Case news from Osbornes Law: Disabled child receives highest award of Disability Living Allowance (“DLA”) after almost 3 years since the original decision.

JR is a 10 year old child who suffers from Cerebral Palsy as well as learning and communication impairment.  JR was awarded Disability Living Allowance (“DLA”) in 2012, which they received, up until 2017, with the higher rate for both the mobility and the care components.

Renewal of Disability Allowance award

In March 2017, JR’s parents applied to renew the DLA award. On 6 May 2017, the Department for Work and Pensions (“the DWP”) awarded JR the higher mobility rate but only the middle rate of the care component. This was on the basis that the DWP accepted that JR required frequent attention and/or continual supervision throughout the day, but did not require care through the night. JR’s parents strongly disputed this finding and JR, through the assistance of their parents, requested a mandatory reconsideration and then proceeded to appeal to the First Tier Tribunal (“the FTT”) where the review was unsuccessful. As legal aid was not available for appeals to the First Tier Tribunal JR was unrepresented at that hearing.

On 8 December 2017 the FTT refused the appeal and upheld the DWP’s decision of 6 May 2017. The FTT did not issue a statement of reasons until 2 April 2018. On 20 April 2018 JR’s parents requested permission to appeal to the Upper Tribunal (“UT”) from the FTT, which was refused. JR’s parents then made a request for permission to appeal to the UT directly. The UT listed a permission hearing on 1 November 2018.

At the point that the case reached the UT the Osbornes Law legal team – William Ford and Angela Marangone were able to obtain legal aid funding to represent JR at the UT appeal hearing under our Welfare Benefits Legal Aid contract. This is because appeals to the UT are in scope for legal aid under the Legal Help Scheme. We also applied for and obtained Exceptional Case Funding from the Legal Aid Agency to cover advocacy before the UT (which is not covered normally in scope for legal aid due to provisions of the Legal Aid Sentencing and Punishment of Offenders Act 2012). Osbornes then instructed a barrister to attend the permission hearing. The UT granted permission on the basis that the judge in the FTT had failed to take into consideration relevant evidence and, as such, the decision reached was wrong in law. As the DWP did not contest the appeal, the UT remitted the case back to the FTT for a fresh decision to be made.

JR’s parents instructed us to represent them at the new hearing in the FTT. As legal aid is not available at all for appeals in the FTT we again applied for and obtained Exceptional Case Funding from the Legal Aid Agency to assist the client with making representations to the FTT and to instruct a barrister to attend the hearing. JR was again awarded, Exceptional Case Funding. We argued that withholding Legal Aid would have left JR unable to present their case effectively and cause obvious unfairness.

In our representations to the FTT, we argued that JR met the criteria for the higher care component as JR is so severely disabled that, at night:

• they require from another person prolonged or repeated attention in connection with their bodily functions; and
• in order to avoid substantial danger to themselves or others they require another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over them.

DLA appeal process for benefit entitlement

Following numerous adjournments, the hearing was listed on 5 March 2020. At the hearing, the judge allowed JR’s appeal and awarded the higher care component for DLA, with effect from 08 June 2017 to 30 December 2022. The FTT accepted that JR requires prolonged or repeated attention, or watching over, at night. The FTT heard oral evidence from JR’s mother, as well as having her witness statement and the available medical evidence. JR’s GP reported that JR is unstable on their feet and prone to falls. JR also has limited awareness of danger.

The FTT found that these difficulties would be compounded at night if JR got up and was not fully awake. There was further evidence that JR has poor eye sight and is not able to put on glasses without assistance, as well as being at risk of choking at night while drinking. The FTT concluded that these risks were real and not too remote to be discounted (Moran v Secretary of State for Work and Pensions 1987).

It should not have been necessary for JR to have to go through a three year appeal process in order to receive the correct benefit entitlement. This case highlights the need for legal aid to be made available for all stages of welfare benefits cases, as well as covering representation before appeal Tribunals.

William Ford and Angela Marangone, in the Housing and Social Care team at Osbornes Law and Desmond Rutledge, barrister Garden Court Chambers led this successful challenge.