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Claimant can satisfy PIP descriptors if they only apply for part of the day
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4719 and https://pipinfo.net/issues/fluctuating-conditions
Has anyone got any thoughts on someone with MS, holding a 9 - 5 job with difficulty (employer has made ‘reason adjustments’). During the latter part of the days struggling with symptoms e.g. fatigue. Regarding the above?
Presume you’re aware of this Andy?
@Mike - I’d assume so, given it’s the same decision he quotes in the OP…..
@ Andy - if there is some tangible, real difficulty for some part of the day, the claimant can qualify.
“I am able to get out of bed and dress OK at the beginning of the day. My daughter has two pre-school children and works full-time, so I walk to her house to look after them whilst she is at work. She lives 300 metres from me. I can walk this distance, but slowly and with two stops of perhaps 20-30 seconds. By the end of the day, due to my MS and increasing fatigue, I cannot manage the journey home. I could walk perhaps 50 metres, with a stop of 30-40 seconds halfway, but this would be my absolute limit. Because of this, I wait at my daughter’s for my son in law to return from work and then he drives me home.”
Replace this with the claimant being at work and there’s no material difference. If she can dress in the morning but not undress in the evening, she should score points. If she can shower in the morning, but not in the evening (and, ideally, it isn’t practical that she should shower in the morning) she should score points. And so on…..
Whilst it makes no real difference in law, it might assist you, conceptually, to think about what she can manage/what is the pattern on those days when she isn’t at work (e.g. at weekends). Work isn’t really relevant in law - it’s all about the specific facts. But it might be easier for you to “see” that if she’s encountering the same level of difficulty and exhaustion by the end of the day at weekends when she hasn’t been at work…..
[ Edited: 18 Oct 2022 at 01:06 pm by past caring ]@Mike - I’d assume so, given it’s the same decision he quotes in the OP…..
Ha, apologies. A nice example of how my VI messes with me.
Hi Andy, Mike, past caring ....
I agree, TR is useful. I had posted a question in the appeals discussion forum that probably relates to this - basically saying I frequently referred to TR at appeals (including in advance skeleton subs) but did not get much in the way of a direct response. Overall generally OK, I mean, but never clear that that was how it succeeded
I think TR is particularly good because it refers to evenings. I’ll be interested to see how your case goes. Good luck.
Jane
Evenings are an interesting one because just as the PIP 2 conspicuously confuses “mixing with people” with “social engagement” and magnificently manages to avoid any mention (or indeed explanation of) the word “reliably” so too the DLA/AA concepts of day and night are abandoned despite having absolute relevance to a significant number of PIP claims.
Always make a point of asking my clients how their sensory losses differ in different environments and that does include poor or no light. Relevant here of course in terms of lack of sleep; nocturnal muscle spasms etc.
Thanks Mike, Simon, and Jane for the replies really really appreciated and really really helpful!
The conceptual bit is along the lines we were thinking. So those thoughts are reassuring and really good to bounce off whether it works or not, that others are musing etc etc
Will get back on the outcome.
We agreed a Q&A statement with client to complete - one of the questions was the question below
‘Q. Forgive this last question, but you work in ********** i.e. ********** is a very demanding job with lots of responsibilities and ties, it involves commuting and so on and so forth. What would you say to someone taking a sceptical or disbelieving approach regarding the merits of your PIP appeal e.g. arguing its implausible because your profession is incompatible with someone having problems with the above e.g. preparing meals, dressing and undressing, etc?’
Interesting. Personal view obvs. but I would not have been that vague. I would take it on an activity by activity basis. Clients opinion on this is not directly relevant until it gets into the specifics of “Well I need to dress for work but actually it takes me way longer than other people so I start an hour later than others” etc.
Indeed Mike.
It is possible that the issue of the claimant’s work is going to be relevant, either in the claim or in any appeal. But it’s best dealt with in the context of each activity, I think.
So, for example, on its face there might appear to be a certain amount of dissonance where a claimant is proposing that they are unable to prepare food where they are employed as a school dinner person. But an exploration of that might reveal either that;
- even that without the employment, they would be too tired/too unable to concentrate etc. by the evening
- or that the employment does contribute to some significant extent by the end of the day
But even if the latter is the case, what of it? A suggestion by either the DWP or FtT that a claimant should give up work so that they don’t need to claim PIP would find them on very dangerous ground, wouldn’t it?
Interesting. Personal view obvs. but I would not have been that vague. I would take it on an activity by activity basis. Clients opinion on this is not directly relevant until it gets into the specifics of “Well I need to dress for work but actually it takes me way longer than other people so I start an hour later than others” etc.
It’s good to bounce thoughts and approaches, so personal views are really handy Mike!
We did actually run it on ‘activity by activity’ arguable on behalf of client. But added that question to give the client an opportunity to dispel / get in there first with responses to stuff that Tribunals will be curious about.
But even if the latter is the case, what of it? A suggestion by either the DWP or FtT that a claimant should give up work so that they don’t need to claim PIP would find them on very dangerous ground, wouldn’t it?
My head is broken nowadays by the sheer volume of UT/commissioners decisions of obvious use but somebody help me out here. Commissioners decision in which it was unequivocally stated that it cannot have been the intent of the legislation that a claimant sits in a chair all day. Or words to that effect.
Old-school I know but I’d advise them to do a diary ...
Nowt wrong with old school 😊
I personally dislike the diary approach though and always have. Can be really useful where it’s an adult diarising about a child but less so when it’s about themselves and the time they have the energy to write they will be working whilst the time they have to write in the evening they will be so depleted they are unable to remember let alone diarise. One can only try though. Nowadays smartphones with dictation facilities can be a game-changer with people who have conditions which would otherwise be difficult to document.
Oh gawd I think I have confused everyone.
Ok I’ll try and make sense this time.
1. Activity to activity context specific questions were asked, etc etc.
2. The question was meant as part of the overall narrative. The response from client actually incorporates a summary of how work (including reasonable adjustments) is a real struggle that takes everything out of him and the impact on activities. Weekends to fatigued to do much. Time off etc.
As an aside Client wants to work i.e. at their vocation for as long as they can and good luck to them. Arguably an award of PIP would be compatible etc etc.
The other connected issue is as a society there are a lot of lazy assumptions / thinking out there, it gave client an opportunity to give evidence i.e. address them including addressing / dispelling any apparent ‘dissonance’ suggested by SOS, that under further exploration etc etc if it had been explored sufficiently by HP or DWP.
Hence the stark way that question was posed. We had already interviewed the client, so the client knew where we were coming from.
But even if the latter is the case, what of it? A suggestion by either the DWP or FtT that a claimant should give up work so that they don’t need to claim PIP would find them on very dangerous ground, wouldn’t it?
My head is broken nowadays by the sheer volume of UT/commissioners decisions of obvious use but somebody help me out here. Commissioners decision in which it was unequivocally stated that it cannot have been the intent of the legislation that a claimant sits in a chair all day. Or words to that effect.
Absolutely both!!!!!!!!!!!!!!!!
Thanks Mike, Simon, and Jane for all the help with this case!!!
Client awarded SDL and EMOB, the extra money they advised means they can reduce their hours at work, better for their health with such a debilitating condition i.e. make up for lost earnings because of their health condition. But continue working in their vocational profession serving their community..
Another a public service with problems of retention and recruiting staff.