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CPIP/3369/2015 - Wrongly Decided!
On today’s Rightsnet home page…..
17 MAY, 2016
CPIP/3369/2015
An aid normally used by a person with no disability is only an ‘aid’ for the purposes of the PIP descriptors if sufficiently ‘connected’ to the relevant activity
[2016] UKUT 197 (AAC)
Interpretation
2. In these Regulations —
“the 1998 Act” means the Social Security Act 1998(3);
“the Act” means the Welfare Reform Act 2012;
“aid or appliance”-
(a)
means any device which improves, provides or replaces C’s impaired physical or mental function; and
So no disability then no aid.
We are seeking advice as to the possibility of appealing this decision.
Watch this space.
We are seeking advice as to the possibility of appealing this decision.
Watch this space.
Good. It’s an odd decision which reads an additional legal test into the regulation that isn’t there. The last para. of the News summary item on here summed it up for me. The fact a healthy person uses a bed to dress doesn’t mean that it doesn’t improve, provide or replace the function for a disabled person. There’s no need for a relationship between the two scenarios to be established for the purpose of these regs. Is there?
If the disabled person were healthy then maybe they would occasionally use the bed but by definition it could not then be an aid or appliance as per these regs.
Leads to a whole set of scenarios Parliament cannot have intended.
When my spine is good I still get dressed mostly sat on the bed but that’s a choice. I can dress stood up; leaning on the wardrobe; standing at the top of the stairs or hopping on one leg out of the en suite shower with half a towel and half a leg of my jeans on (don’t ask!). None of these scenarios make the bed an aid.
When my spine is bad it’s bed only. Sometimes it’s lay down only too. The key thing is that there’s no element of choice. Without using the bed to support me in several positions “performing” several aspects of dressing, the only choice is dress this way or don’t dress at all unless assisted. So b becomes d or even e.
[ Edited: 6 Jun 2016 at 03:34 pm by Mike Hughes ]
I think it is a difficult one really - the recent decision doesn’t read very easily and feels a bit like the judge has decided on the outcome they want (to enable people to get points where they are using unofficial/ad hoc aids but to put a limit on the scope of this) and then worked backwards to justify that.
For me if you start from the legislation the use of the word ‘device’ suggests that the definition of aids should be quite narrow and that the item in question should have been ‘devised’ with the particular aid function in mind. Fortunately for claimants the judges in the recent decisions have been reluctant to take such a restrictive view. The difficulty with their approach is that it has opened up a bit of a can of worms and so they are having to perform a bit of intellectual gymnastics to keep it under control, all of which as noted above is reading additional meanings/concepts into the regulations that aren’t there.
“Device” like “social” is a very woolly term; hence the controversy.
I accept that para 31 appears to be saying that an aid is not an aid at all if most non-disabled people would also use it to perform an activity. That would be wrong, of course, as the definition of aid or appliance under the Pip Regs envisages “any device which improves, provides or replaces C’s impaired physical or mental function”, ie regardless of whether other people without C’s impairment also use it. So a bed undoubtedly “replaces” the function of standing for the purpose of dressing if that function, as appears not to have been in dispute in CW, is impaired. And is, therefore, an aid.
Judge Jacobs is, in effect, conflating the “needs to use” test that appears in every one of the aid/appliance descriptors with the main definition of aid/appliance found in Reg 2. This is evident in para 24 of the judgment when for the sake of convenience he describes the definition of aid/appliance as “assisting in overcoming the consequences of a function being impaired”. He uses that same description in para 31. I don’t think it matters, however, whether that approach is right because I think Judge Jacobs’ overall analysis is sound. That is to say, it matters not whether you consider the bed is an aid but is nevertheless not needed to dress/undress because there is an alternative bodily function available, ie sitting, which allows the activity to be done safely, repeatedly etc, or whether you think the bed cannot be called an aid at all in those circs. I prefer the former construction.
Judge Jacobs appears to be reminding us that the principle of reasonable requirement in DLA didn’t go away with the introduction of Pip. I see similarities between CW and R(DLA) 1/07. The Tribunal of Commrs held there that it was necessary to first identify the “bodily function” in order to identify the attention required in connection with it. That’s a “connection argument” in all but name. Just as the Tribunal envisaged having, in cases where it wasn’t clear, to unbundle the individual bodily functions, Judge Jacobs recognises that the Pip activities can involve “a parcel of functions” (para 28) and uses the availability of alternative bodily or mental functions in order to decide the reasonableness of an aid being required, very much in the way the Tribunal used the bodily functions to identify the nature and frequency of the attention required in DLA.
