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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Epilepsy and risk

kd01
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Macmillan Benefits Team, LeicesterShire Citizens Advice Bureau

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Morning,

I’m due to attend a tribunal for a client with epilepsy. He has seizures on average every 3-4 weeks - usually with a very short warning. On one occasion, he was in the bath and tried to get out as he felt that a seizure was starting. However, he did not get out in time and consequently suffered a severe head injury.

This clearly indicates that he cannot bathe ‘safely’ and he has never used his own bath since. However, he visits a local leisure centre to use their shower facilities as he feels safer this way. My query is whether this implies that he can wash and bathe safely? Obviously there is still some risk but the consequences are not as severe as if he were to use his own bath. He has other difficulties too but the main grounds for appeal are due to the risk associated with his epilepsy.

Any thoughts on this are much appreciated.

Kate

Welfare Rights Adviser
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worth looking at the dwp guidance
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/658567/adm29-17.pdf

and why does he feel safer at the leisure centre, is it because their is supervision there?

kd01
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Macmillan Benefits Team, LeicesterShire Citizens Advice Bureau

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Welfare Rights Adviser - 29 March 2018 10:21 AM

worth looking at the dwp guidance
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/658567/adm29-17.pdf

and why does he feel safer at the leisure centre, is it because their is supervision there?


Thank you that guidance is really helpful - I’ve not come across that one before.

He feels safer because if he gets the warning of a seizure whilst in a shower it’s quicker for him to step out and ensure that the risk to his health is minimised.

 

Stuart
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Worth also having a look at the three-judge panel decision [2017] UKUT 105 (AAC) on likelihood of any harm needing to be weighed up against the severity of the consequences (two of the cases considered by the panel were claimants with epilepsy) (rightsnet summary here). Also, pipinfo section on reliability has other cases on safety and risk.

kd01
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stuart - 29 March 2018 10:50 AM

Worth also having a look at the three-judge panel decision [2017] UKUT 105 (AAC) on likelihood of any harm needing to be weighed up against the severity of the consequences (two of the cases considered by the panel were claimants with epilepsy) (rightsnet summary here). Also, pipinfo section on reliability has other cases on safety and risk.

Thank you!

AlexJ
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I would say that the DWP’s guidance on ‘safely’ is nonsense. It implies, amongst other things, that if you have an epileptic seizure whilst using a pedestrian crossing this is somehow ‘safe’ because it’s a ‘safe crossing’. Because I’m sure having a seizure in the middle of the road will be absolutely fine, as long as the traffic is stationary at the time. Daft.

With the bathing issue, the definition of bathe ‘includes getting into or out of an unadapted bath or shower’ (Part 1 of Schedule 1 of the Social Security (PIP) Regulations 2013). In light of this definition, it was held by Judge Rowley in the case of CPIP/2094/2015 that in relation to descriptor 4(e), ‘[the] question is, in my judgment, whether a claimant who has an adapted bath or shower needs assistance to be able to get in or out of an unadapted bath or shower…I accordingly conclude that a tribunal should measure a claimant who has an adapted bath or shower against a hypothetical test of an unadapted one’ (paragraphs 24 and 28). It was also held in relation to this descriptor that ‘the word “or” is used in descriptor 4e in the disjunctive sense.  Accordingly, if a claimant cannot do one of the activities of (i) getting in or out of a bath or (ii) getting in or out of a shower, they will satisfy descriptor 4e’ (paragraph 15).

So I would argue that all the activities for activity 4 are referring to both ‘bathing and showering’ so if you can shower safely, but cannot bathe safely, you could satisfy a descriptor. It’s worth a try, alongside arguing that he’s not truly safe in the leisure centre, just safer.

 

[ Edited: 29 Mar 2018 at 12:14 pm by AlexJ ]
Ruth Knox
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I agree the guidance is not good - but the case law is.

Welfare Rights Adviser
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I just love the dwp’s implicit idea that there are pedestrian crossings everywhere, especially in housing estates etc

ClairemHodgson
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Welfare Rights Adviser - 29 March 2018 01:42 PM

I just love the dwp’s implicit idea that there are pedestrian crossings everywhere, especially in housing estates etc

and that hitting your head on the tarmac as you land in full seizure won’t lead to a serious injury….

Catblack
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The DWP seem to be continuously ignoring caselaw in respect to epilepsy. I have attended a tribunal twice for the same lady for the same benefit because of stupid decision making. I even put the caselaw and original tribunal’s decision & reasoning in with the second MR. On both occasions she had attacks at the tribunal venue and was awarded ERDL/ERM on arrival without the need for a hearing and also received a heartfelt apology from the judge regarding the way she has been treated. This is not an isolated case.

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But as long as you wear a crash helmet, only shower with it on and sit down all the time then you have mitigated any risk to safety

Geri-G
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I have just been given permission to appeal to the UT as the DWP AND Tribunal have both ignored the case law and state that my client isn’t in danger from no warning “tonic clonic” seizures.

Daphne
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That’s good news - let us know how you get on…

Geri-G
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I will Daphne. Its my first go at appealing to UT !