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Re-applying for care; questions
- Tansyhill
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11 years 4 months ago - 11 years 4 months ago #99102 by Tansyhill
Re-applying for care; questions was created by Tansyhill
Three weeks ago, I failed at tribunal, to get the Care element of DLA after a supersession request. I was re-awarded HRM indefinitely as EMP (report dated Sept 2012) stated I cannot walk more than 30m.
I was turned down because “I could not prove a change in circumstances”
I am wondering if the supersession failed at appeal because the medical evidence I had supplied showed that I had been struggling with current health difficulties for longer than the date of the supersession request (I was questioned as to why I had used the date of the supersession)
Or…..
It might have been because the tribunal chair kept stating that support needed for exhaustion/ balance difficulties whilst walking /standing is covered by my mobility award.
I have been trying to get care element since august 2011, I cannot walk outdoors or indoors without leaning on furniture or another person as my balance is poor, I cannot predict when I will lose balance and I am quickly exhausted. I currently cannot leave house or car without having someone to accompany me.
I have been diagnosed with ME for 10 years but I am not bedbound; I work from home and can drive. But really struggle with walking / standing, my heart rate can go from 60/70 in a sitting position to 120+ just going to the toilet. I also suffer; numbness and tingling, chronic pain and mal-absorption (I am underweight).
I was going to let it go when I failed to get care, I am mentally exhausted, but 4 days ago I gashed my head open when I lost my balance going downstairs (my head hit the banister post). I spent a lot of that day feeling utterly deflated, but today, I feel a little angry and would like to have another try as I feel I should be eligible.
I have two questions;
I am dependent on help from a carer for getting around and also main meals. Because of balance difficulties and exhaustion on walking (I cannot get to the top of my stairs without crawling and cannot stand for very long). Is the help that I receive covered by my mobility award because the help needed is derived from my difficulties standing and walking?
And……
If I was to try again for care, would it be better to make a “fresh claim” as I have already failed one supersession request and I am not sure if this was because I have been dependent on a carer for some time before the date of my request for supersession.
Sorry for the long post.
I was turned down because “I could not prove a change in circumstances”
I am wondering if the supersession failed at appeal because the medical evidence I had supplied showed that I had been struggling with current health difficulties for longer than the date of the supersession request (I was questioned as to why I had used the date of the supersession)
Or…..
It might have been because the tribunal chair kept stating that support needed for exhaustion/ balance difficulties whilst walking /standing is covered by my mobility award.
I have been trying to get care element since august 2011, I cannot walk outdoors or indoors without leaning on furniture or another person as my balance is poor, I cannot predict when I will lose balance and I am quickly exhausted. I currently cannot leave house or car without having someone to accompany me.
I have been diagnosed with ME for 10 years but I am not bedbound; I work from home and can drive. But really struggle with walking / standing, my heart rate can go from 60/70 in a sitting position to 120+ just going to the toilet. I also suffer; numbness and tingling, chronic pain and mal-absorption (I am underweight).
I was going to let it go when I failed to get care, I am mentally exhausted, but 4 days ago I gashed my head open when I lost my balance going downstairs (my head hit the banister post). I spent a lot of that day feeling utterly deflated, but today, I feel a little angry and would like to have another try as I feel I should be eligible.
I have two questions;
I am dependent on help from a carer for getting around and also main meals. Because of balance difficulties and exhaustion on walking (I cannot get to the top of my stairs without crawling and cannot stand for very long). Is the help that I receive covered by my mobility award because the help needed is derived from my difficulties standing and walking?
And……
If I was to try again for care, would it be better to make a “fresh claim” as I have already failed one supersession request and I am not sure if this was because I have been dependent on a carer for some time before the date of my request for supersession.
Sorry for the long post.
Last edit: 11 years 4 months ago by Gordon.
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11 years 4 months ago - 11 years 4 months ago #99108 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re-applying for care; questions
Tansyhill
I am afraid you have limited options regarding this.
As you are already in receipt of DLA, albeit just the Mobility component, you cannot make a new claim.
A SuperSession is based on a claimant showing that there has been a Change of Circumstances since the last Decision on their claim.
As you have already been assessed for the Care component and turned down, you can now only request a SuperSession, if you can show that your Care needs have increased since the last Decision on your claim, this would not be the Tribunal, but the date of the Decision that you appealed.
To show that a Change of Circumstances has occurred, you will need medical evidence that post dates the date of the previous Decision, which confirms the deterioration.
Please have a look at the DLA guides for a detailed explanation of what constitutes Care versus Mobility
www.benefitsandwork.co.uk/help-for-claimants/dla/#dlaclaims
Gordon
I am afraid you have limited options regarding this.
As you are already in receipt of DLA, albeit just the Mobility component, you cannot make a new claim.
A SuperSession is based on a claimant showing that there has been a Change of Circumstances since the last Decision on their claim.
