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What are DLA & AA

Disability Living Allowance and Attendance Allowance?

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Longer-term illness or disability - , including mental health problems. They are, very broadly speaking, 'extra' money for people who don't manage ‘well’. When left to their own devices -either because of difficulties looking after themselves, communicating and socialising, or because of some sort of 'risk'.

Before 1992, a type of Attendance Allowance did exist, but qualification was based on assessment by a doctor and far fewer people got help. The introduction of DLA and self assessment in 1992 both extended entitlement to people with 'lesser' care and mobility needs and, to an extent, recognised the value of listening to people's own experience of coping with long term illness and disability.

In the field of mental health, it has been a longer, harder struggle. For one thing the original DLA and AA forms offered few helpful prompts for people trying to convey their own mental health problems. Additionally, until the 'Mal1inson' case in the late 1990s significant awards of DLA and AA were usually limited to people who continually met tough, 'serious risk to self or others' supervisory criteria

The Mallinson case was revolutionary, ruling that encouragement, verbal support, prompting or reminding which was 'reasonably' required counted towards DLA and AA. This heralded a re-design, albeit a small one, of the forms and opened up disability benefits for thousands whose everyday lives were seriously disrupted by mental health problems. The 'Halliday' case in 1997 built on Mallinson, ruling that help connected with communication and social activity definitely counted.

So why then are people still turned down for benefits they should undoubtedly receive? Why do welfare rights workers like myself still have to warn people it's 'a bit of a lottery' when helping out with initial applications? Part of the problem lies with poor adjudication -the DWP may have all the information but still sometimes get the decision wrong. Increasingly though, problems are also caused by what seems like a move back to the bad old days when doctors had the final say in who did and didn't get benefit. Presumably in the name of 'fraud prevention " the DWP now seem to be seeking 'further' evidence from GPs far more than they us to, which along with the use of visiting Doctors paid by the Government often  means that you end up with less than supportive 'evidence'.

Whilst GPs/ Psychiatrists may well wish to support an application, the wording of the questions on the 'factual statements' they are sent is heavily loaded towards 'risk' and doesn't actually relate to where DLA caselaw is today. The same situation also applies to the forms completed by visiting doctors. The DWP don't seem to recognise that in the world of mental health, applicants may well have little contact with their GP, or may find it hard to open up to a complete stranger who comes to interview them. ...You also, of course, end up with a picture of the help that is seen 'medically' as being required, rather than 'reasonably' required -which is what the law says it should be, and which makes a big difference.

Problems with actually completing the forms are also still significant; it's a long and depressing process at best and an insurmountable hurdle at worst. Sources of independent practical help are still few and far between and every advisor will have come across someone who' got the forms a few years ago but they went in the bin ' .If you're filling in the forms on your own behalf, may whatever support you need in that process either lie within these pages or be accessible to you -and good luck! The same applies if you're helping someone to fill forms in; sadly there is no magic formula and  'professional’  involvement is no guarantee of success.

So today, when caselaw is properly interpreted and applied by the D WP and medical evidence has not been contradictory, awards of AA and the equivalent middle and higher rate care components of DLA along with lower mobility are now quite usual for people experiencing difficulties surrounding anxiety, depression etc. as well as for those with 'more serious' mental health labels. Bad decisions continue to need challenging, but whilst the process is far from perfect, awards of AA and DLA are still changing lives and, in so doing, supporting 'good' mental health.

Basically very little! The major differences are that the two benefits serve different age groups and the rather illogical lack of help with 'mobility' for older people.

Each benefit has a qualifying period, so older people have to put up with their difficulties for 6 months before they can be paid whilst those under 65 can qualify after 3 months.

The DLA care component can be claimed for children at birth (even though it won't be paid for three months). The higher mobility component can be claimed from a child's third birthday or the lower mobility component from their fifth birthday.

