DLA... To appeal or not ? Any help please..

[estellyn]

Upper Tribunal decision CDLA/2260/2009 says:

"

• There are no findings as to these matters, and no apparent investigation with the claimant of the question whether he can walk out of doors again on a day when he has walked to the shop and back. In considering whether a person can walk a particular distance most of the time, and whether he is virtually unable to walk, it is necessary to consider not only whether he can manage it once at some point during the day, but whether he can manage it throughout the day or only some part of it, and with what frequency he can repeat the walk. A person who can only walk for two minutes a total of 5 or 6 mornings a week, and then cannot repeat the walk at any time during the rest of the day can hardly be said to be able to walk 50 metres most of the time, and may well be considered to be virtually unable to walk."
  

 

This decision isn't actually about worst days and better days, but about the repeatability of activities and whether if someone who can do something once, but then can't repeat it during a reasonable time frame should be considered to be able to do it at all. If you can walk 200 metres but are then in so much pain for the rest of day that you can barely walk at all, then you are not considered to be able to walk that distance for benefit purposes. For benefit puposes, the distance you can walk is the one you could reliably repeat throughout the day - this is what that Tribunal decision is about.

[Invalidation]

And can you not see that if you have a condition that is totally unpredictable, then the only reasonable reply to the question would be to put the Worst case scenario, because every day COULD be a worse day.

[Invalidation]

This decision isn't actually about worst days and better days, but about the repeatability of activities and whether if someone who can do something once, but then can't repeat it during a reasonable time frame should be considered to be able to do it at all. If you can walk 200 metres but are then in so much pain for the rest of day that you can barely walk at all, then you are not considered to be able to walk that distance for benefit purposes. For benefit puposes, the distance you can walk is the one you could reliably repeat throughout the day - this is what that Tribunal decision is about.

Actually depending on which way its being read it IS about a worst day which is also about repeatability

That quotation I used shows quite clearly the principle of using the Worst day scenario. If something cannot be done for the majority of the time then overall it must be judged as not being possible

[estellyn]

And can you not see that if you have a condition that is totally unpredictable, then the only reasonable reply to the question would be to put the Worst case scenario, because every day COULD be a worse day.

 

sigh. No you write about how your condition is unpredictable and in what way. Someone who has a seizure on average once a month, with a day long recovery, has an unpredictable condition. You're evidently suggesting that this person should write their form from the perspective of the day they have the seizure - would you even bother saying how often it happens?

[Nystagmite]

And can you not see that if you have a condition that is totally unpredictable, then the only reasonable reply to the question would be to put the Worst case scenario, because every day COULD be a worse day.

 

No. You keep a diary and write down what happens. You then do the form on an average day / what happens the most. You can say "on bad days I get this" and so on. I do that.

 

On the other hand, every day could be a better day.

[estellyn]

Actually depending on which way its being read it IS about a worst day which is also about repeatability

That quotation I used shows quite clearly the principle of using the Worst day scenario. If something cannot be done for the majority of the time then overall it must be judged as not being possible

 

I see this is a pointless discussion with you. Repeatability is not the same issue as what you're like on your worst day. This upper Tribunal decision basically says that if I could walk 50 metres to the local corner shop and back EVERY DAY, but could not repeat it each day, I should only be treated as being able to walk the distance I can reliably repeat. It's not about being unable to reliably repeat a 'good day'. In fact it mentions 'most of the time' and that 2 mins, 5 to 6 days a week does not consitute 'most of the time'. Neither does your worst day only being one or two or even three days a week. If you have your 'worst day' 4 or more days a week, then at least you could say, 'this is how I'm like the majority of the time'. If not, the fraud investigator watching you wander round the town 4 or 5 days a week will have plenty of evidence for the prosecution, if the number of 'worst days' was left off of the claim form.

[IdaInFife]

Have to agere with estellyn,

 

my sister who had Gullian -barre syndrome - paralysied from the waste down was refused DLA - at first

 

my mum who is on an axygen machine 16 hours per day and cannot walk due to undiagnosed ankle problem was also refused.

