DLA tribunal mid September - updated

[jlp]

I wonder if anyone has anything to add / comment on / help regarding a DLA appeal and I hope no-one minds me posting this.

 

Briefly ds#1 is 6 1/2 has AS and gets High Rate Care and Low Rate Mobility - I know this is a good rate and I should be grateful but I do feel that he qualifies for the High Rate Mobility (I'm sure there's a lot of children who do who don't actually get it.) I also know we probably won't get it but the difficult streak in me has made me try anyway.

 

Citizens Advice won't help as they aren't referring anyone else for DLA appeals but helpfully commented that he won't get it as he can physically walk. The local Law Centre's phone rings out forever and I don't hold out much hope for actually getting through although I will keep trying. And I'll be going to this appeal on my own as it's at school pick up time so dp will need to collect ds#1 from school and to look after ds#2.

 

If I copy the letter that I've sent would anyone who's feeling bored feel free to comment!

 

We also have a very negative report from G's consultant (negative in a ggod way with regard to the appeal) and a reasonably negative report from the old school (it has to be from them as he was attending there at the time of review in November) - only thing I disagree with with that is that it says he goes to the toilet independantly which he doesn't and their lack of understanding on that (and him coming home with soiled pants) was one of the reasons why we moved him but I don't think that's a biggie.

 

 

 

 

21 June 2006

 

Dear Sir or Madam

 

I write in response to my appeal regarding the mobility rate of my son's DLA allowance.

 

I enclose a further written report from G's Senior Practitioner ######### at the Child and Family Unit, #######.

########has also indicated that she is willing to be contacted by telephone on #######if any further information is required.

 

The criteria for qualifying for the high rate of mobility is 'that they already get DLA Care Component at the highest rate and are severely mentally impaired / disabled and have severe behavioural problems'. The definition of 'Severe Mental Impairment' states that the child must be entitled to the higher rate of care , 'an arrested or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning' and severe behavioural problems.

 

G qualifies for the high rate of care and the last decision maker agreed after seeking medical advice that he did have arrested development of the brain and difficulties in social interaction. Impaired social functioning being one of the three definitive areas ('the triad of impairments') that autistic people suffer from - all autistic people have impaired social functioning, this is part of the diagnostic criteria - we are left with 'severe impairment of intelligence'

 

I have referred to the National Autistic Society and I read with interest that the Court of Appeal held that 'severe impairment of intelligence should not be defined exclusively by reference to an IQ score (Megarry v Chief Adjudication Officer, 29/10/99)' this case concerned an autistic child's claim for

Disability Living Allowance. The child appealed to the Social Security Commissioners on the grounds that he should be entitled to the higher rate of mobility on the basis of severe mental impairment. The article goes on to say how when the IQ score is higher than 55 the decision maker must consider all the available evidence to decide the claimants level of useful intelligence.

 

Guidance issued in December 1999 says that the decision maker should decide whether the claimant has the ability to solve abstract tests but is unable to apply that intelligence to real-life situations. After having looked at all the evidence it is possible therefore for a decision maker to decide that a claimants behaviour is consistent with severe impairment of intelligence despite having an IQ above 55.

 

In short it appears to me that G meets the criteria for the high rate of mobility - the query being over his intelligence which is 'above average'.

 

Children with autism do often have areas in which they are of high ability - unfortunately this ability is not reflected across the full range of skills, there are many areas in which G is achieving below average ability. At the minute even though G scored well on some aspects of the tests with the Educational Psychologist (aged 4 years) he is below average in many aspects of his school work, particularly reading and writing. He is very unwilling to co-operate and is believed to suffer also from some symptoms of Pathological Demand Avoidance making his behaviour even more difficult.

 

I do not believe that G does have a high level of 'useful intelligence' and ask that the decision maker reviews the original application with this in mind. The reason given for refusing the high level of mobility was that 'I have have reconsidered the available evidence. I accept that he has challenging behaviour, difficulties in social interaction and arrested brain development but there is no evidence of significant learning difficulties.' However this does not consider G's level of 'useful intelligence'.

