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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Pain doesn’t count

Terry Craven
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Hope Advice Centre, Liverpool

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My client does not use taxis because she finds it too painful from arthritic pain. She chooses to use buses, which are less painful.  I attended assessment with her yesterday, when I pointed this out and she has no choice because she lives alone. HCP told me pain is irrelevant. I advised her she was wrong but methinks to no avail.

As an organisation, say CPAG ought to insist HCPs are fully trained on regulation 4 because they are not at present.

Mike Hughes
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A taxi is less painful than a bus???

If I were on the other side of that assertion I would be wanting a very specific and coherent explanation as to why that might be the case as, on the face of it, it looks a somewhat specious argument.

Clearly the HCP is incorrect but I suspect that’s nothing to the point here.

ClairemHodgson
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Mike Hughes - 19 September 2018 10:12 AM

A taxi is less painful than a bus???

If I were on the other side of that assertion I would be wanting a very specific and coherent explanation as to why that might be the case as, on the face of it, it looks a somewhat specious argument.

it might be about the ergonomics

a bus seat is higher than a car seat, generally has a straighter back, is easier to sit up straight in - some cars are horrible when your joints are buggered…and i can entirely see that getting on and off a bus when you’re stiff and sore and struggling can be easier than getting in and out of car.  especially given modern buses

but, for instance, i won’t ever buy a ford - their seats are bad for my back (whatever ford might say about the design of their seats).

 

Mike Hughes
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I agree Claire but it’s not obvious. Many buses have seats which compare badly to a taxi. Too high. Priority seats occupied by muppets. Fold down seats which are horrid. Drivers who don’t lower the floor. Buses with no ability to lower the floor. Buses don’t have seat belts. Buses can’t be directed to avoid routes with speed bumps. Buses (bar ring and ride) are not door to door and so on. It’s an assertion I would challenge every time with a client until I got a coherent explanation as there’s no one size fits all so I’d want to know why that for that client. A generic statement, as though it were just patently obvious that one is superior to the other for a specific condition, is not something I’d buy into at all.

past caring
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And are we talking ‘taxi’ (i.e. proper black cab) or mini cab (some bloke earning a bit of dosh on the side with his car)?

Mike Hughes
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past caring - 19 September 2018 11:00 AM

And are we talking ‘taxi’ (i.e. proper black cab) or mini cab (some bloke earning a bit of dosh on the side with his car)?

I would think someone with arthritis would be better with a black cab than a private hire but equally the latter may be able to provide minibuses, ramps etc. I look forward to hearing how that’s worse than a bus where you could struggle to get a seat and be buffeted around by the journey and other people.

[ Edited: 19 Sep 2018 at 12:32 pm by Mike Hughes ]
ClairemHodgson
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mike, all true and you’re right, i’d be asking more

it may be, of course, that OP did ask more but didn’t put it all in her post…

Terry Craven
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Thanks for everybody’s input, it’s much appreciated. Apologies because I ought to have explained more. My client has a serious back condition caused by contracting an infection whilst in hospital. This nearly saw her off. A Hackney does not help because she has to bend to get into it and of course bend and crouch to get out of the taxi.

Whereas buses have platforms which lower so she gets on the bus with the platform and the sidewalk near enough the same level. She can then sit down without having to bend forward. However, the movement of the bus hurts her. She goes about 4 or 5 stops in the inner city on the ring road. A journey of 10 minutes at most. She uses a 4 wheeled shopping trolley as a quasi zimmer and a helping hand to help her shop for about 10 minutes and then gets the bus home. The bus stop is at the end of her road about 100m. Obviously, she has to stop at least twice before reaching the bus sto with about 4 or 5 on the return journey. By the time she gets home she is exhausted.  She has to sit down with her legs up or lie down for a couple of hours. Even then the aggravation in her back stays for the rest of the day.

I fail to understand why a claimant who chooses to use a bus out of necessity should be penalised.  IAS and DMs will do this. We need to take a pragmatic approach without being judgmental! If I was this claimant I’d be housebound. I’m sure there’s an old DLA decision which addresses stoicism. Doesn’t Marcus J in CPIP/0665/2016 address this point or is it another decision?

Mr Finch
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I’m not sure the reason for using a bus really matters does it? If the claimant is actually able to use one then how they manage this and to what standard can be looked at for whatever it’s worth - if the HCP is saying they can be taken to manage a bus easily without pain when actually it is difficult and causes pain, the HCP is wrong.

disgustedofbridport
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On the question of pain - this decision

[2016] UKUT 326 (AAC), also known as CPIP/655/2016

is very clear that pain is closely linked to the question of whether something is done “to an acceptable standard”. A good paragraph is this one.

A good bit to quote:
“It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant…  Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard.” (paragraph 11)

Another case is CPIP/2377/2015:
“Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard” (paragraph 6). Also in CPIP/2377/2015:
“Whether a claimant can stand and then move to a particular distance ‘to an acceptable standard’, inevitably links with two of the further relevant matters under regulation 4(2A):  ‘repeatedly’ and ‘within a reasonable time period’.  As these terms are statutorily defined, unlike the phrase ‘to an acceptable standard’, then if a claimant fails to satisfy that statutory test in either respect, it is unnecessary to give consideration to ‘an acceptable standard’; however, it might still technically be possible for a claimant, who is unable to show that he cannot carry out an activity repeatedly or within a reasonable time period, yet notwithstanding to establish that he is unable to do so ‘to an acceptable standard’.  Such instances must be rare but may exist; for example a claimant who forces himself to walk quickly and repeatedly, through stoicism, despite a very high level of difficulty caused by matters such as pain, breathlessness, nausea or cramp.” (paragraph 7)

The problem is that Atos assessors don’t know anything about the law (or medical matters a lot of the time, but let’s leave that for now), so they can make such statements and let it inform their choices of descriptor, which as we know are then just rubber-stamped by decision makers (who, under PIP, are just called “case managers”, recognising that they don’t really make any proper decisions?).

However, the PIP Assessment Guide, which HCPs are supposed to follow, does in fact say at section 3.2.5: 
“The fact that an individual can complete an activity is not sufficient evidence of ability. HPs may find it helpful to consider:
> Impact – what the effects of reaching the outcome has on the individual and, where relevant, others; and whether the individual can repeat the activity within a reasonable period of time and to the same standard (this clearly includes consideration of symptoms such as pain, discomfort, breathlessness, fatigue and anxiety).”

The thing is that the HCP would probably deny saying such a thing, and the DWP would probably ignore any complaint made to them . So if the decision is negative on this case, it’s probably all the way to tribunal without very good medical evidence.

This is just the sort of thing that about 90% of my working life consists of…

Actually, is it PIP or Limited Capability for Work? If it’s the latter I can dig up some other stuff.