DLA hearing

[mmaher70]

Have to represent a family member wens at tribunal, she has numerous ailments including Parkinsons and has just gone into sheltered accomodation she is 65. The case goes way back to Nov 2010, her GP backed DLA but apecialist was vague. DWP sent out ATOS who lied on their form and asked her questions relating to a very upsetting event forty years ago which had no baring on current health. They then heard no more and after repeated calls got told by DWP they had not sent out a Doctor. I came on board last July wrote a letter with copy of Atos appointment letter threatening MP. They wrote back saying she still did not comply no mention of Atos report which I asked for. I got her MP involved and they finnally jumped. Having worked civil service had some idea of how it worked. They apologized and said case had been filed away and as Parkinson specialist had not agreed then doctor had there had been mix up on computer. It has carried on same vain. I complained about Atos doctor got an apology nothing more productive put it a new claim same time as my cousin was getting sicker and needed to be moved from her current council flat. the new claim has been approved at the higher rate 125.00 a week. They recalled case from court but have since sent it back. I applied for compensation for her which we got of 160.00 so I had an acknowledgement of DWP failure. This case is for the period Nov 2010 to Feb 2012 which is how long it has dragged on so it is a fight for monies from an old case as new case won. Her GP throughout has backed her claim. I am not too well myself but having had civil service experience and thought if I jumped up and down enough re MP, compensation and threat of ombersman they would back down they wont. Very nervous how to do this as I have been OK so far in my claims. She has and had then ,Parkinson’s, osteoarthritis, diabetes, complex kidneys, sciatica and high blood pressure.
Question really is it has been a complex case with loads of [auto mod] up by Atos and DWP, with Dwp they have admitted fault but ATOS as usuual your word against theirs. How do I present?

[nickd]

Many thanks for joining Mmaher; I hope this is of help...


Getting help


In all cases I would encourage you to seek the help of a welfare benefit specialist. The way I look at it is if you have toothache you'd go to the dentist because they are best placed to help you, similarly Tribunals can be a painful experience so don't be afraid to seek help!

Assuming you haven’t been able to get help, here’s what I would advise you to do.


Establishing what stage you are at


I’m trying to read between the lines as to what has happened here and given how the dispute has dragged on since 2010 and your use of words such as ‘hadn’t complied’ as well as the obtaining a report from ATOS I am assuming this has already been subject to what are called ‘Tribunal directions’ - these typically order (1) An ‘independent’ report from an Atos healthcare professional and or the claimant's GP. (2) direct the ‘parties’ in the appeal to do things in a certain time.


Getting documents in order


It's essential to ensure you have all the relevant documentation. It may be worth telephoning the Tribunals Service to check you have a ‘full set of papers’ as the case is with now them; I’m only guessing as to what has happened (you mention a hearing so it must be with the Tribunals Service). It’s vital that everyone has an up to date set of documents, once this has been established you will need to check them for (a) the evidence (b) any law which has been cited and (c) complying with any previously issued directions.


Separating the complaints from what the Tribunal is able to deal with


I follow that you have been involved in a dispute concerning Atos & the DWP as well as involving your MP. More likely than not these will be related to issues of complaint which are not within the jurisdiction of the Tribunal. Complaints may be relevant to the case but the Tribunal’s task is to determine the appeal according to the law. Try and separate issues of complaint from the issues which the Tribunal is able to deal with. As a family member you will need to try and look for the most helpful facts; it can be very difficult because emotions can sometimes stand in the way.


Advancing the case


If you are not clear over the law or they are raised as an ‘issue’ in the appeal papers or mentioned in any Tribunal directions you should definitely seek advice. Cases are won and lost on issues related to law.

It is a must to get something in writing to the Tribunal, we call this the ‘appellant’s submission’. I would always start by reading what is known as the Secretary of State’s submission (the appeal papers).


Identifying the decision & getting evidence


The starting point is to identify the decision under appeal; the Tribunal generally only has the jurisdiction to deal with the decision which it is being tasked with determining . In this case it looks as though the decision goes back to November 2010 and covers the period up to February 2012. Any evidence must relate back to when the decision was originally made.