I read Judge Jacobs as saying, albeit in judicial language, that if it’s possible to identify (whether because it’s obvious or via unbundling) another physical or mental function that is not impaired and which can allow you to perform the activity to the requisite standard (ie safely, repeatedly etc) then it’s a complete nonsense to expect 2pts just because it’s possible to identify another bodily function, eg standing, which is impaired and which would but for the option of sitting, prevent you performing the activity. And that just seems pure reason to me.
With respect to Judge Mark, the connection argument was completely absent from the arguments before him in NA. I appreciate the issues of safely, repeatedly etc were not explicitly referred to in CW but I think it safe to assume they were considered. Although they possibly were overlooked when Judge Jacobs accepted the appellant’s submission that there would always be methods a claimant could devise to obviate the need for an aid. It appears contradictory, with respect, for Judge Jacobs to hold on the one hand that an impaired physical or mental function does not have to be essential to the successful performance of an activity before an aid in respect of that impaired function can be considered appropriate (or reasonably required) (para 30) and, on the other hand, to hold that the function “must be one that is required in order to carry out the particular activity” (para 33). On the very facts, standing was found not to be essential.
Surely the only consideration must be: is there an alternative unimpaired function, physical or mental, which allows the activity to be carried out safely, repeatedly, to an acceptable standard and within a reasonable time period? If so then it cannot be said that the claimant “needs to use” an aid. I’d submit lying down is not, contrary to the appellant’s submission, likely to be an adequate alternative function. The condition responsible for the impaired standing, eg a bad back, is likely to also prevent the person lying down, dressing, and getting back up again either safely (without harm/pain) or within a reasonable time (less than twice as long as it normally takes).
I think Judge Jacobs’ reference to what most people usually do or use is really directed towards deciding whether an alternative function such as lying down or even hopping on one leg out of the en suite is a reasonable alternative bodily function to allow an activity to be performed. Do most people sit when dressing? Yes, then it’s a reasonable alternative. I think that’s an unnecessary comparison as the effectiveness of the proposed alternative function should simply be assessed against the Reg 4 criteria, ie safely etc.
What CW raises is the necessity to unbundle the bodily and mental functions involved in the activities. It doesn’t follow I think that just because sitting down is a substitute for standing that a person will definitely not score points. As ever, it’s fact dependent. There may be other functions such as bending or reaching, for example, which are essential to the activity of dressing/undressing but which sitting cannot assist with so that an aid may be reasonably required or “needed”.
Edit: It would be different I think if nothing else but a bed would do for sitting on as that would suggest sitting generally wasn’t a reasonable alternative function. Sorry had to remove end bit of original post to beat word count.
[ Edited: 9 Jun 2016 at 06:37 pm by Tom H ]Quick thoughts while I’m on hold… It’s not “bodily functions” being assessed; it’s Daily Living Activities; in my submission they are composed of a number of “functions” but those functions are not “bodily” as Parliament departed from those functions on drafting the new scheme.
If one needs to sit down (needs being the operative term) while achieving such an activity then that activity is completed with an aid.
Quick thoughts while I’m on hold… It’s not “bodily functions” being assessed; it’s Daily Living Activities; in my submission they are composed of a number of “functions” but those functions are not “bodily” as Parliament departed from those functions on drafting the new scheme.
With respect Dan, I agree with the judge’s response to that at para 25 which is that it fails to address the functions involved in dressing. And whilst the word “bodily” function was removed from the Pip legislation it was simply replaced in the definition of Aid or Appliance with “physical” and “mental” function.
If one needs to sit down (needs being the operative term) while achieving such an activity then that activity is completed with an aid.
That argument is premised on a definition of dressing which involves standing to the exclusion of any other method of dressing. I said in my previous post that the judge used the objective standard of what other people normally do to decide what was a reasonable alternative function to standing in order to dress. Another way of looking at it is that he considered what others do in order to unbundle the functions involved. The fact you need to sit on something in order to effect the function of sitting doesn’t automatically make that something an aid any more than standing makes the ground on which you stand an aid.
[ Edited: 10 Jun 2016 at 02:06 pm by Tom H ]
i think there is no “normal” for what people do when dressing. Some sit down, some stand up, sometimes it’s a function of what you’re putting on and its fit. and sometimes how you have to do whatever it is is a function of what, exactly, your limitation is, which bit of you restricts the activity.
so for example, i have in another thread posited the issue of trying to one’s bra up when one’s shoulder/arm is non functional.
surely in fact it’s a question of whether the person can do, without an aid, the things that a non disabled person could/might do when dressing?
That’s another problem with the case at issue here. It tries to define an activity as a process that is the same for all when that simply isn’t true.
