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Definition of an “Aid”
Our client has incontinence issues and takes Oxybutynin to help control this.
I would argue that a drug is a chemical aid that ‘improves…..impaired physical function’. And as such argue that 2 points should be scored at Activity 5b.
This may be a loose interpretation of the definition of ‘aid’ but I am sure that a doctor or any one else wishing to modify the function of the bio-mechanical and biochemical entity that is the human body would confirm that a drug is in fact a tool, an aid, used to improve physical and or mental function.
Is this argument valid? Is there any caselaw that defines ‘aid’ but excludes ‘biochemical aids’?
Dear S Duffy,
I don’t think that your argument will will work. In CPIP/1206/2015, Judge Rowley states: “‘In my judgment an asthma inhaler does not constitute an ‘aid’ for the purposes of the moving around descriptor. It has long been accepted in other areas of disability benefits that a claimant’s ability should be assessed taking into account the beneficial effects of medication which it would be reasonable to expect the claimant to take (see, for example, R(IB) 1/08). I can so no reason why this should not also apply to PIP. It is, in my view, the medication which improves the claimant’s physical function of breathing. The fact that that medication is administered using a device is irrelevant.’ (paragraph 22).” He considers Aids in general in the preceding paragraphs.
As Oxybutinin is a medication, I don’t think that you will be able to class it as an aid.
Yours sincerely
Chris
I have just had a UT fail in that a Nebuliser is not an Aid, and in the decision Judge Jacobs is very clear that medication is not an aid, and it is very definitive on descriptors functions have to be read as they are, not a good result for my client but very clear for future claimants and interpretation when completing the form. When it is issued it is CPIP/2916/2016
I’ve just had a look at that case - now published on the new site for UT decisions on gov.uk - https://www.gov.uk/administrative-appeals-tribunal-decisions - and the case is up on pipinfo also - http://pipinfo.net/activities/managing-therapy-or-monitoring-a-health-condition.
I don’t think Judge Jacobs categorically says a nebuliser can’t be an aid or appliance - he says in this case it can’t because the claimant could use an inhaler instead but he seems to leave the door open for someone who could only have the medication administered via a nebuliser - in paragraph 20 -
There are two ways of looking at the claimant’s use of the nebuliser. One way is to see it as just a means of delivering the medication required, just like an inhaler or a syringe. Looking at it in this way, the use of the nebuliser does not indicate any limitation on the claimant’s ability to carry out the activity of managing his medication. So this approach does not work on the legislation. The claimant’s representative has suggested a different approach. He says that the nebuliser is needed because it delivers the medication as a fine mist that is more effective than an inhaler for someone who cannot take a deep enough breath. This argument founders on the tribunal’s findings. The claimant can and does use an inhaler and he only uses the nebuliser when he is in bed, when he denies being breathless. So this approach does not work on the evidence.
despite that, i think it would be exceedingly difficult for a medication to be ever classed as an aid.
It’s not the medication - it’s the means of administering it. So I see Judge Jacobs as saying if the only way the medication could be administered is by way of a nebuliser because the claimant cannot manage an inhaler due to his breathing difficulties then the nebuliser could be considered an aid to manage medication. That wasn’t the situation in this case so the nebuliser wasn’t an aid. Judge Jacobs also gives an example relating to administering insulin -
18. Some medication can only be delivered by the use of a device. Someone with
diabetes may have to use a syringe to deliver their insulin. Their use of the
syringe does not indicate that their ability to carry out the daily living activity of
managing medication is limited by their physical condition, as required by
section 78(1)(a) of the Welfare Reform Act 2012. What it indicates is that the
medication can only be delivered in a particular way. The syringe does not
improve, provide or replace any function relevant to the management of the
insulin for the purposes of the definition in regulation 2.19. The position is different if the claimant experiences problems with using a
syringe. A claimant who has dexterity problems, visual impairment or needle
anxiety will need to use one of the devices on the market that assist them by
improving or replacing the impaired function that arises from their condition.
Summary now up - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/whether-a-nebuliser-can-be-an-aid-for-the-purposes-of-administering-medicat
I’d say it still requires a lot of fudging.
“aid or appliance”-
(a)means any device which improves, provides or replaces C’s impaired physical or mental function;...
“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly;
I’d say the Nebuliser is a method of and improvement/enhancement of delivery rather than improving or replacing function.
Similarly a spacer on the end of an inhaler is designed to improve delivery of the medication.