Claimed by people under 65

Difficulties must have lasted for the previous 3 months and be likely to last for next 6 months

Two "components" - care and mobility or Higher mobility and/or one of:

Lower care

Middle care

Higher care

Claimed by people of 65 and over
Difficulties must have lasted for the previous 6 months and be likely to last for next 6 months

Only care needs addressed

Two weekly rates, with the same value as the middle and higher care components of DLA:

Lower rate
Higher rate

Now it might seen slightly odd that anyone should get so excited about a benefit that sometimes requires a good couple of hours of form filling to claim, but ask a welfare rights worker to name their ‘favourite’ benefit and chances are they’ll choose DLA, mention Attendance Allowance and their eyes start to mist over… Why?

Well, DLA and AA both have a flexibility which can make a very real difference to people’s lives. Most other benefits are taken away pound for pound, penny for penny from the people who need them most, but DLA  and AA are different…

Someone must be suffering from a PHYSICAL disablement and their PHYSICAL CONDITION as a whole must be such that they are:

* They have no feet (from birth or through amputation)

In effect, these conditions rule out the higher mobility component for most people with mental health problems unless they also have physical disabilities that make it very difficult or dangerous for them to walk.
 

The Lower rate mobility component is payable to people who are able to walk outdoors but -ignoring familiar routes -can only use this ability with guidance or supervision from another person.

New regulations introduced in 2002 sought to make receipt of the lower mobility component more closely linked to diagnosis of a 'severe mental disability' -or so said the Government's press releases. The example used by the Government was that someone diagnosed with agoraphobia could continue to qualify whereas someone whose anxiety and fear stemmed from a fear of loosing control of their bladder when outdoors would not. Not a particularly useful example!

What the new regulations actually said is that where fear or anxiety prevents people from walking in unfamiliar places, they will NOT qualify for lower mobility UNLESS 'the fear and anxiety is a symptom of a mental disability and is so severe as to prevent the person from taking advantage of the faculty in such circumstances' so it sounds like it's actually the fear and anxiety that has to be severe, not the mental health problem...

The experience of the income project since the new regulations were introduced is that they have had no discernible impact on the number of people receiving awards of lower mobility .Presumably this is because the vast majority of the people we work with do have a mental health basis to their difficulties walking.

Tactically, the only difference it's made is that if someone mentions also being anxious about incontinence, we have a chat about why it might not be advisable to include the information... just in case it muddies the waters in the decision maker's eyes...

FOR DLA LOWER RATE CARE:

Although the wording of the regulations can seem quite daunting, caselaw has, over the years, established more clearly what each of the conditions for DLA means. Caselaw is usually established by 1either the DWP or applicant (or an advisor on an applicants' behalf) taking appeal decisions they feel to be wrong on to be heard by the 'Social Security Commissioners' or even ultimately to the House of Lords. These decisions then set 'caselaw' precedents which DWP decision makers and Tribunals are theoretically bound by. Sometimes they need reminding of what caselaw says!

There's a massive amount of caselaw that only advisors are every likely to want to use, but it can be handy to know what it says about the basic qualifying conditions when filling in a form, or trying to decide whether a seemingly bad decision needs challenging.

'severely disabled'
 

The DLA Care/AA conditions start with the idea that someone has to be "so severely disabled that.." For a while the DWP tried to rule out people as not being "severely disabled", but caselaw says that in this context, all it means is that someone is sufficiently disabled that they qualify for a disability benefit- i.e. they meet some of the conditions.

'requires' help
 

• help must be medically required -caselaw says no, it only has to be reasonably required

• you could avoid the need for help by being sensible and staying in a chair all day to avoid falls or be locked in your room if you tend to wander off -but caselaw says any restrictions must be reasonably compatible with a 'normal' life

• help had to be for "essential" things, not merely "desirable" things -NO said the House of Lords

Essentially, the House of Lords have ruled that someone reasonably requires any help "which as far as possible enables them to lead a 'nomlal' life" -including social and leisure activities. You don't need to be getting any help at all -it only has to be reasonably required, not provided. However, where help is actually provided caselaw says that it is strong evidence that it is required -argue that hard pressed carers or cash strapped health trusts don't provide help for fun!

'Attention' or 'supervision '?