That’s another problem with the case at issue here. It tries to define an activity as a process that is the same for all when that simply isn’t true.
There needs to be a standard by which impairment can be measured. My understanding of the social model of disability is that it doesn’t seek to deny the existence of impairment. Rather it does not accept the narrative that people should be disabled by such impairments. I’m not professing to be an expert on the social and medical models of disability. In the context of those models the idea of “normal” will mean different things to different people. However, in the legal context we are dealing with, ie entitlement to Pip or, for that matter, DLA before it, surely you accept there must be an objective standard? The language of the law alone expressly provides for “impaired” function in the definition of aid/appliance.
The nature of DLA meant it was necessary for the House to frame normal life as a subjective test based upon the individual characteristics of the claimant. But Pip by its nature makes it unnecessary to attempt to define normal life in that way.
If, because of the way I was raised or whatever, I saw it as “normal” to dress through a process involving standing on my head, I suppose I would at least have the consolation should I, disastrously, in later life develop vertigo, of knowing that I’d be likely to qualify for 2pts at least in my Pip assessment despite being perfectly happy to dress like most other people sitting and/or standing. It’s my “normal” you see.
I think the social model of disability is about making people equal regardless of impairment not advantaging those with impairments over people without them.
i think there is no “normal” for what people do when dressing. Some sit down, some stand up, sometimes it’s a function of what you’re putting on and its fit. and sometimes how you have to do whatever it is is a function of what, exactly, your limitation is, which bit of you restricts the activity.
so for example, i have in another thread posited the issue of trying to one’s bra up when one’s shoulder/arm is non functional.
surely in fact it’s a question of whether the person can do, without an aid, the things that a non disabled person could/might do when dressing?
So what do you think should’ve been the outcome in CW then? On the one hand you say there really is no normal. On the other you say the claimant should be able to do with an aid what a non-disabled person could do.
If it’s CW’s “normal” to sit to dress then I can see some occasions when she is at a disadvantage (despite Judge Jacobs rejecting that term), eg some shop changing rooms don’t have seats in them. I suppose there is some scope in Pip for the Fairy/Halliday type arguments about normal life as the above example demonstrates. But that would have to be assessed against the 50% rule I suppose.
Firstly 6B is exactly the same as 6D.
....means any device which improves, provides or replaces C’s impaired physical or mental function; and
Can anyone actually come up with an aid or appliance that specifically improves, provides or replaces C’s impaired physical or mental function in dressing or undressing.
Can anyone actually come up with an aid or appliance that specifically improves, provides or replaces C’s impaired physical or mental function in dressing or undressing.
Here are a few: https://www.completecareshop.co.uk/dressing-and-comfort-aids/dressing-aids/
I accept that these aids and adaptions are a great help for disabled people but they still do not fall within the Regulatory requirement to be deemed so…..
specifically improves, provides or replaces C’s impaired physical or mental function in dressing or undressing.
However if the client had to wear a hand/wrist brace to aid support and strength in their affected area of their body in order to use those on the site then this is the aid and adaption. The recent UT decision supports this (a biscuit tin deemed not be an aid/adaption). Otherwise every conceivable item could be deemed as an aid/adaption eg a road map as an aid to navigate, an ordinary knife used too cut up food etc
i think there is no “normal” for what people do when dressing. Some sit down, some stand up, sometimes it’s a function of what you’re putting on and its fit. and sometimes how you have to do whatever it is is a function of what, exactly, your limitation is, which bit of you restricts the activity.
so for example, i have in another thread posited the issue of trying to one’s bra up when one’s shoulder/arm is non functional.
surely in fact it’s a question of whether the person can do, without an aid, the things that a non disabled person could/might do when dressing?
So what do you think should’ve been the outcome in CW then? On the one hand you say there really is no normal. On the other you say the claimant should be able to do with an aid what a non-disabled person could do.
If it’s CW’s “normal” to sit to dress then I can see some occasions when she is at a disadvantage (despite Judge Jacobs rejecting that term), eg some shop changing rooms don’t have seats in them. I suppose there is some scope in Pip for the Fairy/Halliday type arguments about normal life as the above example demonstrates. But that would have to be assessed against the 50% rule I suppose.
well i don’t think there is a “normal” in the context in which I meant “normal” - that is, that everyone does “x” in exactly the same way. i should think that is unlikely to be the case
and I did not say this “the claimant should be able to do with an aid what a non-disabled person could do. ” I don’t think it is possible to say that at all, if only because there are not aids for every type of issue a person with a functional disability might have (unless we are going to count other people as aids and appliances, which in some circumstances is what is needed)