Marginal decisions

One of the achievements of the welfare rights movement has been the
steady extension of disability living allowance and attendance
allowance. Apart from promoting take-up, a lot has also been done
on extending the eligibility conditions for the benefits
themselves. People with sensory impairments, children with autistic
spectrum disorders and adults with mental health problems have all
benefited from case law decisions that have brought more people
within the scope of claiming DLA.

Sometimes, however, it feels like we have to take one step back for
every two we take forward. Recent decisions by the social security
commissioner show just how difficult it can be to get benefit
awarded in what the Department for Work and Pensions perceives as
marginal cases.

A commissioner has ruled that using a microwave to heat up food was
not the same as being able to “cook a main meal unaided” so the
claimant qualified for lower-rate DLA care (case reference CDLA
2889 2004). A similar positive outcome concerned a disabled woman
who could physically drink from a cup but had to have the drink
brought to her first. The commissioner decided this constituted
“help with a bodily function” and it was sufficiently frequent to
tip the claim over from failure to success (CA 2034 2004).

But decision CDLA 2889 2004 was also bad news for people with
Asperger’s syndrome. Not only was assisting a person with
Asperger’s to take care of their finances and keep their home tidy
not a “bodily function” but the person in this case did not need
enough “calming down” when their routine was disrupted for the help
to be considered as “continual supervision”.

Another commissioner examined the rule that a disabled child must
need attention “substantially in excess” of children of a similar
age to qualify for DLA care (CDLA 3525 2004). The claimant was only
a few weeks old when her mother applied for DLA. There was medical
evidence that the child “has a metabolic condition which requires
very strict dietary control. She requires twice weekly blood tests.
She has special feeds that are necessary to maintain growth (and)
requires regular hospital appointments.”

The DLA claim was refused, a tribunal upheld the decision and the
commissioner was equally unconvinced. His view was that although
the feeding regime for the child was much more difficult than for a
non-disabled child, the overall quantity of supervision and care
required was the same for a non-disabled baby as for a disabled

The commissioner cited the guidance given to the DWP’s medical
advisers in the Disability Handbook: “Because of the amount of care
and supervision/watching over required by a healthy infant, that
required by an infant with disabilities may not usually be much
greater than that needed by a healthy child.É The infant with
disabilities may need more specific stimulation or formal passive
movements of the limbs as physiotherapy, but the amount of care or
supervision/watching over may not be greater than that given to a
healthy infant.”

On that basis, few younger disabled children would ever get DLA.
Fortunately, other recent decisions have swung the pendulum back
again – as my next article will show.

Gary Vaux is head of money advice, Hertfordshire Council.
He is unable to answer queries by post or telephone. If you have a
question to be answered please write to him c/o Community

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