I have a client with a DLA appeal shortly coming up. He has fibromyalgia and needs to go to the toilet 6-7 times a night. Only toilet downstairs. Relative helps him get out of bed and walks in front of him to steady him to go downstairs. Has raised toilet seat. Relative helps him back upstairs again and into bed.

Tribunal at previous appeal stated in reasons "at night necessity of getting out of bed to go to the toilet could be avoided by the use of a bottle".
Only lower care was awarded.

What do people think about reasonableness / otherwise of suggesting he uses a bottle? Is this commonly accepted as reasonable? Client has pointed out that sometimes needs a 'number 2' so obviously bottle not appropriate here. Client also feels it would be undignified to use a bottle.

Any thoughts would be appreciated, also any CDs.
Thank you.

I often think the "bottle argument" is a bit of a red herring. It seems quite reasonable to my mind to suggest the use of a bottle if that would truly alleviate the problem and the subsequent need for attention. But in many cases it will not.

To be able to use a bottle effectively, your client would have to be able to sit himself up unaided, reach over to where the bottle is and manouevre himself into such a position where he could reasonably use it without spillage or other problems. He would then have to be able to put the full(ish) bottle back where it was resting and make himself comfortable again, rearranging pillows and the like. If any of that is beyond him then he must reasonably require assistance with that.

However, the problem you then face is that only attention with the bottle could count rather than attention needed taking a trip to the loo and back again.

In my opinion, tribunals can get quite lazy and assume a bottle would obviate any attention required rather than testing their theory. It can sometimes pay to do it for them and show the need would exist in any event.

Matt Brown
Exeter CAB

CSDLA 0044 2002 Although not finding in favour of this particular claimant, the commissioner took into account space, privacy and personal dignity when considering whether the use of a commode was reasonable. There seems no reason why questions of dignity shouldn't be considered in relation to the use of a bottle as well.

‘I am unable to accept that the tribunal erred in this respect. The appellant has a commode in the bedroom, so there is clearly adequate space for it. It is self-evident that there is sufficient privacy when she uses a commode in her own bedroom. The claimant’s representative draws comparisons with Barlinnie. Emptying a commode after the duration of a normal night’s sleep does not, in my view, equate with emptying a chamber pot after twelve hours confinement where a person is perfectly fit and able to use a toilet if only let out of their cell. There is some regrettable loss of dignity, as there is sadly for all disabled people who have to rely to a degree on help from others. But DLA is a publicly funded benefit. That is a factor to be taken into account in determining what are “reasonable requirements” in the individual circumstances. Using a commode in the privacy of her bedroom does not entail such a loss of dignity as to relieve her of the necessity of using it if it otherwise obviates care needs.’

In this case, as far as I can recall, the claimant slept alone and her son emptied the commode in the morning. It might have been a different matter if the claimant had shared a bedroom with her partner. Would it still be reasonable to accept the loss of dignity entailed in carrying out such private acts as urination or defecation if it was in the presence of one's partner, rather than in privacy of one's own solitary bedroom, if the alternative is simply to be assisted with walking to and from the toilet? I think that the commissioner has opened the door to tribunals having to consider loss of dignity and give reasons why, in any specific case, they consider it is reasonable to expect the claimant to suffer such a loss.

The commissioner also held that a tribunal would have to consider whether it was reasonable to leave a commode unemptied, although once again she did not find that it was necessary for the commode to be emptied immediately in this particular claimant's case. The argument that a bottle should be emptied immediately is probably even harder to make.

‘It does not seem to me obvious, as it apparently did to the Commissioner in CA/168/87, that a commode has to be emptied soon after use. However, different considerations might apply during the day or if faeces are passed. During the night hours, it seems unnecessary that the commode be immediately emptied but rather that such emptying can be left until the start of the next day. In such circumstances, emptying the commode and then cleaning and disinfecting it would be analogous to taking away and washing the dirty linen in the Cockburn case, and therefore not such as to constitute the necessary attention in connection with her bodily functions. However, what is reasonable is for the expertise of a tribunal. Is emptying a commode as necessary for a claimant’s comfort and hygiene as removing soiled or wet bedlinen or night clothes, so that it is sufficiently connected with her bodily function of urinating? If it is reasonable to leave emptying the commode till the next day then, like the laundry, it does not count.’

As wqell as the dignity aspect how about the practicalities of this particular situation. You say he needs to go to the loo 6-7 times a night. Are they expecting him to use one bottle 6 or 7 times?? I would think that after the first time or two there would be a need to empty it. At this rate he would certainly need "repeated" help with his bodily functions and therefore satisfy the criteria.

The reference to a son is within an extract of CA/168/1987. The claimant in CSDLA/44/2002 shared a room with her partner.

thanks very much for all your thoughts on this one.

There is the current debate which states that it is uncivilised and undignified for the process of "slopping out" in prisons to continue in this day and age and also that it is an infringement of human rights. This should also be the case for people with severe disabilities who have to confront problems such as that stated.
Apart from that, if the person concerned has to go to the toilet 6/7 times per night and has to be assisted to do so by another person who would also, presumably, be the person to assist with the emptying of any said vessel,then this surely would cover the criteria concerning night time needs.

CSDLA/0044/02

"The claimant’s representative draws comparisons with Barlinnie. Emptying a commode after the duration of a normal night’s sleep does not, in my view, equate with emptying a chamber pot after twelve hours confinement where a person is perfectly fit and able to use a toilet if only let out of their cell. There is some regrettable loss of dignity, as there is sadly for all disabled people who have to rely to a degree on help from others. But DLA is a publicly funded benefit. That is a factor to be taken into account in determining what are “reasonable requirements” in the individual circumstances. Using a commode in the privacy of her bedroom does not entail such a loss of dignity as to relieve her of the necessity of using it if it otherwise obviates care needs."