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PIP Washing and Bathing - getting into a bath to use a shower but cannot ‘use’ the bath

Elliott S
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I have a client who is appealing PIP refusal.

They are able to use a shower over a bath, albeit using a grab rail to get in. They are not able to use the bath itself, i.e. lay down in bath, due to not being able to get out again without physical intervention from another person.

0 points awarded.

One point DWP are relying on is that she can use the shower over the bath independently. They are disputing she needs the grab rail which is another issue.

However I am wondering on another point. Does the fact that they can get out of the bath from standing (having used the shower), but not lay down in it, mean they are treated as being able to get out of the bath without physical assistance from another person? To my mind, if they cannot use the bath as intended, i.e. lying down, surely they shouldn’t be treated as getting into/out of it with any meaningful effect - but I wonder if I’m doing mental gymnastics.

I cannot find any relevant case law or any discussion on this forum about this. Thoughts?

Ianb
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PIP Assessment guide seems clear that should look at both bath and shower and nil points only applies if claimant can use both an unadapted bath and an unadapted shower unaided.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/831253/PIP-assessment-guide-part-2-the_assessment-criteria.pdf pages 94 and 95

It’s most clearly stated against descriptor e.
“This descriptor relates to physical assistance by another person and should be applied as a hypothetical test to consider whether the claimant needs assistance to get in to and out of either one of an unadapted bath, or an unadapted shower.
Unadapted baths and showers include a shower over a bath, a shower cubicle (i.e. a partitioned area with a threshold/ledge to step over) and shower attachments to bath taps. Those who cannot access either one of an unadapted bath or shower without assistance from another will qualify for descriptor 4e.”

Note the word ‘either’ in the last sentence.

Elliott S
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Thanks Ian.

I am just wondering whether they are thinking standing in the bath (to use the shower) is enough to count as getting in. That could be one way of reading their wording in their submission.

Would you agree with me that that would not be a correct interpretation, i.e. getting in a bath means getting into a lying down position?

Paus17
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Elliott S - 19 May 2020 04:28 PM

Thanks Ian.

I am just wondering whether they are thinking standing in the bath (to use the shower) is enough to count as getting in. That could be one way of reading their wording in their submission.

Would you agree with me that that would not be a correct interpretation, i.e. getting in a bath means getting into a lying down position?

The descriptor reads: “e. Needs assistance to be able to get in or out of a bath or shower.” It could be argued that on a literal reading there is no implication that the claimant, once in the bath or shower, can use the bath or shower in any particular way. The descriptor doesn’t contain the word “use” or anything like it. If the claimant has a problem in using the bath or shower that’s covered by 4d, f, or g. That’s presumably the way DWP interpret it. But I think your interpretation is equally plausible, on the basis that a claimant scores the points under 4e unless they can get into and out of both a bath and a shower, and getting into a bath and just standing there would be absurd. Also, you might be able to invoke reg 4(2A), in that getting into a bath and standing there but not lying down is not performing the activity to a reasonable standard.

Va1der
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My understanding has always been that we are effectively looking at a shower over bath, and the difficulty addressed in 4e, is the process of ‘getting over the ledge’.
I.e. it applies if the person either requires a walk in shower or assistance to get into the bath, but isn’t concerned with what they do once in the bath.

See: https://assets.publishing.service.gov.uk/media/5784ee35e5274a0da9000103/_2016__AACR_43ws.pdf

As far as her inability to stand up again goes, you might be able to address that in Mobility descriptor 2f, depending on the severity.

EDIT: on the latter point, I’m also referring to the intention of DWP to avoid overlap in the descriptors, which I suspect might go against any argument around her ability to lie down and get up (in the tub).

[ Edited: 19 May 2020 at 05:13 pm by Va1der ]
tbidmead
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Disregarding the client’s own bathroom set up for a second; a bath does not necessarily have a shower over it. Standing up in a bath without a shower over it is clearly not getting into the bath for any meaningful purpose.

