Trying out a new argument for LCW and LCWRA

Hi there,

I was wondering if I could get some feedback on how to phrase submissions for LCW and LCWRA. I am constantly seeing the medical report forms indicate that because an appellant can get up and get their kids to school and feed them in the morning that they should be able to carry out work and work related activates. While this is of course the case for many; disabilities are not as black and white as that and it seems to me that this is a fundamental misunderstanding of how various disabilities work. Daily living activities and caring for your children will always come first. You push through that (and sometimes you can’t do it reliably, and get help in from family members, like my client) and then you may spend the rest of the day recuperating, feeling unwell, in pain, etc.

My question is: is it too rude, would it put panel’s/DWPs back up to state in the submission all of the above? Has anyone phrased it like this before? The fundamental misunderstanding part specifically?

It just seems a pretty basic thing to argue, and something that they should already know but just comes up consistently. If you’re disabled, wouldn’t you look after your kids to the best of your ability then put everything else on the back burner if you are too unwell?! I know I would.  The spoon theory is quite a well known technique too. (a self-pacing strategy that emphasizes the need for chronic pain patients to work to a certain quota)

And my client cannot even do this reliably and needs support on a weekly basis from family, yet they have stated that because she gets up in the morning and gets the kids ready, she can absolutely work.

Also just a bit of a rant and would appreciate some insight/experience/maybe even devil’s advocate opinion!

Thank you for your advice/help in advance

I think it’s generally a bit of a red herring to try to argue with DWP arguments. Focus on the descriptors and why your clients meet them, not why they don’t not meet them.

DWP are proposing that client being able to do A is evidence that they can’t meet descriptor X - what you need is more compelling evidence that they do meet the threshold for that descriptor (or any other).

You mentioned in your example that your client might not be able to do it ‘reliably’ or that they need ‘assistance’ - those are both concepts covered in the legislation. For that matter, there is also caselaw on ‘pushing through’ or stoically bearing with health issues to carry out activities.

I think your argument is just logical and common sense, and I can’t see any reason why DWP or a tribunal would be upset by your pointing it out.

Personally, on the facts you’ve given, I wouldn’t get into an argument that DWP have a fundamental misunderstanding of how disabilities work, or deploy spoon theory. I would just argue straightforwardly on the facts of the case. Something to the effect of: “By the time the claimant has performed the essential daily tasks of getting her children up [specifying how many and what ages], feeding them ,and taking them to school, she is, because of her health conditions, too exhausted to do anything more than [go back to bed? lie on the settee? whatever she does]. She is not capable of work or work-related activities.”

If you wanted to lay it on with a trowel you could add: “Clearly, leaving her children in bed and without food so that she can undertake work or work-related activities is not an option” but I think that would be overdoing it. .