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TOPIC: DLA Appeal-Difference between 'Pain & Discomfort'

DLA Appeal-Difference between 'Pain & Discomfort' 6 years 3 months ago #61924

My son, at turning 16 last February was not reawarded his DLA (Higher Mobility). He was examined by an ATOS officer who refused to read any of his medical letters that I had to substantiate his condition. I was concerned about the visit as my son is quite shy and I had previous difficulty with health professionals diagnosing his condition as my son had not left the house on his own for the previous 3 years due to the pains in his legs and stomach. The ATOS officer asked my son if he 'could walk 10 mins at a regular pace' and my son said he could even though he did not know what that meant. He made him do all sorts of bending which I thought should be for a adult. I tried to explain to the ATOS officer that my son could not and explained how far he could walk. He told my son that he needed to start walking on his own and not rely on me transporting him around in the car. Obviously all his DLA decision letter mentioned was that my son said that he could walk for 10 mins. The next day my son was upset and he attempted to get himself home from school without me and was mugged as he could not run from the gang. This was reported to the police. I rang ATOS and told the office what had happened. I asked for a revision and copy of the medical report, some of which is unreadable and for them to contact his consultant for up-to-date diagnosis but refused to contact the hospital. I also told them about the incident but they said that they could do nothing about it as it was common to young people. We are at the appeals stage since last year. I have since obtained new medical evidence confirming his bone density is low as well as vitamin D. The problem I have having is representing the information. I have seen caselaw that discusses 'pain' and 'discomfort' and I am at a loss at understanding it. I have delayed sending in the medical evidence as I am so stressed at trying to present his medical evidence with the caselaw but I do not understand it. Do I have to use caselaw nor do I understand how to present how far he can walk, distances etc. Its all a muddle and quite stressful. I would be grateful for any advice on the pain/discomfort threshold as his case has been sent for listing this week. Thanking you in advance.

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Re:DLA Appeal-Difference between 'Pain & Discomfort' 6 years 3 months ago #61927

ladyanne

No, you do not need to use Case Law as part of your submission, infact attempting to do so without understanding the full implications, may be to your sons detriment.

Have you sought face to face advice with regard to the claim? The CAB or a Welfare Rights office may be able to help you prepare your case, and they will be better placed to see if any Case Law is applicable/

With regard to your son's ability to walk. DLA takes into account a number of factors with regard to walking. The distance your son can walk is important, but so is the time it takes him to do it. Other factors such as whether he needs to rest during or after should be taken into account. His gait is also important, does he stumble, drag his feet, etc.

Have you looked at our guides for claiming DLA? They explain the above in more detail and may offer help to explain his care needs.

Hope this helps.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:DLA Appeal-Difference between 'Pain & Discomfort' 6 years 3 months ago #62037

The following information and case law may be helpful with regard to severe discomfort

Cassinelli v Secretary of State for Social Services (1991) (as reported in R(M)2/92) states that severe discomfort should not be taken to suggest "severe pain" or "severe distress" . Breathlessness could constitute severe discomfort.

CDLA/1832/2002 states that severe discomfort is "discomfort that it is not reasonable to expect a claimant to endure on a day-to-day basis". CSDLA/554/2005 considers cases where a claimant suffers severe discomfort at times during his walking but overall is not virtually unable to walk.

R(DLA)4/98 (formerly CDLA/12940/96) differentiates between pain and discomfort. Pain encompasses a wide range of intensities from mild to severe. Discomfort defined according to the dictionary as "the condition of being uncomfortable; uneasiness". So someone in pain may not be suffering severe discomfort but a claimant may suffer severe discomfort without pain e.g. breathlessness (see also R(M)1/83). However someone in severe pain does suffer severe discomfort.

R(M)1/81 states that severe discomfort being a lower concomitant of severe pain; doesn't mean "excruciating agony" and CM/1/1981 states that severe discomfort includes pain, fatigue and unease of all kinds.

R(DLA)4/03 (Formerly CSDLA/667/2002) follows R(DLA)4/98 and says that the stage at which pain amounts to severe discomfort is left to the judgement of the tribunal. See also CSDLA/252/1994. Tribunals should take into account discomfort that arise from a subsequent bout of walking following a period of rest.

CDLA/608/1994 considers cases where the effects of the discomfort do not set in until later. CM/267/1993 considers that discomfort does not necessarily become severe at the point at which the claimant is forced to stop walking. He or she may be in severe discomfort whilst walking. See also CM/166/1988 and CM/87/1989. CDLA/3896/2006 states that the tribunal should consider both the discomfort during walking and any discomfort incurred as a result of walking that occurs after the walking has ceased.

R(DLA)6/99 reiterates that the severe discomfort has to be brought on by the act of walking and not by any other cause. See also CDLA/13955/1996. R(DLA)4/04 (Formerly CDLA/2139/2003) reaffirms that the walking must be outdoors from walking out of doors rather than some other factor. However this does not preclude someone who has severe discomfort prior to walking.

CDLA/19/1994 places a duty on the tribunal to establish the extent a claimant can walk without severe discomfort to avoid an error of law due to inadequate findings. See also CM/171/1988.

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PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
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