CPIP/2094/2015 is clear that the ‘or’ is disjunctive so if the 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.

Elliott S
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Paus17 - 19 May 2020 04:55 PM

Also, you might be able to invoke reg 4(2A), in that getting into a bath and standing there but not lying down is not performing the activity to a reasonable standard.

tbidmead - 19 May 2020 05:43 PM

Standing up in a bath without a shower over it is clearly not getting into the bath for any meaningful purpose.

Thanks - I think these might be the key points.

BC Welfare Rights
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Bear in mind that a bath lift can be seen as an aid that is reasonably available (installed for free after an OT assessment in many cases). There are a multitude of different types available https://www.google.com/search?q=bath+lifts&rlz=1C1CAFA_enGB598GB611&sxsrf=ALeKk00qpilJkgkpXVe7IGjz0ysgw-XXkQ:1589964438782&source=lnms&tbm=isch&sa=X&ved=2ahUKEwju3NCMh8LpAhVhRhUIHWZmBoMQ_AUoAnoECA4QBA&biw=1366&bih=625

If your client can sit down on the bath lift and get their legs into the bath (and the other way around, perhaps using the grab rail too) they may only score 4b. If this is not feasible for your client, an argument may need to be made for why not?

tbidmead
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BC Welfare Rights - 20 May 2020 09:59 AM

Bear in mind that a bath lift can be seen as an aid that is reasonably available (installed for free after an OT assessment in many cases). There are a multitude of different types available https://www.google.com/search?q=bath+lifts&rlz=1C1CAFA_enGB598GB611&sxsrf=ALeKk00qpilJkgkpXVe7IGjz0ysgw-XXkQ:1589964438782&source=lnms&tbm=isch&sa=X&ved=2ahUKEwju3NCMh8LpAhVhRhUIHWZmBoMQ_AUoAnoECA4QBA&biw=1366&bih=625

If your client can sit down on the bath lift and get their legs into the bath (and the other way around, perhaps using the grab rail too) they may only score 4b. If this is not feasible for your client, an argument may need to be made for why not?

Although they may indeed be able to use such an aid and score points under 4b; this doesn’t necessarily mean they can get in or out of an unadapted bath and that is the test for 4e.

CPIP/2094/2015 considers this exact issue:

27. Similarly, in my judgment, a claimant who is unable safely to get in or out of an unadapted bath or shower should not be tested by reference to their ability safely to get in or out of an adapted one which they reasonably need, for that, too, would mean that the greater the functional limitation, the harder it would be to come within descriptor 4e.

28. 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.

[ Edited: 20 May 2020 at 10:40 am by tbidmead ]
Va1der
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Elliott S - 20 May 2020 09:12 AM
Paus17 - 19 May 2020 04:55 PM

Also, you might be able to invoke reg 4(2A), in that getting into a bath and standing there but not lying down is not performing the activity to a reasonable standard.

tbidmead - 19 May 2020 05:43 PM

Standing up in a bath without a shower over it is clearly not getting into the bath for any meaningful purpose.

Thanks - I think these might be the key points.

The vast majority of baths can be adapted to include a shower hose… And, a fairly common solution for people who struggle to stand in a shower, or lie down in a bath, is to sit on a shower chair and wash themselves with said hose.
These seem like fairly reasonable aids, and I think you’d struggle to convince FTT to award more than 4b.

However, if for whatever reason your client can’t use such aids to wash parts or all of her body, you might be looking at d, f, or g.

If she can’t get into a normal bath without assistance in order to take advantage of such aids, she’d score (at least) under 4e.

