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At any point during the day
- Whymark
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3 weeks 4 days ago #294906 by Whymark
At any point during the day was created by Whymark
Hi. My claim for PIP is based on 2 diagnosed conditions which cause me to suffer fatigue and brain fog most days (effectively chronic fatigue syndrome for the sake of PIP I suppose). I have found it very difficult to find advice as to whether or not my circumstances would make me eligible for PIP - for a long time I felt I wouldn't be, but after reading the Benefits and Work guide I began to feel that maybe they would, and largely because of the definition of 'at any point in the day', as there are a number of descriptors which would seem to apply to me for a few hours a day, but not the whole day.
After my initial application and mandatory reconsideration were both returned with zero points I asked a local charity for help. The very helpful lady (who tells me she has been dealing with disability claims for 30 years) initially felt that I was border line, but probably not eligible. Having now read through the appeal pack from DWP she now feels I am not eligible and has in essence recommended that I withdraw my application, but in any event has advised me that she is no longer able to continue to help me.
The point of contention seems to be the 'at any point in the day' standard. For example her summary of reasons for saying she feels I am not eligible are:
- I am able to get dressed most days (my argument was that I am often unable to get dressed until the afternoon due to fatigue, she said that doesn't make a difference)
- I aim to attend 2 religious gatherings a week (which involve some socialising) and actually get to around half (these occasions being pretty much all of the socialising I am able to do)
- I work as an accountant (my argument had been that I am usually able to do no more than 5 hours of work a day, on more than half of days actually less, as there are periods each day during which I suffer from brain fog and am therefore unable to read and understand to the necessary degree)
I also initially argued that washing and managing money are also limited in the same ways.
If I am not eligible for PIP that is how it is, I do not wish to get something to which I am not entitled, but a second opinion would be appreciated. Obviously detailed advise is not possible based on these few details, but I wonder whether anyone would be able to advise further as to the issue of 'at any point during the day' as this experienced advisor seems to feel (based on my conversation with her and the points noted above) that more or less the whole day needs to be affected in order to count.
Thank you in advance for any advice.
After my initial application and mandatory reconsideration were both returned with zero points I asked a local charity for help. The very helpful lady (who tells me she has been dealing with disability claims for 30 years) initially felt that I was border line, but probably not eligible. Having now read through the appeal pack from DWP she now feels I am not eligible and has in essence recommended that I withdraw my application, but in any event has advised me that she is no longer able to continue to help me.
The point of contention seems to be the 'at any point in the day' standard. For example her summary of reasons for saying she feels I am not eligible are:
- I am able to get dressed most days (my argument was that I am often unable to get dressed until the afternoon due to fatigue, she said that doesn't make a difference)
- I aim to attend 2 religious gatherings a week (which involve some socialising) and actually get to around half (these occasions being pretty much all of the socialising I am able to do)
- I work as an accountant (my argument had been that I am usually able to do no more than 5 hours of work a day, on more than half of days actually less, as there are periods each day during which I suffer from brain fog and am therefore unable to read and understand to the necessary degree)
I also initially argued that washing and managing money are also limited in the same ways.
If I am not eligible for PIP that is how it is, I do not wish to get something to which I am not entitled, but a second opinion would be appreciated. Obviously detailed advise is not possible based on these few details, but I wonder whether anyone would be able to advise further as to the issue of 'at any point during the day' as this experienced advisor seems to feel (based on my conversation with her and the points noted above) that more or less the whole day needs to be affected in order to count.
Thank you in advance for any advice.
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- LL26
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3 weeks 4 days ago #294918 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic At any point during the day
Hi Whymark,
There seem to be 2 main areas relevant to your post.
First 'majority of days'- Regulation 7 PIP Regs. 2013.
When considering the descriptors you need to show that you are unable to complete the activity 'reliably' for the 'majority of days'. This means even if your disabilities only manifest themselves eg 4 or 5 days a week, you can still fulfil the descriptors and gain points.
'Reliably' is the short hand version of Regulation 4(2A).
There are 4 criteria all of which need to be met.
•Safety - is there a risk of substantial harm?
