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Dentures: An aid or appliance for Activity 2

Seamus Og
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Welfare Rights Durham County Council

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Are dentures an aid or appliance for Activity 2?

I think so, and it looks like the DWP do too.

In December 2019, I represented a client, let’s call him Mr Brody, at Tribunal.  He had scored 6 points at assessment and had claimed that he should have scored a further 2 points for Activity 5d, as he needed an aid to sit om, and stand up from the toilet. When preparing his appeal, I found a letter in the bundle from a consultant NHS dentist, detailing the difficulties he had had fitting Mr Brody with dentures.  So, I also asked the Tribunal to consider an award of 2 points for Activity 2b as well, as Mr Brody required to wear dentures (an aid or appliance) in order to take nutrition.

The appeal was refused.  On the day, Mr Brody was observed by everyone, including me, to be able to stand and sit without any aids or apparent discomfort.  The Tribunal also declined to award any points for Activity 2.

I requested leave to appeal to the UT, stating that the Appellant was entitled to two more points for Activity 2b.  The detailed grounds of appeal are in the appendix attached to this post. I made clear in the grounds that I accepted Activity 5 was no longer in issue.

LTA to the UT was, as usual, refused by the first tier Tribunal.  Then, after some delay due to lockdown, we had a response to our request for LTA from the UT. Perhaps the sweetest words in the English language: “Permission granted.  The grounds for appeal are reasonably arguable.”  This was sent out in the first week in August, with directions that the DWP were to provide a submission, responding to the grounds of appeal within two months.

Two weeks before the two months were due to elapse, I had a phone call from the DWP.  “We’ll make your client an offer of a 10 (yes, you read that right, TEN) year award of Daily Living, on the basis that he should have scored two more points for 5b. The proposal was to settle the appeal by way of a consent order, agreeing that 2 points could now be awarded for Activity 5.  I did ask how the DWP could justify this, on the basis that everyone from Healthcare Professional as assessment, to the FTT, and even Mr Brody’s representative, were all entirely in agreement that Mr Brody did not score any points for Activity 5.  ‘Further medical advice’, came the slightly shamefaced, and entirely unconvincing reply. 

I have now received the consent order, and the appeal has been allowed, and the decision remade, on the basis of two extra points for Activity 5b.  But it does look like the ‘dentures’ argument was a fight the DWP did not want to have at the UT.

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ROBBO
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Welfare rights team - Stockport Advice

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Great work there.  Thanks for letting us know.

What’s the betting ‘except dentures’ gets added at some future point….

Helen Rogers
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Welfare rights officer - Stockport MBC

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Slightly off topic, but - is it safe to assume that if someone can get up from a desk or dining chair, they can get on and off the toilet?  Toilets are lower than most chairs.  Unless you have a raised toilet seat, which is an aid/appliance.

AlexJ
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Trafford Welfare Rights

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I’ve read your submission and I think that this is the finest paragraph I’ve ever seen, or ever will see, in an appeal submission:

8. The first reason given by the Tribunal for the refusal to award points under descriptor 2b was that the loss of Chief Brody’s teeth was not caused by a recognised medical condition.  I refer to Page F of the Secretary of States response to the appeal. This states that, “The assessment considers impact, not diagnosis. Benefit isn’t paid on the basis of having a particular health condition or impairment but on the impact of the health condition or impairment on the claimant’s everyday life.”  I agree that this is an accurate statement of the law, and the correct principle to be applied in this case. It is therefore entirely irrelevant how a person lost a missing body part if they need a prosthetic device to replace it. It makes no difference in law if the claimant lost his teeth through the injudicious application of too many Fizzy Fish, or whether he had gum disease, tumours or ulcers (which itself could be due to poor dental hygiene)? The effect is the same.

Well done.

Cheers

Alex

Seamus Og
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Welfare Rights Durham County Council

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Thankk you, Alex, very kind.

Emma B-G
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Welfare benefits adviser - Hertfordshire County Council Money Advice Unit

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Well done! I started a thread speculating about this issue back in 2016 https://www.rightsnet.org.uk/forums/viewthread/9446, but have never had a case hinging on it. I fear ROBBO may be right about them changing the regulations though…

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

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“Reviews Ocado order and removes Percy Pigs and… Fuzzy Fish”!

Seamus Og
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Welfare Rights Durham County Council

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A bump for this, as I now have another case which has been granted LTA, on roughly the same circumstances: appellant has been awarded six points, we’re asking for 2 more for Activity 2.

The argument has now been advanced that dentures are not needed as an aid or appliance, because the gums harden enough to allow the appellant to take nutrition.

Now, I think this is wrong in law in any case - see Judge Jacobs in [2015] UKUT 0615 (AAC),  but it would also mean that all dentures supplied by the NHS are purely for cosmetic purposes?

If you accept this argument, there is also an issue with how long it takes the gums to harden after tooth loss to be able to take nutrition?

Thoughts, people?

[ Edited: 15 Jun 2021 at 11:20 am by Seamus Og ]
Mike Hughes
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I am now desperate to know about how much of a dental issue there is in Durham and why this is an area you’re apparently specialising in.

CHAC Adviser
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Caseworker - CHAC, Middlesbrough

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Seamus Og - 15 June 2021 11:14 AM

The argument has now been advanced that dentures are not needed as an aid or appliance, because the gums harden enough to allow the appellant to take nutrition.

I don’t know much about dentures as I still have all my teeth (touch wood or perhaps enamel?) and it’s not cropped up with any of my clients so far but it strikes me that if the argument is that you could eat without using them due the gums hardening (putting aside your very good point about how long do we wait for that to happen) then surely there’s still an acceptable standard issue?

If you have no teeth then presumably the only food you could eat would be basically be soup or food that has been reduced to a paste like state? An acceptable standard is that which most people would normally expect to achieve. I don’t know about anyone else but I would expect to be able to achieve more than just eating soup and paste like solids! So in order to achieve an acceptable standard therefore surely dentures would be a reasonable aid and points accrued accordingly?

It does seem like the DWP are keen to avoid having the argument on whether dentures are an aid or not…

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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Deleted - I had second thoughts!

[ Edited: 16 Jun 2021 at 05:37 pm by Ianb ]
Seamus Og
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Welfare Rights Durham County Council

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