I've seen two seperate DWP submissions recently that say "Help of another for most movements would only exacerbate pain." and "Help given by another person is often counter-productive as injudicious movement often exacerbates the pain" within the reasons for decision. Different DMs both Norcross DLA renewal cases.

Has anyone similar cases? Seems rather a worrying trend. GP's rebuttal on the latter was totally ignored on revision (but overturned on further review before appeal went ahead).

The Disability handbook states -

7.5.2 As a general rule the needs of persons with chronic (longstanding and
persistent) back pain are usually minimal and there are periods when the
back pain is minimal and of a low grade. Such pain is rarely avoided by
receiving assistance, indeed it may well be inadvertently exacerbated by
inappropriate assistance.

Perhaps this is the basis of the original decision?

We had one of these and went to appeal. Ours said “…with regard to backache, it is Mr B who is best aware of the least painful manner of moving and intervention from another person is more likely to hurt rather than help.”

We agreed that Mr B is 'best aware' of the least painful method and if he says the least painful way is WITH the help of another person, how can DM say it's not! Pain is subjective.

There were other issues to cover at appeal but we were successful.

Excuse me? That's one of the better generalised statements in the handbook, which is (it must be remembered) only guidance. I suspect it was written by someone who has'nt suffered personally from back pain.

(As an aside, you will note that the Guidance in the same book about the value or otherwise of GP's and Consultant's reports is quietly forgotten)

Speaking from experience, back pain and it's severity depends to a large extent on what the cause is, and where it emanates from. For example, if it happens to be caused by disc problems in the region of L3/L4 then this is approximately where the sciatica nerves are to be found, and the pain will not only affect the back, but will also travel down the sciatica nerves in the legs.

In a nutshell, the disc(s) bruise the nerves - causing pain which can be quite severe - that bruising will take some time to settle down, and in the meantime the sufferer will be only too aware of their limitations.

If the damage is caused by degeneration of the spine, Osteoarthritis for example, then that is obviously progessive and therefore the symptoms will slowly worsen as time goes by. Anyone out there who's got Arthritis in a knee or elbow joint will testify as to how painful it can be.

Whether or not there are periods when the pain is minimal depends to a large extent on how the client looks after his/her back - once you've damged the spine, the problems will never go away - if you try to lift or bend in the wrong way, you will cause further damage. Even stepping down awkwardly from a roadside kerb cause send a jarring and excrutiating pain up your back.

Anyway, this guidance seems to circumvent the problem - when looking at a DLA claim or ICB for that matter, are we not looking at what can be achieved without severe discomfort and pain etc? Is it not the case that the client is saying I need help with these activities because I cannot carry them out without help which I do not receive.

All this part of the guidance is saying is that we know best - we think someone helping you would be detrimental to your health and therefore they should'nt.

If that's the only basis the decision maker's have used in these two cases to reach their decision, then these decisions should be highly appealable, providing the clients do experience genuine pain etc, (as opposed to a nagging ache), and have a firm diagnosis.

Mike, you are right, but more worrying is the suggestion that a para from the Disability Handbook is being used as evidence by the DWP. Because it does not relate to the individual claimant, it is not really evidence but is an opinion (and in this case, one offered by a non clinician at that) so should be given little, if any, weight by the Tribunal.

I always thought that the Disability Handbook was published to help DMs understand disabilities and health problems, not to be an excuse for sloppy decision making nor to be used as evidence.

And that's before we start debating how accurate and unbiased the Handbook is.

ok, here's a bit of a joined up thinking problem i have at the moment, with some ethical and etiquette issues i need some help with.
it's relevant.

i have a really useful consultant's report on a chronic pain syndrome case, which enabled me this week to win a DLA appeal to get an award changed from lower care to highest rate DLA. it occurred to me that much of his explication of pain syndrome would be generally useful (to those of us languishing on welfare rights salaries), cited as an authority. And should be 'helpful' to tribunals too, of course, depending on which side their bread is buttered). He is a consultant in pain management at a major city teaching hospital, so if the tribunals want to say that an EMP's report trumps his, the government definitely has some explaining to do about what's REALLY going on.

i've thought of asking him if i could send an edited version, (to protect client/patient confidentiality), to righsnet as a resource, if he was happy with the idea. he might not be thrilled about being cited as an authority all over 'tribunal world', but on the other hand... he charged only a very small fee, for a consultant. i have found a good few NHS doctors prepared to provide helpful reports and charge very little or even pro bono. this report stands out, imo. anyway, that was one thought, and i got a little bogged down by it, and need some imput.

it sticks in the throat to read the CBI's views on the public service ethos in the guardian... encouraging that polly Toynbee got it right today, though.

Tax credit _and the government crime and poverty promo in one day! sorry, i should have said gambling BILL. it strikes me that if the government was serious about VR (oh but it is? ) it would scrap the Lottery and rehab public service managers. still, alternative sources of funding and all that...

as 'stake-holders' (yuk!) it's always nice to be consulted. thank **** father ted for the guardian, heh?

the award was limited on the basis of the client's relatively young age (mid-thirties) and the possibility that his condition can improve. i have to ask for the statement of reasons.

the consultant's report also clearly showed that our client, his former patient, couldn't access the only meaningful treatment, a course in cognitive pain management because of a language barrier. incredibly, (given the population demographics in the inner city area of the hospital) there are no courses for Bangali or Urdu speakers. the tribunal knows this, which is why I think the 2 year duration of the award, which has taken 9 months from the award start, is not appropriate in the circumstances.

i mean, the client will not have improved by the expiry of the award, and is likely to have to go through the whole rigmarole again in little over a year's time.

it's all to do with the funding issues ultimately. anyway, there's more to this, but maybe that's enough for starters...

jj