn't appeal. It was very clear and I don't think we could have done more. The assessor used some very poor reasons to decline - like they sit at a table for a biscuit. Well who bloody wouldn't if there was a biscuit you want to eat on a table! I would have thought it was more related to if you asked them to sit at a table, they didn't understand and refused to sit and needed intervention. If there was a fire at school, my son would lie on the floor or run off if there wasn't an adult with him. He would try and touch the fire even.

I am obviously missing something though as they wouldn't have pushed their luck in the first place,so I may PM you this weekend if I have time. We are a few months into applying for an appeal but no date yet. Thanks for your help.