I have a client who injured his knee in an accident at work. The decision on his Industrial Injuries Disablement Benefit claim is:-
- the accident caused him loss of faculty
- the loss of faculty is pain and limitation of movement of left knee
- he is 10% disabled (for life) because of loss of faculty
(and because the % is less than 14%, no benefit is payable).

My client wants to appeal this decision. I've never done one of these before, and so I'm trying to find out how I can judge whether 10% is a reasonable assessment, and if it isn't how we go about trying to prove it. I've read the Medical Assessment Framework, and although it was fascinating, it didn't help me much.

All suggestions will be gratefully considered.

I have a semilar client involving a client who was awrded 10% following an accident at work where she injured her left shoulder and retired on ill health after 2yr following the accident.
I will be grateful if you can let me know the outcome of your case and how you were able to challenge it.

Urgent responce will be highly appreaciated

When looking at the % assessment they have to compare the individuals condition with that of an otherwise fit, healthy person of the same age and sex. Using as a starting point the mythical 'normal' person as the guide.

So you enter in to the world of what is the norm for a person of your client age and sex, just how much deafness would be normal for a man of 35? How much difficulty would be normal for a woman of 56 with walking?

Basically the assessment comes down to the judgement of the EMP who does the assessment on the day. Some conditions have % asigned in the regs so the % allocated is fixed.

If your client wants to challenge the current % awarded they can do so either by trying for 'unforseen aggrivation' of the condition, it's got worse and noone could have predicted it would....

Decision Makers (and Tribunals) have a degree of freedom to take an individuals circumstances into account, and could for example increase a % to take account of the fact that a blind person could have more difficulty as the result of an accident than a sighted person.

They should not just look at what is general for people with a given condition, asthma for example wont restrict everyone the same ways. It's always worth looking at whether sufficient account has been given for the inconvenience, embarrassment, anxiety or depression experienced by the individual. All factors that could lead to the % being increased.

Would need to be aware that there could be a risk of the % going down as well as increasing, and what effect an award of industrial injuries benefit could have on means tested benefits...

I would suggest a good start point would be to speak to the GP or Consultant to see if they consiider the % reasonable, request copies of all of the information considered in reaching the decision, it is possible that the % has been added up wrong, or there may be other assessments for other conditions that could be combined to increase the over all %.

Hope that this will help.

Thank you very much for your support. This is very helpful

We do a number of these types of appeal, however we do point out to clients that unless they have the support of thier GP or a Specialist they are unlikely to suceed.

We do stress that the award could just as easily either go down or be removed completely.

It is always worth checking to see if the client is a member of a union, don't know about where you live but up here the unions are very experienced in helping clients with IIDB appeals.

Good Luck

Can also be worth putting in any affects of accident and inability to work or do things used to enjoy on claimants mental health. I've found that a Tribunal will quite often put in 2 or 3% for depression, low mood etc as they accept that this is alos a direct result of teh accident.

It's often worth appealing decision on %age anyway as it does seem so random how they come up with the level of disablement. One decision-makers 10% can be a MAT's 14%

Your client has nothing to lose by going to an appeal, and as Derek says one person's 10% could easily be someone else's 14%. It seems tribunals are more generous. Need to warn client they could be examined at the appeal though.

Trouble is your client might have nothing to GAIN by winning as IIDB is taken into account for all means tested benefits pound for pound, so it's only really an advantage if client has a working partner and would otherwise get nothing.

DLA is more advantageous in that way.

And has client investigated making a personal injury claim?

Just a point in respect to other medical evidence. I have had client's (ex miners) who have received compensation via private awards (suported by their union) from thier current/ex employer. They have had indepth medical reports carried out by solcitors acting on their behalf. I have found that both the DWP and tribunals do not hold a great deal of high regard for such reports on the basis (off the record comment from a DWP staff member) that these payments are awarded quite freely - 'apply and you get it'!

Don't know if anyone else has noted this responce?

Whereas is might not matter now if his award went down, it could be important in the future, were he to have another accident. Degrees of disablement are additive; so if he stuck at 10% and received a second injury assessed at 5% he would qualify for IIDB, but wouldn't if the current award were reduced to 9% or less. I've had several clients with two II awards, and one with three - it's a factor of the nature of their employment.
You need to balance the likelyhood of increasing the assessment at appeal with that of decreasing it and having another accident.