Help! How do I establish that my client, with a progressively deteriorating condition, had a change of circumstances within a 6-week time slot?

The story - My client, suffering from severe neck and back pain after a slipped disk, applied for DLA and, after a pretty hopeless medical, was awarded Lower Care only in August 07 (the DM preferring the EMP report over her pretty good application form). She came to me in December and I felt that she should have received Middle Care and Higher Mobility, but that a late appeal was not possible. So I suggested she went for a supersession. The decision came back unchanged. We went for appeal. The Tribunal wants to look at the question of whether there are grounds for a supersession before proceeding further. I am looking into "ignorance of material fact", but there's no obvious hole there, because most of the facts were on the application form.

Because of the 3-month "backwards test", if we are looking at change of circumstances, we have only a 6-week slot in August/September. There are no obvious markers of the worsening of her condition during this period, and it is difficult for my client to remember that far back.

Do you think that a letter from her GP saying that her condition was gradually worsening from, say, July to December would be sufficient to prove a change of circs which could affect her benefit during that 6-week slot?

Any other strategy suggestions?

Have you looked into "mistake as to material fact"? Note, the fact has to be a primary fact, not a secondary fact or conclusions from facts.

Yes, I'm looking into that, too.

I'm wondering whether the EMP's failure to report the fact that she fell down during the examination is relevant to this? or whether his guess that it would have taken her 10 minutes to walk 100 yards from the bus stop to his office, rather than ascertaining from her that it took over an hour, will help?

.....Even, just for the sake of arguement, it took her 10 minutes to walk 100yards, that equates to 176 minutes to walk a mile - or a walking speed of one mile in three hours. Average person walks at a speed of about 3 to 4 miles an hour.

Therefore, on the Doctors own corroberating evidence, her speed of walking is so slow that she should be considered as being unable to walk to any useful and/or practical extent........

...tis only a thought.....

I think you've misunderstood. The EMP said her walking speed was "normal". On that basis he estimated that it would have taken her 10 minutes to walk from the bus stop.

I am not too worried about establishing that she was virtually unable to walk, but the Tribunal won't even look at that issue unless we can establish that there are grounds for a supersession (even though SoS never brought that up as an issue!!!).

Sorry, Mike, I now realise that you hadn't misunderstood that bit. I need to go back to the papers on Monday and check whether my memory of 10 minutes is correct.

But we still have to establish grounds for a supersession, before I can use any "virtually unable to walk" arguments.

...I think I was trying to point out that the medical report was, shall we say, suspect to the point of not presenting a totally ficticious picture of the client - given what else might or might not be contained in that report, can you not build a case for a supersession on the grounds that the decision was based upon on evidence that was akin to fictional...?

Sorry, should have read "...suspect to the point of presenting a totally ficticious picture of the client....."

Dyslexic fingers ......

Sorry, I totally mis-remembered the bit about walking from the bus-stop.

The point at issue was that my client reported that it took her 10-15 minutes to walk to the post box. The EMP said that, at assessment her walking speed was normal and calculated that this "would suggest that the distance would be at least 200 metres if not significantly greater". In fact the post box is 30 metres away.

Sorry, for leading you up the garden path on this.

Can anyone enlighten me on the question: Will evidence of gradual deterioration over a longer period, be adequate to prove a change of circumstances during our 6-week window?

Hi. I think that all you can do is argue that, if there was a gradual steady deterioration in her health over a period of months, then it woud have deteriorated during the six week period in question and that this was a change of circumstances. The supersession rules don't require a major change, just a relevant change.

Thanks, that's helpful.

Fortunately I've just heard that on a recent supersession she's been given Higher Mobility and Middle Care. I'm sure that will also help me establish that her condition was worsening in the previous year.

Can somebody explain Nevip's comment:
"Note, the fact has to be a primary fact, not a secondary fact or conclusions from facts."

Peter

I oversimplified that slightly. There is no real material distinction between primary and secondary facts unless the secondary fact contains some element of a conclusion. For example the statement “ I have rheumatoid arthritis in my hands” is a primary fact and, therefore, a material fact. The statement “my grip is weakened” is a fact secondary to the primary fact but is still a material fact.

The statement “ I cannot cook a main meal” would be a conclusion from the above facts even though that may well describe a factual situation. This is because this calls for an opinion from a decision maker based on the known facts and the available evidence. Just because a different decision maker might have come to a different conclusion does not mean that that would amount to mistake as to material fact. There! Clear as mud.

Thanks, Nevip. Very helpful - and a lot clearer than mud!