A nebuliser converts a solution of a drug into an aerosol for inhalation. It is used to deliver higher doses of drug to the airways than is usual with standard inhalers. The main indications for use of a nebuliser are to deliver:
A mechanical Ventilator would fit in nicely however as that replaces or improves a function.
i agree with John Birks for the reasons he gave…..articulated much better than i could have done…
I take your point completely - and I’m not an expert on nebulisers at all! I was just trying to highlight that the door had been left a little bit open depending very much on the particular claimant’s circumstances - will be interesting to see how it develops…
As I said this was my case and most of the arguments above were considered, and whilst the door is left slightly open , in general I interpret it as meaning unless someone needs to help you with the Nebuliser, syringe, inhaler etc. then it is not sufficient to score points, which is in fact exactly as the FtT Judge worded the SoR, the claimant didn’t need aid from another person. Though the positive impact of this decision we now have a clear view of what counts as aids and appliances.
N.B. I actually don’t have a issue with the final determination, as Judge Jacob’s findings do make sense as to how the legislation is worded. What it does highlight is how poorly the legislation is written. A dossette box is an aid/ appliance, but an electrical appliance used to deliver medication is not an aid/appliance.
Although ‘obiter’ comments, in decision published today CPIP/24/2016, Judge Gray considers if retinal implants amount to an aid or appliance for Activity 8 and what in general may amount to a prosthesis in the definition -
‘I am persuaded that [prosthesis] was included for clarity or emphasis (the use of the word ‘and’ suggesting that) possibly to ensure that amputees were considered to be amongst the more disabled group that the payment is designed to benefit, despite (or perhaps because of) the ability of some to adapt so well to their disability as to be able to run and jump competitively. It cannot have been intended either to be an adoption of the dictionary definition, or of the use of the term in the medical sense as including, for example and not exclusively, dental implants, stents, heart valves, replacement joints and retinal implants.
In expressing this view I am not saying that implants should be ignored; they may indicate a serious medical condition, but of themselves they are not point scoring as aids or appliances. Where functional disability remains despite an implant the extent will be assessed under the activities in the schedule. ’ (paragraphs 47-48)
To a great extent, I am thankful that these comments are obiter - it probably is an area that needs to be the central point in an appeal at the UT at some point.
I recently had a case of a person with Parkinson’s, who has Deep Brain Stimulation. For those like me who were unaware of what it means (and I have a relative with Parkinson’s), the Parkinson’s UK website says -
“Deep brain stimulation involves implanting very fine wires with electrodes at their tips into the brain.
These are connected to extensions that are tunnelled under the skin behind the ear and down the neck. They are connected to a pulse generator (a device like a pacemaker), which is placed under the skin around the chest or stomach area.
When the device is switched on, the electrodes deliver high frequency stimulation to the targeted area. This stimulation changes some of the electrical signals in the brain that cause the symptoms of Parkinson’s.”
My client explained that he had the procedure because increasing medication was causing side effects that were themselves problematic. His main problems were slowness of movement and rigidity and the DBS has improved his “slowness of movement”, although it is still very noticeable. It seemed to me fair and square that this was an “aid” in that it is a “device” which improves his functionality - for example, the speed at which he can move his arms. He still finds chopping and cutting, and feeding himself, slow and laboured, but said that it would be considerably worse without DBS.
The FTT flatly ruled it out OK as an aid at the start of the hearing, citing the Judge Rowley decision referred to earlier in this thread. I argued that the device does not administer medication in any way, so the decision could be distinguished, but that was rejected. The client does not wish to appeal as he was satisfied with the award he received after the hearing so I am not in a position to take it further, but I can certainly see both sides of the argument and I am not sure that DBS really is not an “aid” (as defined), whereas an electric tin opener, or a long shoe horn, or other examples, clearly are accepted as being so
I would have thought that there is an open and shut argument that deep brain stimulation is a prosthesis—the OED definition is ‘1An artificial body part, such as a limb, a heart, or a breast implant’ and give this, in my view directly analogous, example sentence: ‘‘It could also help provide the basis for developing neural prostheses capable of restoring function to paralyzed limbs’.?
Editted to say I can see what you’re getting at having properly read the post prior to yours and agree with you and disagree with the learned judge, following the dicionary definition seems fine to me!
[ Edited: 8 Mar 2017 at 10:01 pm by paulmoorhouse ]