As you have already been assessed for the Care component and turned down, you can now only request a SuperSession, if you can show that your Care needs have increased since the last Decision on your claim, this would not be the Tribunal, but the date of the Decision that you appealed.
To show that a Change of Circumstances has occurred, you will need medical evidence that post dates the date of the previous Decision, which confirms the deterioration.
Please have a look at the DLA guides for a detailed explanation of what constitutes Care versus Mobility
www.benefitsandwork.co.uk/help-for-claimants/dla/#dlaclaims
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 11 years 4 months ago by Gordon.
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- Tansyhill
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11 years 4 months ago - 11 years 4 months ago #99170 by Tansyhill
Replied by Tansyhill on topic Re-applying for care; questions
Gordon; Thanks for your reply.
Still a bit confused, just to clarify;
Even if a claimant was eligible for care, due to care needs, care cannot be awarded if they have an existing award and there is no new evidence of a further change in circumstances at the time of request for supersession.
Do you have any advice or guides specific to supersessions as to what constitutes a change of circumstance if, for example, a gradual worsening of symptoms does not count?
Also, if I decide to write to the DWP requesting a form for supersession, does this mean my current award of HRM will remain in place until a claim form requesting supersession is returned?
Still a bit confused, just to clarify;
Even if a claimant was eligible for care, due to care needs, care cannot be awarded if they have an existing award and there is no new evidence of a further change in circumstances at the time of request for supersession.
Do you have any advice or guides specific to supersessions as to what constitutes a change of circumstance if, for example, a gradual worsening of symptoms does not count?
Also, if I decide to write to the DWP requesting a form for supersession, does this mean my current award of HRM will remain in place until a claim form requesting supersession is returned?
Last edit: 11 years 4 months ago by Gordon.
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11 years 4 months ago #99185 by Gordon
By requesting a SuperSession you are saying that there has been a deterioration in your condition(s) and you believe that as a result of this you qualify for a higher award.
The Deterioration must have occurred since the last Decision on your claim, and since you are the person initiating the assessment, you must show this deterioration by submitting medical evidence that shows the deterioration and when it occurred.
So if you had care needs at the time of the original Decision, you should have appealed the Decision, by asking for a SuperSession, you in effect agreed that you did not originally have Care needs but have subsequently developed them.
As I understand it from your original post, your SuperSession was refused by the DWP, you appealed, and this was refused by the Tribunal, on the basis that you had not shown a Change of Circumstances in your Care needs.
For completeness, there is an opportunity for you to challenge the Tribunal Decision, but you would have to show that there has been an Error of Law. See
What is an Error of Law?
Your current situation is that you can request a new SuperSession, you will need to show that there has been a deterioration in your condition since the date you submitted your original request for a Supersession.
There is a guide on DLA Change of Circumstances, but this covers the the subject at a high level, not at the detail level you require. I can only refer you back to the DLA Claim guides as you will need to show that your meet the requirements for either Lower or Middle Rate Care, which these cover.
You will remain entitled to HRM until a new Decision on your claim is made.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re-applying for care; questions
Tansyhill wrote: Gordon; Thanks for your reply.
Still a bit confused, just to clarify;
Even if a claimant was eligible for care, due to care needs, care cannot be awarded if they have an existing award and there is no new evidence of a further change in circumstances at the time of request for supersession.
Do you have any advice or guides specific to supersessions as to what constitutes a change of circumstance if, for example, a gradual worsening of symptoms does not count?
Also, if I decide to write to the DWP requesting a form for supersession, does this mean my current award of HRM will remain in place until a claim form requesting supersession is returned?
By requesting a SuperSession you are saying that there has been a deterioration in your condition(s) and you believe that as a result of this you qualify for a higher award.
The Deterioration must have occurred since the last Decision on your claim, and since you are the person initiating the assessment, you must show this deterioration by submitting medical evidence that shows the deterioration and when it occurred.
So if you had care needs at the time of the original Decision, you should have appealed the Decision, by asking for a SuperSession, you in effect agreed that you did not originally have Care needs but have subsequently developed them.
As I understand it from your original post, your SuperSession was refused by the DWP, you appealed, and this was refused by the Tribunal, on the basis that you had not shown a Change of Circumstances in your Care needs.
For completeness, there is an opportunity for you to challenge the Tribunal Decision, but you would have to show that there has been an Error of Law. See
What is an Error of Law?
Your current situation is that you can request a new SuperSession, you will need to show that there has been a deterioration in your condition since the date you submitted your original request for a Supersession.
There is a guide on DLA Change of Circumstances, but this covers the the subject at a high level, not at the detail level you require. I can only refer you back to the DLA Claim guides as you will need to show that your meet the requirements for either Lower or Middle Rate Care, which these cover.
You will remain entitled to HRM until a new Decision on your claim is made.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Tansyhill
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11 years 4 months ago #99191 by Tansyhill
Replied by Tansyhill on topic Re-applying for care; questions
Gordon; thank you for taking the time to answer, it is much appreciated.
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