Prescribed date on negative determination, required period and managing toilet needs or incontinence

Hi All,

I hope to find answers to probably silly questions, but I dug myself into the rabbit hole.

C put a fresh PIP claim on 15.03.22. At that time he had a long history of retention of urine, hydronephrosis,  he wore pads. Indwelling catheter was inserted in October 22.
DM does not award him PIP on 12.07.22 from 15.03.22

Now, there are issues with managing the catheter (its size): significant leakages, catheter is regularly pulled, causes pain and it is a rather bloody mess (literally). C was told he would need to have a surgery, which he does not want to undergo, and therefore he has to endure regular replacements (every month). C says his wife helps him to manage the catheter by helping him to clean himself (first in the toilet and later on in the bathroom- but the bathroom part would fall under activity 4). Generally catheter affects his mobility and he is severely withdrawn from social interactions because of the leakage/ embarrassment, etc.

Question 1:
Could we argue that assistance with cleaning himself due to the issues with managing the catheter amounts to descriptor 5e? I checked Sweet & Maxwell to be sure I am not mixing up cleaning oneself afterwards with managing incontinence and cleaning oneself afterwards when managing toilet needs, but I am not sure if I got the difference right.

Question 2:
What is the prescribed date when negative determination was made? The date of the claim or the decision date?
If on 12.07.22 DM decides that C is not entitled from 15.03.22, did he mean that 15.03.22 was the prescribed date and therefore C’s required period would run from 15.01.22(past part) had C satisfied disability entitlement OR 12.07.22 is the prescribed date had C satisfied entitlement his past period would run for 15.03.22 to 15.07.22?

Question 3:
Change of needs in the required period - assuming C satisfied descriptor 5b at the prescribed date (whichever it was 15.03 or 12.07) and then higher three months later (October 22), is my thinking right that he would meet higher descriptor for the majority of the time (as from October onwards)? I understand that the facts of the case at the time were that C wore pads; but I want to argue that based on his medical history, the catheter was a natural consequence of the condition and although DM could not predict it, Tribunal has opportunity to see C’s needs in the whole of the required period.

Question 4:
If it is decided that C is entitled to 5b because he wore pads at that time; therefore even though the appeal decision will be reached a year later; can C raise the retrospective change in needs and point to the relevant date (October 22) ? Tribunal’s decision cannot be superseded (?), however, any decision can be superseded based on the change of needs? I am so confused now,  I need help!

Any insight would be appreciated,

Thanks!
Emilia

Hi Emilia,

1. Yes, I think, based on what you describe - without getting too deep into the commentary:
“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including use a collecting device or self-catheterisation, and clean oneself afterwards;
“toilet needs” means - (a) getting on and off an unadapted toilet; (b) evacuating the bladder and bowel; and (c) cleaning oneself afterwards.

2. C will need to have satisfied the conditions throughout the required period for entitlement to arise on any given day.

I think what is going on is that several separate microdecisions are being made in the refusal (if not decisions for the purpose of s.8 SSA).

First, the decision that C was not entitled as of the 15/3/22 date of claim is a decision that he did not score enough points from 15/12/21-15/12/22 (considering eg the 50% rule).

The required period to make an award from the date of claim would begin 3 months before date of claim. so only really relevant if there is significant deterioration in the 3 months before claim. In such circumstances, the appropriate decision (assuming later met the conditions for an award of PIP) would be 3 months after the onset of limitations sufficient to score enough points.

Second, he remained unentitled throughout the gap from claim to decision looking at all of the required periods.

Third, he was still not entitled on 12/7/22 looking at the required period 12/4/22-12/4/23.

Arguably there is a further decision that the was not on track to meet the required period and thus qualify for an advance award from some date after the date of decision.
Obviously this boils down to him not scoring sufficient points at any point on the DWP’s assessment.

