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Descriptor 9, schedule 2. Is consciousness a factor?
I had just read a set of papers in which my client has been awarded 0 points under the ‘incontinence’ descriptor because he is only incontinent when he has a black out and the DM is saying the descriptor only applies if the incontinence is while he is conscious.
I cannot see how this is the case from reading the descriptor.
Am I correct?
Depends when the LCW Assessment was done/ when the ESA 50 was sent out.
Under the 2011 regs the descriptor says:
Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bedwetting) despite the presence of any aids or adaptations
normally used.
But post Jan 13 they were changed to:
Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bedwetting), despite the wearing or use of any
aids or adaptations which are normally or could reasonably be worn or used.
Oddly, I have a tribunal coming up shortly where consciousness and incontinence may be a major issue. It may be worth looking at what stage of the blackout the incontinence actually happens, there is some opinion that incontinence often occurs as people are coming round from fits in epilepsy, for example. Note that it refers to “whilst conscious” rather than “lost or altered consciousness” as it does in Activity 10, so there is a little more scope for arguing the point. See http://www.epilepsy.org.uk/info/seizures/generalised for further info, previously posted at http://www.rightsnet.org.uk/forums/viewthread/5159/
There’s always Regs 29/35 too.
Cheers Billy
The descriptor as written in the papers doesn’t mention the ‘whilst conscious’ part but the case is clearly the 2013 regs.
I will look into the information you sent.
Check your dates and which version of the test - if someone was sent their esa50 pre 28th Jan 2013 and had their medical pre 28th July 2013 they come under the previous wording.
Most of our current appeals are still the previous descriptors