PIP Tribunal - can anyone help with the '50% rule?

Hi Tasha

I think you need to say that his mental health condition affects him for 100% of the time and the psychotic episodes are just one part of it.

I don't know the person you care for - but in the little you say, he needs to be supervised to take medication - which is needed to keep him safe. It's clearly not effective all of the time because he still experiences the psychotic episodes. You need to explain how he is on a day to day basis. Along with the psychotic episodes is there any depression or anxiety, halluicantions etc - if there are then say so.

What is his mood and concentration like? - clearly damaged if he needs someone to help him take his medicine - therefore he cannot look after himself, reliably or safely.

You say to the tribunal that the assessor did not seem to understand severe mental health in that they assumed that he is okay outside of the psychotic episodes.

Make sure that you have linked his illness and symptoms to be able to do things on the PIP criteria.

So does he cook, eat, or is he unmotivated, scatty, unreliable and potentially unsafe? Is he a danger to himself or to others etc etc? Check each point and make sure you have an argument for why they were wrong.

You also need to point out that with resources in the NHS being cut - he is still with his local MHT - and they would not be hanging onto him if it wasn't necessary. Have you got an up to date letter from them? I hope so.

I hope it goes well for you both.

BIS

Hi Tasha,
Every thing BIS says is correct, you need to consider what supervision your friend needs. Also whether he can do activities safely, to an acceptable standard, in a reasonable time and repeatedly. This is Regulation PIP Regs 2013.All 4 criteria need to be met.

Please have a look at this case:
www.gov.uk/administrative-appeals-tribun...ip-2017-ukut-105-aac
This case concerns the meaning of 'safely'.
This is a joined appeal with 3 cases combined.(This is often done when several cases rause the same point of law- also this us a 3 Judge panel, which shows it relates to an important point of law!)
One of the appellants GMcL was epileptic. He had infrequent seizures so the initial argument was that he didn't need help fir the majority of days. Correct he didn't. BUT he did need to be supervised in case he had a seizure, the supervision was required to ensure he stayed safe per Reg 4.
This is a quote from the case, and is worth while citing in your arguments for your appeal.

"an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely did not require that the occurrence of harm was “more likely than not”, a tribunal must consider whether there was a real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences were relevant (paragraphs 33, 37 and 56);

if, for the majority of days, a claimant was unable to carry out an activity safely or required supervision to do so, then the relevant descriptor applied. That may be so even though the harmful event or the event which triggered the risk actually occurred on less than 50 per cent of the day (paragraphs 54 to 55);

the same approach applied to the assessment of a need for supervision (paragraph 56)."

Reg 7. this is the section that deals with the "majority of days" . This is NOT the same as 50% of time. If you are unable to do a PIP activity for a significant part of any day, then you should get points. This actually makes more sense if you think about some activities. Making a meal, dressing or even washing yourself are never going to be activities that you do all the time, all through the day. Making a meal might be once or twice, per day, maybe up to an hour. Communicating of course could take place across the whole day.
All these regulations link up, because if you have difficulties for part if the day, then you can't do the activity 'repeatedly' so that will count as a day towards your majority of days amount. This is all very complicated, and little wonder that it is often outside DWP comprehension!

Next point still in Reg 7. (if for whatever reason the GMcL case doesn't apply, or safety issues don't comprise the majority if days, consider whether you can aggregate activities
If no one activity in a descriptor section applies for the majority of days if two or more activities apply for less days, but when added together do reach a maj .of days, you can score the one that either applies for the most OR the highest value points if all if these are equal.
On this basis if, as I suspect, your friend has difficulties not at crisis times, then these could be added together, the crisis times could be added, and hopefully this will allow points to be scored.
Think of all relevant difficulties, and how often these occur, and if not reaching the majority of days, consider the aggregating rules.

Try writing these points as some arguments to put to the tribunal. You can send them in, but otherwise read them out to the tribunal. Use bullet points, but be prepared to quote the GMcl case.
It is perfectly OK to argue how many points should be awarded for each activity and why!
Good luck, let us know how you get on.
LL26

Thank you Tasha, we always love to hear the outcome. Hoping it is the one you want!

Catherine