I have just been refered an unusual DLA appeal case. Client suffers from what his GP calls "drop attacks" which means that he suddenly collapses without warning. The client has injured himself a number of times and will now no longer walk at all, instead he crawls around his flat on his hands and knees, causing hugh caluses on his knees. The client has had numerous tests to find a physical cause for these attacks however nothing has been found to cause them. The client has never been offered a mental health assessment.
The client currently receives lower rate mobility/lower rate care but is appealing this an hopes to be awarded higher rate mobility. (he had previous received HRM but lost it on renewal). I wondered if anyone had any advise on how to approach this at the appeal tribunal as although the client can physically walk, he says he is unable as he may collapse at any time. Is he virtually unable to walk?

This is a very difficult one. Has the client always suffered from these drop attacks or are they a recent development?

Are the injuries sustained so serious that you could argue the exertion required to walk would endanger her/his life or lead to a serious temporary or permanent deterioration in her/his health, thus qualifying him for high rate mobility through this route?

I am working on an appeal re ability to walk at present and will refer you to any useful case law as i proceed.

For the "exertion required to walk" to be relevant there must be some link between the exertion required to walk and the drop attacks. The exertion required to walk must presumably cause the drop attacks. From what is said about the condition, there being no identifiable physical cause, this does not appear to be the case.

Again for the "normal" virtually unable to walk criteria the walking difficulties must be physical. In the absence of a physical cause could the drop attacks be relevant?

If they are then it is not clear what the client's walking ability is without the drop attacks. The frequency of attacks may be important, but I presume they would have to be quite frequent in themselves.

Do the caluses impair walking ability as this may be a factor?

Thanks for your responses.

In answer to some of the questions your raised, the client suffers a drop attack if he is standing or walking, he rarely has a problem sitting down. He has not yet suffered serious injury however it is a posibility due to the sudden collapse he experiences. He is less likely to suffer serious injury if he crawls on his hands and knees so that is why he does this. The client has had 9 drop attacks this week, sometimes he can collapse several times in a short space of time.

Although the client can physically walk, and choses to crawl on his hands and knees, his arguement is that he has to in order to avoid harm to himself.

Hmmm... Very interesting scenario. Don't forget that one of the virtually unable to walk tests is 'manner'. The relatively frequent occurance of these drop falls would arguable affect the manner in which he walks. From memory there is some caselaw around that covers falls and hrm, I can't recall the exact details but this might be worth looking into.

How does he manage when he does go out/ were to go out? Presumably crawling is not an option outdoors. Does he/ Would he require physical support from another person?

The fact that there is no identified physical cause could be problematic. However the absence of a diagnosis in itself should not preclude someone from qualifying. The fact that no sort of mental health assessment has been offered suggests that there are no doubts that the cause is physical. If the GP could provide evidence to this effect, it might get around the issue of physical cause.

The caselaw I was thinking of was CM/364/92 which supported CM/361/92: "Many people are liable to fall, but are still perfectly capable of walking. It would only be in the most extreme case that the propensity to fall was of such significance that it operated to render the person concerned virtually unable to walk". So it would be a question of persuading a tribunal that this was an extreme case, which would probably be worth a crack- it's certainly unusual.

Also R(M) 1/90 looked at physical support.

Developing Sara's point, the reg says "....or the manner in which he can make progress on foot without severe discomfort..."

Although many of us, myself included, are guilty of using the phrase "before the onset of severe discomfort" which will, in a lot of cases, adequately describe the client's problem, it is the ability to make progress on foot without severe discomfort that is the test.

Could it, therefore, be argued that if a drop attack is a likely consequence of an attempt to make progress on foot, then if severe discomfort results from the fall, the test for the HR mob' is thereby satisfied.

Regards
Paul

There is an outline of the problem and possible causes of drop attacks on the www.dizziness-and-balance.com website. It quotes some research which found that only 1% of cases were due to psychological rather than physical health problems.

If your client's drop attacks do have a mental rather than a physical cause then this would not necessarily in itself be a problem with establishing eligibility for the higher mobility component if they are accepted as causing him physical walking problems - see the briefcase summary of Commissioner Rowland's decision in CDLA/3323/2003.

I'm not sure if the difficulty in your client's case may be in establishing that the frequency of his attacks merit a higher mobility award.

CM/364/92 held that while many people are liable to fall they are still capable of walking, and it would only be in the most extreme cases where propensity to fall was so significant it rendered someone virtually unable to walk.

R(M)1/78 concluded that a child who suffered unpredictable epileptic seizures was not virtually unable to walk as they could still walk one mile.

Whereas in CM/125/1983, it was held that where the frequency of epileptic fits could amount to three within half a mile that claimant was virtually unable to walk.

(See the commentary on page 569 of Social Security Legislation 2004, Volume 1 Non Means Tested Benefits).

Commissioner Parker didn't agree with Commissioner Rowland in CDLA/3612/03 I have an elctronic copy of this. If someone from rights net can let me know how to attach a copy I will do or let me have an e-mail address I can forward it. His Honor Judge Gary Hickinbottom has directed a tribunal of Commissioners' to consider this issue, in light of the conflict - the date is as yet unconfirmed.

Thanks to Warren for sending in to us Commssioner Parker's decision in CDLA/3612/2003.

Although it does conflict with Commissioner Rowland's decision in CDLA/3323/2003, both are unreported and neither 'refer to the other' so arguably, unless or until CDLA/3323/2003 is overturned by a Tribunal of Commissioners, a tribunal can choose which to follow and favour.