DLA Appeal Tribunal Advice

wayneyb

Good evening all,

I'm just looking for some advice regarding an upcoming DLA Appeal Tribunal. Please forgive the life story below but I would like to give as much information as possible.

My mum passed away in February last year aged 57. She suffered from COPD, which she was diagnosed with in 2009 after a couple of hospital admissions due to severe breathing problems.

She applied for DLA in 2010 and was refused, so she appealed the decision. The DLA claim was aimed at assisting her with transport costs to her part-time job as a cleaning supervisor in a school. Her job was a 2-mile round walk each day in all weather. My mum didn't drive, couldnt afford taxis, and there was no direct bus route. My mum relied on lifts from colleagues and family as often as possible to get to work, as eventually the walking became too much. At home she would often struggle just to climb the stairs. There are several times where she actually collapsed with breathing difficulties making this journey to work. She was advised by her GP to find another job, due to the type of work she did and the fact she had to walk there, but at my mums age in the current economic climate this just wasn't possible, and she couldn't afford to give up work.

Shortly after submitting her DLA appeal my mum passed away suddenly one morning from heart failure. Her GP was not happy to simply sign off the cause of death as COPD as he, like us, believed that it was under control with medication. After post-mortem the cause of death was listed as (A) Cor Pulmonale (B) Emphysema and Chronic Bronchitis. After speaking with the Coroners Officer he described to me in laymans terms that the lung disease had put too much pressure on mums heart and this had caused the heart failure. After telling him about my mums daily routine/work, he said this definately would have contributed.

Shortly after my mums passing I received a letter from HMCTS asking if we wished to continue the appeal on behalf of my mum and after discussing with family we decided that we did want to continue this appeal. At the time we felt strongly that had mum received DLA assistance this would have considerably made her life much more comfortable given that she would have been able to access travel to and from work every day.

As part of the evidence we were putting together we requested a copy of the post-mortem report. This was conducted in February 2011 and to-date the report has still not been completed and released to us. I have complained several times to deaf ears, and as a result of waiting the tribunal has been adjourned 5 times.

Myself and my family are now at a point where we don't whether to continue with the DLA Tribunal. As over a year has passed since mum died, that initial feeling of wanting to 'blame' someone has faded. I do believe that mum may have lived past February last year had she been awarded DLA, but then again pursuing this will not change anything and won't bring her back.

We don't really have much 'evidence' apart from personally speaking about my mums day-to-day life, which was a struggle. She had to work as she couldn't afford not to. Her journey to work was a massive strain on her health. At home she struggled to do everyday things like cleaning the house, carrying the vacuum upstairs etc.. My younger sister lived at home, although she stayed at her boyfriends regularly, and would take care of most household chores.Mum struggled even with doing a big shop at the supermarket, me and my sister would take care of that. She loved to garden but that became too much. She couldnt even have her grandson (my son aged 3) sleep over as she was worried she wouldnt be able to get up in a morning to him, her breathing and coughing were always worse in a morning.

In the last couple of months of her life she hardly saw her GP, they had prescribed her a massive amount of steroids and inhalers to self-medicate. She had access to a fast-response COPD team that she could call on, she did twice, but she felt they weren't doing much more than check she took medication if she called them. She had tablets, inhalers and a nebuliser which she regularly used.

So the question I am asking is what do you think our chances would be at the tribunal if we went ahead? Whilst we do want to fight for our mum, it will be very upsetting to have to relive and talk about her illness to a panel of strangers who may just turn around and reject it. This tribunal is going to be closure for us, and I am really torn as what to do. My mum had to fight for everything when she was here and I want to fight this for her, but if we have no chance I dont want to put myself and my sister through the upset. There isn't much money at stake with this appeal at all, that has never been the motivating factor for this.

Also, is it worth pursuing the complaint regarding the post-mortem report? Apparently the pathologist involved has a stack of unfinished reports dating back from last year, of which ours is one of many. I have liaised with the Coroners Office regarding this, but so far my complaints have been largely ignored.

Thank you for taking the time to read this and I welcome any advice. Feel free to ask any further questions if further information is required.

Wayne

rogerblack

You need to separate out the emotional from the legal.
There are several aspects here.
Was she entitled to a mobility allowance.

This is going to be problematic.

She seems extremely unlikely to qualify for 'low rate mobility' - as she did not require guidance outdoors - she could find her way OK (making assumptions).
If she could walk 2 miles - even struggling - it seems _extremely_ unlikely she's would meet the 'virtually unable to walk' test.
The basic condition for this is to be unable to walk about 30 yards.

Secondly - I'm not sure of the chronology.
She would have had to have been 'virtually unable to walk' for 3 months, in order to be entitled to high-rate mobility. Caselaw says that if you can walk 400 yards, in any manner, you're extremely unlikely to qualify.

On the care component.
Again, the needs would need to have existed for 3 months, and continue to exist for another 6.

DLA is not intended to help with domestic chores you can't do.
It is designed (in principle) to pay for care.
The care component can either be granted if you cannot cook a main meal due to disability.
Or a higher rate if you require either continual supervision to avoid danger, or a significant amount of care throughout the day.

It seems very unlikely on what you've sketched out that she'd be entitled on the continual supervision basis.

Care needs - could she cook a meal for one - taking her time - chopping, selecting ingredients, cooking.

If she could not - then she may have been entitled to low-rate care.

