PIP variable condition mental health

My cl has had her appeal hearing adjourned to get some advice. it is quite complex, the client has severe mental health problems which when she is in a manic state render her unbale to care for herself, however at other times she is quite able, she herself understands this and is fearful of being awarded PIP on the basis of her bad days as she thinks she may be found to have claimed fraudulently if she has longish periods of good days. we have a very short letter from a psychiatrist confirming diagnose and lots of information form a social worker, some of it relevant.

my worry is that while medication is working the client is relatively stable and probably does not fit the criteria for PIP at these times, is there any case law that covers this . I am concerned at taking my client through a Tribunal hearing while she has these doubts about her entitlement and don’t want to exacerbate her health problems

All the law you need is in reg 7 PIP Regs. Your client scores points based on the descriptor which applies on at least 50% of days as across the ‘required period’ which consists of the 3 months before whatever date you are considering and the likely position for the 9 months thereafter. (There is a slight wrinkle from AH v SSWP [2016] UKUT 541 (AAC) that the 3 month period and 9 month period are considered separately and not as one 12 month period).

It is impossible to do the maths precisely and it is impossible to accurately predict what exact percentage of the time somebody will be bad over the next 9 months. It all requires judgement. What I think is perhaps worth emphasising to the client is that it is not her judgement which is being tested here. Her job is just to tell the truth about her circumstances and it is up to the Tribunal to decide whether that results in an entitlement. If the Tribunal get it wrong and they think that she will be bad 60% of the time, when in fact she only ends up being bad 40% of the time, that does not make her claim ‘fraudulent’. It isn’t her job to make the call on what her entitlement is or isn’t - she just has to do her best to let the Tribunal know how her condition affects her.

Of course, if an award were to be made, there is still a need to inform the DWP if her condition changes substantially. I do not see how a claimant can be expected to count down to the day how their condition affects them; but it would be the case that if, say, there were some unexpectedly long period where she was not affected then it might be incumbent on her to report this and ask for a re-assessment.

It is worth bearing in mind the grounds and effective dates of supersession - in particular para 13, Sch 1 D&A Regs. The effect of that provision is that if her condition were to improve and she were to fail to report this then at a subsequent re-assessment, the change in award could only be backdated to the actual date of the change if she could reasonably have been expected to know that the change ought to have been notified. Therefore, provided that she takes a sensible view of what changes ought to be reported (“I haven’t had any symptoms at all for six months!”) and what don’t need to be (“I was only bad 15 of the 31 days this month!”), I would not think she has too much to worry about.

Thank you Elliot, she is on a community care order so you can see how bad her health is from that, The DWP gave her zero points as she has been ‘‘ok’ for 12 months but over the past 10years she has had hospital admission every year the last 2021 was for 4 months. I understand that if no individual descriptor gives 50% outcome I can add up all the ones that have an outcome and aggregate the points so if the total is over 50% that counts for an award,

I will have to argue that even though she has not had a manic attack in 12 months the average over the past years should be used to assess her, her social worker who submitted the SSCS1 argued that she was 50% likely to be ill , but that’s not quite the same point I fear. The SS seemed to be saying that if she did not take her meds she would be ill again, but of course she is taking her meds at present so is not ill.  I understand the reg 7 says that if the claimant was likely to be found eligible for PIP if assessed on a particular day I could argue that the numbers show that she is likely to pass the 50% threshold if she was assessed on any particular day in a year, does that make any sense ???

Yes I have explained that if the Tribunal award her PIP it’s their decision and she need not worry about fraud if she has given evidence in good faith

Diogenes - 05 July 2022 10:50 AM

does that make any sense ???

Not really, sorry.

Your client needs to meet sufficient descriptors over 50% of days in the past three months and over 50% of the days in the next nine. As you say, there are mathematical rules dealing with how you would add up periods covering different descriptors. If, however, the position is that your client is wholly capable of managing her daily living and mobility needs unless she is in a manic state and she has not been in a manic state for 12 months then the DWP are correct to refuse her an award as she fails the retrospective required period condition (whether in respect of reg 7 or 12).

You would still need to consider whether there are any descriptors which do in fact apply when she is not in a manic state. It may be that your client still needs some degree of assistance and input with her daily living even when not in such a state.

