I wonder if anyone has the answer to my question. I've just seen a lady who satisfies the conditions for at least LRCC of DLA but who has been refused because she does not meet the 6 month forwards test.

She applied in Feb because she does not have the use of one arm following ongoing injury/disability. She had an op early March and Docs thought she would recover fairly quickly on which basis DLA have refused. However op did not go as well as hoped and she still has no use of arm and has been told she has to have another op August, September time so taking this into account with recovery from that op will be 6 months.

Can they take this into account though as this was not the case when she applied or at least the extent of her problem was not apparent then?

Thank you

Having already written an answer starting with 'yes', I'm not now so sure.

A late appeal is no good because a tribunal cannot take into account any circumstances not obtaining at the date of the decision and, for similliar reasons, a late 'in-time' review is no good (3(9) D&A regs).

A supersession on the grounds of change of circs is no good as this is not possible without an existing award of benefit as the claim no longer exists (s.8(2) SSA).

Reviews on other grounds are also likely to fail if the decision reached was the correct one in all the circumstances.

The only other remedy is a new claim for benefit but from what you say, a new claim will be most likely be refused on similiar grounds.

I hope I've got it wrong somewhere because one could imagine this situation being repeated several times over and the claimant not able to establish entitlement to the benefit...

The test is a prospective one. You could succeed if you could show that, at the date of claim, there was a real possibility that she would still have the relevant care needs in 6 months time.

Note, the relevant date is the date of claim (or the date the award would begin) and not the date of the decision. So if you could argue that at the date of the decision there was nothing certain that the operation would go well, go well within 6 months,or even go ahead at all, then you could succeed.