 

BUT once in a blue moon they did have good *times* when they could do things that normally are out of the questions

 

WE all have to recognise that not one answer fits all and one person good day is one persons bad day.........

[Invalidation]

WE all have to recognise that not one answer fits all and one person good day is one persons bad day.........

 

Exactly, which was one of the points I was hoping people might see, 'between the lines'

I had a DLA Medical back in 1994 and was subsequently Interviewed by the DHSS at home.

I was also contacted by the DLA people in 2003. On all occasions when I said I had one or two good days per week, I was told that I could only state my Worst days scenario as there were more bad days than good. It was also pointed out that something I called a good day could, to someone suddenly hit by what I had, be classified as a bad day.

 

People have their opinions on this subject, I have mine along with my Empirical evidence.

We will have to agree to differ.

[abc123def]

But invalidation, in your situation you described your worst days as being 5 or 6 days a week so they aren't your worst days they are your normal days. I think the problem here is people are defining worst days differently which is causing the disagreements and that would be a problem to any assessor or tribunal. Hence needing to forget the terms worst/bad/good days and state how many days a week you can do or can't do, and in each week what you can and can't do and the amount of variations within it.

 

Terms like worst/bad/good are too subjective and the descriptors aren't.

[estellyn]

But invalidation, in your situation you described your worst days as being 5 or 6 days a week so they aren't your worst days they are your normal days. I think the problem here is people are defining worst days differently which is causing the disagreements and that would be a problem to any assessor or tribunal. Hence needing to forget the terms worst/bad/good days and state how many days a week you can do or can't do, and in each week what you can and can't do and the amount of variations within it.

 

Terms like worst/bad/good are too subjective and the descriptors aren't.

 

Indeed. It is up to the claimant to define their 'worst day' if they use the term on the claim form. For instance, 'on my worst day I can walk about 10 metres before the pain makes me stop, I have 2 worst days every week on average. On a normal day I can walk 20 metres before the pain causes me to stop. I have four normal days a week. On a good day I can walk 50 metres before pain makes me stop. I only have one good day a week.'

[UncleBuck4U]

Thanks for all the reply’s !

 

However, I give my "normal" day, on my form, and an explanation,that this did not include my bad days, that this month, (Nov) has been 2 times, and they lasted for 7 & 11 days where I needed help all day and night.

 

 

It's also quite obvious, it depends on the person too, as one person’s badday may be another person’s normal day.

 

I have asked them to look at my case again, and look at the points I disagree with in their report, and if they come back with the same response could they prepare and arrange it to be heard by an Independent Appeal hearing.

 

 

Thanks ...

Edited January 1, 2013 by UncleBuck4U

[caydenanrhys]

But invalidation, in your situation you described your worst days as being 5 or 6 days a week so they aren't your worst days they are your normal days. I think the problem here is people are defining worst days differently which is causing the disagreements and that would be a problem to any assessor or tribunal. Hence needing to forget the terms worst/bad/good days and state how many days a week you can do or can't do, and in each week what you can and can't do and the amount of variations within it.

 

It is difficult as I was advised to apply for DLA for my son who is 3yrs (seperate post) and when I filled in the forms I was told to fill this out on his worst day! My 1st thought was - his worst day would mean he was hospitalised and put on Oxygen so what do I write?? In general his breathing is laboured with any form of exhersion for around 7-10days then he becomes very laboured and either needs a GP or recent episodes have resulted in 999 Oxygen and hospital. If I were to say worst/good/best I wouldnt know where to start as he goes through a process which I am able to Identify and seek help. I just wrote what his day is like when he wakes till he sleeps and what his pattern is like at night, how often he is like this and how long it takes to recover.

[Nystagmite]

That seems to be the sensible way of doing it.

 

It says on the form (there's a declaration you sign) saying the information you've given is true. How can it be true if you give information about your worst days only?