ESA Continence Descriptor - Meaning of ‘evacuation of the bowel’

I have a client who has, as well as IBS, some damage to her bowel which has resulted in a continual leak. She has to wear pads all the time as she has no control over this leak. It is not necessarily a lot, but enough for her to wear the pads and sometimes change her underwear.
Her appeal has been adjourned, and we are trying to find some justification to say that, eventually, a continual leak must amount to full evacuation of the bowel, even if it takes several days. She does not risk losing control of her bowel causing full evacuation - in fact she has to manually evacuate when she feels she needs to pass a motion.

I would appreciate any advice or if anyone has any arguments for her case.

Thanks

Tricky one as although eventually the leak would probably cause a total evacuation, this does not actually happen in her life as she manually passes a motion anyway before the hypothetical full evacuation would really occur. i dont think this would count fully toward continence problems as its not a real life description of what happens to her.
I think this is one of those situations where morally she should get her 15 points however the descriptors dont match her condition.
Need to dig a bit deeper. Does her Bowel problem affect her bending,kneeling or ability to walk? Clutching at straws but nowt new about that !

If you are construing, as it appears you are, “no voluntary control over the evacuation of the bowel” as requiring the full evacuation of the bowel, then I think your current argument is doomed to fail.  That’s because by her own admission she is able to voluntarily contribute towards the full evacuation of the bowel by passing a motion when she feels the urge.  The fact that her bowel would theoretically empty fully should she achieve the super-human feat of holding herself in for days is obviously irrelevant as it’s a real life test.  It follows that she has “some” voluntary control and, therefore, cannot be said to have “no” voluntary control” of the full evacuation.

However, she must have a good chance of winning because it seems to me that descriptor 10(a)(i) does not require the full evacuation of the bowel.  That’s because the word “full” appearing in 5 of the 7 descriptors of Activity 10(a) has been deliberately left out of 10(a)(i), as it has (ii).  Presumably, the draftsman felt it unnecessary to include it given that those two descriptors concern “no voluntary control”, and someone with no such control would be as unable to control a full evacuation as a partial one.  If that was the thinking then I think it was careless.  That’s because the two descriptors are now vulnerable, through being contrasted with the 5 other descriptors, to the argument that they do not as a matter of ordinary language include the full evacuation of the bowel, making the intent behind them irrelevant. 

If that construction is correct, the remaining issue for the tribunal to decide would be whether the degree of her leakage is such that it could be said to evidence “no voluntary control”.  In other words it would be left to the good judgment of the tribunal, whose only parameters are the “bounds of reasonableness”.  On that last, I would be arguing that provided her leakage is significant, which I recently saw defined elsewhere as simply “more than minimal”, then she should qualify.  Once the need for a full evacuation is removed from the test, you also have cases such as Northern Ireland’s Court of Appeal in Perry V Adjudication Officer and the Tribunal of Commrs in R(IB) 4/04 which appear to clearly support your client having “no voluntary control”.

If I’m wrong and 10(a)(i) is to be read as including a reference to the full evacuation then I think she may still have a chance under descriptor 10(a)(iii).  Suffice to say that the DWP interpret this descriptor as requiring the full evacuation of the bowel during the episode of incontinence, But I think “control” when it is mentioned on the 2nd occasion in this descriptor arguably means control in the broader sense of being able to control if and when you fully evacuate your bowel.  Read that way, you “lose” such control either due to an involuntary full or partial evacuation of the bowel.  In this sense in the present case, she would appear, subject again only to the tribunal being satisfied about the degree of leakage, to lose control every day, every hour even.  “Control” when mentioned on the 1st occasion in the descriptor referring to this full or partial incontinence.  If the DWP’s interpretation was correct why didn’t 10(a)(iii) simply read “has an involuntary full evacuation of the bowel at least once per month”.

I was about to post this and saw that benefitsadviser had replied.  Obviously I agree with him/her on your current argument.