 

I have already explained at length many many situations which demonstrate that G has severe behavioural problems as defined by 'extreme and unpredictable disruptive behaviour requiring someone on hand ready to intervene to prevent danger or damage whenever the person is awake'.

 

At 5 years old (December 2005) he was excluded from school for assaulting his teacher and at 6 he is now in his 2nd primary school, he was moved at recommendation of the LEA Autism Liasion teacher who feared further exclusions. The Autism Liasion teacher requests not to be left alone with G incase he is violent. Recently an elderly man brushed past Gin the school yard and George, thinking that the man had hit him, hit the man.

 

There are so many incidents I can not even recall them all, waiting in the doctors waiting room, waiting to go into school, at soft play or a park - G needs to be closely supervised constantly for fear of him hurting another person or himself. Sometimes we are not quick enough and it happens anyway, it is unbelievably stressful and of course if G does hurt someone we feel awful. G has randomly punched a child in the street in the face, thrown a brick into a busy road.

 

He is unable to make a sound and safe judgement and act upon it because of his poor communication, obsessional behaviour and social skills. Loud noises upset him and make him angry causing him to randomly lash out. A big problem we have is that he does not understand accidents and if he trips or bumps into someone and hurts himself we have an extreme violent reaction as he thinks it happened on purpose. G has a poor attention span and will not hear me if I speak (or even shout in an emergency) and his mind is elsewhere or he is distracted by background noise. He is has a disability of the mind which results in abnormally aggressive and seriously irresponsible conduct.

 

G lacks the practical wisdom and the ability to reason and deliberate together with the soundness of judgement and shrewdness that all goes together to constitute 'useful intelligence'. He is extremely vulnerable compared to other 6 year old children and has no street sense at all.

 

Only today G ran out of the school gates and onto the busy road straight into the path of a van which had to brake sharply. He is unpredictable and will run away. The difficulties of going anywhere outside with him are almost impossible to define into a few examples and sentences. However I feel that I have given many examples on the original DLA application form and I hope you will refer to this.

 

Thank you for taking the time to read this letter.

 

Yours faithfully etc

 

 

 

 

 

 

 

Sorry it's so long and I hope I'm not breaking any rules by asking for any pointers, further arguments to use.

 

Since that letter G has been sent home from school twice (the last few weeks were very stressful for him) for attempting to strangle another child and a generally very difficult day. New school are applying for a statement in September and are very concerned generally. Out consultant is beginning to ask how we feel about special schools - not sure if any of that is relevant as it's all happened since November when the DLA review was.

 

I feel like I'm greedy but it honestly isn't the money at all - it's an acknowledgement of the fact that yes he can walk but they want to try actually walking somewhere with him! (I'm sure I'm not alone in this situation) Public transport either makes him angry and shouting at everyone or he'll curl up into a ball with his hands over his ears. People are thumped, grabbed, shouted at etc, he will run away or refuse to move etc but this is all meaningless to the DLA because he is 'intelligent' and has no 'significant learning difficulties'. How on earth does his actual IQ have any bearing on how difficult it is to go places? The lack of recognition of this makes me so cross I have to appeal on principle.

 

Thanks for bearing with me and please feel free to be honest - I've already sent the letter but if it's ###### and waffly maybe I can improve and send further evidence in.

 

 

 

 

 

 

Just to update - I had a letter this morning and we have won our appeal! High care (which we had) and HIGH MOBILITY! So chuffed. Thought I'd share it to show it is possible to get high rate mobility with a child who's IQ is over 55.

Thank you so much for those who replied advising my original post - your help was taken on board to write my letter (in the end I chickened out of going in person and it was going to be awkward childcare wise so sent a letter instead).

Edited September 19, 2006 by jlp

[UltraMum]

it's an acknowledgement of the fact that yes he can walk but they want to try actually walking somewhere with him! (I'm sure I'm not alone in this situation) Public transport either makes him angry and shouting at everyone or he'll curl up into a ball with his hands over his ears. People are thumped, grabbed, shouted at etc, he will run away or refuse to move etc but this is all meaningless to the DLA because he is 'intelligent' and has no 'significant learning difficulties'. How on earth does his actual IQ have any bearing on how difficult it is to go places?