•Reasonable Time- ie no more than twice that of non disabled person
•Acceptable standard- is this done the way most people would do/expect? It will also comprise significant pain, fatigue and breathlessness.
•Repeatedly
Your advisor uses the phrase 'at any point during the day' that might be her way of describing the legal test, but it isn't the wording in the Regulations.
Repeatedly means across the whole day as many times as is reasonably required.
Let me explain further. Each activity has its own repetition rate. It is probably reasonable to assume you might want to cook a meal 2 or 3 times a day. If you have always eaten 5 hot meals a day since age 3 then FOR YOU, you could argue you need to cook 5 times a day. Likewise, toilet needs might comprise 8 or 9 visits per day to the toilet but if you have incontinence this could be twice as much, perhaps more.
In terms of journeys, bear in mind that all journeys entail a walking element even if this only means a few steps from a building to a car. Thus if considering journeys/walking ability think about the following eg -
Get up, take kids to school. Get petrol. Go to card shop and buy birthday card. Go home. Write card. Go to post box. Pick up kids. Take eldest child to karate. Visit Granny. Pick up child. Go home....
None of these journeys/walks would be unreasonable in one day.
Now the important thing is how many 'repetitions' you can manage.
If you can't manage one of the repetitions you will fail the test and therefore should be due to achieve points at the appropriate level. (Remember that you have to repeat, as well as being safe, acceptable and in time.)
The only exception to the repetition rule is where the period of the day you can't repeat is of a trivial amount. Thinking about this mathematically, if you would like to cook 3 meals a day and can't do 1, then you fail to a third of cooking tasks. Likewise if you fail to achieve 1 out of 10 of toilet needs reliably this is a tenth. These are now reasonably big numbers.
Whereas, whilst communication is likely to be required 24/7, if you have a 5 minute period everyday where you completely zone out and talk utter gibberish, this is unlikely to give rise to PIP descriptor points for communication (in the absence of any other 'reliability' issues) since it is only for a small and therefore insignificant/trivial time.
The leading case on repetition is about an alcoholic who could function early on in the day, but by evening when now drunk he couldn't achieve the descriptor activities. He couldn't complete all the required repeats so therefore scored points.
To refer specifically to the matters you raise-if you can not get dressed until afternoon this could mean that you need help, because eg pain or fatigue is too great it could mean you are not within the reasonable time limit, or simply not t acceptable standard.
Working should not be a problem - although DwP often wrongly assert if you work you should be able to do all the PIP activities and hence no points. You therefore might wish to consider explaining reasonable adjustments made for you, including fewer hours etc.
However, there is a 'principle of normality' - basically it's not for DWP to say eg if you can't do up buttons then you have to wear pull on clothes. (Hence no points for dressing)
You can wear whatever clothes you like or do whatever you like if it is reasonable, and still be entitled to PIP points if you fit within the descriptors. Thus why shouldn't you work? If working means you are too fatigued to complete PIP tasks or do them reliably you should still score points.
OK next steps- this is your choice. You haven't got PIP and you won't know that you aren't actually eligible until you claim, and potentially exhaust all appeals if you wish to go that far. If you claim and lose, you only lose time and effort, but you may gain money if you succeed. If you don't apply you'll never know and may have nagging doubts. Dwp may say yes or no.
Before you decide, have a look at each descriptor test bearing in mind what I have said above. Think about what help you need (eg to be safe, or be timely etc). Think about whether you can complete the descriptor tasks reliably, and how you perform tasks considering the majority of days, and in particular repetition.
If your analysis reveals that you can't perform sufficient tasks and thus can achieve at least 8 points in either or both sections reliably for the majority of days then you can claim.
Dwp don't really understand fatigue type conditions so you need to explain your activity levels carefully in detail. Remember also that even if you manage to do eg all cooking, does that leave you able to still do dressing and walking etc.
Good luck.
Let us know what you decide and keep us updated if you do proceed.
I hope this helps.
LL26
There seem to be 2 main areas relevant to your post.
First 'majority of days'- Regulation 7 PIP Regs. 2013.
When considering the descriptors you need to show that you are unable to complete the activity 'reliably' for the 'majority of days'. This means even if your disabilities only manifest themselves eg 4 or 5 days a week, you can still fulfil the descriptors and gain points.
