My client currently receives DLA both higher rates due to paraplegia (T10 complete). He recently qualified as a tennis coach after representing GB in the paralympic games. Obviously he now wants to take up coaching as his occupation - his paraplegia remains complete.

DBU inform me that he will now need to complete a new claim pack regarding his care needs - cue unhappy client.

My question is this - is this the correct course of action, and what risk, if any, is there to his existing HRC?

In my lengthy discussion with the DBU operator I was told she had discussed this with a roomful of DM's and that this was the procedure for everyone returning to work - surely this is not a relevant change of circs as his disability remains complete and unchanged?

Any case law on this gratefully received.

Claire

CSA 114/90
a fax number will get you a copy.

Tue 26-Apr-05 03:00 PM by ken

hi chris,

If you can e-mail us a copy of CSA/114/90, or fax it to us on 0207 247 9924, we'll make it available on the site.

I believe that in CSA/114/90, the commissioner held that starting work was not a relevant 'change of circumstances'.

In CDLA/2160/2003, Commissionewr Howell similarly held that it does not warrent revising a client's DLA entitlement on the grounds of 'ignorance or mistake as to a material fact'-

'... in my judgment there was never a proper ground for taking it away under the pretext of "ignorance or mistake of material fact" at the date of the original award in 1998. That award was made after taking into account all the facts perfectly truthfully disclosed by the claimant at that time; and all that can really be said is that someone in the department finding she was still working regularly some four years later must have taken the view that the original doctor’s assessment of how badly restricted she was by pain was too generous. That of course is quite insufficient to justify superseding the earlier decision on the purported ground of "ignorance or mistake of material fact". There is all the difference in the world between a decision made on an incorrect factual basis and one which somebody else looking at the same factual basis thinks should have led to a different assessment.'

(above taken from the summary of CDLA/2160/2003 available in the briefcase area of rightsnet, which includes a link to the full decision)

Claire

I have come across this before with a client who was on HRC for mental health problems. The accompanying letter says only to complete the forms IF there has been a change in the conditions that you are receiving DLA for. If there has been no change then you just complete the back of the letter and send it back. My client may have been lucky but they haven't come back to him about it.

Dear Clare,
I've had a few clients who have returned to work, receiving hrc + hrm and they have had to take their cases to appeal as DM's considered that "they appeared to be coping with their illness" their words not mine! I know its wrong but its going to happen, regardless of what we tell DM's, as some may say they are limited in their outlook somewhat.

Below is the guidance given to Team Members at the Disability Benefits Unit on what to do if a customer notifies them that they have started work.

In essence the DBU always consider whether the information that a customer has started work or training means they should look at their DLA again. (So much for permitted work not affecting your benefits)

The moral is to always provide lots of evidence of why it isn't a change of circs along with the notification that your client is starting work.

There's a huge amount of information like this available since the Freedom of Information Act came in. Why come to think of it there's also a training day on the very subject of how to get hold of this kind of information. it's in Bristol in July and being led by the legendary FoI campaigner Maurice Frankel. Now what was the name of the organisation . . . http://www.benefitsandwork.co.uk/ was it?

(Am I allowed one shameless plug - we do charge an awful lot less than Capita for a place on our training and we pay our trainers rather more too).

Steve


5 If the customer starts work, training or work experience training, their entitlement to DLA/AA is only affected if the amount of help they need has reduced or increased.

6 If you receive a notification that a customer has started work, training or work experience training, discuss with the Team Leader, seeking the advice of the Decision Maker if required to decide:

1 if there may have been a change in the customer's needs; and
2 if so:
a whether you need more information to establish the extent of the change; or
b if you can treat the notification as no change in the customer's needs.

7 Entitlement to DLA/AA must never be suspended purely because the customer has started work or training.

Notifying Severe Disablement Allowance/Incapacity Benefit

10 Use the Common Enquiry Service (CES) to see if Severe Disablement Allowance (SDA) or Incapacity Benefit (IB) has been awarded. If it has, tell SDA/IB by phone:
1 the date the customer started work; and
2 the address of the employer, if known.

Customer has not indicated any change of needs
20 If the needs of the customer do not seem to have changed:

Step Action
1 access dialogue DA/AA110 and note the details
2 mark the notification as ephemeral and retain for 1 calendar month See Chapter 30 Post identified as ephemeral
3 tell the customer by phone or in writing that no further action will be taken


Establishing a customer's needs
More information needed

30 If the Team Leader agrees that more information about the customer's condition is needed:

Step Action
1 request file from filestore
2 send form DBD33 to the customer asking if there is a change in their needs and, if so, ask them to: a complete Section 2 of claim pack DLA434 for DLA or b complete Section 2 of claim pack DS1140 for AA and
3 if the customer's needs have not changed ask them to state this on form DBD33 and tell them they do not need to complete the claim form
4 access dialogue DA/AA530 and set a case control type 2 maturity date for 14 days See Chapter 7:Case Controls

This issue always arises in relation to an assumed decrease in care and/or mobility needs as a result of starting work. In some cases starting work may mean an increase in care needs, rather than a decrease e.g. someone who requires help with transferring may need the help more frequently if they are working. Mabye not the best example, but I'm sure there are many others.

Thanks very much to Chris Orr, Commissioner Mitchell's decision in CSA/114/1990 is now available on rightsnet -

'In the present case the sole ground of review stated ... is that the claimant began work as a part-time supply teacher ... But that event was not in my judgment a relevant change of circumstances and did not give rise to a serious question regarding the claimant's continuing entitlement to attendance allowance which is not, of course, a means-tested benefit.'