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managing incontinence within a reasonable time period

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Joined: 22 July 2013

There is a brief reference to a reasonable time period and Activity 5 in MF v SSWP (2015 UKUT 554), is anyone aware of any other decisions?

Basically, client had ileostomy and reversal operations that went wrong and will require further surgery but this can’t be done for another 12 months. In the meantime he is left with a leaking bag that causes acid burns to the skin around it. Due to nerve damage he has no sensation around the operation site so does not always realise he is being burned by the acid leaking out, particularly at night. Due to various complications, managing the bag and cleaning up leaks takes him a considerable amount of time. He was awarded 5b for an aid or appliance.

1) I am putting together the MR and want to argue that although in reality he manages his incontinence himself, he does not do so within a reasonable time period and in order to do so he would require assistance. This would get him 5e. Does this sound viable?

2) Leaking at night soils his bedding and part of the time taken is dealing with this. The Regs refer to “clean oneself afterwards” so on the face of it this would seem to exclude changing bedding. This seems a bit rough on my client though as it is a constant chore and is part of the process of managing his incontinence. Any thoughts?

3) Any thoughts on how to address the ‘safely’ aspect of managing incontinence, i.e. the acid burns and infection risk?

Thanks.

 

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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I did an appeal last year involving similar issues and we got 5(e).

I don’t know the degree of detail you have already obtained from your client but it is my understanding that ileostomy pouches are not re-usable, so that if one leaks, it has to be replaced. That is not a short process. Couple that with the need to change one’s nightclothes and to shower and you are certainly into the terrain of the activity taking more than twice as long….

Changing soiled bed sheets (and, if necessary, mopping flooring which has become soiled on the walk to the bathroom) is certainly dealing with the immediate aftermath of incontinence/toilet needs. It is unconscionable that it could be considered that a person needs to shower, change their ileostomy pouch and change their nightclothes in order to deal with incontinence - but is then expected to return to sleep in soiled bedding.

In terms of the safety aspect, presumably the risk only arises because he doesn’t wake? - i.e. once awake he is able to clean himself to an acceptable standard/to a standard that avoids the risk of infection? If that is the case, maybe it is reasonable that he uses an alarm clock to wake himself periodically to check? Or at least, more reasonable than having someone present to check on him periodically. Of course, that might mean that he is, as a consequence, very tired/exhausted during the day - but with the potential for additional point scoring.

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Thanks PC, good to know that we seem to be on the right path.

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Total Posts: 1297

Joined: 22 July 2013

An update on this case which has now been heard at tribunal.

I am rarely gobsmacked by tribunal decisions these days but this one left me goldfishing for about 30 seconds before I could even swear. Despite supportive medical evidence and (unusually) coherent oral evidence confirming the length of time necessary to go through multiple steps and routines to deal with his stoma and the frequent difficulties caused by problems such as ballooning, the tribunal decided to leave 5b in place. Fortunately, plenty of points awarded elsewhere and client satisfied with the decision so doesn’t want to pursue a SOR, however small the risk of doing so.

I however, am livid and completely at a loss as to how any reasonable tribunal could not have increased the award to 5e.  If you want me, you will find me behind the clouds of smoke coming out of my ears at the top of the garden.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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I don’t smoke (although recently discovered a picture of me apparently drunkenly doing exactly that) but I may join you. Similar experience earlier this week. Part of the problem was clearly that I had a judge about whom I’ve successfully complained and had been told he would never do any of my cases again. Pandemics apparently over-rule all common sense.

PIP claim which got zilch but clearly ought to have been enhanced of both for 10 years/ongoing etc. Got 10 pts on each at MR but only for 3 years. When we appealed, DWP actually removed the 4 points for social engagement (because the claimant worked!) and thus removed daily living. Attempted to get it reviewed but they refused to do so and even put in a late sub refusing to do so (and having a bizarre rant in the process).

At start of telephone hearing the tribunal make it clear that at minimum the client is walking away with is the restoration of the MR decision but on an ongoing basis. Doctor then asks questions solely about familiar routes so it looks like a sensible approach is being taken to just explore the obvious 2 points for each component that gives us the right award. I’m content to let them get on with this assuming they’ll take the same approach on daily living right up until they ask about bathing. Client scores comfortably into the high 20 point plus region but the one activity where points look the hardest to increase is bathing. Prepping food and reading were obvious 8 pointers rather than the 2 given.

At this point neither myself nor the appellant have any faith the tribunal are in fact looking for 2 extra points. I raise the issue and am very firmly given the usual lecture about their being able to find the 2 points as they wish. Client gets the 2 points for bathing but for exactly the wrong descriptor. Tribunal have now created such an obvious inconsistency across several activities that DWP are almost duty bound to go for an SOR/ROP.