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Using “within a reasonable time period” grounds only?
I have a customer who denies needing assistance, supervision or prompting (although I think such help would be available). Looking at the main PIP regulations (SI No. 377, 2013) alone he does not appear to score any points. He has a serious back injury for which there is ample medical evidence, he is on high strength painkillers and he attends at a pain clinic. He can perform the activities in the assessment but takes breaks and does things slowly due to the pain. Nothing much is really indicated in the claim pack or the Atos report in the appeal papers except for medical evidence confirming the condition.
Despite the lack of oral and written evidence that there is any need for assistance, supervision or prompting would it be possible to use amendment (from SI No. 455, 2013)to Regulation 4 of the main regulations, arguing that he should still acquire points as he cannot perform some activities “within a reasonable time period”?
I’m still learning about PIP and whilst I appreciate that, logically, from the regulations, the “within a reasonable time period” route seems arguable I would really appreciate it if the learned contributors to this forum felt that such a case had realistic prospects of success, in front of a typical tribunal, on a typical day, up North.
The PIP assessment guide - https://www.gov.uk/government/publications/personal-independence-payment-assessment-guide-for-assessment-providers - has some guidance at page 92 which might be helpful. It’s the DWP’s own guidance too so should be persuasive…
I have a customer who denies needing assistance, supervision or prompting (although I think such help would be available). Looking at the main PIP regulations (SI No. 377, 2013) alone he does not appear to score any points. He has a serious back injury for which there is ample medical evidence, he is on high strength painkillers and he attends at a pain clinic. He can perform the activities in the assessment but takes breaks and does things slowly due to the pain. Nothing much is really indicated in the claim pack or the Atos report in the appeal papers except for medical evidence confirming the condition.
Despite the lack of oral and written evidence that there is any need for assistance, supervision or prompting would it be possible to use amendment (from SI No. 455, 2013)to Regulation 4 of the main regulations, arguing that he should still acquire points as he cannot perform some activities “within a reasonable time period”?
I’m still learning about PIP and whilst I appreciate that, logically, from the regulations, the “within a reasonable time period” route seems arguable I would really appreciate it if the learned contributors to this forum felt that such a case had realistic prospects of success, in front of a typical tribunal, on a typical day, up North.
At best I think an interesting discussion might be had.
Personally I can’t think of a reason why it’s not an argument. The reality is that many DMs are simply not looking at repeatedly, reliably, to a reasonable standard/safely and in a reasonable time so I have found myself spelling that out on a per question basis on claim packs and in response on MRs.
Never mind reasonable time period though. I think further clarification is required on “in front of a typical tribunal, on a typical day, up North.”!!!
It is an interesting argument - But then what is the slowness due to?
Is it rest periods in between or just slowly putting an arm into a sleeve?
Off the top of my head I’d say I could dress my top half in less than 30 seconds? )except if it’s formal dining time as this may take a little longer.)
Is two minutes to put on a shirt unreasonable - or five minutes?
It will depend on the case but I would want to have a very clear description of how it is done, why it is done a particular way and then the speed.
I think Kurt only mentions a typical tribunal in the particular area because that is the particular area the typical tribunal is likely to hear the atypical appeal?
I think it becomes quite a strong argument in cases where assistance either is not available, or the person does not want assistance because it is too personal (washing, dressing, toiletting, for example). Saw a client yesterday with severe effects of a number of conditions where this is exactly the case for several activities - she manages herself, with appropriate aids, but it takes her a very long time to dress, undress and wash because of the effects of her conditions, far longer than twice the maximum time it should take someone without a disability.
I can think it could readily apply to mobility as well - you may get cases where people can walk more than 200 metres aided, but it takes so long because of having to stop and rest that they should be assessed as not able to move that distance within a reasonable timescale, so you move on to the next descriptor, and so on
I’m genuinely unclear why we’re having aspects of this discussion.
You score PIP points for aids, assistance and (with or without those) where you can’t do an activity reliably, repeatedly, safely/reasonable standard or in a reasonable time. I suspect initially many have understandably focused on the activity wording to the detriment of the latter four and yet the latter especially is defined and all should be anecdotally verifiable. It had never occurred to me that people would see an issue with the latter four things. There will be areas to clarify but the possibility of arguing any of these in isolation shouldn’t be at issue in my view and anecdotally evidencing and breaking things down is really what we do anyway.
As John says, provided we do what we do and back this stuff up with analysis of what happens and why (dressing being a good example) then I don’t see a problem.
Thanks very much for the helpful replies and guidance. I will have to build the four further conditions (including what is a ‘reasonable time period’) into my interviews in a different way from now on.
I anticipate many an ‘interesting discussion’ at tribunals about this point. Will the received opinion of what the maximum period it takes those without ‘a physical or mental condition….’ to wash, dress, eat, etc. now expand to serve to limit entitlement to those with such conditions who take a long time to perform such activities due to discomfort of some kind?
Despite the construction of the regulations (and the guidance) I still think there would be an inherent reluctance to make an award of standard rate daily living to someone on the basis that they ‘Cannot dress or undress at all’ when in reality they can but they had to take over twice as long as the maximum period referred above.
Time and case law will tell.
It probably isn’t indicative but I’ve now had a couple of PIP claims through where I did the claim form and made explicit mention of the ‘reasonable time’ aspect for someone with a VI and someone with lumbar spine issues.
The former assumed they were a 6c ii or 6d/e. I dealt with it by arguing that they needed help to identify the correct clothes; determine whether they needed ironing; get appropriate colours; put them in the right place and so on. They could then dress themselves. However, their partner needed to check whether items were the right way round/inside out; whether buttons matched holes and so on. With the best will in the world a person with a VI won’t always get this right. I dealt with each of the above in turn and then argued that after all the above what you were left with was a scenario in which a person could not perform the activity reliably by themselves; had to have assistance at every step (even if at stages it was just watching over) and therefore the total time taken became unreasonable.
DM had no problem accepting. However, I freely admit I’m not one for leaving loopholes so I didn’t leave them many ways out.
Similar argument with lumbar spine case although it totally hinged on time. There was no aspect they could not do but they had to do it carefully and with thought through movements. Again, DM had no issues and awarded top whack.
I think it’s down to us to make these cases basically.