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DWP defence at Tribunal

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In some appeal bundles the DWP have cited as part of their reasons why PIP should be refused the following statement. Has anyone come across anything similar and how have they countered the defence

“It is noted that xx can drive a car. The activity of driving a car is in itself a multitasking activity requiring significant physical function in terms of grip, power and upper and lower joint movements in conjunction with substantial cognitive powers of thought perception, memory, reasoning, concentration, judgement and co-ordination. It is considered that if xxx’s functioning was as affected as claimed then he would not be fit to drive and would be a severe danger on the road. There is no evidence to suggest that DVLA have been informed of such

Elliot Kent
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I’ve seen arguments like this made. I don’t think its an illegitimate point to make but it is only indirectly relevant to any of the activities. A claimant could be a formula one driver but still struggle to (say) prepare a meal for one reason or another. Evidence which deals directly with the issues will often be better.

It can be worth discussing the claim with your client because e.g.:
[1] the assertion that they can drive can sometimes be totally wrong - for example if they were driven to the medical assessment and the assessor has just written “arrived by car”
[2] the claimant may own a car and have a driving license but not actually drive it at all. Some people keep a car long after they stopped needing it just “out of habit”
[3] even if the claimant drives, they might just do one or two very short, familiar journeys (e.g. to the doctors or to drop the kids off at school)
[4] the assumption is often given that the claimant is driving a fully manual car - sometimes they can only manage an automatic
[5] they may actually have told the DVLA and lost their license - just that the DWP didn’t know or ask about this.

I want to say that I have made or seen all of those arguments at one point or another when driving has been raised.

Mike Hughes
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Elliot Kent - 14 September 2016 09:13 PM

I’ve seen arguments like this made. I don’t think its an illegitimate point to make but it is only indirectly relevant to any of the activities. A claimant could be a formula one driver but still struggle to (say) prepare a meal for one reason or another. Evidence which deals directly with the issues will often be better.

It can be worth discussing the claim with your client because e.g.:
[1] the assertion that they can drive can sometimes be totally wrong - for example if they were driven to the medical assessment and the assessor has just written “arrived by car”
[2] the claimant may own a car and have a driving license but not actually drive it at all. Some people keep a car long after they stopped needing it just “out of habit”
[3] even if the claimant drives, they might just do one or two very short, familiar journeys (e.g. to the doctors or to drop the kids off at school)
[4] the assumption is often given that the claimant is driving a fully manual car - sometimes they can only manage an automatic
[5] they may actually have told the DVLA and lost their license - just that the DWP didn’t know or ask about this.

I want to say that I have made or seen all of those arguments at one point or another when driving has been raised.

[6] the claimant may be driving a fully adapted Motability vehicle.

I’ve had this argument made in one case. On the facts it was easy enough to tackle but I also took umbrage at the term “multi-tasking” on two fronts.

Firstly, it implies doing two or more things competently at once whereas most of what a driver does is arguably sequential even when it’s done so automatically it feels like its multiple things at once. A point nicely made by reference to the Highway Code and the Theory Test.

Secondly, there’s nothing in the PIP regs. or guidance to suggest that an ability to multi-task is suggestive in any way of an ability to perform activities. Indeed, many of the activities explicitly refer to more than one action. The first point was taken on board. The second point was acknowledged as being key and the PO was asked to take back to his colleagues a suggestion that the submission needed to be revised. We got the usual guff about such things being devised nationally etc.

Mr Finch
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The DWP are making dubious claims when it come to mental health.

Once someone is a practised driver, it is not really cognitively demanding and is probably similar to the calculations and thoughts needed to walk. Learning to do it is the hard part: the individual movements required are complex and detailed, but once they move into muscle memory, there is no conscious effort involved. Mentally the car becomes an extension of the body, as (I think it was) Roald Dahl said about flying a plane. Driving in a crowded space might be stressful, and anecdotally there is reason to think that people who are feeling anxious avoid driving on such routes.

While it is possible that having reduced concentration might increase the relative risk of an accident by some amount, the absolute risk may still be very low, so it is confusing to talk of a ‘severe danger on the road’. It is possible that there are people on the road who present some increased risk who should arguably have notified the DVLA, but this potential contravention is not a disqualifier from PIP.

With cooking, bathing, dressing etc, very often the issue is motivation to get started and the most that is usually accepted for PIP is a need for encouragement to start.

The unfortunate part is that tribunals, including the Upper Tribunal, have been quite reluctant to consider ESA activities (especially personal actions) with any of the above in mind.

