Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

cannot mobilise 50 metres with a manual wheelchair

 1 2 > 

PeterS
forum member

Advice worker, Tinsley Advice Service

Send message

Total Posts: 19

Joined: 24 August 2011

My client has been found to be able to mobilise over 200 metres in a wheelchair because she has normal function of upper limbs.. She has never been prescribed/recommended a wheelchair, or been assessed for one. In order to confirm her abilities, she tried to use one of the wheel chairs available at our local shopping centre. Because she is nearly 20 stone, she found it impossible to propel herself 50 metres. Have you any suggestions of how can we prove to a Tribunal that she meets this descriptor? Any ideas much appreciated.

Gareth Morgan
forum member

CEO, Ferret, Cardiff

Send message

Total Posts: 1805

Joined: 16 June 2010

Is this one of the PIP pilots?

They’re meant to have no effect on current entitlements and to be anonymous.

It doesn’t match the descriptors that I’ve seen either; those say:

2. Moving around.

a. Can move at least 200 metres unaided or with the use of a manual aid.

b. Can move at least 50 metres but not more than 200 metres either unaided or with the use of a manual aid.

c. Can move up to 50 metres unaided.

d. Can move up to 50 metres only with the use of a manual aid.

e. Can move up to 50 metres only with the use of a manual wheelchair propelled by the claimant.

f. Can move up to 50 metres only with the use of an assisted aid.

g. Cannot either–

(i) move around at all or

(ii) transfer from one seated position to an adjacent one unaided.

[ Edited: 27 Sep 2011 at 11:51 am by Gareth Morgan ]
Dolge
forum member

Senior adviser - Wirral Welfare Rights Unit, Birkenhead

Send message

Total Posts: 49

Joined: 16 June 2010

No, it’s an ESA appeal under the post 30.3.11 descriptors, and it’s not a joke, it’s something we need to combat systematically.

In particular it’s about the new ‘mobilising’ descriptors - walking test replaced by “mobilising unaided by another person, with or with out a a walking stick, manual wheelchair or other aid if such can reasonably be used”. What I call the Oscar Pretorius descriptor since the DWP always justify it by saying how silly it would be to class the legless Paralympic athlete as unfit for work. (they ignore the fact that we are actually talking about a classification of limited capability for work which Mr Pretorius clearly would have).

Anyway the key word is ‘reasonably’. We need to be arguing that having ‘full upper limb function’ in no way makes wheelchair use reasonable. Possibly relevant factors:
- cost
- need to keep using legs to avoid greater disability - just about all arthritis sufferers are so advised for instance
- embarrassment - this is to weak a word actually - we can just argue personal choice - why shouldn’t someone chose not to use a wheelchair? - why should the DWP impose such a requirement? can an aid reasonably be used if someone does not wish to use it, for whatever reason?
- upper arm strength - the WCA assessment does not include a test of the considerable upper arm strength required to propel a wheelchair; the descriptors for the upper arm involve cartons of milk and empty boxes! So they have no evidence as to ability to use a wheelchair
- access issues - what if you live in a top floor flat?

Hopefully some case law will come along restricting the scope of this descriptor. For now I think it needs to be challenged aggressively every time it is used . I’m sure people can come up with some other arguments as well.

Richard Atkinson

PeterS
forum member

Advice worker, Tinsley Advice Service

Send message

Total Posts: 19

Joined: 24 August 2011

Yes. Can I just confirm it’s an ESA appeal. She’s already got DLA because she can’t walk more than 15 metres.

Thanks for the posts so far. It sounds like a wheelchair assessment would be helpful.

