ESA continence issues only when lose consciousness

I can’t see why not. Loss of control of bowels/bladder during seizures isn’t ruled out from applying - the only exclusion from the wording of the descriptor is enuresis.

The loss of control arises from a specific bodily disease or disablement, so Reg 19 is satisfied, and other conditions like arthritis can impact on ability to carry out tasks under different descriptors, so why not epilepsy.

Having said that, when I argued the same point last week the tribunal allowed the appeal on Reg 29 - an easy ‘out’ perhaps, but then again the evidence about frequency wasn’t much good…

Definitely worth a push and a challenge if they don’t allow it

The WCA handbook says of the continence descriptors (p103):

These descriptors take into consideration loss of continence while the claimant is awake/conscious. Any problems with incontinence that occur during sleep or during episodes of altered consciousness such as during seizures or under influence of alcohol or drug misuse would not fulfil the criteria for these descriptors.

I had a feeling there was support for this view in the caselaw?

Not aware of anything specific - but equally there’s plenty of caselaw in looking at what the exact wording of the regulations rather than what the DWP interpretation is, and in this case the only exclusion is clearly enuresis (bed wetting).

There is also caselaw in looking at intent behind the law. The intention behind the descriptor is stated as being to preserve dignity (see commentary in Volume I of Social Security legislation 2012/13, page 978). Is loss of control somehow more dignified if a person is having a seizure at the same time?

The Department may well have guidance, but that has no weight in law!

Sorry, I was probably thinking of the recent change in the wording of activity 9, not of a tribunal decision. From 28th Jan 2013, SI/2012/3096 makes it: “Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally, or could reasonably be, worn or used”.

But as long as an assessment was on the previous descriptors it obviously shouldn’t be bound by this.

Are you conscious, unconscious, or in a state of altered consciousness whilst have a seizure I wonder.

Oh IDS how you keep my mind active with your ill thought out knee jerks against anything sensible and considered that the Upper Tribunal might have to offer.

Thank you

Decision maker has stated in thei submission “No Problem with continence as reported that only problem when has seizure or loses consciousness” nil points

The assessment was carried out 23/11/ 2012, the decision was notified 17/12/12 reconsidered after appeal at 31/1/13

I would assume that we are dealing with the old descriptor due to the decision being december.  The reconsideration is not a fresh determination IS IT ????????????? so they can argue new regs

I hope not Ive got enough with this case to be wrangling the new regs too

I took a case to UT which only had a quick decision, but it could be of interest.  UT Judge Jacobs said

“I have set the tribunal’s decision aside, because the tribunal’s decision on descriptor 9(b) in Schedule 2 to the ESA Regs 2008 was perverse.  The issue for the tribunal was one of fact : was the claimant at risk of loss of control?  The tribunal found that he would only lose control on average once a month during an epileptic seizure.  ‘At risk’ is a common expression.  It does not have to be interpreted, merely applied.  The tribunal’s decision was outside the reasonable bounds of decision-making on its own findings.  A person who may lose control during a seizure once a month would in the ordinary meaning of the expression be ‘at risk’ of doing so.”

It was CE/2974/2012, and if you’re interested, I’ll try and pop it on rightsnet when I’m back in the office.

Brillliant Robbo Thanks

Took a while, but here we go (assuming the attaching goes OK).

NB - In this case, loss of control of the bladder was less frequent than once per month, so ‘at risk’ was all we were going with.

Yes, it isn’t written up quite as it should be.  It was accepted he lost consciousness once per month, but he didn’t always lose control of bladder and so continence was less frequent.  Makes sense when you’ve got the rest of the bundle, mind.

Craven CAB welfare benefits - 08 April 2013 04:04 PM

... change in the wording of activity 9 ... From 28th Jan 2013, SI/2012/3096 makes it: “Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting)”.

Just checking that I have got this right: under this version of the WCA, a person with epilepsy who is incontinent during a fit/seizure/absence is by definition not conscious at the time and so can’t score points for the incontinence.
Also, now that the regs have the added words, “whilst conscious”, isn’t it a tautology to exclude “enuresis (bed-wetting)” since that too, by definition, happens when someone is in bed asleep?

There has been an argument/theory posted before that incontinence during epilepsy usually occurs as the person is regaining consciousness and therefore they can still meet this descriptor. If I can find the link I will re-post it

Not according to this.

http://epilepsysupport.ca/seizure-education/about/seizure-types

I’m not sure if the argument has legs but here is where it came from:

http://www.rightsnet.org.uk/forums/viewthread/5159/

and it is supported by this:

http://www.epilepsy.com/node/974016

Note that it refers to “whilst conscious” rather than “lost or altered consciousness” as it does in Activity 10, so possibly there is a little more scope for arguing the point. As DManville asks above, “Are you conscious, unconscious, or in a state of altered consciousness whilst having a seizure I wonder.”