It isn’t a valid argument to say simply that she has had periods in the past when she was very seriously ill, even if she no longer is, because it doesn’t address the required period. It also isn’t a valid argument simply to say that she is likely to deteriorate within the next 9 months because this doesn’t address the retrospective required period (this was the argument which Judge Jacobs addressed and rejected in the case referred to above).

This is not to diminish the severity of her condition of course, but PIP is not about severity of condition - its about current needs in terms of daily living and mobility.

This reminds me of a past client who when not seriously ill due to her mental health she could self-care but due to the meds and her mental health when ‘well’ the time it took her to do daily tasks was much longer than the norm.  At the start of the appeal hearing the judge was ‘why are you here when you can usually manage’ to after asking that in a reasonable time period to be taken into account and her evidence PIP successfully awarded.

Check with your client what well actually looks like for them

Elliot and Vonny, thanks, yes its a tough one, but as she is on a community care order and is in effect forced to take her meds or she will be returned to hospital, I may argue that she has needs for help with her treatment and get some points for that, she may take the meds herself but as she is being monitored and supervised to do so I am hopeful these points can be agreed.

so if a claimant has severe disability but is assisted in managing this by others to the extent that she can lead a ‘norma’ life, that care and support she gets would give her PIP points,!!!  yes ???

my client has a support worker and social worker and family’s support to   enable her to maintain sufficient ability to perform daily living tasks for one year, does this mean she is not eligible for PIP , seems odd , as if she did not have the support she would relapse very quickly

What prompts a relapse?

If PIP activities are likely to prompt a relapse (unless assisted etc) you might have some mileage to a not ‘to an acceptable standard’ argument.

Does she have any other symptoms/conditions? For example anxiety about doing activities for fear (rational or not) of a relapse?

Diogenes - 05 July 2022 12:51 PM

Elliot and Vonny, thanks, yes its a tough one, but as she is on a community care order and is in effect forced to take her meds or she will be returned to hospital, I may argue that she has needs for help with her treatment and get some points for that, she may take the meds herself but as she is being monitored and supervised to do so I am hopeful these points can be agreed.

so if a claimant has severe disability but is assisted in managing this by others to the extent that she can lead a ‘norma’ life, that care and support she gets would give her PIP points,!!!  yes ???

my client has a support worker and social worker and family’s support to   enable her to maintain sufficient ability to perform daily living tasks for one year, does this mean she is not eligible for PIP , seems odd , as if she did not have the support she would relapse very quickly

Your client can establish an entitlement by reference to support needs which exist now. What she cannot do is establish entitlement by reference to support needs which existed a year ago but no longer do.

My client is anxious generally, for example about the appeal, she has also made worrying statements about her social worker and psychiatrist, suggesting they may have gilded the lily on her PIP claim to get her an award, I think it is her illness which has prompted these comments. so as well as dealing with the intricacies of reg 7 I also have to try and get the client through the Tribunal without her shooting herself in the foot. The social worker has submitted voluminous comments and I am happy that he is acting honestly in the claimants best interests, though he is not familiar with the PIP regs

I am hopeful that once she gets in front of the Tribunal they will see the extent of her issues i th eround, she wants to present as being ‘normal’ which may mask her needs.

Honestly I am not sure that this case actually raises reg 7 or variability at all.

What you are suggesting is that you are dealing with a client who has substantial need for support in managing many aspects of her daily living all of the time and that, as part of the background of that condition, has in the past required hospital treatment in connection with prolonged periods of mania.

Elliot, yes she is vary variable, on good days which as you see can be for months she is ok, but with care and support, it is   the question of the case as to what would happen without this support, would she be ok or would she not, the evidence of the past suggests the latter

Diogenes - 05 July 2022 01:59 PM

Elliot, yes she is vary variable, on good days which as you see can be for months she is ok, but with care and support, it is   the question of the case as to what would happen without this support, would she be ok or would she not, the evidence of the past suggests the latter

I think that ‘she is ok but with care and support’ says it all and all that you need to do is ensure that the tribunal knows she can manage the activities but because of the care and support, so explain what the support is ie prompting etc

Vonny, yes thank you, my battle will be to get my client to see things from a perspective other than her own, hopefully the Tribunal will help with that. I have to be careful not to go along and put forward a case which my client does not recognize, or one that would undermine her health in any way

