CDLA 1304/95

My decision is that the decision of the DAT was erroneous in point of law. I set it aside and remit the case for rehearing in front of a differently constituted tribunal.

This is an appeal from the decision of a DAT dated 12.7.94. I myself granted leave to appeal. The claimant was born on 19.7.79. She contracted acute myeloid leukaemia. Her father was appointed her Appointee under regulation 43 of the Claims and Payments Regulations and on 12.8.93 made a claim for DLA on her behalf.

A form DS1500 report dated 20.8.93 (T42) was obtained from the hospital. From that, it appeared that two further courses of chemotherapy were contemplated, to be followed, if successful to achieve remission, by an allogenic bone marrow transplant. Understandably from that, the BAMS doctor concluded that the claimant's prospects for survival exceeded six months and no claim could therefore be made out under the special rules. I would note, at this stage, that the definition of a person "terminally ill" is to be found in section 66(2)(a) SSC & BA.

"(a) A person is "terminally ill" at any time if at that time he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months."

The AO refused the claim both initially and on review. From that, the claimant appealed to the DAT who, on 12.7.94, allowed her appeal. They held that the claimant was entitled to "higher rate care component and mobility component of disability living allowance for a period of 6 months from 12.07.94.".