The fact that a higher rate claim (is this care or mobility or both?) has since been granted is helpful because it show the conditions have now been met. However you must relate the evidence to the period beforehand and in particular around November 2010 when I suspect the decision was made.

Write out a chronology (a date ordered ‘time line’) over how the claimant's condition has impacted upon their mobility and care needs. It helps to write a bit about their longer term history just so the Tribunal get’s some idea how things have fallen into place. List when the illness started and what medications are taken. It all helps to get the Tribunal to see someone as a person rather than just ‘another appeal’.


Then set out your case.


For this are you able to clarify whether you are arguing for mobility and care or both? I am presuming the case for DLA was made well before the claimant reached the age of 65?

Have you got a date for the hearing?


Tell me more?

[mmaher70]

She turned 65 this April so just before changes would affect her, the case is this Wens so I am going up to Coventry for it. As regards the legal argument it is a direct argument between GP and ATOS doctors, her Parkinsons support worker filled out the original claim form. Now she is getting both care and mobility. Dwp argue she suddenly got this bad which is not true, Parkinsons is progressive, not sudden. She had a previous claim for DA refused. She has now agreed to go with me which I had thought she would not as this all confuses her and she is having a hard time with side affects of medication, paranoia seeing things all told to ATOS not submitted. Do I list the inaccuracies in ATOS ass against how she was? ie he said she could walk 200 meters he was told she couldn't, he said no problem getting up not the case, flat at the time was adjusted because she needed aids is this the type of thing? I ignore problems with DWP but do I say complaint to ATOS was made? It has been left late as I thought with enough pressure from me they would back down and I was unsure what to do next. Believe me if she comes with me she is very very ill and suffering numerous complaints. Also she has to be near a bathroom how do I go about insuring that? Once again big thanks

[nickd]

Given that the hearing is on Wednesday you have little time to prepare as fully as perhaps is ideal. However, I would still get something down on paper if you can. It needn't be long but should provide:

An account of the progression of your cousin's illness. The DWP obviously accept that she meets the criteria now so can you perhaps get a brief note from her doctor to confirm that her illness was already well progressed in November 2010?

Set out in bullet points how your cousin's condition was already bad back in November 2010 and use practical examples to counter what the Atos doctor says, for example:(I'll call your cousin 'Miss A')


Mobility


In arguing Higher Rate Mobility: The healthcare professional concludes that Miss A could walk distances of 200 metres. However, in November 2010 there were many days when she found it hard to go out at all. She was very restricted in her mobility and often needed help from another person to manage very short distances of as little as 50 metres - she was virtually unable to walk. She was like this for around 4 days in every week. Physical aids wouldn't really have helped because she needed someone to be with her.


In arguing Lower Rate Mobility: The healthcare professional concludes that Miss A could go out on her own. However, in November 2010 there were many days when she found it impossible to go out at all. She became increasingly disorientated in strange surroundings and would need someone to be with her to ensure she could get around safely. Miss A needed someone to supervise her and guide her on most occasions; she stopped going out independently some time before hand.


Personal Care


With personal care you need again to cite specific evidenced based examples of what your cousin could not do in November 2010. These must relate to examples of care tasks which are personal to your cousin such as:

• Getting in and out of bed
  
• Getting washed & attending to personal hygiene
  
• Getting dressed & undressed
  
• Using the bathroom/toilet
  
• Moving about indoors
  
• Needing someone to be on hand to keep an eye on her
  
• Taking her medication
  
• Help with socialising
  

Use specific examples against each but confine it to the kind of personal care related tasks mentioned above (they are those mentioned in the form). It would be irrelevant to cite difficulty with tasks such as 'tending the garden' - they must be related to personal need.

In a case like you have detailed there will be a combination of psychical & mental factors. So use related examples of 'attention' based help such as


Psychical


Miss A needed the help of another person to help her with getting out of bed. She was too unsteady on her feet and needed physical support.


