Dear all
I am looking for some useful caselaw to support that severity levels of pain should be more relevant in determining the rate awarded rather than any award at all. I hope this makes sense! Anyone come across anything useful? My client has a conditon which means her pain levels are variable but overall are as such she has difficulty in walking in a reasonabe manner over a reasonable distance. I want to state the case that severity levels are relevant to the rate rather than determination of eligibility. I know I have read this somewhere I just cannot remember where! I want to argue that it is the care/mob needs that arise out of the severity not the actual level of severity experienced.
All help appreciated
Caroline

hi caroline,

not sure if either of the the following may be worth looking at.

in R(DLA) 4/04, Commissioner Bano, whilst accepting that it is only discomfort which is related to the physical act of walking which is relevant to entitlement to higher rate mobility component, holds that such discomfort need not first arise or increase after walking has commenced.

in relation to the issue of pain, in CDLA/902/2004 Commissioner Jacobs
gives the following guidance -

'It always arises as a factual issue:

what pain does the claimant experience?
how does it affect the claimant’s activities?

And it may arise as a legal issue in the interpretation of the legislation:

is the pain part of the claimant’s physical condition or disablement for the purposes of the higher rate of the mobility component of disability living allowance?
does it arise from a specific bodily disease or disablement for the purposes of the personal capability assessment?'

The commissioner adds that, since medical experts no longer believe that there is a direct and proportionate relationship between (a) a disease or injury and (b) the nature and level of pain, and therefore there is no causal link, the only direct evidence comes from the claimant.

Whilst fully agreeing with what Ken has said above, I think firstly you need to look at what is required by the regulations. Your are saying, “I am looking for some useful case law to support that severity levels of pain should be more relevant in determining the rate awarded…” I felt that the test of mobility component is different. Two important points are: a) ‘severe discomfort’ that has direct link with physical factors and b) ability to walk out of doors.
The regulation 12(1)(a)(ii) of the DLA Regulations only mentions ‘severe discomfort’ experienced because of physical factors that limit your client’s ability to walk ‘out of doors’. It is established belief that ‘severe discomfort’ is a lesser problem than severe pain based on what was said in the court of appeals decision ‘Cassinelli’ (R(M) 2/92) and I quote: ‘discomfort is a lesser concomitant (of pain).”
Mr.Sanatkumar Dave
Welfare Rights Officer
Tameside Metropolitan Borough Council
Council Offices
Wellington Road
Ashton-under-Lyne
Tameside OL6 6DL

Tel: 0161 342 3494
Fax: 0161 342 2168

Hi Caroline

Although I understand where you are coming from and I agree with what has been said above I think an easier approach would be to focus more on the phrases “virtually unable to walk” and “reasonably required”.

There has often been confusion in some quarters (and I include myself here) between the difference between “without severe discomfort” and “before the onset of severe discomfort” which gives rise to the presumption that there must be some discomfort felt before the regulation (for mobility) applies. This is not the case. Severe discomfort is only relevant, in that in judging whether a person is virtually unable to walk any walking that can be done only with severe discomfort must be disregarded. There is no real need for a forensic analysis of how severe the severe discomfort is. Once there is a finding of severe discomfort the rest of the regulation will speak for itself. If a person is classed as “virtually unable to walk” then he gets higher rate mob’. If he is not so classed then he does not get it.

So we are back with virtually unable to walk. A person might (most of the time – another key phrase for the mobility component but not for the care component) be able to walk several hundred yards with lots of short stops in a reasonable manner and time and be found to be not virtually unable to walk. Likewise another person might be able to walk several hundred yards in one go and thereafter be unable to walk for several hours after and might be found to be virtually unable to walk (see R(DLA) 4/03). These would be reasonable decisions and would not be disturbed by a commissioner on those grounds alone.

Similarly for the care component. Unlike the mobility component there is no mention in the regulations for the care component of discomfort or pain. Attention will be ‘legitimate’ if it is reasonably required. So for example attention in connection with a bodily function might be reasonably required if it helps the disabled person to accomplish a task in less pain/discomfort, less slowly or more safely or for some other reason. It is a question of degree about what is reasonable in all of the circumstances in any given case and this cannot be boiled down further to some nicely rounded formula.

It is only in advancing arguments to tribunals on a case by case basis and paying attention to existing authority and the way it develops that reps get experience and a ‘feel’ for the strengths and weaknesses in individual cases and how much force each argument has about what is reasonable.

Of course, some medical conditions are more serious than others and one would expect levels of attention/mobility problems to be higher in some conditions rather than others, notwithstanding the fact that a less serious condition may be more advanced in one person than a more serious condition is in another. Again this comes down to experience. Medication is often a key indicator. One would expect a person on morphine, for example, to have more problems than a person on co-codamol.

There is also the question of aids/adaptations. A person whose condition is quite severe may not be able to get in/out of a bath without assistance from another person, even with aids, or able to dress without help but might be able to get out of a chair using appropriate aids. Again it comes down to whether the assistance from another person is reasonably required and thus the difference, say, between lower rate and middle rate care. And as often quoted on this site, each case will turn on its own facts. I hope this is of some use.

Regards
Paul

Hi Thanks for all the replies.
Hearing is tomorrow. My main focus with this lady has been the effort of walking being dangerous for her because it is leading to a significant deterioration in her condition. This has been evident for the last 2 years. There is no specfic diagnosis although the consultants agree she has restricted mobility they are unsure as to the reasons why. Good ole DWP have submitted a one line additional evidence imploring the tribunal to weight more favourably the GP report evidence as he has a relationship with her where by he can comment on likely physical effects. However client hardly ever sees GP and gets her prescription on repeat for painkillers so this is easily blown out of the water. I think they may be worried by testimonials given by various staff and individuals which document her obvious pain in classes - client has been withdrawn from course due to health and safety concerns. Her condition can be very variable but I have managed to find some caselaw about establishing regular patterns of need which will hopefully help. You know how these things are though you never quite know what to expect from the tribunal!!!!
regards and thanks Caroline

I think you may be thinking of R(A)2/92 which states:

"We respectfully agree with Mrs Commissioner Parker in R(DLA)10/02 that:

‘… the severity of the disablement is determined by reference to the care needs which arise and is not considered by reference to the general nature of that disablement divorced from the actual consequences with respect to the claimant’s need for attendance.’

It is clearly apparent from the language of the provisions itself that the severity of the disability is to be measured solely by reference to the prescribed consequences, and that there is no room for any free-standing test of severity."

In other words, there is no separate test for the claimant to be found severely disabled to qualify for DLA. The severity of the disablement is measured by the consequent care (and mobility) needs.

It could be tricky if you don't have a diagnosis, but if you have medical evidence which supports the mobility problems I think you should be ok.

Regards,
Anne

Thanks - this was what I was thinking of - I just couldn't remember the commissioner. Anyway please to report we won the tribunal low care high mobility was awarded as they accepted there was care/mob needs depsite a concrete diagnosis. Client has had years of tests and a supporting statement from a consultant that concluded she has something wrong with her mobility but they are unclear as to what the actual problem is. I will keep the decision to hand as its a useful one to use
regards and thanks Caroline