Mobilising a Wheelchair

This one really needs sorting out at UT level. Jobcentre Plus can provide a wheelchair specfically for use in the workplace (through Access to Work funding). However, you will be hard pushed to find an Occupational Therapist who would recommend using a wheelchair unless essentially required as its use could lead to muscle wastage.

.....and of course the spin, that the WCA focuses on what the person CAN do, which seems to me somewhat different to this somewhat notional assessment of what a person might be able to do IF obtaining a wheelchair AND having adapted to using one.

Chris Grayling (on 14th June 2011)  said in the First Delegated Committee Debate on the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011-

“The other element was what we do about people who have a disability but have adapted to that disability. The internal review commissioned by the previous Administration made a proposal on that. The previous Secretary of State said: 
“The revised assessment will for example take better account of an individual’s ability to adapt to their condition and introduce improved assessment of fluctuating conditions.”—[Official Report, 29 March 2010; Vol. 508, c. 88WS.] 
The adaptation point is crucial. Let me deal with that straight away to respond to a couple of the questions raised by the right hon. Member for East Ham. Essentially, under the work capability assessment before these changes, a Paralympic athlete with a university degree and previous work experience would, if they had lost their job and were on benefits and applied to go on to ESA, have no obligation to look for work, because they would automatically be put into the work-related activity group.”

To my mind, that certainly suggests that the intention was to create an assessment about what a person could do, having adapted to a disability.

It crossed my mind as not being dissimilar that a person with sudden sight loss will usually take some time to adapt to that disability, and will usually take some time to achieve the most that is possible with that level of disability. In older people, that may take much longer than in a younger person. Either way, it would seem to be entirely unreasonable to assess a person on what they would do once having adapted to the sight loss, at the point when they may still be having problems getting around their own familiar environment (and apologies to Alban if this is a somewhat simplistic take on sight loss)

To follow on this arguement does an electric scooter count as being able to mobilise on a level surface or is it that the mobilisation must be either by walking or by using a conventional wheelchair!

Re. mobility buggies…bit of a nightmare to drive in a workplace, but which workplace are we talking about? Heathrow airport or a small retailer. There is a good argument that they are essentially designed to be outdoor vehicles. However, there are also lightwight portable ones (need recharging much more though). Am sure an Access to Work adviser would provide one if needed in the workplace as they would do with rising electric wheelchairs. This is the problem with the WCA, it’s based on hypothetical situations, unlike most occupational health assessments that compare a person’s needs with a specfific workplace.

I shall be very glad to see the wheelchair issue to get to UT at last. I have a bit of a bee in my bonnet about the whole manual wheelchair/reasonableness thing and (as I’ve mentioned previously) in my opinion FTT’s are in general evading the issue.

The good news is the Ftr Judge gave permission to appeal to UT as he believes it is a decision that requires guidance from the UT. As for the electric buggies they don’t count as they are not Manual wheel chairs. So application will be with the UT in the next few days.

Because a wheelchair is only relevant if “such aid can reasonably be used” as per sched 2 Activity 1, it does raise wider issues other than making progress.

Clearly, as others have observed, there are issues such as suitability, safety, need for training, upper limb ability and strength, etc.

Other issues which can affect reasonableness might be the effects of legs not being used and muscles thus weakening (DWP would therefore need medical evidence about this if they asserted that a wheelchair could be used?).

Also surely the social model of disability is relevant here? A wheelchair is such a huge symbol of disability, that if people use one, it has a stigmatising and disabling effect which reduces peoples’ independence.  It would not be reasonable for the DWP to effectively force loads of people, to use wheelchairs (even nominal ones) when there is no other compelling reason for them to do so. 

As you know, the Courts have adopted similar reasoning in the past, the classic being House of Lords decision in Fairey and the concept of a normal life.

Possible additional strings to the bow?

I don’t have any UT cases going on this issue but I do sit alongside an O.T. and if anyone is preparing a case it might be worth seeing if the College of Occupational Therapists would be prepared to offer a professional view on this issue, esp. as it affects so many people:

http://www.cot.co.uk/

See the below from a similar thread I posted on last year:

I asked a senior wheelchair OT at a local hospital about this. The reply included several interesting points:

- the criteria for a referral for an NHS wheelchair is that the chair is needed long term and for both indoor & outdoor use (not just for occasional outdoor need). The wait for an assessment is around 6 weeks (locally at least).

- to mobilize the distances stated would depend on the person’s stamina

- It is important that professional advice is gained before referral for a chair as with many conditions it is important that the person remains on their feet and walking. Wheelchairs are often percieved as an easy option but may not be the best thing for the person and may lead to decreased mobility and the complications of this (including blood pressure, weight, bone density and muscle density issues).

All useful stuff I think and have included with several subs I have written recently.

Have a look at CSE/151/2012 which covers a Tribunal’s responsibility to address all the relevant factors before deciding if a wheelchair might be used.

With regard to the process of adapting to a disability I feel that the claimant has to be dealt with as they were when the decision was made, if they eventually adapt to (for example) using a wheelchair then that is a change of circumstances which should be reported to the Department when and if it happens.

For the department to say that the appellant might be able to use a wheelchair without any medical evidence that this is the case is at best a speculation. I also doubt if it could be submitted that the appellant may be able to mobilise in a wheelchair at some point in the future as there is no prospective test for ESA, if they couldn’t reasonably be held to be able to mobilise in a wheelchair at the date of decision they get the points.

hi pete - do you have a copy of CSE/151/2012? can’t find it on UT website.

cheers ros

I dont have an electronic version, just a paper copy that someone gave to me, if you email your fax number to me at .(JavaScript must be enabled to view this email address) I will fax a copy

thanks pete -

CSE/151/2012 attached below -

Excellent- a most helpful decision.