Mental


Miss A needed the help of another person in the form of coaxing, persuasion, motivation & encouragement to help her with getting out of bed. She needed help to assist her in being helped to face the day ahead. There were days when she felt negative over what she could manage and encouragement had to be given to help her maintain a positive frame of mind.


Time & frequency


I'm fairly limited in what I can tell you in a post like this but you need to cite examples which convince the Tribunal that the needs are frequently required throughout the day and or night to qualify for a middle or higher rate care award. Less frequently or 'significantly' (which has been held to be as little as an hour a day) is only likely to lead to an award at the lower rate. Read the qualifying criteria which is outlined in the Secretary of State's submission for further guidance; it's the law which the Tribunal will be following. Establish the frequency as it affected your cousin. It needs to be more often than not, so cite examples of how she would have needed help for 'X' amount of hours per day on 'X' days of the week. Don't get too hooked in to long technical debates over this, the Tribunal is best persuaded by persuasive and succinctly put examples. Use what you have written down as your 'crib sheet' at the Tribunal. You can hand it in on the day but it really should be sent to them beforehand. The Tribunal can refuse to accept late evidence. If they do still use it as your prompt sheet.


At the hearing


I can understand it is difficult for your cousin to go but really that's all the more reason why she needs to be there. Let the Tribunal see for themselves how difficult it is for her, but remember they will want to know about November of 2010. If she can't remember just tell them 'I can't remember'. Only give evidence which is credible and where a person can't remember themselves others may be able to fill in the gaps. The Tribunal will want to hear from your cousin so allow them to speak with her directly without any interruption. Just carefully chose when to intervene if she appears to be getting muddled up in her evidence. Take notes and then speak with the Tribunal on her behalf after she has spoken.


Make it clear as to the basis upon which you are attending. Be careful over saying you are a representative. It would be better to say you are a family member who is just trying to help. This is because the Tribunal can expect more of someone who is acting as a representative; there is an onus on a representative to put the case differently to how a friend would. If you make statements about your cousin's needs the Tribunal would probably want to know how you know how she was affected at the time. So be prepared to give examples of how you witnessed her care needs by citing examples of when you were with her at the time.


I would avoid a setting off of the evidence between Atos and your cousin's GP, let the facts and evidence convince the Tribunal as to who has the more accurate picture. By all means say a complaint has been made but the Tribunal will only be concerned with this if it materially affects the evidence. Don't cite words like 'lie', it is better to highlight an inconsistency in the evidence by illustrating facts which undermine the evidence you are questioning. If there are 'factual' inaccuracies in the medical report then by all means highlight these but don't dwell on them in the hope the Tribunal will be able to resolve them; the Tribunal has no jurisdiction to do so.


It may be relevant to say how the healthcare professional's reference to events of 40 years ago upset your cousin and threw the medical report off on the wrong footing? It may help to explain this from the start by saying to the Tribunal that the healthcare professional dwelt on matters which your cousin finds very upsetting and which are related to some time ago. Urge the Tribunal not to repeat the same mistake by politely guiding them to her more current problems. That said it well be that events from the past however remote they may be may have a relevance to your cousin's health today so keep an open mind on allowing the Tribunal to explore this.

I hope this helps you, please let me know if it does and how it goes?

Good luck!

[mmaher70]

I live in Brighton which court know re address representative, can i bring in son or daughter- in- law, the latter was with her at ATOS ass or both?

[nickd]

Yes they should all be able to go with no problem at all. Just tell the Tribunal clerk beforehand and arrive in good time.

[mmaher70]

Just to let you know and thanks for advice the dla and care component at the lower rate was gramted going back to Nov 2010, thank you so much for all your help

[nickd]

That's excellent news mmaher! So long as you're sure your cousin is happy with the award then all is well. If on the other hand she isn't then you have one month in which to request a 'full statement' of the Tribunal's reasons with a view to appealing to the Upper Tribunal. Make sure the backdated amount is correct and check any impact the award may have upon other benefits with the inclusion of the disability premium; although I suspect this should already be in payment.