Hi I have an enquirer who I am assisting with an incapacity benefit appeal. She has a condition where she needs to go to the toilet up to 30 times a day. She does not lose control of her bladder but has to be near a toliet at all times as if she wasn't she would be likely to lose control. Does anyone have any ideas of how I can argue this in relation to the physical health descriptor for incontinence? Thanks

Have you looked at the commentary in 2005 Social Security Legistation Vol 1 para 8.196?

There is discussion there of 'no voluntary control over the bladder' covering situations where a person may be able to 'hold on' for very short periods of time. So you client may score 15 points on the basis of her condition. I guess it is a matter of judgement for the decision making body.

Commissioner Mesher's decision in CIB/1005/2004 provides a useful round-up of case law surrounding this issue as well as giving guidance on the type of questions that need to be answered in order to distinguish between 'no voluntary control' and 'loses control'.

There's a summary of CIB/1005/2004 in the briefcase area of rightsnet, with a link to the full decision on the osscsc website.

(above decision found by doing a word serch for 'incontinence' in rightsnet briefcase)

I have only just read this thread and I am wondering if your appeal has been heard yet.
If not, if you provide me with a fax number I can send you a copy of two very good reports produced on behalf of Castlemilk Law and Money Advice centre, by a Colorectal Surgeon and a Consultant Gastreontologist, that goes very deeply and graphically ( have lunch before you read them), on the operation of the bowel, Normal continence and defaecation and Urgency.

Vey useful for this type of appeal.

Willie Sinclair

Thanks WIllie,

Tribunal is 3 November, I have written my submission but would be grateful for any extra support. Fax number is 01782 408601.

Best Wishes, Rachel Smith

Just back from tribunal which was to determine the issue of incontinence. This case was about bowel incontinence, and the term "loss of control". Relied on CIB/14332/96.

In my appeal, the doctor said if you have a toilet nearby, you have control of your bowels. The questioning was very thorough but clearly focused on how many "accidents" my client had had. These were very few (like 2 in last 2 years).

I tried to argue that CIB/14332/96 (specifically at para 16) is a precendent for stating "loss of control" can comprehend a situation where someone has no accidents so long as they can get immediately to a toilet. I was met with the repsonse from the Chair that also at para 16 it is said the decision is not a precendent for stating that IBS suffers will score & in fact the majority of them wont. We had a good discussion on this.....

Aside from whether the tribunal factually accept the seriousness of a particular client's IBS condition, I'm a bit miffed that tribunal's appear to be equating loss of control with accidents. I've even tried to argue that medical incontinence is not the point, as someone with incontinence who can reach a toilet can still have loss of control without having an accident.

My client won his appeal on the basis of Reg 27 (severe and uncontrolled disease), so all was well and good for this client.

Is anyone getting success with CIB/14332/96? I know it is about 10yrs old so perhaps I'm missing something more up to date, but the legislation books still use it and others along the same lines.

As I went to collect the decision for the client (who as it happens was on the toilet), the Chair said my argument was "a bit dodgy". I'm willing to accept the way I argue a point may be dodgy, but am I really missing the point in this area?

Any help gratefully received!

Hi Paul,

My case in the end also was successful in relation to Regulation 27 so can't comment on CIB/14332/96 I'm afraid. It's a tricky one.

Rachel

Have you spoken with Chris Hughes about it?

Thanks John! You know Chris then?

I used to work in the team there in Stoke.

I have always found the the urgency argument very straight forward and the decisions are either superseded before the appeal or revised at the appeal hearing.

If you would like an example just ask and I'll forward an anonomised (?!) submission.

Thanks John, it's a small world!

This is my first urgency case but I think I've sorted it now, submission has been sent. If you have time to send me an example of a submission you have done on this though I would appreciate that as well. No rush though. Fax 01782 408601. Thanks a lot.

Hi ya, just out of curiosity is their condition Interstitial Cystitis?

yes it is as it happens! Do you know about it?

Just to let everyone know, the appeal was successful so thanks for everyone who offered me help with this.

Take care, Rachel Smith

Hi Rachael, i know this is too late, but i have a client with IC (i'm also doing unpaid advice work for - local disability group)and were currently awaiting a decision on a supercession application relating to getting her DLA care rate uprated from the low care to the high care and for an award of the high mob.

Anyway we've got good medical evidence from her consultant and gp corroborating her own evidence etc.

But i'm also interested in anything you think might be relevant including your PCA submission that you could spare me and any advice.

The other thing is that we are awaiting a full written decision from the appeals service relating to an appeal hearing held in august (when she was awarded low care)but covering the period up to Jan 2005, as well, client would like to take that one to commissioners.

if you have any thoughts,observations and advice, feel free to dispense it.

andy

Hi Andy,

I will send you the submission I wrote if you would like, but of course it is in relation to Incapacity Benefit, not DLA, so may not be entirely useful but if it can be of any use to you then that's great. Let me know what your fax number is or address and I will send it.

Thanks

Rachel

Thanks alot Rachel, my address is -

Age Concern - Dorchester
Rowan Cottage
4 Prince of Wales Road
Dorchester
Dorset, DT1 1PW

Hi John,
Just read your answer from back in Nov re incontinence and the 'urgency' argument.
Would be grateful if you are able to forward a copy of the anonomised submission.
Cheers.

No probs.

Just leave an email address or fax no. and I'll send it over.

ps

No. 1's or No. 2's? Or both?