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PIP Descriptor Anomalies
On the ‘NHS Choices’ website it reads…
Pharmacists and their teams offer healthy lifestyle advice that covers topics such as healthy eating, physical activity, losing weight and stopping smoking, especially if you have diabetes, high blood pressure, heart disease, are a smoker, or are overweight.
Therefore if I am constantly reminded to carry out 30 minutes of exercise at home every day (to lose weight or address some other illness) would I qualify for 2 points from 3c as the exercise could be seen as therapy, recommended by a pharmacist etc.
Can the bath be deemed to be an aid!
I have an application for leave to appeal awaiting determination on that issue. In my case I’m arguing that a claimant’s bed can be an aid where dressing is concerned. I feel the interpretation of “device” will be pivotal.
I think less so a bath in a case of psoriasis as a claimant would be using it as a bath as well as an aid to administering medication; it’s use has not been adapted in any way, but sitting on the bed to dress; where the claimant’s physical condition prevents then from dressing standing involves adapting the use of the bed to a degree.
Dan,
Have a look at [2015] UKUT 572 (AAC) (link: http://www.osscsc.gov.uk/Aspx/view.aspx?id=4689 ). Judge Mark thinks you are absolutely right…
Jon
Cheers Jon
I was looking forward to making an interesting point but Judge Mark and whomever pursued the case has stolen my thunder.
I got the grant of leave to appeal yesterday as well… Hopefully the FtT Judge who laughed at my submission will see this and think twice…
[ Edited: 4 Nov 2015 at 09:48 am by Dan_Manville ]Therefore as a result of this decision if the claimant reasonably requires to use the object/device (whatever it may be) to cook, eat, dress, wash take medication or therapy, make money decisions etc then anything whatsoever can be deemed to be an aid or adaption!
And a very sensible approach it is too in my opinion…
After all, how many disabled people manage to obtain OT assessments/formal aids & adaptations? It depends so much on external factors- available resources, referral procedures, housing situation, family circumstances, etc. Many people with a long term illness or disability find their own ways of coping (and that often involves the creative use of furniture or household features).
Note the comment about drafting of the criteria! Place your bets now on when we will see the first amendments to the descriptors & definitions.
What was the phrase used to justify PIP (and WCA changes?) to the effect that the interpretation of the courts has extended entitlement to DLA beyong the scope originally intended by Parliament?
Now I’m sure none of us muttered ‘will they ever learn’ when we saw the wording of the descriptors!
5. Managing toilet needs or incontinence.
b. Needs to use an aid or appliance to be able to manage toilet needs or incontinence. 2
Therefore you would think a raised toilet seat with handles could be deemed to be an aid or an appliance, however…
PART 1INTERPRETATION
“toilet needs” means –
(a)
getting on and off an unadapted toilet;
Therefore a toilet with a raised seat with handles would be adapted and therefore not unadapted and therefore you wouldn’t satisfy the descriptor!
I made some comments along those lines half way down post
10 here but that was in the early days of Pip. I’m not sure I’d come to the same conclusions if I looked at those descriptors again now some 18 months later. I’d need to catch up with recent Pip caselaw and put some time aside to look at the descriptors and definitions again. But would be interested in others’ thoughts.
I’m finding that on the whole, tribunals are taking a ‘common sense’ approach to the descriptors in general but the anomalies and questions just keep on developing don’t they?
4. Washing and bathing.
b. Needs to use an aid or appliance to be able to wash or bathe.
“bathe” includes get into or out of an unadapted bath or shower;
So if you add any adaptions to the bath it is therefore adapted oppose to unadapted so you wouldn’t score any points!
4. Washing and bathing.
b. Needs to use an aid or appliance to be able to wash or bathe.
“bathe” includes get into or out of an unadapted bath or shower;
So if you add any adaptions to the bath it is therefore adapted oppose to unadapted so you wouldn’t score any points!
The adaptation is an aid/appliance added to the unadapted bath or shower. So you’d get 2 points as you need an aid/appliance (the adaptation) to ‘bathe’ (get in and out of an unadapted bath/shower)
When does an unadapted bath cease to be an unadapted bath. If you add an adaption then therefore it’s adapted.
Surely “includes” is the key word i.e. it’s not exclusively that!
CPIP/1787/2015
PIP ‘toilet needs’
An aid or appliance is defined in regulation 2 of the PIP Regulations as ‘any device which improves, provides or replaces an impaired physical or mental function’.
The Judge held that in the circumstances of this case, a shower head or brush would fall within the definition of an aid or appliance
These decisions are all great results for our clients however Just being a mere benefits adviser dare I say it but these decisions are wrongly decided. A shower head or brush does nothing whatsoever to improve, provide or replace a client’s impaired physical function eg weakness to his hand/arm due to arthritis etc. If the client wore eg a hand brace/support which steadied his hand in order to use the shower head or brush then this would be the aid/adaption.
Summary of CPIP/1787/2015 just up - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/pip-toilet-needs-means-one-or-more-of-the-defined-elements-rather-than-all
Isn’t the function to ‘clean himself afterwards’ as highlighted my Judge Rowley and the shower head is an aid which improves his ability to carry out this function?
[ Edited: 2 Dec 2015 at 12:54 pm by Daphne ]