Should you happen to be eating while you are reading this, you may wish to cease one of those activities.

We have two clients who would have scored 15 points on the PCA continence descriptors and have scored zero points in the WCA.

Cl 1: has an anal fistula which leaks all the time, requiring a change of underwear several times a day. Surgery last year failed to solve the problem and is going for further surgery in a few weeks.

Cl 2: aged 19 and suffers from irritable bowel syndrome. They have to be within easy reach of a toilet at all times and have restricted their life so that they rarely leave the house. Experiences occasional soiling and always carries a complete change of clothing when away from home.

The problem in both cases is that the WCA descriptors require FULL VOIDING of the bowel.

Bowel is a rather imprecise term and in my medical dictionary it is defined as "intestines". Given the nature of the intestinal tract, is it EVER possible to void the bowel completely? How can it be determined whether the bowel is fully or only partially voided? These are not intended to be frivolous questions but a genuine attempt to try to get our clients some points in the LCWA.

Other than by applying the Exceptional Circumstances provision of Reg 29(2)(b), can anyone suggest a way to solve this problem?

I have always understood the descriptors ought to be interpreted as meaning "more than a trivial amount such as skid marks or dirty wind" - a significant amount requiring the need to wash and/or change clothing.
It is unusual for people to carry a change of clothing. What about using pads?
I have heard it said, though, by doctors that IBS is not usually a cause of incontinence. What was the reason given - that there was no true incontinence?
You will have noted the 6 point descriptor about needing to ahve access to a toilet.

I have heard it argued that “cannot control full evacuation of the bowel” could cover cases like your two examples.

So for example 10A(v) “ Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel”

If someone does not have control over a part of the process of evacuation of the bowel (like your client with the anal fistula), then they do not have control of the entirety of the process of evacuation, therefore they “cannot control the full evacuation of the bowel”

It’s a bit tenuous, but it’s worth a go.

This was the cause of much argument when the WCA was being designed and unfortunately, DWP wouldn't budge from the wording including "full evacuation". They said that guidance would be used blah blah blah.....

What I would say is that I agree that in both of your cases (but particularly the first), an argument is possible that your clients have no voluntary control over evacuation of their bowel at all, therefore descriptor 10A(i) should apply. That way, you circumvent the need to argue about whether or what is full evacuation all together.

Otherwise, this will probably become the subject of caselaw in due course as it's a plainly ridiculous test.

Many thanks to all contributors.

The reason given for non-scoring in both cases was that the degree of incontinence did not amount to full-voiding of the bowel.

Ariadne: hasn't the possibility of scoring for dribbling or leaking disappeared with the LCWA? Bonner (p 294 of The Legislation, Jan 2009 Supplement covering ESA) suggests that IB caselaw which brings these within the sphere of 'loses control' are no longer applicable.

I do so agree that the test is ridiculous, and I'll be joining the queue to the Upper Tribunal.

10(a)(vii) awards 6 points for "Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly."

It has been noted (by brains other than mine) that the work risks is relevant here. This appears to be suggesting that an incident never has to occur (cf "risk" in the context of DLA continual supervision) - so evidence that there is a reasonable prospect would presumably be sufficient.

MJR

I think that analysis is correct.

Just to provide an update.

Client 1 has won his appeal. He was awarded 15 points on descriptor 10(a)(iii) (loses bowel control once a month). More to my surprise, he has also been awarded descriptor 6(a)(c) (loses bowel control once a week) on the LCWRAA and has been placed in the support group.

So cl has gone from zero points to support group in one fell swoop. However, because the incontinence descriptors and the meaning of 'full evacuation' are very much untested law, I am expecting the Department to request a SoR.

Grateful thanks to all contributors for their help.

"However, because the incontinence descriptors and the meaning of 'full evacuation' are very much untested law, I am expecting the Department to request a SoR."

i'd be inclined, if you can, to get some medical evidence on "full evacuation", not only from online resources but also from a local consultant specialising in the area; you want to be in a position to show that the wording is medical rubbish.

At the same time, i'd be inclined to involve the client's MP if the DWP does appeal ...

only a civil servant could think that someone with an anal fistula had any control at all....

The only conclusion we came to about 'full evacuation' (pending any case law) is that assuming appropriate steps had been taken by the client (e.g. advice/pads, etc. from a continence management service) it would mean there was still an overflow.

How on earth could you prove that a full evacuation had taken place anyway?

Descriptors designed by committees!

i had a client at tribunal last week very similar to CL1 above.

The Judge awarded 15 points based on descriptor 2B, cannot sit more than 10 mins due to discomfort. the Judge explained he was unsure as to how my clients condition would stand up to scrutiny (re full evacuation) and it was probably less open to dispute this way.

Can't complain with outcome but shows that clarification is definitely required.

Matt

A further update: Cl 2 has now won her appeal. However, she won on the MH descriptors and no points were awarded at all for the incontinence descriptors. Both Judge and Dr were new to the circuit and I guess the tribunal took a pragmatic view of the descriptors. Obviously, we won't be challenging the decision, but it's not exactly what I had expected.

"How on earth could you prove that a full evacuation had taken place anyway?"

presumably you'd need a barium meal or something similar immediately afterwards, in hospital with all the other kit they use to look see .. not sure any other way exists - now there's a submission for a future tribunal!

I've got an ESA appeal on the same issue on Thursday. My client has horrendous diarrhoea as a side effect to HIV meds, gets cramps as a warning but frequently still does not make it to the toilet and needs to go so far as to change his socks as a result.

Full evacuation of the bowel - CIB/14332/96 - Commissioner Goodman sees fit to quote at length a consultant's report put in by the rep confirming the problem with the wording of "bowel" and that it defines the entire of the intestinal tract and is therefore erroneous.

Confirming "full evacuation" - I agree and have similarly argued in my sub that this could only be confirmed by immediate medical assessment following the accident, but that it's fair to say this this is occurring if the client has to change his socks. It's a complete get-out for the tribunal to argue that if "full evacuation" has not occurred the descriptor should not apply as it's inherently improvable - waiting for the upper tribunal on that one too.

My client has to change his clothes several times a day and I have written confirmation of this from his HIV consultant, so I'm also angling for the support group; he was awarded 6 points on the basis of "risk" of losing control of his bowels if away from a toilet; however, he does not risk it, it's a given that he will.

Looking forward to seeing the outcome - can see myself becoming the "diarrhoea woman" of Manchester Advice!

We Won!

No stupid semantics about whether or not evacuation was "full" or not. The panel accepted that it was severe and that seemed enough. In fact, they had decided in his favour before we went in but just wanted to hear it from him.

My client is looking forward to a well-deserved holiday once his arrears come through (this has been going on since April 09).

My impression is that "full" means anything significantly more than "trivial" which means a bit of stress incontinence or what I have seen described as "dirty wind". In my view, anyone who always carries clean clothes to change into at need is having a "real" evacuation not just a bit of leakage, and I think that's what it will prove to be about: an amount that if you had the choice you would go to the toilet to produce and not deal with (if a woman) by little panty-liners.

Ariadne:

I couldn't agree with you more, but the tribunal didn't. They took the 'easy' way out by going for MH descriptors. The problem for client2 is that she is now in the work-related activity group, whereas client1 is in the support group. I would really like to take this case to Upper Tribunal but it would not be in my client's interest to do so.

Hi Ariadne

I think that you're giving the sensible answer, and my client's tribunal took him at his word.

It's Atos Healthcare who are causing all the problems for us with their insistance on interpreting "full" evacuation as just that. However, the failings of Atos are a whole other matter!