Can anyone offer any thoughts/advice on the following?

In September 1995 my client was awarded HRM for life. A few months later, at Appeal, he was subsequently also awarded MRC. So far, so good...

My client received periodic enquiry forms in October last year and after they were submitted he was visited by an EMP. As a result of the EMP report all benefit was withdrawn from 12/12/05. We are now in the process of helping our client to appeal this decision.

From reading the decision notice included in the submission bundle, it appears the DWP are saying that, in actual fact, the client should not have been awarded HRM/MRC in the first place;

"Examination report is based on clinical findings, observations as well as information from ( client) and shows present needs since 1993 prior to when were less. It is considered the decisions in 1996 were given in ignorance of or were based on a mistake as to the material fact that (client's)walking is not so limited as to satisfy the conditions of entitlement to HRM and s/he does not reasonably require frequent attention with personal care throughout the day. Benefit disallowed only from 12/12/05 as would not have known not entitled to benefit" ( so that's one less problem..)

Anyway, I have never encountered this situation before and have only assisted with very "straightforward" Appeals ( if there is such a thing?). I'm unsure what the implications are exactly although it seems unlikely we can ask for an award to be reinstated if it was incorrect in the first place.

Our client suffers from mental health problems and has schizophrenia and lives alone and there are issues re: self-neglect. Physically, he has coronary heart disease and has 4 stents/diabetis/high blood pressure but although I can see how his circs fit an award of LRM I'm really not sure he does satisfy the HRM criteria, ( and nor is another colleague he is also seeing). However, client is adamant that HRM must be re-instated to keep entitlement to a motability car.

Sorry this is a bit longwinded but does anyone have any thoughts on this situation or has anyone encountered a similar situation? I only get online at work once a week when I'm in the office but will try and logon from home too.

Thanks

Before they can take his DLA away, they have to show grounds for a supersession. They have purported to do this by saying the decision was made in ignorance of a material fact. The question is what is the fact they were ignorant of. R(I)3/75 talks about ignorance of a "primary fact" rather than conclusions on the facts. The opinion of the EMP is not a primary fact so can not form the basis for a supersession.

It sounds like there may be some questions about what your client told the EMP - does he have realistic insight into his condition? This might explain the discrepancy, particularly when you consider whether the EMP has any significant experience of severe mental health problems.

If you are lucky, you might get a Tribunal to accept that there were no grounds for the DWP looking at the claim again without even having to consider the factual issues.

I've come up against this one tho' not so drastic a reduction. My client lost MRC (it was reduced to LRC) and his HRM wasn't affected. As it was clear that my client should qualify for MRC (now at least - don't know about original award) I made the case in the usual way.

There wasn't a presenting officer from DWP (there usually isn't here) and we won with no difficulty. It also wasn't clear as I recall what they thought they'd got wrong - it seems to be a standard phrase for submissions that a 'factual error' was made.

Sounds like your case is a bit more complicated tho' because of the worry he doesn't meet the criteria - good luck.

"It is considered the decisions in 1996 were given in ignorance of or were based on a mistake as to the material fact that (client's)walking is not so limited as to satisfy the conditions of entitlement to HRM and s/he does not reasonably require frequent attention with personal care throughout the day. Benefit disallowed only from 12/12/05 as would not have known not entitled to benefit"

No material fact has been identified here - the DM has identified judgements, decisions - calling them facts does not make them facts.

the DM cannot even identify whether there was a mistake about a particular fact, or ignorance of it, which is a bit of a giveaway that she didn't have grounds to revise - if she had grounds she would know, and could communicate, what the fact was, and what the mistake was, or show that it was not before the tribunal and if it had been, the decision would have been different.

quite simply she disagrees with the earlier decision, and maybe thinks that the statutory provisions operate like meaningless but impressive mumbo-jumbo, which can be wielded and wafted around like little sooty's magic wand, and abracabadaabra, hey presto, whaddya know... 'i got the power!'...
...to overturn the decisions of the previous DM on mobility, and the later decision of the tribunal on care needs.

decisions of the tribunal can be superseded under sec.10 if they were based on ignorance of a material fact or a mistake as to a material fact. otherwise it has to be supersession on change of circs, and she has to show that there was a change of circs, and a different medical opinion isn't the same as a change of circs...and i can't see how the effective date could be other than the date of the supersession in this case, so it seems like a hell of an invalid decision for a start.

jj

"Izzywizzyletsgetbusy"- Sooty.

"......" - sweep

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