To get mid-rate care, she would need to need help with 'bodily functions' for a significant period each day.
These are _not_ domestic tasks.
They are if you are having trouble washing, or dressing yourself, or taking medication, for example.
Anything closely connected with the body that a normal fit person would do for themselves.

This is just my opinion - based on experiences reading the DLA regulations way too many times, and countless hours of research - I have no formal qualifications in this.
You may find http://www.dwp.gov.uk/docs/dmgch61.pdf useful, and http://www.nacc.org.uk/downloads/disability/adultguide.pdf .

Richie-from-the-Boro

Your mum died Feb 2010, no one dies of COPD, but COPD leads to (A) Cor Pulmonale (B) Emphysema and Chronic Bronchitis which in turn causes heart failure through lack of oxygen because the heart loses its ability to pump blood effectively.

It is certainly the case that your mum should not have been working by this stage, and that family members such as you and your sister should have been taking all of the physical chores on board and away from your mother but your mum should have stopped work long before this point, sadly its of no surprise to me that people of that generation just 'get on with it' even if it leads to death, and they do. No one dies of COPD, they all die of heart failure, the heart loses its ability to pump blood, without a good blood supply blood doesn't circulate as it should, fluid collects up in the lungs, feet and legs. The body is "congested" with fluid, which is why this disease is called congestive heart failure leading to right side of the heart [Cor Pulmonale] stopping.

As to making a claim against who [GP/ATOS/Hospital/DWP] for what ?, when in 2010 did she submit a claim for DLA ? and why was she refused ? what GP / hospital evidence did she submit ?, and when was the DLA claim refused ?.

wayneyb

Thankyou above for your replies.

My mum first applied for DLA in November 2010, 3 months before she died. She applied after advice from her GP after her latest collapse on her way to work. She didnt have to walk on a daily basis as she often had a lift both ways most days.

Her GP was still of the opinion that she was able to work, as the school where she worked had scaled back her responsibilities to mainly paperwork.

So when mum applied for the DLA she was applying for the mobility component. This was rejected in December 2010 on the grounds that, and I quote, "works as a cleaner supervisor at a secondary school for 16 hours a week which involves walking quite a lot". By this time mums job consisted of sitting at a desk filling in rotas, sickness forms, wages etc..

Mum requested a reconsideration of the decision and received a further rejection in January 2011, stating again that since she had a job at a school it would require lots of walking, when in fact her job by this time required very little walking as she was not capable of it at all, nor did her boss expect it from her. Her boss was fantastic with mum when she was ill.

I strongly feel, as the poster above says, that my mum should not have been working by this point. But she was a trooper, and couldn't afford to retire, nor was her doctor willing to advise retirement for her on medical grounds. At 57 years old she was not old at all, and I think it was a shock to her that her body was not allowing her to do the things she wanted to do, and probably felt she was capable of doing, and so she struggled on.

My mum appealed this reconsidered rejection in January 2011 but passed away before the first tribunal date. By this time my sister at home was assisting with helping mum out of bed in a morning (when she was at her worst), and sometimes with dressing her (this was increasing). There were times when mum was so bad in a morning that she had to text my sister in the next bedroom for help, as she was too breathless to shout.

Now when we decided to continue this appeal it was an emotional decision, not one made by sitting down and researching the relevant law. Now that time has passed we are reconsidering whether we pursue this appeal or not. Not knowing much about these appeals/criteria etc.. I am asking you good people for advice.

I do appreciate the advice given above. One of the criteria for the mobility component that is mentioned is that the effort needed to walk would put their life at risk or be likely to lead to a serious deteriation in their health. Given mum's several collapses when she had to walk to work, in which all occasions led to time off work to recover and further visits to her doctor, would this meet the criteria? Her last collapse was a few weeks prior to her death.

Thankyou for reading.

rogerblack

wayneyb wrote: »

December 2010 on the grounds that, and I quote, "works as a cleaner supervisor at a secondary school for 16 hours a week which involves walking quite a lot". By this time mums job consisted of sitting at a desk filling in rotas, sickness forms, wages etc..<snip>

I do appreciate the advice given above. One of the criteria for the mobility component that is mentioned is that the effort needed to walk would put their life at risk or be likely to lead to a serious deteriation in their health. Given mum's several collapses when she had to walk to work, in which all occasions led to time off work to recover and further visits to her doctor, would this meet the criteria?

The criteria for HRM you mention - severe risk - is a possible route.
http://www.osscsc.gov.uk/Aspx/view.aspx?id=1994 would seem to be useful caselaw, arguing a broadly similar case.

However.
Collapsing due to the effort of walking is not an automatic route to HRM.
It also needs to either directly cause a danger to life, (traffic, ... doesn't count) or to cause a long lasting (>12 months) deterioration in health.

Also.
The tribunal goes back in time and in effect sits in the place of the decision-maker at the time they made the decision.
They cannot consider events after the decision (other than as evidence of the condition at the time). Only the condition as of Nov 2010.

Her later worsening of condition, to the point where in Jan 2010 she may have qualified for a care award is not relevant, and cannot be considered by the tribunal.
It should in principle have been reported to the DWP as a change in condition, and a new decision made as to her eligibility for benefit.

You can't retrospectively do this.

Another problem is that she would need to have had been ill enough to meet the condition for being virtually unable to walk for 3 months (the 'backwards test') - so since August 2010 to be entitled at all if she applied in November.
If this was not the case, then the DM could not have awarded HRM, though they could have made an 'advance award' for 3 months time, when she would have met the condition for 3 months.