'Reliably' is the short hand version of Regulation 4(2A).
There are 4 criteria all of which need to be met.
•Safety - is there a risk of substantial harm?
•Reasonable Time- ie no more than twice that of non disabled person
•Acceptable standard- is this done the way most people would do/expect? It will also comprise significant pain, fatigue and breathlessness.
•Repeatedly
Your advisor uses the phrase 'at any point during the day' that might be her way of describing the legal test, but it isn't the wording in the Regulations.
Repeatedly means across the whole day as many times as is reasonably required.
Let me explain further. Each activity has its own repetition rate. It is probably reasonable to assume you might want to cook a meal 2 or 3 times a day. If you have always eaten 5 hot meals a day since age 3 then FOR YOU, you could argue you need to cook 5 times a day. Likewise, toilet needs might comprise 8 or 9 visits per day to the toilet but if you have incontinence this could be twice as much, perhaps more.
In terms of journeys, bear in mind that all journeys entail a walking element even if this only means a few steps from a building to a car. Thus if considering journeys/walking ability think about the following eg -
Get up, take kids to school. Get petrol. Go to card shop and buy birthday card. Go home. Write card. Go to post box. Pick up kids. Take eldest child to karate. Visit Granny. Pick up child. Go home....
None of these journeys/walks would be unreasonable in one day.
Now the important thing is how many 'repetitions' you can manage.
If you can't manage one of the repetitions you will fail the test and therefore should be due to achieve points at the appropriate level. (Remember that you have to repeat, as well as being safe, acceptable and in time.)
The only exception to the repetition rule is where the period of the day you can't repeat is of a trivial amount. Thinking about this mathematically, if you would like to cook 3 meals a day and can't do 1, then you fail to a third of cooking tasks. Likewise if you fail to achieve 1 out of 10 of toilet needs reliably this is a tenth. These are now reasonably big numbers.
Whereas, whilst communication is likely to be required 24/7, if you have a 5 minute period everyday where you completely zone out and talk utter gibberish, this is unlikely to give rise to PIP descriptor points for communication (in the absence of any other 'reliability' issues) since it is only for a small and therefore insignificant/trivial time.
The leading case on repetition is about an alcoholic who could function early on in the day, but by evening when now drunk he couldn't achieve the descriptor activities. He couldn't complete all the required repeats so therefore scored points.
To refer specifically to the matters you raise-if you can not get dressed until afternoon this could mean that you need help, because eg pain or fatigue is too great it could mean you are not within the reasonable time limit, or simply not t acceptable standard.
Working should not be a problem - although DwP often wrongly assert if you work you should be able to do all the PIP activities and hence no points. You therefore might wish to consider explaining reasonable adjustments made for you, including fewer hours etc.
However, there is a 'principle of normality' - basically it's not for DWP to say eg if you can't do up buttons then you have to wear pull on clothes. (Hence no points for dressing)
You can wear whatever clothes you like or do whatever you like if it is reasonable, and still be entitled to PIP points if you fit within the descriptors. Thus why shouldn't you work? If working means you are too fatigued to complete PIP tasks or do them reliably you should still score points.
OK next steps- this is your choice. You haven't got PIP and you won't know that you aren't actually eligible until you claim, and potentially exhaust all appeals if you wish to go that far. If you claim and lose, you only lose time and effort, but you may gain money if you succeed. If you don't apply you'll never know and may have nagging doubts. Dwp may say yes or no.
Before you decide, have a look at each descriptor test bearing in mind what I have said above. Think about what help you need (eg to be safe, or be timely etc). Think about whether you can complete the descriptor tasks reliably, and how you perform tasks considering the majority of days, and in particular repetition.
If your analysis reveals that you can't perform sufficient tasks and thus can achieve at least 8 points in either or both sections reliably for the majority of days then you can claim.
Dwp don't really understand fatigue type conditions so you need to explain your activity levels carefully in detail. Remember also that even if you manage to do eg all cooking, does that leave you able to still do dressing and walking etc.
Good luck.
Let us know what you decide and keep us updated if you do proceed.
I hope this helps.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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