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Forum Home  →  Discussion  →  Disability benefits  →  Thread

PIP - preparing food and epilepsy

MOB
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Welfare Benefits Advisor, Broadland Housing Association

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Joined: 6 July 2022

My client has epilepsy with infrequent but severe and unpredictable seizures. She was awarded PIP mobility on 24/03/2021 (with a review in 10 years) for satisfying descriptor 1f, presumably because the decision maker believed there is an unacceptable risk of harm if she was to attempt any journey without another person. She only scored 6 points for daily living, 2 of which were for needing supervision for washing and bathing which is what I would expect given the risk of harm from a seizure. She was also awarded 2 points because she cannot cook a simple meal using a cooker but is able to do so using a microwave. I wondered if she should also have satisfied the 4 point descriptor 1e for needing supervision to prepare or cook a simple meal and note that reg 7 says the highest scoring descriptor should be awarded when two or more descriptors are satisfied? This would have then given her the 8 points needed for standard daily living. I would have thought there would be a significant risk of harm if someone was to have a seizure when using sharp knives to prepare food for example, or even to take out hot food from a microwave and get it ready to eat? If the argument that descriptor 1e should have been awarded is strong, what can I do, given that the time limit for a reconsideration has passed? Could I argue for an any-time revision by arguing DWP got the law wrong in failing to apply reg 7 correctly, or is the only realistic option to ask for a review due to worsening condition (but risk an even worse decision, bearing in mind she has an award of high rate mobility for ten years?).

Elliot Kent
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I am a little confused because you say that she scored 6 points however the points you refer to are 1c and 4c which would score a total of 4. Did she score 2 further points somewhere?

In answer to your question, yes, descriptor 1e (or potentially 1f) is very often applicable in cases where someone is at risk of a seizure. At some point the DWP decided that they could typically award under 1c instead although the logic is difficult to discern because as you say the microwave does not entirely resolve the risks involved in cooking.

You have the difficulty that you are out of time to pursue an ‘any grounds’ revision so you would need to use an ‘any time’ argument. I think that whilst it is easy enough to satisfy an FtT on the facts that descriptor 1e is satisfied, it is going to be much harder to make that argument when you are limited to error of law points.

I don’t see that it helps your case at all to suggest that they made an error with regard to reg 7 - it is axiomatic that the highest scoring descriptor is applied; the reason why your client did not get the 4 points is because the HCP advised that your client satisfied descriptor 1c and not descriptor 1e or 1f.

Your client could request a supersession and then could raise the point on the facts if the DWP refused to supersede.

MOB
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Welfare Benefits Advisor, Broadland Housing Association

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Total Posts: 36

Joined: 6 July 2022

Thanks for your advice Elliot, yes sorry for the confusion she did get 2 points elsewhere so descriptor 1e would have got her to 8 points

Elliot Kent
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If the DWP have accepted mobility 1f and daily living 1c and 4c and she has another comfortable two-pointer, then there can’t be too much risk in requesting a review. Of course, there is always an element of dice-rolling and maybe your client gets a new HCP who says that there is no risk at all. But we musn’t be too afraid of monsters under the bed and she seems to have a perfectly valid argument for SRDL or even ERDL if there’s an argument for 1f.

Not my money though.

Greg
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Money Matters Money Advice Centre, Glasgow

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If you do request revision, it can’t do any harm to reference the specific case law on epilepsy and risk of harm. It certainly sounds like your client’s epilepsy is directly comparable with both RJ and GMcL in [2017] UKUT 105 (AAC).

Given DWP have said she can safely use a microwave, I’d also clearly note why this is not the case (as you say, if she had a seizure removing a hot plate of food from the microwave, she’d be at risk).

Overall from your description it sounds like your client probably has reasonable merits. Even stronger if you can get something from her specialists saying that her seizures happen without warning or aura etc. I’d have no qualms in lodging an appeal, at least with a view to seeing if you can get a revision to lapse the appeal before a hearing. Although of course as Elliott says it’s up to the client what they can stomach.