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Frequency of incontinence
I don’t have all the facts yet but an ESA support group appeal on incontinence. In all the previous IB/ESA cases I’ve previously dealt with on this issue the frequency has never been a substantial part of the argument. The descriptor says “at least once a week….” Is there any authority for an averaging exercise to be done, where there are some weeks where there is never an episode but in some weeks there might be several, or does there have to be at least one episode in each week?
I don’t have all the facts yet but an ESA support group appeal on incontinence. In all the previous IB/ESA cases I’ve previously dealt with on this issue the frequency has never been a substantial part of the argument. The descriptor says “at least once a week….” Is there any authority for an averaging exercise to be done, where there are some weeks where there is never an episode but in some weeks there might be several, or does there have to be at least one episode in each week?
There is room for taking account weeks where there is not a loss of continence to the prescribed level in that, presumably, regulation 34(2), applies to this descriptor as to all others in Schedule 3. That is not particularly straightforward - I can’t see that someone undertakes or attempts to undertake the activity of losing control of the bowels/bladder - but a reasonable interpretation would be that for the majority of weeks over a period of time, the appellant does experience a loss of control to the prescribed extent.
Yes, I’d looked at 34(2) and considered that point. Hence the difficulty with this descriptor. It must have been discussed by at least one commissioner under IB. Surely?
Hi
Most Tribunal appeals that I have for Incontinence they have asked about frequency, however they have asked appellant over the course of an average month and what was required during each incident.
Therefore as long as there has been at least 4 incidents over an average month and the appellant was credable the appeal was allowed and placed in Support Group.
However, 34(2) starts out “a descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or….” This seems to dispose of the above difficulty. The question then remains, how should that be read in conjunction with the phrase “at least once a week.” Thus, would an averaging exercise strain the legislation to breaking point or not, or, does the phrase “at least once a week” allow no latitude?
I’d written the above prior to your posting Dave, so it isn’t in response to your comments. Thanks for those. Yes, that would seem to be the common sense approach but I’m really looking for authority one way or the other before I see the client.
CE/2771/2012 suggests Reg 34 (2) trumps all. If it can be used for act. 13 on social contact with ‘always precluded’ then sure same applies to ‘at least once a week’ so I would submit that as long as more than half the weeks there are incontinence events then still meets Sch 3 act 8.
So in effect, using the monthly qouta, only needs 3 incontinence events as long as they each occur on different weeks.
CE/2771/2012 suggests Reg 34 (2) trumps all. If it can be used for act. 13 on social contact with ‘always precluded’ then sure same applies to ‘at least once a week’ so I would submit that as long as more than half the weeks there are incontinence events then still meets Sch 3 act 8.
So in effect, using the monthly qouta, only needs 3 incontinence events as long as they each occur on different weeks.
I respectfully disagree.
CE/2771/2012 did not hold that Reg 34(2) trumps all. At para 7 the judge found as follows:
“(1) The regulations should be read, if possible, as a coherent whole and it is necessary to see if there is an interpretation which avoids a conflict between regulation 34(2) and descriptor 12, reconciling the two. In my judgment there is such an interpretation, and therefore it is not necessary for one to give way to the other.”
I think the same principle applies to descriptor 8 of Sch 3, ie there is a middle ground between Reg 34(2) and the requirement of “at least once per week” in descriptor 8. However, I disagree that it follows that 3 out of 4 weeks averaged over the year would satisfy the requirement of “at least once per week”. All we can say is that 3 out of 4 times is certainly the “majority of the time” as required by Reg 34(2) but, as stated above, descriptor 8 does not “give way” to Reg 34(2).
The principle of reasonable regularity was developed by IB judges initially at least to counter the word “cannot” in IB descriptors. Interpreted literally “cannot” would have prevented any score where a person could perform the activity only very rarerly or even just once (eg, perhaps as a result of an extraordinary effort, eg rising from sitting to escape a fire or similar emergency). It became settled caselaw that reasonable regularity meant someone had to be able to perform an activity “most of the time”. However, Commissioner Howell in CIB/13161/96 & CIB/13508/96 (available in Rightsnet toolkit) cautioned against defining it any further:
“The words “most of the time” are not to be taken as giving rise to some need to try and calculate percentages of successful or failed attempts over any real or imagined period.” (para 41)
It seems to me that a “3 out of 4 weeks” approach would be attempting just that type of percentaging. Instead, I think the general principles of reasonable regularity and CE/2771/2012 would support someone who occasionally did not meet the requirement of “at least once per week”. I’d be falling into the same trap by committing to a number but I’d suggest that 13 weeks a year of not satisfying descriptor 8 (which is what 3 out of 4 weeks suggests) would be too high a number of failures.
Of course, if you didn’t satisfy descriptor 8 for the above reasons, you’d still have a strong shout for Reg 35 based on the effect (substantial risk) on your mental health, where applicable, of so many accidents in the workplace or when undertaking work-related activity.
Thanks for your views people but the point is now moot. I’ve since seen the claimant and the continence issue is not now relevant. We’re going for schedule 3: descriptors 10, 11 and 13 instead.
Paul, I wish you’d said that at 1.34pm not 1.49pm:)
Come, come now Tom. You know how much you love rolling your sleeves up and getting well stuck in.
You’ve sussed me:)