Contained within an Appeal bundle, we have a Incapacity ben decision which is quite detailed. In it the DM has, with reference to several descriptors, made the following statement:-

"A person's ability to achieve any particualar set objective identified within the descriptors of the Personal capabilty Assessment need not be completely pain free".

Having not come across this before, it is difficult to equate with thre principles in DLA, that any walking (for example) that is achieved at the expense of severe discomfort should not be taken into consideration.

This cannot be correct surely ? opinions and /or guidance please , appeal to be heard realtively soon......

There is some guidance in "Bonner" (Non Means Tested Benefits) at page 782 of the 2008/09 edition. The consensus of the case law there is along the lines of it being a matter of fact and degree - as Commissioner Howell is noted there as saying- "even a fit man will suffer fatigue and his knees will start to ache if you make him walk up and down stairs many times in succession. The choice of descriptor should take into account whatever effects pain and fatigue may have on the claimant's ability to perform the task in so far as they are beyond the normal by reason of his specific disability". Of course, the walking descriptor actually includes reference to the ability to walk without stopping or "severe discomfort". By implication, walking with less than severe discomfort will not do, so that if a client could walk up to 500 metres in mild or moderate discomfort, s/he is unlikely to score above descriptor 1(f), whereas a person who can walk that far, but is always in severe discomfort, gets 15 points under 1(b). Sitting refers only to the effect of an unspecified degree of discomfort, but with other physical descriptors, the degree of difficulty caused by pain and discomfort is very relevant in assessing whether an activity can be carried out with reasonable regularity. I don't think the submission is saying anything new. If you can reach above your head with reasonable regularity, and without too much discomfort, you will not score on that descriptor, for example

(Brian)

It is erroneous to suppose that pain of any degree always equates to severe discomfort. I have been using a computer all day and my shoulder aches, but I would not rate it as anything worse than mild pain or mild discomfort. Not even worth taking a couple of paracetamol for (it will go away when I stop).
The use of the word "discomfort" goes very much wider than pain and includes, for example, nausea, vertigo, breathlessness and fatigue. It is the severity of any of these that falls to be taken into account.

Severe discomfort and pain are meant to be separate areas in the sense that severe discomfort does not automatically mean pain, although someone in pain would be in severe discomfort at the same time (CDLA/12940/1996). CSDLA/678/1998 also confirms that pain is beyond severe discomfort. There are clear connections here to IB matters. Pain (and fatigue) affects normal capabilities (NI case C1/95(IB), as approved in CIB/13161/1996). These and other cases have confirmed that it is not reasonable to expect performance if in pain. But any pain?

Of course, it is a matter of degree, as most or all of the cases will suggest. This is probably the basis I imagine of the DWP statement Mike refers to. I suppose if the client will answer ‘yes’ to ‘are you in actual pain when you do XYZ?’, you can then ask ‘does the degree of pain make it harder on a day to day basis for you to do XYZ?’ If client answers yes again, I think you are over half way there.

The issue that Mike raises applies to ESA – the same reference to pain appears in the ESA Medical Services Training Handbook.

Best of luck Mike.

Steve

The point that I was highlighting was that with DLA/AA we have clear definitions of pain and discomfort, (and all points in between), as set out by a number of clear and concise CD's, and as referred ro above by Steve, whereas It would appear that with Incap and ESA we do not: what we do have is 'Guidance'.

Notwithstanding thr fact that the test for DLA/AA is different to that for Incap/ESA, as the powers that be are so fond of reminding us, it seems illogical that a person suffering from a disability may well get an award of DLA, whereas with an Incap or ESA claim they may well not....

Discomfort is discomfort. Servere discomfort is severe discomfort and Pain is pain. However, nothing is that clear cut. Whilst one can say that it's a matter of degree, it is also a very individual thing - everyone has a different pain threshold, some much lower than others.

I think that we are going to find if more difficult to pursue appeals for as long as we have an entry in a medical services training handbook which basically says that it is acceptable for a claimant to experience some pain when performing various activities - if it had said a degree of discomfort, which is what DLA/AA case law basically says, then life would be somewhat easier. .............

Mike,

I completely agree. Social Security claimants, as human beings, should only be expected to do things that are reasonable. It is clearly not reasonable to expect anyone to willingly do anything that would cause them pain, or for that matter severe discomfort. In this sense the test of reasonableness in DLA/AA and IB/ESA must overlap very considerably. I have never known a tribunal expect a claimant to do things in severe discomfort or pain, having convinced them that this is the particular claimant's experience, when doing a particular activity.

In fact, CDLA/948/2000 (*73/01) says genuinely felt physical symptoms of pain or paralysis etc can count as a disablement in itself, even though there is no clear physical cause. I would agree with Mike that the DLA/AA case law is more developed than that for sickness benefits (although maybe there are comparable cases I am not aware of).

When I first noticed the reference to the acceptability of pain in the ESA Medical Services Training Handbook, I wrote to the ESA policy section (I think it was them) to object. No response, and I admit I did not chase it up. For balance, the same Handbook is quite constructive over the effects of breathlessness etc, which I suppose it does not have to be, given the wording of the LCW test. However, I will take up the 'pain' issue once more.

Regards

Steve

Steve

To save me wading knee deep through the handbook, I don't suppose you made a note of the chapter (and paragraph even) you saw the reference to acceptability of pain in.....

Mike

Hi Mike,

Unless it has been amended, you will find the pain reference on page 53 or 54 of the ESA Medical Services Training Handbook.

Steve

Ah... the delights of summer and the cherry picking season.......

Thanks ......having now looked it up, I see that the original DM who wrote that, "The activities do not have to be performed without any discomfort or pain", failed to follow it with the remainder of the paragraph in the ESA guidance, which says

"However if the claimant cannot perform an activity effectively because of pain they should be considered incapable of performing that activity. When considering the effect of pain, take into account the predictability of onset, and the effectiveness of treatment".

Now methinks that that puts an entirely different complexion on it does it not?

Mind you, the same page does also have a very helpful paragraph on resonable regularity:

"Taking all of this into account, if a claimant cannot repeat an activity with a reasonable degree of regularity, and certainly if they can perform the activity only once, then they should be considered unable to perform that activity".

...and for good measure, on the subject of breathlessness:

"Breathlessness is an important symptom to take into account, because it is not specifically reflected in many of the descriptors, but it may contribute significantly to disability in relation to walking and walking up and down stairs. For example, a claimant who experiences significant dyspnoea on carrying out an activity should be scored as if the activity cannot be undertaken. You should comment on the consistency of the above factors with the diagnosis and with the stage reached by the disease, and with the claimant’s lifestyle".

Courtesy of pages 53 & 54 of the ESA medical Services training Handbook.

I'm afraid I would still disagree with the suggestion that ANY pain is worse than severe discomfort. A moment's self-examination will show that we have all performed activities which have caused us pain. If I have been sitting still for an hour I can hardly move when I stand up for pain and stiffness (I am over 60 and have significant early arthritis). But once I get mobilise I would have no difficulty at all in walking six miles.

Equally, by the time I have done this my legs are so tired I can have significant discomfort in the last half mile. This is worse than the pain I had initially and much more likely to stop me. Synonyms of pain are "sore", "ache", "twinge". They are definitely pain as they are perceived by pain receptors and relieved (in normal cases) by analgesics. The quotation above talks of a person being unable to perform an activity "because" of pain. It does not say "without" pain. There is a difference.