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Eating slowly
Suppose I have a severe breathing condition and I am unable to eat food as often as I need to within a reasonable time frame without provoking severe and potentially harmful levels of breathlessness. I need to be very slow and careful with regards to the amount of food I eat in each mouthful, with properly chewing it up and with the time between mouthfuls. I need to be similarly careful about drinking.
I cannot then score under PIP daily living descriptor 2(a) because I cannot “take nutrition” (which encompasses cutting up food, conveying it to my mouth, chewing and then swallowing it) unaided in a reliable fashion.
But then none of descriptors 2(b) - (f) have any bearing on my situation at all. I don’t need a therapeutic source or someone else to cut up my food or put it in my mouth. I don’t need “prompting” or “supervision”. No aid or appliance will reasonably assist my situation. I just need to carry on completing the activity in a way which the statute deems unacceptable.
So what happens?
I might be missing the point here Elliott but doesn’t the “cannot” in descriptor 2(b) have to be read in line with the regulation that says doing an activity unsafely, not to an adequate standard (or more likely here….) not in a reasonable time, means you cannot do the activity….it would depend on how long it takes to chew each mouthful I suppose, but that’s a factual problem, it shouldn’t be a legal one.
EDIT: Actually I get the point now Elliot. I cannot see how that reg would help with the “taking of nutrition”.
[ Edited: 8 Oct 2018 at 10:29 am by NeverSayNo ]I don’t see a cannot in 2(b.)
The problem here is the gaping chasm between descriptors a & b.
I’d prefer a) to say i) you have no problem performing the activity; or ii) You may have a difficulty in performing the activity but it is not on our specified list.
But maybe that would give the game away?
You do not satisfy the zero points descriptor, but nor do you satisfy any of the point scoring descriptors ... a situation which ought to be impossible. How can you simultaneously not score no points and not score some points? I don’t know how that is resolved.
My perspective is that it’s more likely than not that one would **not** fit into the descriptors.
The situation should be expected where there’s a limited list of specified activities further limited by provisos listed elsewhere.
My perspective is that it’s more likely than not that one would **not** fit into the descriptors.
The situation should be expected where there’s a limited list of specified activities further limited by provisos listed elsewhere.
What you are suggesting is essentially how the WCA descriptors operate. Start at the highest point and then have a “none of the above” at the bottom. Probably a sensible way to do it.
But they didn’t - hence the issue.
Would they could qualify for 1 C on the basis that this would solve the reasonable time period problem? In reality it makes no sense to actually use a therapeutic source to take nutrition in the circumstances described but doing so would in fact enable them to take nutrition within an acceptable timescale.
Would they could qualify for 1 C on the basis that this would solve the reasonable time period problem? In reality it makes no sense to actually use a therapeutic source to take nutrition in the circumstances described but doing so would in fact enable them to take nutrition within an acceptable timescale.
Interesting point. It’s rather an unattractive argument though - “Whilst any doctor who actually suggested the use of a therapeutic source in these circumstances would be struck off, the nature of the PIP regulations means that the descriptor must apply”.
Indeed. There are other unattractive elements of case law associated with this activity already though, such as the quality of nutrition does not have to be sufficient to keep the person alive…
What about 2d taking into account PIP regs 4 & 7. I have argued this at tribunal for a client who had to eat and drink very slowly as he had had most of his stomach / colon etc removed due to cancer. In effect he was eating almost continuously because he could only eat / digest a tiny amount at a time, similarly with drinking. If he ate / drank to much in one go he would gag or be sick. Sounds like a similar impact on your client.
Because of the distress this caused (in addition to the practicalities) he tended to avoided eating / drinking enough and needed prompting to ‘keep at it’. Not eating / drinking enough having obvious impact on his already very fragile health.
My perspective is that it’s more likely than not that one would **not** fit into the descriptors.
The situation should be expected where there’s a limited list of specified activities further limited by provisos listed elsewhere.
What you are suggesting is essentially how the WCA descriptors operate. Start at the highest point and then have a “none of the above” at the bottom. Probably a sensible way to do it.
But they didn’t - hence the issue.
Maybe I’ve not explained myself properly.
The idea that all disabilities fit neatly into the specified PIP activities/descriptors is flawed.
A claimant can have a disability that isn’t on the list and hence not meet the threshold score.
My perspective is that it’s more likely than not that one would **not** fit into the descriptors.
The situation should be expected where there’s a limited list of specified activities further limited by provisos listed elsewhere.
What you are suggesting is essentially how the WCA descriptors operate. Start at the highest point and then have a “none of the above” at the bottom. Probably a sensible way to do it.
But they didn’t - hence the issue.
Maybe I’ve not explained myself properly.
The idea that all disabilities fit neatly into the specified PIP activities/descriptors is flawed.
A claimant can have a disability that isn’t on the list and hence not meet the threshold score.
There’s a list of disabilities???
My perspective is that it’s more likely than not that one would **not** fit into the descriptors.
The situation should be expected where there’s a limited list of specified activities further limited by provisos listed elsewhere.
What you are suggesting is essentially how the WCA descriptors operate. Start at the highest point and then have a “none of the above” at the bottom. Probably a sensible way to do it.
But they didn’t - hence the issue.
Maybe I’ve not explained myself properly.
The idea that all disabilities fit neatly into the specified PIP activities/descriptors is flawed.
A claimant can have a disability that isn’t on the list and hence not meet the threshold score.
There’s a list of disabilities???
Sorry, Schedule of.