Her problem isn’t arthritis, and she states that she’s not been advised to keep active. Though walking more would help keep her weight down, which is what stops her from using the wheelchair!!

keith
forum member

Principal WRO - Northumbria Healthcare NHS Foundation

Send message

Total Posts: 42

Joined: 16 June 2010

Our Community Rehab Team told me that anyone not used to using a manual wheelchair would find it extemely difficult to “mobilise” in the chair for 50metres. They told me that someone who regularly used a manual wheelchair around their home would find it very difficult to self propel for anything like 50metres on the level outdoors. They also said someone with a fantastic physique and amazing upper body strength like myself (ahem!) wouldn’t be able to just jump in a wheelchair and cover 50 metres without stopping…

anned
forum member

Welfare Benefits Worker, Hambleton CAB, N Yorks

Send message

Total Posts: 46

Joined: 16 June 2010

keith - 28 September 2011 11:01 AM

Our Community Rehab Team told me that anyone not used to using a manual wheelchair would find it extemely difficult to “mobilise” in the chair for 50metres. They told me that someone who regularly used a manual wheelchair around their home would find it very difficult to self propel for anything like 50metres on the level outdoors. They also said someone with a fantastic physique and amazing upper body strength like myself (ahem!) wouldn’t be able to just jump in a wheelchair and cover 50 metres without stopping…

That could be very useful, Keith.  Any chance of getting someone from the Rehab Team to put that in writing?  I would appreciate a copy of any such evidence.

benefitsadviser
forum member

Sunderland West Advice Project

Send message

Total Posts: 963

Joined: 22 June 2010

Also bear in mind the inability to “repeatedly” fulfil a descriptor may be relevant.

lauram
forum member

Welfare rights - Nottingham City Council

Send message

Total Posts: 3

Joined: 1 July 2010

hi,

i have quite a few ESA appeals now where clients are in receipt of DLAMH due to walking difficulties and are scoring zero points on the ESA assessment.

Again because they can apparently manually propel a wheelchair, one of my clients had a stroke affecting right side so would definitely not be able to manually propel but the JC wouldn’t revise, however i have another client where there appears to be no difficultie with upper limb function.

I just wondered what route people are going with on the appeal?

If its best as prev posted to go down the route of getting client assessed for wheelchair or whether arguing the cost of the wheelchair etc.

Where possible i want the decision to be revised by the JC rather than waiting years for an appeal hearing and as yet there still doesn’t appear to be any relevant case law.

ClaireHodgson
forum member

Solicitor, CMH solicitors, Tyne And Wear

Send message

Total Posts: 186

Joined: 17 June 2010

i had to be wheelchaired round Salts Mill in Bradford a few years ago, as leg in plaster .... no way could have done that myself!  it was a manual chair and at the time i had no shoulder/arm issues.

Lorraine Cooper
forum member

Family Support, Barnardo's, Merthyr Tydfil

Send message

Total Posts: 132

Joined: 8 June 2011

I’ve got a similar case as well, spinal problems, so can’t walk any distance, but been given zero points.  I’ve not got anything to add, just chiming in to agree and remind myself to keep an eye on this thread.

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

PeterS - 26 September 2011 04:21 PM

....Have you any suggestions of how can we prove to a Tribunal that she meets this descriptor?...

We don’t have to.  The SSWP has to prove that the client doesn’t meet any of the descriptors above the nil point descriptor.  Of course, the client has to co-operate with the tribunal.  I think she’d do that here by honestly considering whether she could use a wheelchair.  After doing so, she shouldn’t be penalised by the tribunal if she’s still not sure, especially as she’s unlikely to have ever used one.  The SSWP needs something more positive to prove that none of the descriptors other than 1(e) applies.

The ESA85 will include clinical findings on the upper arms and peak flow from which it may be possible to infer that a wheelchair could reasonably be used.  But as others have stated above, is the test of reasonableness a medical one alone?

In CE/1217/2011 Judge Levenson recently set out a three stage test for deciding when an aid could be “normally used”.  However, the third stage of his test in my view could easily represent a test for “reasonably used”.  He held that a claimant who had neither used nor been prescribed an aid could nevertheless be assessed as using one:

“..but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same” (para 16).

Whilst he’s not definitely equating normal use with reasonable use, Levenson appears to be suggesting that normal use by others is nevertheless a good indication of what would be objectively reasonable.