 

I'd tell them this verbally if I were you ... also emphasise the fact that there are many things that you cannot do with him if you have to rely on public transport ...

 

Can you video a bad day? Or rather get someone else to ...?

 

Does any of the following help? It comes from the decision maker's 'bible' - these are the key words and phrases they will be looking for ... It seems to me that you have plenty of examples to work from ...

 

As well as an IQ of 55 or less, the following points may also indicate that a person

has severe impairment of intelligence and should be considered even when the IQ

is over 55

1. difficulty with communication - speech may be severely impaired, often only

monosyllabic or grunting noises, reading or writing skills may be absent or

very poor

2. severe learning difficulties

3. lack of understanding of everyday living.

People with severe impairment of intelligence are likely to need specialized

schooling, and supervision of all activities. In cases of doubt and where the IQ is

over 55 the DM should refer the case to Medical Services for expert advice.

 

Severe impairment of social functioning

61369 People with severe impairment of social functioning will usually have severe

learning difficulties. They will only be able to acquire a few basic social skills after

being shown how to perform them. They will have difficulties relating to other people

and making friends, and would not be able to carry out basic social skills such as

running a simple errand, using public transport and carrying on a conversation.

61370 The term "intelligence" refers to a person's intellect or ability to understand. The

term "social functioning" is what that person is able to do with the intelligence they

have. For example, some people who have a low intelligence can relate to other

people and perform basic social skills once they are shown how to do them. But

others who have a low intelligence are not able to perform basic tasks or relate to

others. It is the latter who would display severe impairment of intelligence and social

functioning.

 

61376 People are treated as having severe behavioural problems if they exhibit disruptive

behaviour that

1. is extreme and

2. regularly requires another person to intervene and physically restrain them

2.1 to prevent them injuring themselves or others or

2.2 damaging property and

3. is so unpredictable that they require another person to be present watching

over them whenever they are awake

It is essential that all three conditions are satisfied. The disruptive behaviour does

not need to be displayed at all times but it must be extreme. The word ?extreme? is

an ordinary English word which here refers to behaviour which is wholly out of the

ordinary.

 

61377 People who have severe behavioural problems may

> be destructive

> be reckless with dangerous things

> be aggressive and attention seeking

> self-mutilate or abuse themselves

> be hyperactive

> display persistent body movements

> disrupt the household during the night.

61378 The conditions at DMG 61376 can only be satisfied if the disruptive behaviour is

1. a regular occurrence and

2. a constant risk.

Aggression, destructiveness, hyperactivity and self injury may require physical

restraint.

61379 The claimant?s behaviour must be so destructive and unpredictable that they require

the presence of another person to watch over them whenever they are awake. This

is in all aspects of the claimant?s life both indoors and out. If a claimant displays

behavioural problems at home but elsewhere, for example at school, is well

behaved then the test will not be satisfied.

Edited August 13, 2006 by MotherEve

[Bagpuss]

jlp,

 

I'm sorry, I don't know the ins and outs of DLA appeals, so can't offer much advice. Our youngest dd gets higher rate mobility though. She has muscular dystrophy too, so I think that plays a large part, as she uses a wheelchair regularly. I also raised the issue of our dd having no awareness of danger when out, needing constant supervision. Our dd also struggles with going to the loo..she's fine having a wee, but cannot wipe her bottom after a poo and this needs to be done by an adult. Wishing you all the very best with the appeal jlp, your letter sounds great to me <'> Take care

[jlp]

Thank you two for replying, it's very useful.

 

It does seem as though his intelligence (he's in the 99th centile - verbally - on some bits on his Ed psych report. Very verbal lol - it's what he actually says to people that doesn't go down to well!) will the 'the' problem. The Ed Psych at 4 said he had an 'unusual level of verbal aggression which was unusual in AS' - although actually I disagree with that, it sounds as though a lot of our children can be very verbally agressive. So he knows a lot of words!

 

Do you think I need to write out something to read to them on the day? A video is a possibility too.

