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Domestic Violence and descriptor 12a
I have a client who has had her children removed, due to domestic violence from her partner. The court has reinforced this by putting the children in care of a relative for 2 years. I think the phrase applied is ‘failure to protect’.
I wish to argue at tribunal that she has “reduced awareness of everyday hazards (that) leads to a significant risk to herself and others such that she needs supervision for the majority of the time.”, based on the wording of activity 12 and arguing that she clearly failed to protect herself and her children from an everyday hazard, the threat of violence and abuse from a partner such that she and they would have required supervision the majority of the time. That being impractical, the children were removed.
What do you think?
Has anyone used this argument and are you aware of any caselaw?
Hmm. Would tribunal not argue that domestic violence is not a standard everyday hazard, and that this does not apply according to the spirit of the descriptor.
Indeed they might. However if I can show that it was a hazard, ( that’s not arguable ) and it occurred on a daily basis, then in that household (and many others) it is indeed an every day hazard. I would argue that the spirit of the descriptor is in fact, ” is a person so unwell that they cannot protect them selves or others from harm?”
Hmm. Would tribunal not argue that domestic violence is not a standard everyday hazard, and that this does not apply according to the spirit of the descriptor.
It’s not exactly uncommon though…
It’s an interesting argument. It would have to be about protecting herself from harm, not others, so failure to protect the kids would be a non-starter I imagine. Are you saying that she has reduced awareness of the risks from DV as a result of a mental, cognitive or intellectual impairment? This would be the only chance I could see of this being successful. It’s not an argument I have heard before, no harm in trying it but I would want some alternative points on hand too. Not sure how reasonable adaptions stuff would apply to this.
It would have to be about protecting herself from harm, not others,
Well, the descriptor does apply to “injury to self or others”, or “damage to property or possessions”.
But as you say, there is the hurdle of establishing that the problem is due to a mental/cognitive/intellectual impairment.
I don’t know if it’s a problem that the descriptor applies where there is a reduced awareness of everyday hazards (plural), which is perhaps not the same as a reduced awareness of one specific sort of hazard.
And, the overall context (or “spirit”) of the regulations is to identify barriers in the workplace, so you may need to show that the hazard(s) are “everyday” problems in the work or work-related activity environment. E.g., CE/3183/2013 para 15, http://www.osscsc.gov.uk/Aspx/view.aspx?id=4263
I may be misunderstanding, but am I not right in thinking that your client is aware of the hazard, but unable to do anything about it? If this is the case, even if she has a mental health problem, the descriptor wouldn’t apply. If as a result of the stresses in her life, she is not sleeping, lachrymose, scattered etc. then she may score under the other descriptors, of course.
It would have to be about protecting herself from harm, not others,
Well, the descriptor does apply to “injury to self or others”, or “damage to property or possessions”.
Yes but the injury to others would have to be caused by her. It’s an assessment of the risks of harm to herself or the risks she may pose to someone else, not her ability to protect others from 3rd parties. There is some caselaw somewhere (I think - and I may have misremembered actual facts - about Work Related Activity and risk that would be caused by someone having to do it and leave disabled child whilst doing it, judge said risk had to be to her not someone else). That said, I did once win a Reg 35 tribunal that included in reasons for decision my argument that attending WRA would be a risk to client’s wife as she was an alcoholic and needed constant supervision to prevent alcohol related injury. I think that judge just got it wrong but I wasn’t complaining.
It would have to be about protecting herself from harm, not others,
Well, the descriptor does apply to “injury to self or others”, or “damage to property or possessions”.
Yes but the injury to others would have to be caused by her. It’s an assessment of the risks of harm to herself or the risks she may pose to someone else, not her ability to protect others from 3rd parties. There is some caselaw somewhere (I think - and I may have misremembered actual facts - about Work Related Activity and risk that would be caused by someone having to do it and leave disabled child whilst doing it, judge said risk had to be to her not someone else). That said, I did once win a Reg 35 tribunal that included in reasons for decision my argument that attending WRA would be a risk to client’s wife as she was an alcoholic and needed constant supervision to prevent alcohol related injury. I think that judge just got it wrong but I wasn’t complaining.
Could it be argued that the injury to others was caused by her failure to act in a way that, given the particular circumstances, would have protected the injured person - lots of injuries are caused by somone failing to act in way that would have prevented them happening. I take the point about there needing to be an illness or disability at the back of her failure to act and that might be more tricky
Thank to those of you who posted here, I appreciate the discussion and this helped me think the matter through more fully.
My client is clearly withdrawn but does leave her house and does interact with other people, its just that there is a flatness in her responses, an almost emptiness of emotional engagement. I have seen something similar before and have had that described as the “negative symptoms” of schizophrenia.
The client has no diagnosis other than depression and anxiety for which she had been medicated and had received CBT. She stopped the medicine herself finding it increased her anxiety.
I was struggling to find 15 pts using the other ESA activities, I could only really guarantee 6 each at 15 and 16. I tried for 13 and 14 as well, just to fill in the gaps but this was stretching it a bit. This why I felt I might have to rely on the argument at 12; if the tribunal had agreed then she may well have gone straight to the Support Group.
The argument for activity 12 outlined the facts our client had suffered such trauma in her life with an abusive father and then boyfriends, she may in fact have become a victim of a mental dysfunction, PTSD perhaps, and therefore unable to make judgements that would protect herself and her children from an everyday hazard, the domestic abuse. Her children are subject to a care order and removed.
However the Judge started by saying to the client that she had read the documents and did not wish to drag up uncomfortable history, The judge addressed me and asked if I was happy to look at the other activities first. I agreed.
After 10 minutes we were sent out for the decision.
The tribunal found the points for us, and I know they stretched it. I believe the account I gave of the clients recent turmoil (the argument for Activity 12) won the empathy of the tribunal before we even got into the room. The client was placed in the WRAG with a recommendation of 2 years before review from the date of the hearing.
I think it was a valid tactic.