BC Welfare Rights
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tbidmead - 20 May 2020 10:38 AM
BC Welfare Rights - 20 May 2020 09:59 AM

Bear in mind that a bath lift can be seen as an aid that is reasonably available (installed for free after an OT assessment in many cases). There are a multitude of different types available https://www.google.com/search?q=bath+lifts&rlz=1C1CAFA_enGB598GB611&sxsrf=ALeKk00qpilJkgkpXVe7IGjz0ysgw-XXkQ:1589964438782&source=lnms&tbm=isch&sa=X&ved=2ahUKEwju3NCMh8LpAhVhRhUIHWZmBoMQ_AUoAnoECA4QBA&biw=1366&bih=625

If your client can sit down on the bath lift and get their legs into the bath (and the other way around, perhaps using the grab rail too) they may only score 4b. If this is not feasible for your client, an argument may need to be made for why not?

Although they may indeed be able to use such an aid and score points under 4b; this doesn’t necessarily mean they can get in or out of an unadapted bath and that is the test for 4e.

CPIP/2094/2015 considers this exact issue:

27. Similarly, in my judgment, a claimant who is unable safely to get in or out of an unadapted bath or shower should not be tested by reference to their ability safely to get in or out of an adapted one which they reasonably need, for that, too, would mean that the greater the functional limitation, the harder it would be to come within descriptor 4e.

28. 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.

The person in that case had a walk in bath installed by the previous occupant, which was clearly an adapted bath. However, I’m not sure that installing a bath lift makes it an adapted bath, isn’t it just an aid fitted to a standard bath, similar to a grab rail?

Mr Finch
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‘Get in’ the bath is not itself defined, so should take its ordinary meaning. If I asked Sheldon Cooper to get in the bath, and he stepped over the side and stood up in it, would you think he’d interpreted that correctly or incorrectly?

tbidmead
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BC Welfare Rights - 20 May 2020 12:36 PM
tbidmead - 20 May 2020 10:38 AM
BC Welfare Rights - 20 May 2020 09:59 AM

Bear in mind that a bath lift can be seen as an aid that is reasonably available (installed for free after an OT assessment in many cases). There are a multitude of different types available https://www.google.com/search?q=bath+lifts&rlz=1C1CAFA_enGB598GB611&sxsrf=ALeKk00qpilJkgkpXVe7IGjz0ysgw-XXkQ:1589964438782&source=lnms&tbm=isch&sa=X&ved=2ahUKEwju3NCMh8LpAhVhRhUIHWZmBoMQ_AUoAnoECA4QBA&biw=1366&bih=625

If your client can sit down on the bath lift and get their legs into the bath (and the other way around, perhaps using the grab rail too) they may only score 4b. If this is not feasible for your client, an argument may need to be made for why not?

Although they may indeed be able to use such an aid and score points under 4b; this doesn’t necessarily mean they can get in or out of an unadapted bath and that is the test for 4e.

CPIP/2094/2015 considers this exact issue:

27. Similarly, in my judgment, a claimant who is unable safely to get in or out of an unadapted bath or shower should not be tested by reference to their ability safely to get in or out of an adapted one which they reasonably need, for that, too, would mean that the greater the functional limitation, the harder it would be to come within descriptor 4e.

28. 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.

The person in that case had a walk in bath installed by the previous occupant, which was clearly an adapted bath. However, I’m not sure that installing a bath lift makes it an adapted bath, isn’t it just an aid fitted to a standard bath, similar to a grab rail?

I must confess that I opened the link in your previous post I didn’t look in much detail but taking a second look I see what you mean.

Although some of the lifts pictured are mounted to the wall/floor/tub and I would think fall squarely into the definition of an ‘adaptation’ actually some of those pictured seem to be removable, relatively lightweight items that possibly do constitute ‘a device which improves, provides or replaces C’s impaired physical [...] function’ rather than an adaptation to the structure of a bath.

Interesting - I’ve never seen one of these before but I guess there are other considerations…

If the claimant needs assistance to put the lift in the tub - does this satisfy 4e? You could leave it in the tub but if you live with other people who do not use the lift, this might not be an option.
Can the claimant remove and recharge the battery?
There is a maximum load of around 20 stone for the majority of these so heavier claimants may not be able to use.