3.  The tribunal will need to decide whether 5e was met at all looking up to the date on the decision. Let’s assume for simplicity that this is the difference between an award and no award of DLC.
If met from 15/12/21 then the points could be included from date of claim and could contribute to an award from the date of claim onward.
If met from 3 months before date of decision then could contribute to an award running from date of decision.
If found 5e was met from, say, 1 month before decision and likely to continue and continued, then in my view it would be open to it to step into the DM’s shoes and make an advance award under reg 33(1) UC etc (C&P) Regs 2013 to begin 2 months after date of decision.

4. Tribunal’s decision can be superseded on ground of eg a change of circumstances: reg 23 D&A Regs. This is what most negative decisions on reassessment are, after all. Just thinking practically about how to have it considered (if tribunal in effect decide that he didn’t meet it at any time they could consider and it is likely to be material) - late request for supersession from up to 13 months ago if one is made by the tribunal’s decision? Doesn’t seem from your message that there’s a current award to supersede and obviously no awards of PIP for periods prior to date of claim. New claim would mean current appeal limited to a closed period.

Also interested to hear any other thoughts.

Best wishes

Alex

I like the analogy of ‘microdecisions’. The point is that the required period condition needs to be satisfied and the required period needs to be considered (theoretically) at every date on which an entitlement is claimed, and is the ‘prescribed date’ for the purpose of that assessment - there is not just one date. Obviously in reality, nobody carries out that assessment unless something changes.

The issue in your case seems to be that the decision was made in July 2022 and the change in circumstances did not occur until October 2022.

Even if we assume that the changes could have been fully and accurately anticipated at the point of the decision (which I expect would be contentious), the issue is that there is no way for the tribunal to bring them into consideration. That is because the retrospective required period condition needs to be satisfied in relation to any award - this requires that the difficulties have existed for 3 months already. You need to meet both the retrospective and prospective required period conditions rather than just drawing a single 12 month period - see AH v SSWP (PIP) [2016] UKUT 541 (AAC).

Whilst the tribunal could consider an advance award, this can’t be for more than 3 months in the future and because the required period condition will never be satisfied until 3 months after the difficulties emerge, this will not assist.

Hi Alex and Elliot,

Thank you so much, sorry for the late response I had issued with logging in. I liked the analogy to the micro-decisions! Sometimes when I spend too much time on a specific topic I get to the point where I am so confused, I need to get back to the basics. I appreciate your help with thorough explanation!

Emilia

Late to this, but trying to draw some of it together;

If on 12.07.22 DM decides that C is not entitled from 15.03.22, did he mean that 15.03.22 was the prescribed date and therefore C’s required period would run from 15.01.22(past part) had C satisfied disability entitlement OR 12.07.22 is the prescribed date had C satisfied entitlement his past period would run for 15.03.22 to 15.07.22?

As has been indicated, if the claim was made 15/3/2022, then the 3 month past period starts 15/12/2021 and the prospective 9 month period starts 15/3/2022.

So C needs to meet the disability conditions on 15/3/2022 - that means he needs to have scored sufficient points for an award for the 3 months prior to that date and that he is likely to do so for at least the following 9 months (of course, by the time any decision is appealed and comes up for a hearing, the prospective test will in practical terms have become a retrospective one - did he in fact meet the conditions during the 9 months following 15/3/2022?).

Now neither 5 (b) - 2 points, nor 5 (e) - 6 points is enough to get him there; some other point scoring descriptors for other activities are needed for an award of the DLC at the standard rate.

But assuming that you can establish on appeal that sufficient points were scored for an award of standard rate DLC as at 15/3/2022, I see no reason at all why it would not be possible to argue that from January 2023 (i.e. 3 months after the catheter insertion/operation) an additional 4 points should be awarded for 5 (e). And if those additional 4 points would then result in an award of enhanced rate DLC, the award should be superseded from January 2023 so as to reflect that. That would be a decision open to the tribunal - so long as you have enough already to establish entitlement at some level from 15/3/2022. Thinking about that some more, I can see no reason why that would not also work where the award from 15/3/2022 was one of the mobility component only, and where the additional 4 points for 5 (e) from January 2023 was, when added to the at least 4 points already scored for DLC activities, now sufficient for an award of the DLC at the standard rate.