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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

The end of washing and dressing?

Mr Finch
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Benefits adviser - Isle of Wight CAB

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I’m still going over the full implications and reasoning, but my initial understanding of this case is that Judge Jacobs has finally put a stop to washing and dressing counting as personal actions:

MP v Secretary of State

Who’s going to tell Lima though?

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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I must have missed something. I read it as saying that as long as you can prove the person cannot do: planning, organisation, problem solving, prioritising or switching tasks, then s/he gets the points (paras 33-34).

Thoughts?

Paul_Treloar_CPAG
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Advice and Rights Team, Child Poverty Action Group

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Edmund Shepherd - 01 September 2015 09:56 AM

I must have missed something. I read it as saying that as long as you can prove the person cannot do: planning, organisation, problem solving, prioritising or switching tasks, then s/he gets the points (paras 33-34).

Thoughts?

Yes, I tend to agree that it doesn’t preclude washing or dressing as being actions at all. In particular, this section would have been helpful for one of my old clients who wasn’t awarded points under the descriptor because a DWP DM found that he could make a cup of tea and then switch the tv on, whilst lying in bed all day….

para.36 It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated.

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Actually, I think it is a very helpful decision. Read properly, it puts an end to (or should put an end to) FtTs deciding activity 13 against an appellant on the basis of a HCP statement that the appellant ‘can wash and dress’.....

30. I accept Mr Leithead’s argument that actions that are undertaken out of habit are not to be considered. Their performance does not demonstrate the claimant’s mental, cognitive or intellectual function. They merely show that the claimant has developed the habit of performing them. I accept Mr Leithead’s argument that DK can be distinguished on the ground that it was concerned specifically to test memory and concentration.

31. I accept Ms Blackmore’s argument that the action must be effective. Actions are not undertaken for their own sake. They are undertaken for a reason and a purpose. If that purpose cannot be achieved, the action is ineffective. The activity is defined as initiating and completing personal action. If the action never reaches the point of being effective, it is not complete. The most obvious example is a person with obsessive compulsive disorder. A person with that disorder is able to perform particular actions and to do so regularly, reliably and repeatedly. Their difficulty is being unable to stop doing them. The result is that they are unable to continue with the rest of their life. For those without the disorder, the action would be part of their life and allows them to continue with the rest of their life. For those with the disorder, the actions becomes their life and prevents them continuing with the activities they would then wish to pursue.

32. In considering effectiveness, it is important to remember the purpose of the test, which is to decide whether it is reasonable to require the claimant to work.

33. Activity 13 further defines initiating and completing person action as meaning ‘planning, organisation, problem solving, prioritising or switching tasks’. I accept Mr Leithead’s argument that, in descriptors (a), (b) and (c), ‘or’ must be read conjunctively, as meaning ‘and’. Ms Blackmore agreed with that argument, which reflects the description of the activity itself, which uses ‘and’..

34. The tribunal’s decision on Activity 13 must relate only to actions that involve all these tasks. This does not mean that the tribunal must find evidence of an action involving all those tasks that the claimant cannot complete. It may be that there will be evidence from, say, dressing that shows the claimant being unable to plan by selecting appropriate clothing to wear outdoors, which can be put together with evidence from, say, cooking, that shows the claimant being unable to prioritise tasks. This specific evidence may have to be supplemented by inferences drawn from the nature of the claimant’s condition or other factors. 

35. This does not mean that the action considered need necessarily be complicated, so long as the tribunal takes all potential tasks into account. Take dressing as an example. Most of the time dressing may simply be routine. It may even involve nothing more than putting on the clothing selected and laid out by the claimant’s partner. But it can require planning (deciding what to wear), organising (assembling the different items required), problem solving (finding an alternative item of clothing for something that is in the wash), prioritising (deciding whether it is more important to get dressed or to wash a particular item of clothing) or switching tasks (going to iron a shirt to wear). To put it differently. The tribunal must always be sure that the evidence on which it relies actually demonstrates an ability to undertake all the tasks required by the activity.

 

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Yes I agree, it doesn’t preclude washing and dressing being personal actions.  What it does do is to stop decision makers and tribunals deciding that as long as a person can wash or dress then they do not score any points under the descriptor.  For example, it would be absurd if someone who could wash and dress (activities which usually require little thought and are done on instinct) but, say, due to a learning disability (and not of course due to simple innumeracy) is unable to reckon change from £1 after buying a simple item not to satisfy (or come close to satisfying) the terms of the descriptor.