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Thread: DLA Failed on appeal

  1. #1

    DLA Failed on appeal

    So, I appealed the decision that I was given for my dla claim. I appealed as I disagree with the rate of disability that I was awarded (LRC and LRM) but I only appealed against the LRC as I didn't disagree with the award of LRM. I didn't believe my award was correct based on the fact that, from what I've read, those who require continual supervision due to a risk of harm to themselves or others are granted a higher rate of care then what I was awarded.

    My grounds for this was that, in the last 2 years I have tried to commit suicide 6 times. I've been diagnosed with clinical depression and anxiety.

    To quote why they decided not to increase my care component award regards to me being at risk of self harm (their words, not mine)

    "You told us you need supervision during the day as you are at risk of self harm. You stated that at night you are at risk if you are unable to sleep. You have been prescribed sleeping tablets to help with this."

    " Further information which you supplied for the consideration request states that you have recently been admitted into hospital in November 2013 due to an episode of self harm. It was established during the telephone call that there was no specialist involvement or further follow up other than with your GP which resulted in a change of your medication and further treatment with counselling sessions. You no longer attend these sessions."

    Information for the decision has been obtained from your GP. This report confirms diagnosis of anxiety and depression. The report indicates that you have full insight and awareness of danger. The GP has not commented on any difficulties in this area of your condition."

    "Overall, having considered the information above, prescribed medication and specialist input, whilst it is accepted that you may experience difficulties based on the information presented, I consider that you are able to ask for help and reassurance when needed and overall you do not require continual supervision right through the day or watching over at night for the majority of the time."

    Firstly, I told the lady over the phone that even with sleeping tablets I only sleep for 3 hours at night. As for the "episode of self harm" which occurred in November, it was not an self harm, it was a suicide attempt that DID NOT result in me going to or staying in hospital. I explained this too her when we spoke over the phone. She then states that there was no specialist involvement but later states that the decision was made with the help of specialist input.

    She also wrote that due to the "episode self harm" I sought counselling and the GP changed my medication due to this. They/I did no such thing. I met with a counsellor once to discuss a change in medication due to being on it for sometime and building up a tolerance for it. It had absolutely nothing to do with the suicide attempt. The suicide attempt was in November last year and I met the counsellor in march of this year. Again, I told her when I met with the counsellor.

    She wrote that my doctor said "The report indicates that you have full insight and awareness of danger." I agree, I'm aware that a knife is pointy and that taking too many pills is bad for me. That's the whole point, is it not?

    She wrote that "I consider that you are able to ask for help and reassurance when needed" I have never taken an overdose and told someone that I plan on doing it. I have also never taken an overdose and then told someone that I have just done it. Every time I have tried to commit suicide I have done so and then waited to die.

    I'm unsure as to what I should do; should I complain, go to appeal, do nothing or is there another option?

  2. #2
    Before we go any further - what stage was this? Is this:
    1. the initial decision on your initial claim / change of circumstances report
    2. the decision on reconsideration, or
    3. the reasons given following appeal to the First-tier Tribunal?

    Your options are different according to the stage you are at and, potentially, where you live (don't worry about that part at present).
    Last edited by Flymo; 04-24-2014 at 02:32 PM. Reason: Reformat to make the three answers to my initial question clearer

  3. #3
    It was a renewal of my dla, which I then took to the appeal stage. This was the result of the appeal stage, I think the next phase up is the First-tier Tribunal?

  4. #4
    The next stage after the initial decision is reconsideration by DWP. It's only an appeal when you appeal to the First-tier Tribunal.

    Can I check that you now have are two copies of a mandatory reconsideration decision, with instructions that you can use one of them to the First-tier Tribunal.

  5. #5
    Yes, I have 2 copies of the mandatory reconsideration. I thought it was an appeal, shows how much I know. Also, I'm from Oldham down near Manchester.

  6. #6
    You have two options living where you do, assuming you were under State Pension age on 8 April 2013. You can appeal to the First-tier Tribunal, in an attempt to show that the DLA award is incorrect, or you can close your DLA claim and apply for PIP instead.

    Eventually you will have to move from DLA to PIP, but closing your DLA claim and claiming PIP now is risky. You'd probably get nothing for at least six months, as the PIP system is moving very slowly in making decisions. If you were awarded PIP, it would be backdated to the date of claim in this scenario, but there's a risk that you won't be awarded PIP.

    If you are going to appeal to the First-tier Tribunal, you need to concentrate on showing it's more likely than not you meet the criteria for a higher Care component award. Dealing with errors and misconceptions that do not affect the outcome, such as whether you were or were not admitted to hospital in November, just distracts from the case you are presenting.

    In other words, the aim is not to put every error right, but to show you should be awarded a higher rate of the Care component.

    For a higher rate of Care component based on the need for supervision, you have to satisfy one or both of:
    • during the day, you need continual supervision to avoid substantial danger to you or someone else
    • at night, you need another person to be awake for a prolonged period or at frequent intervals to watch over you to avoid substantial danger to you or someone else

    These are high standards to meet.

    Adding in the definitions from case law, the day condition means most days you need someone with you all the time, other than for short breaks, because there is more than a remote possibility of you harming yourself. You would have to show that you need someone with you - if you get any warning that you might harm yourself before you go on to do so, or there's any less intensive way to keep you safe, such as an hourly phone call, the need is unlikely to be for continual supervision from another person.