Attention is an active service involving contact with someone else to enable you to deal with personal care tasks. It might be physical -but more recently it has been ruled that non- physical contact -like someone speaking to you or supervising an activity counts too, although the DWP often seem to forget this and require prompting,  encouraging and reminding to make the right decisions at frequent intervals!

Attention has to be "in connection with bodily functions" -this means closely connected with personal care (e.g. washing, dressing, seeing, communicating, eating, etc.) as opposed to 'domestic duties' like shopping, cleaning etc.

Attention:
 

for a significant portion of the day' -Lower Rate rules -DLA Care only

This applies if you don't have needs at frequent intervals throughout the day but only for a portion of it -about an hour or several shorter periods adding up to an hour, says caselaw. .

‘frequent… throughout the day’ –Daytime rules for AA or DLA Care (Higher or Middle Rate)

Caselaw says this means several times, not just once or twice, while throughout means spread over the day, but the spread doesn’t have to be even – someone might have most difficulty first thing in the morning, but as long as they could do with some help during the rest of the day they might satisfy this condition, rather than the lesser, limited attention condition.

There is a certain amount of overlap between “significant portion” (especially when spread over several occasions) and “frequently throughout” condition. Needless to say, the DWP start at the bottom and work up, awarding Lower Care rather than considering this only if someone doesn’t meet the “frequent throughout” condition which would give Middle Rate. These decisions need challenging!

‘prolonged or repeated… by night’Night-time rules for AA or DLA Care (Higher or Middle Rate)

As far as night needs go, caselaw says that ‘prolonged’ means 20 minutes or more, ‘repeated’ simply means more than once. Remember this is an ‘or’ rather than an ‘and’ requirement!

Supervision:

The supervision conditions are tougher in that)there is no route to lower rate DLA Care, the supervision has to be required for longer than attention, and there must be some 'risk' to self or others.

This means most of the time throughout the day – with only limited breaks.

“frequent or prolonged watching over at night” Night-time rules for AA or DLA Care (Higher or Middle Rate)

Some further words on supervision...

 How is supervision provided?            

Being supervised doesn't mean someone constantly staring at you! It could be someone being available in case you need to call for help or need checking on -in a different room or even a different house, as long as they are close enough to intervene.

One ruling that really upset the DWP was that someone could even be supervising whilst asleep if they were attuned enough to someone's difficulties to wake when needed! As a result the DWP promptly changed the night time rules to stop a flood of claims, so that at night you do now have to need someone to be "awake for the purposes of watching over" you.

How do you show that supervision is required?

Caselaw has established a four part test for supervision needs -if you can answer 'yes ' to all these points you should be home and dry!

Is there a substantial risk from a potential danger? Substantial means big -but not necessarily life threatening. The DWP were_ru1ed wrong not to count the risk of biting the tongue in a fit and for dismissing suicide attempts that were clearly not meant to succeed. The risk could well be relatively minor in terms of 'life and limb' as in some self-harm, or a longer term one, such as that of self neglect- Supervision must only reduce the risk of danger, not necessarily eliminate it

Is it reasonable to guard against the danger? Caselaw says that the actual 'incident' being guarded against may have only happened once or even not at a1l- it's obviously not reasonable for example to wait for a deaf person to get knocked down three or four times before you accept that they might need supervision to keep safe in traffic! In general, the more serious the risk, the less often it needs to arise. It can be useful then to include any history of' incidents ' -suicide attempts, detention under section, accidents etc. to show likelihood, but don't be put off even if an incident has never, to date occurred!

The supervision must be reasonably required -but not medically required

The supervision must be required continually (daytime) or at frequent interval for a prolonged period ( at night). You can argue that even though you are reasonably 'well , between bouts of more serious problems, you may still need supervision -e.g. to ensure you stick to their medication, are not becoming unwell again, do not neglect to care for yourself, eat regularly, etc.

The fact that you may not be getting any supervision does NOT mean that you don't reasonably require it -so remember to think of what would be useful and not to concentrate solely on any limited supervision you might actually be getting.