Peter Turville
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NEW - 14 September 2016 08:28 PM

In some appeal bundles the DWP have cited as part of their reasons why PIP should be refused the following statement. Has anyone come across anything similar and how have they countered the defence

“It is noted that xx can drive a car. The activity of driving a car is in itself a multitasking activity requiring significant physical function in terms of grip, power and upper and lower joint movements in conjunction with substantial cognitive powers of thought perception, memory, reasoning, concentration, judgement and co-ordination. It is considered that if xxx’s functioning was as affected as claimed then he would not be fit to drive and would be a severe danger on the road. There is no evidence to suggest that DVLA have been informed of such

I have just received an appeal bundle (DLA) with a variant of the above with the added reasoning:

The relevance is that statistics show that 2,000 are killed on the British roads annually in road traffic accidents. It is essential that a car driver is capable of fully controlling a vehicle. X has stated her functional restrictions in her claim forms, which would lead a person to question her ability to remain in control of her vehicle at all times, as required by licencing authorities.”

And there are a total of 10 pages of equally risible reasoning for the decision (removing entitlement to higher rate mobility in award since 1994)!

Mr Finch
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The relevance is that statistics show that 2,000 are killed on the British roads annually in road traffic accidents.

This works against them, because to back up their position they would want to be able to demonstrate that anyone who is actually driving a car is doing so in 100% of cases entirely safely and without restriction.

 

BC Welfare Rights
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I have just received this email from a client who was refused PIP mobility due to telling Atos that she was driving a car, having received DLA LRM for many years. A bit of a rant but it does highlight some of the absurdity of it all:

Blimey this system is completely mad isn’t it? My situation seems so simple to me, without my car - my portable safe space - I would be housebound. Under PIP I should be eligible for 11d - needing navigation in unfamiliar places, this being a navigating passenger (satnavs can’t point!) in my vehicle, but apparently that doesn’t count. Due to my panic and dissociation I can’t safely walk around alone in unfamiliar places which is why I was awarded DLA mob in the first place. As for the future, if I’m still this ill and can no longer afford my car I will be housebound, at which point I will be eligible for PIP 11e!! But if I use the money to get a car so I can live a more normal and independent life, I will lose the money… bonkers is not the word. In fact what I haven’t told them is that I only go out on average 1 day in 3 so in fact I should have claimed 11e now, but you see I’m one of those apparently rare scroungers who is actively working towards a recovery (who knew we were here!), I want to learn to go out more and I don’t want to have to keep track and worry about spies when I muster up the courage to leave the house.
It sounds like I should leave well alone.  Ideologically you might feel you have the right to protest, but actually it’s not always sensible to do so! I wish they didn’t have such power over me…

stevenmcavoy
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i have a few clients with learning disabilities who have a licence.

i agree that to an extent the ability to drive gives you some insight into the “likely” capacity of an individual but thats all it does and still has to be balanced up against a number of other factors.

Many of my clients who can drive can understand a road sign (they tend to be pretty obvious like a big number) but whilst they could mechanically read a letter they might struggle to interpret the actual meaning.

same with a task like cooking. this is different from driving which is largely a spatial and physical activity/reactive activity than one which involves planning, reading etc.  newer drivers would need to have sat a theory test but remember many will have done so and passed with reasonable adaptations owing to their disability.

some of my clients will also only drive certain local routes not like your standard driver who you would expect to try new journeys from time to time at least.

i have only had one client with a learning disability and a driving licence that i couldn’t myself identify pip points for.

1964
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The other thing is the smug assumption that everyone with a driving licence is a safe, reliable, competent driver. Let’s face it, there are legions of people with full licences who can’t drive for toffee. Just because PIP claimant has never been the cause of a fatal accident doesn’t necessarily mean they’re likely to score highly in an advanced driving test.

Mike Hughes
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1964 - 03 October 2016 07:05 PM

The other thing is the smug assumption that everyone with a driving licence is a safe, reliable, competent driver. Let’s face it, there are legions of people with full licenses who can’t drive for toffee. Just because PIP claimant has never been the cause of a fatal accident doesn’t necessarily mean they’re likely to score highly in an advanced driving test.

Indeed, albeit that there is a bit of blurring around the edges with all of this as I’ve had many physically disabled clients over the years who ought not to have been driving and who would rather drop a DLA claim that would bring that into question than face the fact they are a danger to themselves and others. Ditto some with unexplained blackouts and lots of teenagers with sensory impairments who see driving at any cost as a rite of passage.

On the basis of this thread someone could probably put together a template response for this.