    Adding in the definitions from case law. the night condition means most nights you need someone awake and watching you for a prolonged time (at least 20 minutes) or repeatedly (more than once a night) in order to avoid you harming yourself.

    Your GP's report says you have full insight into and awareness of danger, and apparently has not identified particular problems with you endangering or harming yourself ("The GP has not commented on any difficulties in this area of your condition"). Without medical evidence supporting a much higher level of risk of harm, I think you're going to struggle to establish either the day or the night criteria applies. If I have accurately summarised the GP report, it seems fatal to establishing the case for a higher Care component award based on risk of self-harm or suicide - though it may well be that your GP doesn't have a full insight into that area of your condition.

    Six suicide attempts in the past two years is a lot, but indicates the risk of suicide may be intermittent at most. You do not say whether you self-harm as well as attempt to take your life, though a pattern of lower level self-harm might indicate a greater need for supervision.

    To establish the day criteria, you'd likely need to show that more often than not, you are at risk of harming yourself unless you have someone in the room to intervene, and there is no way for you to summon help when you realise you are unwell before you go on to harm or endanger yourself.

    Probably the simplest way to look at this is to ask the question "am I safe to be left alone?". If not, how would you explain to another person why you are not safe to be left alone?

    I realise that simple question puts you in a very difficult position, because establishing you are unsafe to be left alone shows you are potentially entitled to a higher DLA award, but sharing that information with the mental health team to try to get supporting medical evidence may lead them to conclude you should not be alone which could, in an admittedly remote scenario, have consequences for your liberty.

    As you can probably see, trying to establish entitlement to middle or highest rate Care DLA based on risk of self-harm or suicide alone is potentially quite tricky. DLA is awarded based on your overall care needs. I encourage you to get help from someone with experience of DLA appeals, ideally from a mental health background, who will be able to explore further whether you have a winnable case for a higher Care rate. Is there a welfare rights worker or similar attached to the mental health team looking after you?

    Another approach would be to talk to one of the mental health charities. They will have a much better feel than I do of how your needs fit with the DLA criteria.

    Please don't leave this with just my views, as I'm just one person. I'm trying to be honest about the high level of need you would have to show to get a higher Care component award, but someone with greater practical experience than I of how the DLA criteria fit with mental health problems and who has a working knowledge of relevant case law may be able to give you some more practical advice. This is one reason why I'm encouraging you to get help with any appeal.

    glasgowadvisor or Jim - if either of you are reading, I'd be interested to read your views.

  7. #7
    The only medical evidence that I have in regards to being a danger to myself is in regards to my stay in a mental hospital from January 2012-March 2012. I was admitted into hospital after I was found trying to commit suicide. I was only released from hospital as they knew I was going into the care of someone else, or at least that's what the hospital staff said.

    Further explaining to my doctor that I still feel the way I did before my stay in hospital is a hard subject to discuss as I've little interest in ending up back in hospital. I've ran the scenario of how to best broach the subject with any medical professionals many a time but it's a touchy subject. The only other way around it is to go and see a counsellor, whom I would be more trusting with due to my stay in hospital as they seem to be more interested in other ways of helping then a visit to a psychiatric ward.

    I have previously self harmed but it's not something that I consider doing regularly.

  8. #8
    I doubt that medical evidence on risk that is more than two years old will be of any assistance now.

    I understand the difficulty of being more open with the doctors about how you feel - that's what I was alluding to in my earlier reply.

    My feeling is, as in my earlier reply, that you probably do not meet the criteria for a higher DLA Care award, as the evidence seems to indicate that "significant danger" (to use the language of the DLA Regulations) is only occasional and you do not report lower level self-harm. However, I would urge you to check the situation with other sources who have more experience of DLA and mental health than I do, such as the major mental health charities. There is almost certainly case law on suicide risk and the need for supervision that I am not aware of and could only find after extensive research. There may also be other aspects of your condition that you have not mentioned here which are relevant to the DLA criteria.

    If the consensus is that you do not meet the criteria for a higher DLA award, then your interests are best served by not fighting a futile appeal. However, it would be a shame to miss out on DLA you were entitled to, so it is understandable you would want to take this further if there is any hope of a higher DLA Care award.

    To be clear - I am not ignoring the seriousness of your condition, merely saying that it does not appear to meet the criteria for a higher DLA Care award on the description you have given.

    I hope things get better for you. Though my problems lie almost exclusively in the physical health domain, I've been through periods of the sort of sleep deprivation you describe due to extreme pain. The sleep deprivation makes life much harder.

  9. #9
    your best bet would be to try and obtain help from a local advice agency that are able to provide representation.

    they will be able to not only go through the criteria with you but do it with the knowledge of having represented similar cases in the past and particularly before the panel members that you are likely to get should you decide to appeal.

    a representative should be able to give you a decent assessment of your chances of success at an appeal prior to lodging one but the best opinions are formed when an appeal has been lodged and you have read all of the papers and met the client (i.e. you). this allows you to properly weight up what the DWP say, what you say and what the evidence says.

    its very difficult to estimate the strength of your case on a forum as a large part of any appeal is how you are likely to answer on the day, only actually speaking to a representative will give you this insight.

    if you are still entitled to DLA I would recommend seeking advice before doing anything but do so quick as there is a one month time limit to lodge an appeal.

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