You have a right to obtain her Care Plans from the Crisis Team. They provide a lot of health information as well as what her expectations are. She would have had an AMHP and they are much more approachable these days following the MHBS scheme ( debt respite ). As previously mentioned Bipolar disorder is treated with drugs such as Lithium, Risperidone and Valproate which have debilitating side effects.
The following is an extract from the WCA handbook which will have some relevance for PIP…..
6. Bipolar Disorders
6.1 Description
 These are severe mental health conditions characterised by marked mood recurrences
of mania or hypomania
 Whether manic or hypomanic episodes occur they are usually separated by periods of
depression.
 Swings of mood are pathological and recurrent.
6.2 Diagnosis
 Mood swings usually include episodes of depression.
 In hypomania, the clinical features are less marked than in mania and psychotic features
are not seen.
 In mania, there may self-neglect, with features such as poor personal hygiene.
Inattention to nutritional needs may lead to dehydration. Sustained physical overactivity
and aggressive or violent behaviour may ensue.
 Physical appearance may be unusual and speech and thought processes abnormal.
 Lack of insight may mean relevant features are not reported.
 60% of bipolar patients have psychotic symptoms at some time.
 Co-morbidity with other mental health conditions is common.
6.3 Treatment
 Most sufferers are likely to have been in contact with specialist mental health services.
 Management of acute mania/hypomania is best undertaken in hospital with the use of
medication aimed at reducing physical and mental overactivity.
 Atypical antipsychotics are the drugs of choice and may be combined with a mood
stabiliser.
 Longer-term management is aimed at preventing relapse or recurrence.
 Lithium remains the prophylactic drug most used, partly due to experience but
alternatives may be favoured based on their side effect profile.
 Poor compliance with treatment is a major issue, particularly for those on lithium.
6.4 Prognosis
 The average manic episode lasts 6 months (treated or untreated) with recovery the
usual outcome.
 90% of patients who have had a manic episode will have a manic or depressive
recurrence.
 50% of bipolar patients attempt suicide at some point.
 Less than 20% of bipolar patients are able to achieve a 5-year period of clinical stability.
 The long-term functional prognosis is that high levels of mental health disability are
likely.
EBM MENTAL HEALTH PROTOCOLS: KEY POINTS AND
ANALYTICAL GUIDANCE
MED/S2/CMEP~0054 Page 21 of 59
6.5 Main Disabling Effects
 Disabling mood swings are likely to persist between relapses.
 All aspects of daily life can be severely disrupted.
 Motivation, concentration and cognitive ability may be reduced.
 Long term psychosocial functioning is poor in up to 60% of patients.
 Some claimants with bipolar disorder may fulfil the criteria for substantial risk.

Thank you UB40, that is excellent information will use it in the appeal with the other helpful advice above

Late to the discussion but just for reference here are the details of the threshold for a Community Treatment Order ( CTO) which from the thread am presuming she is on. It is basically an extended Section ( usually s3 ) and she can be recalled at any time because of this.
The revised and much delayed Mental Health Act, is about to revoke some of this so moving forward what is stated here may become less powerful after a while. But as a mark of severe enduring MH condition it is still evidence.

https://www.mind.org.uk/information-support/legal-rights/community-treatment-orders-ctos/about-ctos/#:~:text=A%20community%20treatment%20order%20(CTO)%20is%20an%20order%20made%20by,instead%20of%20going%20to%20hospital.

Most relevant possibly is the following:

-You are suffering from a mental disorder for which you need to receive medical treatment.
-You need to receive this medical treatment for your health or safety, or for the protection of others.

I would suggest that this supports that she is affected more than 50% of the time - you don’t get detained under the Mental Health Act anymore - and certainly not to a s3 - unless there is considered to be a very high risk .By argument that risk will be considered to be >50% of the time.
A CTO is a compliance order - wasn’t clear if she was recalled to hospital in the past for non compliance.

Risk assessments will have been done plus she is legally required to have been given conditions of the order so would want those documents to be in evidence (tho risk assessments often not readily available so wouldn’t hold breath ) with maybe an explanation from MIND or Rethink explaining the thresholds for Tribunal members.

Would also submit all the above as additional evidence and ask the DM to reconsider - telling the Tribunal they have been asked to do so prior to any proposed hearing.