I have had at least three cases of people with haemophilia who have kept diaries of their care needs, whose diaries have not been admitted by the tribunal on the grounds that the evidence relates to a period after the original decision date. The condition is lifelong and does not change. The diaries are merely a picture of how the condition affects the applicant over a representative period of time. Have other people had this problem and how can it be overcome.

R(DLA)2/01 and R(DLA)3/01 say that sec 12(8)(b) does not prevent a tribunal having regard to evidence of events after the decision under appeal was made if that evidence allows you to draw inferences about what the circumstances were at the time of decision.

As you say, the claimants in your cases are unlikely to have had a change in their condition since the date of decision. Therefore, evidence of what their life is like now (given in the form of a diary) is a reasonable basis from which to infer what their life was like then.

I would seek statements in any of the cases to which you refer if the final decision was not to the claimant's advantage and appeal to OSSC on the basis that the Tribunal misdirected itself as to the meaning of sec 12(8)(b) SSA 1998 and therefore did not take into account evidence which it should have considered in reaching its decision.

If you have similar cases coming up then:
1. Get hold of the two decisions above (they are on OSSC site) and put a para. in your submission about the fact they can look at the diary.
2. If you really want to sew the issue up then it would be helpful to get some medical evidence saying their condition now is as it was then: this will relate anything client says about how they are now to the relevant period.

Martin.

Thank you very much for your help and I will certainly bear that in mind in future and advise the clients who lost benefits to appeal.

Rutht