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PIP: Communicating and reading descriptors
Hi all,
I have a client with a PIP appeal. She would like to argue the communicating and reading descriptors. She can do these activities but she is stating that she cannot do it 50% or more of the time due to migraines and autism. She has high functioning autism and she can write/type a lot though she does take her time. She has no hearing or visual impairment per se, but these senses are dulled when she has a migraine. She states that she does have cognitive impairment but she has no evidence whatsoever to support this. She is not under any health professionals, like a neurologist for example and she does not take any medications. She has been prescribed oxygen therapy and has a tank. But there is a severe lack of engagement with health services and medication due to distrust and efficacy.
I don’t think I should be arguing these descriptors and I think I should be concentrating on other ones like preparing food, dressing, washing,managing therapies (oxygen) due to pain and exhaustion from migraines and also executive dysfunction.
Has anyone been successful in arguing these descriptors with regards to similar health issues? Even if it’s possible, I have a severe lack of evidence so it makes it even harder.
Thank you for any advice/help in advance. I think I just need to bounce this off as many people as possible!
In those circumstances I think that’s a hard one to argue. However I’d always put it in the submission if the claimant wants it as ultimately it’s them who will be asked to explain why they believe they should be awarded it. I wouldn’t spend any time on arguing it or trying to find evidence if there’s nothing obviously available but would just set out the claimant’s position about why they qualify for the descriptor.
Not sure I quite agree with Mairi here.
The OP says the client has autism, albeit high functioning autism, whilst at the same time saying “She states that she does have cognitive impairment but she has no evidence whatsoever to support this.”
Does this mean there is no evidence of autism? Because autism is a cognitive impairment.
If there is evidence of autism, including of high functioning autism, it seems to me entirely possible that the interaction of the autism and migraines could well result in the client having difficulties with communicating and reading to a degree - and for more than 50% of the time - that will mean a point scoring descriptor is met. That is not to say this client does score points - only that they might.
Whether they do score points and whether a sustainable case can be made will then depend on their detailed instructions - and those will be instructions which are (hopefully) informed by the adviser’s detailed and patient explanation of what the PIP activities and descriptors actually mean and how they operate. How is the client affected by her autism? How does it interfere with her ability to carry out the activities and when and how often? How do the migraines interact and impact on that? If the client is able to carry out the activities when migraines are not occurring, is it possibly the case that the autism is actually a red herring here and that though it may take some effort to get the client to see it, the real case for communicating and reading descriptors is one based on the effects of migraines alone?
If a case is to be made on the basis of autism or the interaction of autism and migraines, then this would be a case where you would need some evidence to confirm there has in fact been an autism diagnosis. But beyond that, we’re back to the usual scenario of the best evidence of the effect of a disability or health condition on an individual is the evidence of that individual themselves. If a client is able to explain to me how their disabilities ‘work’ and how they are affected so that I believe points should be awarded, that is a case I will argue in my submissions, even if medical evidence is lacking.
On the other hand, we are advisers - we are supposed to bring our expertise to the party, to advise our clients on their case and how strong it is. We are not medieval scribes, with the role of presenting verbatim the client’s case as they wish to to put it. If an argument isn’t sustainable, it should not be put, particularly in the type of case which will often turn on the appellant’s credibility and what a tribunal makes of their evidence - you risk undermining a good point by pursuing a bad one.
That said, I could envisage unusual circumstances where I might present a bad point; if I thought there were good arguments to be made and the case could be won on points A, B and C and if after patient explanation and attempts to look at things from different angles I could not dissuade my client from wanting to pursue point Z, I might just present point Z in my subs. But that would require that my inability to get the client to see that point Z was rubbish was at least partly the result of the client’s learning disability or personality disorder - and (I think*) their agreement to my making it clear to the tribunal that I thought point Z was a bad one, was made at the client’s insistence and that I had agreed to that only so as to ensure that the good points were made and the client properly represented.
(* “I think” because I’ve always, in the end, been able to get there with a client, I’ve always been able to get them to see point Z is rubbish ).
Thank you, both responses were useful to get a feel for the arguments. I think I have in the back of my mind an incident where I stated the client’s difficulties but didn’t have any further evidence to present and I was accused, in the middle of the hearing and infront of the client, of embellishing said client’s issues. So on a selfish level I don’t want that to happen again because it was horrible. And while I know that Autusm is certainly a cognitive impairment, the DWP and HMCTS panels don’t seem to realise that it can effect those activities unless low functioning. Then there’s the added issue of the migraines compounding everything. Much to think about. Thank you again.