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TOPIC: Mandatory reconsideration notice question

Mandatory reconsideration notice question 2 months 1 week ago #198284

Hi
Well it's a close call. My average ability is 2.5-3 days a week which is 130-156 days a year. If i throw in an annual 7 day holiday it's up to 137-163 days a year which is still less than 50% of days.

I'm just seeing the rule for applying an activity descriptor being 50% of the days - i can find no reference to case law for 13e and no reference to "interpretation of "cannot" in the context of (e) as being significantly higher than the majority of days". This descriptor seems subject to the same 50% rule as all the other descriptors. Is there any reason you see 'cannot' in this descriptor as subject to a different quantum which is 'significantly higher' than the 50% rule ? Semantically i see your point, but legally, it doesn't seem to apply.
thanks again.
n

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Mandatory reconsideration notice question 2 months 1 week ago #198304

  • Gordon
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nicholson

You are trying to re-engineer the Descriptor.

The Descriptor uses the word "cannot", this can only have one interpretation in the context of the other words used and that is that the claimant can never undertake a journey.

You are correct that the reliability criteria still need to be applied but there is no room when using an absolute like cannot or never for this to be taken into account as the Descriptor stands at the moment.

However, there is a Case Law for ESA that deals with a similar situation where a Judge argued that it was not reasonable that cannot should mean never, but that the standard that needed to be considered was still significant and in excess of what might otherwise be accepted by the majority of the time.

Obviously as this is ESA Case Law it does not specifically apply to PIP, but the arguments made by the UTT judge are not not specific to ESA and should be reasonably arguable in regard to the Going Out activity.

Ultimately, whatever position you take you need to be able to argue your position if necessary, however, your post suggests that you do not meet the majority of days rule anyway.

I want to make it clear that I am not advocating your contacting the DWP about your award, or conversely your not doing so, this has to be your decision.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Mandatory reconsideration notice question 2 months 1 week ago #198330

Hi

I'm not re-engineering the descriptor. I'm applying the stated guidance as detailed in the DWP 'PIP assessment guide' available in your PIP resources here:
www.benefitsandwork.co.uk/help-for-claimants/pip#dwp
I detail the guidance sections i applied beneath this comment. You will see from it how my situation appears to have arisen.

For Q13, Going out, my evidence and MR request clearly presented multiple descriptors, which i would suggest were 13b, 13c and 13e with the former occurring the most and the latter the least time.

Looking at the guidance i referenced, specifically in relation to 3.2.10: if the DM opted for descriptor selection based on rule b) or rule c-2) then the descriptor selected is not that which is most reflective of the evidence but of the highest score.

Hence it is likely in my case that the DM selected the descriptor 13e because they determined it either co-exists for the majority of the time or for the same proportion of days - on which points they must choose it because it has the highest score.

Section 3.5, Mobility activities guidance for E, makes no reference to 'significant and in excess of what is accepted as the majority of days'. It offers 2 options; cannot be made at all OR for the majority of days. This allows for 13e to apply in rule c-1), in the case it occurs and co-exists with other descriptors less than 50% of days, an option from which no descriptor appears to be excluded. It also allows for it to occur for the majority of days as defined for all descriptors and not confined to in excess of majority of days. For this reason it does apply in my case. If it had to occur in excess, then i would be concerned.

To speculate an answer to my original question; Which stands as the indicator of level of disability, descriptors or evidence ? I think that depends. If a descriptor must be chosen because it is the highest score then it may not indicate the level of disability as accurately as if it must be chosen because it occurs for the highest % of time. In which case, to determine the level of disability the evidence must be referenced over the descriptor.

I am unsure if the paper work i have requested by SARS records the descriptor selection rules the HP/DM has applied.

Let me know if you think differently.

n

Guidance i applied:

Choosing descriptors,page 50
2.8.6 - chose the most appriopraite descriptor
2.8.9 - the more than 50% of days rule explained, where in the case of multiple descriptors occurring under 50%, to choose the one with the highest proportion of time
2.8.10 - says see section 3 for more guidance on 2.8.9

Applying the criteria, page 79
3.2.7 - HPs instructed not to consider point scores associated with descriptors
3.2.10 - impariment is at some stage of the day, more than 50% of days over 12 months
with the following rules:
a) to choose the single descriptor which is likely to apply more than 50% of the days in 12 months
b) If 2 or more descriptors are likely to apply on more than 50% of days in the period, to choose descriptor with the highest score
c-1) Where single descriptors not likley more than 50% of days but a number of different scoring decriptors accumatvily occur on more than 50% of days to select the descriptor likely to occur for the highest proportion of time.
c-2) Where 2 or more descriptors are satisifed for the same proprotion of days, to choose the descriptor with the highest score

3.5 Mobility activites, page 126
In table under E, definitions given:
cannot be made on the majority of days
OR
cannot be made at all

END

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Mandatory reconsideration notice question 2 months 1 week ago #198357

  • Gordon
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nicholson

I still don't agree with the majority of days being applied to Descriptor (e) but it doesn't matter what I think, this has always been about you being happy that you have received the correct award based on your limitations.

With the above exception I don't disagree with your latest thoughts on the matter.

Gordon
The following user(s) said Thank You: nicholson

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