Tuesday 28th March 2017
A panel of upper tribunal judges has made a decision relating to safety and supervision that Benefits and Work believes could allow many claimants with conditions such as epilepsy, heart disease, dementia and mental health conditions to receive the enhanced rate of the daily living component.
We also consider it will allow many claimants to receive the enhanced rate of the mobility component.
This will include some claimants who lost out due to a recent change in the law relating to planning and following journeys.
This is very new case law, although it appears to take us back to very similar case law for disability living allowance (DLA).
We are setting out arguments below that we think are valid and that will allow thousands more claimants to be awarded PIP.
But we cannot guarantee in any way that they will be successful. All you can do is put forward the best evidence you can to support these points and, if you are not happy with the decision, consider challenging it by mandatory reconsideration and appeal.
And, as always, be aware that if you challenge a decision because you consider the award is too low, there is always a risk – however small – that you will lose the award you have.
Fifty percent rule
In CPIP/1599/2016 a panel of Upper Tribunal judges looked at the issues of safety and supervision, after conflicting decisions were made by individual upper tribunal judges.
Until now, the DWP have argued that a claimant can only score points for being unsafe if harm is likely to occur on more than 50% of the occasions on which they attempt an activity.
A claimant who has epilepsy which causes seizures once or twice a week, for example, may not attempt to cook unsupervised because they know that if they have a seizure they could come to serious harm
However, the DWP have been refusing to award points to claimants with epilepsy on these grounds, unless the claimant cannot show that it is ‘more likely than not’ that they will have a seizure on any given occasion when they prepare food.
This is an almost impossibly harsh test, as is shown by the thousands of claimants with epilepsy who are having their payments removed entirely on being moved from DLA to PIP.
Upper Tribunal disagrees
On 9th March, however, the panel of Upper Tribunal judges rejected the DWP’s 50% rule.
Instead, the panel held that the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be. The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion.
At paragraph 56, the tribunal held that:
“An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.”
For example, someone who is deaf may be unable to hear a smoke alarm if a fire starts when they are bathing.
The risk of a fire starting on any given occasion is very small, but also very real. And the harm that might occur if the claimant was caught in the bathroom during a fire is potentially fatal. So, the risk is small but the potential harm is very great. Therefore the claimant cannot carry out the activity of washing and bathing safely unless they have supervision.
The same logic will also apply to people who have epileptic seizures and need someone to keep them safe if they do.
Standard daily living for epilepsy
Clearly activities like bathing and preparing food carry particular risks in the event of a seizure.
But on their own, they are not enough to allow a claimant to score the 8 points needed for even the standard award of the daily living component. The points for these two activities would be just six:
1 e. Needs supervision or assistance to either prepare or cook a simple meal. 4 points.
4 c. Needs supervision or prompting to be able to wash or bathe. 2 points.
But the panel made another extremely important finding.
They ruled that where a claimant is at risk all the time, even if they are just sitting in a chair doing nothing, then they may also be at risk when carrying out PIP activities that do not carry any additional likelihood of harm.
At paragraph 66, the Upper Tribunal stated that they agreed with Judge Jacobs when he found the following:
“18. As I understand it, the judge is asking whether the risk that can be taken into account for preparing food or planning and following a journey must be a risk specifically related to that activity. The answer is: no. A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied.
19. Take preparing food, Activity 1. The tribunal found that the claimant satisfied descriptor e, which carries 4 points:
Needs supervision or assistance to either prepare or cook a simple meal.
The issue for the tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This is so whether the other activities affected are within the scope of personal independence payment or not. Many conditions have an effect beyond the particular activities in Schedule 1 and, perhaps, generally. It would be anomalous to exclude them from the scope of personal independence payment.
20. The same applies for all activities, including planning and following journeys.”:
So, a claimant may not be at any additional risk of harm if they have a seizure when using the toilet or taking medication, for example. But, because they are at risk whatever they are doing, then we would argue that they still reasonably require supervision during these activities because they cannot do them safely without supervision.
This opens up the possibility of scoring further points for supervision:
2 b. (ii) [Needs] supervision to be able to take nutrition; 2 points.
3 b (ii) [Needs] supervision, prompting or assistance to be able to manage medication. 1 point.
5 c. Needs supervision or prompting to be able to manage toilet needs. 2 points.
If they all apply, this would allow a claimant with epilepsy to score 11 points in total for supervision, enough for an award of the standard rate of PIP daily living.
Enhanced daily living for epilepsy
But, we believe, there is more.
Where the descriptors do not refer to supervision, then it can be argued instead, that the claimant is unable to carry out the activity safely at all. So, most obviously:
6 f. Cannot dress or undress at all. 8 points.
Some of the other daily living activities, such as reading and budgeting, may be harder to argue, though logically they should also apply.
But even without the other activities, this allows a total of 19 points, well above the threshold of 12 points needed to get an award of the enhanced rate for daily living.
Daily living for other conditions
The same logic should apply to some claimants with learning difficulties, dementia, heart problems or mental health conditions, amongst others
So, someone at risk of serious self-harm or at risk of committing suicide might well qualify for the enhanced rate of the daily living component, if they need someone to supervise them to keep them safe.
Someone with learning difficulties which leads to a lack of awareness of danger may also qualify.
Mobility component for epilepsy
The panel also held that the same arguments apply to the Planning and following journeysmobility activity, though not to the Moving aroundactivity.
So, a claimant who is at risk of seizures should meet mobility descriptor:
1 f. For reasons other than psychological distress, cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points.
However, it’s important to be aware that this decision was made before the government changed the law in relation to Planning and following journeys to specifically rule out psychological distress for descriptors c) d) and f) of this activity.
So it will be vital to stress the risk to the claimant, rather than their fear.
A claimant with epilepsy may become overwhelmingly anxious at the thought of undertaking even a familiar journey alone, because of fears that they might have a seizure. This, however, would not allow them to score more than 2 points for this activity.
But, regardless of their fear, if there is a need for supervision to reduce the risk of harm if they do have a seizure when following the route of a familiar journey, then that should allow them to receive the enhanced rate of the mobility component.
Mobility component for other conditions
As with the daily living component, the same logic should apply to some claimants with learning difficulties, dementia, heart problems.
So, someone at risk of serious self-harm or at risk of committing suicide might well qualify for the enhanced rate of the daily living component if they need someone to supervise them to keep them safe.
Mobility component for mental health
Whilst this decision may allow many claimants with physical health conditions and learning difficulties to get the enhanced rate of the mobility component, it may be of less value for claimants who, for example, experience panic attacks.
This is because of the recent change in the law which adds the words ‘For reasons other than psychological distress’ to descriptors c), d) and f).
It will be necessary to show that the claimant would be at risk of harm, rather than simply distressed, in order to score points for descriptors that preclude psychological distress.
Which decisions will be affected?
Claims made on or after 9 March and review decision made on or after 9 March should be subject to this new case law.
Will the DWP appeal this case?
The DWP may very well appeal, but there’s a very good chance they will lose.
If you challenge a decision not to award you PIP when you think this case law applies, it may well be that your case will be stayed until any DWP appeal has been heard.
Will the government just change the law?
Quite possibly. But changes to the law are very rarely retrospective. So, unless and until they change the law, there is a window of opportunity to make claims on this basis, always provided the DWP don’t win an appeal.
How do I include this in my claim?
We’re updating our PIP guide right now to include information on how to add this to your PIP 2 form. Check back on this page to find out when the up the updated guide is available