Client claimed DLA December 2003. Tribunal found condition changed January 2004. Decision was made February 2004. Tribunal said 'can only look at circumstances before date of _claim_', so I appealed on ground that January was before February. Leave refused by DC due to 3 month backward rule. I put in additional letter with copy of CDLA 4228 2003 quoting "The fact that JH becomes 16 shortly after the decision was made is a circumstance that obtains at the date of decision", saying that April will be three months after January and that was known in February.

Leave refused stating: "Although it would be a circumstance obtaining at that latter date that after x months the claimant would be x months older, I do not see how it can be said to be a circumstance obtaining at that date that the claimant would still have the same relevant problems three months form January 2004. In the present case this gives an unfortunate result from an ill-advised change in the law, but the decision was correct in law."

I can see that but I have a great big but in my mind.

Does everyone agree with the DC and Commissioner? Any ideas very welcome.

I really don't want to sound ungrateful but if 157 people have looked at this does no-one have something to say??

Any replies most welcome.

Its not clear from your posting if the decision under appeal is a refusal of a new claim or a supersession, but it might not matter. Have you looked at reg 13A Claims and Payments regs? If the only reason the claimant doesn't qualify is because they have not served the three month qualifying period the Secretary of State (and hence the Tribunal) can award benefit from the date at which the conditions will be satisfied.

I might have misunderstood your first posting though, in which case I'm sorry if this is irrelevant.

Thanks for replying Ian it is a new claim.

What troubles me is that I'd raised and attached CDLA 4228 2003 which specifically references reg 13.

Which is why it doesn't add up to me. The ability to see ahead three months exists in an advance claim so does section 12(8)(b) suddenly mean reg 13 can't ever apply? Surely not.

Is there a problem with reg 13A being based around the date of claim:

"unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day ("the relevant day") not more than 3 months after the date on which the claim is made"

Since your chap would not have served his 3 months until April and his claim was in December this may have been why this did not help.

It's clearly a moral injustice though so I hope someone will tell me I'm wrong.