There is also a subjective test of reasonableness bolted on to the end of his test, ie even if others, acting reasonably, normally use an aid, it might still be unreasonable to expect the individual claimant to do so.  For example, due to embarrassment.

If that’s correct, I think our job may be simpler than we think.  Our starting point for Peter’s client might be to look at what aids other obese people normally use.  If a wheelchair was not one of them, the SSWP should explain why.  The suspicion would be that the others don’t use them because it is not reasonable, to quote Levenson, “in all the circumstances”.  Their reasons might include cost, to both NHS and/or individual, and the importance of staying active as highlighted by others above.  And if it’s not reasonable for them, who share the same disabilities as the claimant, it shouldn’t be reasonable for the latter.

Without a credible explanation from the DM (or the tribunal medical member who, having basically swallowed whole the ATOS handbook during his training, worryingly now stands in his shoes), I think the client should be found not to be able to reasonably use the wheelchair.  Of course, we’d still need to show that she couldn’t walk the required distance in order to score the points.

Obviously, if there is a medical reason why using a wheelchair wouldn’t be reasonable then we should mention it, but where there is no obvious medical reason I think we need to be careful.  There’s a difference between the client co-operating with the tribunal by honestly considering her ability to use a wheelchair, and feeling the onus is on her to suggest reasons why she couldn’t reasonably use one.  Inference from what happens normally should be enough to put the onus on the SSWP to prove why the aid can be reasonably used.

[ Edited: 7 Feb 2012 at 08:58 pm by Tom H ]
oldhamcabwn
forum member

Welfare benefits caseworker - Oldham CAB

Send message

Total Posts: 16

Joined: 19 November 2010

This is a worrying trend, i have picked up 3 ESA appeals this week (arthritis/lower limb problems) all with the very same decision on the mobilising descriptor (no problem as able to propel a wheelchair over 200m). I will certainly be using several of the arguments laid out in this thread.

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

I asked a senior wheelchair OT at a local hospital about this. The reply included several interesting points:

- the criteria for a referral for an NHS wheelchair is that the chair is needed long term and for both indoor & outdoor use (not just for occasional outdoor need). The wait for an assessment is around 6 weeks (locally at least).

- to mobilize the distances stated would depend on the person’s stamina

- It is important that professional advice is gained before referral for a chair as with many conditions it is important that the person remains on their feet and walking. Wheelchairs are often percieved as an easy option but may not be the best thing for the person and may lead to decreased mobility and the complications of this (including blood pressure, weight, bone density and muscle density issues).

All useful stuff I think and have included with several subs I have written recently.

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

Bear in mind also that only descriptor 1(a)(i) requires the walking and wheelchair use to be assessed “on level ground”.  Descriptor 1(a)(ii) by omitting any reference to terrain is impliedly a test of mobilising in all conditions including stairs and the steep ramps that have to be negotiated normally by wheelchair users.  Conveniently for Newcastle reps there’s one such ramp connected to the bridge between our city centre and the road leading to the Tribunal Service building. 

I agree with 1964 that there are likely to be good medical reasons why it’s not reasonable to use a wheelchair.  And I also agree with those who suggest that the test of reasonable use should include non-medical factors like cost.  As Levenson stated in his decision referred to previously, the test should be one of reasonableness “in all the circumstances”.

JohnnyM
forum member

Shelter, South Yorkshire

Send message

Total Posts: 34

Joined: 9 January 2012

I’ve got a couple of similar cases as well. Has anyone come across any good national guidance (presumeably OT) on assessment and suitability for wheelchair use?

I can get in touch with my local OT/Social Services section - but rather than re-inventing the wheel- if anyone already has any good guidance - it would be really useful for everyone in the same situation.

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

I’ve done a few web searches but haven’t been able to find any generic national stuff containing sufficiently relevant info. You’re probably best doing what I did and approach your local SS/NHS (also useful for confirmation of how long the local waiting time for an assessment is).

BTW- see the other ongoing thread re discussion of ‘reasonableness’ of using manual wheelchair (can’t do links!)