 

I don't think I'll have a problem with the 'severe behavioural problems' - have more than enough reports to justify that, I left both boys in an adjoining room in ear shot for a few minutes last week and ds#2 (2) had a settee dropped on top of him, thought he'd broken his blooming leg! (He was fine but wouldn't move it for a few scary minutes.)

Edited August 13, 2006 by jlp

[UltraMum]

Do you think I need to write out something to read to them on the day?

 

It may help to make notes under each headings to refer to and tick them off as you cover them ... i know my mind goes a blank at times like this ...

 

Will be for you

[oracle]

I don't know if they will allow a video? These things run a bit like a court. There will be a panel of three people - well that's how it's been when I have attended - and there will also be someone taking minutes. You could take something to read out but they will have questions that they want to ask you. I would take notes and bullet points. A great deal depends (in my opinion) on who you get on the day. There will be a lay person who has a knowledge of disability but that does not mean ASD and some of them are pretty clueless about it and have made me feel like but you have to sit on that feeling.

 

My eldest gets the high rate for care and low for mobility even though aged 19 he can't and wont go out alone. I am thinking about going for high rate mobility for him now because he now has Kerataconus and may need a cornea transplant. Even if he does not his sight is so bad coupled with his sensory issues that it's impacting on him to a huge extent.

 

Good luck

 

Oracle

[UltraMum]

I found this on the NAS site ... may be of use ...

 

http://www.nas.org.uk/nas/jsp/polopoly.jsp?d=193&a=6614

 

and this too ... http://www.nas.org.uk/nas/jsp/polopoly.jsp?d=300&a=3330

Edited August 14, 2006 by MotherEve

[curra]

I wish you lots of good luck for your appeal!! <'>

 

A year ago I tried to get free school transport for my son and it was refused, I appealed but I couldn't go personally and I didn't succeed. My DS has low mobility care too, although he can't go out by himself and his behaviour is unpredictable. He also has poor vision and crossing the road is a big hazard for him. The school sent an "expert" who walked with him to the school and then they wrote a long report saying that M was OK on the street and he just had to learn to be more independent.!! They didn't take his anxiety and aggressive behaviour into consideration, just the fact that he was able to walk next to an adult.

Take notes with you. I hope that you win the appeal!!

 

Curra

[CarerQuie]

It may also be worth making the point that he doesn't learn from past experience,can't generalise anything from one setting to another and that he isn't motivated by reward or punishment to modify his behaviour.

 

I think there was also something obscure that I read (can't remember where) about not understanding that emergency vehicles can travel on the wrong side of the road?xx

[jlp]

I think there was also something obscure that I read (can't remember where) about not understanding that emergency vehicles can travel on the wrong side of the road?xx

 

Lol - I included that on the original form!

[board]

hello try this hope it helps (www.disabilityuk.com/dla/dla appeals.htm)all the best jill

[dooday24]

cant seem to get anywhere from yr link board also having problems with reeces dla

[board]

hello try this (disability uk)when it comes up click on disability main page on the right side 5 down benifits click on that then click on dla when that comes up look in the middle you will see appeals click on that all the best jill

[lorryw]

Hi,

We applied for higher rate many times over the years. After being turned down several times we decided to go to appeal.

I was very nervous and had no idea what to expect. Unfortunately I didnt have a good start. The traffic was horrendous and it was pouring with rain. I had to ring the appeal panel and tell them I would be late. Eventually I had to abandon the car (my sister took over) and run to the venue.

When I arrived the usher was waiting at the door. I was soaking wet and full of apologies. He was very kind, calmed me down and winked and said he didnt think I would be long.

I walked in to be met by a man and woman sitting behind a table. One was a lawyer and the other a representative from a mental health charity, the DLA didnt send a representative. They were absolutely furious that the DLA had turned us down and my son was awarded higher rate mobility which was backdated to our original application. They apologised that we had been put through so much turmoil and I was out of the room in about 5 minutes.

I would recommend that anyone who feels their child should be awarded higher rate DLA apply and dig in your heels. It is your childs right and the award is available to improve his or her life, not to be awarded at random by cost cutting civil servants.

Take care

Lorainex