PIP

Hello,

I am completing a submission for one of my client’s PIP appeal. In activity 5 ‘managing toileting needs and incontinence’ , the client claims that she needs to use an aid or appliance to use the toilet - grab rails.

Her initial claim was rejected by reason that the aids she uses were already installed before she moved into the house and she has not been assessed as needing them.

Can anyone point to useful case law that could help?

The client isn’t going to request a OT referral for grabrails, if they are already in installed….

Many thanks!

Afternoon and welcome to Rightsnet. For future reference you may want a more specific thread title than “PIP”.  That will return thousands of search results.

Little doubt that rails are an aid. See https://pipinfo.net/issues/aids-and-appliances.

The test then is whether they are reasonably required and I think that’s where your focus needs to be rather than on specific case law. There is absolutely no doubt that the source of an aid or appliance has some relevance thus the many questions at tribunals about how such things are obtained. The key questions to be addressed are why the claimant needs the rails and how the need was met. If a need has been met by NHS prescription then DWP will rarely argue with regard to whether something is reasonably required. It becomes problematic when an aid is not in use or has been self-purchased because it’s not available on the NHS or there is a long waiting list. DWP tend to default to the simplistic “If it’s not from the NHS then you can’t prove you need it” but the reality is rather more nuanced and about explaining in detail what the need is and why and why it has been sourced as it has.

So, the first part of this is to explain why the need and why these rails in as much detail as possible.

However… the reality is that most reasonable people will suggest that your client really ought to obtain an OT assessment because at best it then confirms that the current rails meet the need and at worst it explains to your client that the rails may actually be in the wrong place for their specific needs and may be doing more harm than good and thus may also be detrimental to their PIP claim. No different to people adopting frames; sticks; crutches and chairs used by others. Yes there may be a reasonable need but that still doesn’t mean it is actually helping and there needs to be an evidential focus on that too.

Agree with Mike (of course) but working on the assumption that there isn’t going to be an OT report before this appeal comes up for hearing, the following might assist in establishing to the satisfaction of the tribunal that there is a need for aids (even if the current ones could be improved upon).

- how long has your client had the health problems that result in her needing help - or aids - when using the toilet?
- how long has she been in the current property?
- what problems did she have - and what help did she need - when using the (presumably un-adapted) toilet in her previous property?

The answers to those questions might help satisfy a tribunal that aids are needed. My experience (it may be different where Mike is) is that tribunals don’t have a particular difficulty with awarding points for an aid being required even if it hasn’t been provided - so long as there is good evidence of the need. In addition, think about whether there might be good anecdotal evidence - does the client have friends and family that she goes out with? Will they confirm that she will always use a disabled toilet where one is available? And when one isn’t, do they have to help her?

For me the issue is with DMs rather than tribunals.

DMs have difficulty understanding that there is a reasonable need even when the aid/appliance/adaptation was already there. Tribunals do not have that issue, provided the need is discussed in detail.

However, many tribunals do have an issue where it’s something like this and the use may be wholly inappropriate and potentially harmful. I’m thinking of people who never get around to taking those crutches back to the hospital and they then get used by their son despite being set at the wrong height etc. as an obvious example but I have also had a case where the MP on the tribunal noted that in their experience the rails being used by the appellant were about 1 to 2 feet away from where they ought to be for that specific appellant and thus they were not assisting at all.

I should have added in my original post that one of the questions tribunals ask about this area is about what you did in your previous accommodation but past caring has addressed that. One should also consider whether the reason the claimant in fact moved to this property was in part because it was already an adapted property or one where the landlord accepts that such changes can be made.

The other thing I would expect a tribunal to look at when considering need is whether there is evidence that the appellant has similar needs in respect of other activities, particularly washing and dressing.