Am I being reasonable - ref falling, getting t'loo, washing?

Hi Gascar,
Many, if not all PIP claims can be argued using Regulations 4(2A) and 7. Reg 4(2A) comprises 4 criteria all of which must be fulfilled - otherwise points should be awarded. These are often referred to as the 'reliability criteria' Think about each descriptor that DWP has awarded (and ones where no points were given.) If DWP has selected aid/appliance - they need to explain what aid etc would be useful, so for example grab rails in the toilet could have you to be able to get up/down from the toilet safely, to prevent falls. Think about what has been recommended. You may have the aid already how does it help - maybe it hinders- maybe there are still problems about how 'reliable' you can do the activity. If the aid proposed (or any other aid) won't help, then for many descriptors the next level up is assistance ie physical help. Remember that you don't need to actually have the help (or indeed the aid) but it a question as to whether a person/gadget could help if you had this. Going back to aids/appliances they need to be practical - it is no good for DWP to suggest eg a perching stool to enable you to sit near the cooker when your kitchen is so small that you can't fit one in. Likewise if you live in a quaint old listed building where the bathroom wall are insufficiently strong to be able to install grab rails near the bath, this wouldn't be practical either. So if the aid can't help or can't be installed then what about a person? Simply have someone there may not alleviate risk, and may not necessarily allow you to fulfil all the reliability criteria. If this is the case, then you should consider whether you can actually do the task at all. Caselaw discussing cooking provided that if a helper undertakes the most part or virtually all of the cooking then the claimant isn't doing the task. There is no reason why this idea shouldn't apply to other daily living tasks - consider the amount of help and what you actually do.

see here CP v SSWP (CPIP) [2018] UKUT 5 (AAC) 20. The definition of “assistance” as contained in Part 1 of Schedule 1 to the 2013 Regulations has been set out above. By way of reminder it means physical intervention by another person and does not include speech. As Upper Tribunal Judge Jacobs pointed out in SSWP v GM [2017] UKUT 268 (AAC) the use of the word intervention is significant. It was decided in GM that that word was not apposite to describe a situation where another person would undertake an entire process for a claimant. That is because doing so does not constitute intervening. www.gov.uk/administrative-appeals-tribun...-pip-2018-ukut-5-aac
Reg 7 provides that you can score points if you can not do a descriptor activity for the majority of days. This means that you don't need to show that you fail to do the activity every time, there is some leeway allowing for days when you might have a bit more strength or will power. In addition, Reg 7 stipulates that if 2 or more descriptors apply equally - then the higher value one should be awarded. If descriptors apply unequally, then the most prevalent should be awarded. Reg 7 also allows for aggregation if you can't get to the 50% of days by just one descriptor in each activity set.
The 4 criteria 1. Safety - is there a substantial risk to your health (or another)? You mention falls - this could be relevant for cooking/toilet needs/washing/dressing/mobility. Are there any other safety issues - knives/dropping pans etc in the kitchen? This could also include becoming ill, fainting etc etc. Think of the consequences of when things go wrong - with falls think of the injuries- you may have been lucky and just had a bruised knee- but serious injuries could attach to a fall, especially in the kitchen or bathroom. Could an aid or person alleviate the risk? Taking food might have a risk of choking - again this could be a safety issue. Hearing a fire alarm whilst in the bath if you are deaf is another potential safety issue.

2. Reasonable time - can you do the task in no more than twice that of an able bodied person? Do you walk much slower than anyone else, does it take you much longer to get dressed, or to get yourself ready to go out? This could indicate you are too slow. If you are too slow an aid or help might be required.

3. Acceptable standard - this can include significant pain - if you have pain before or during the activity it is likely the activity can not be done acceptably. There is no other definition for this - when you cook, do you leave a trail of devastation across the kitchen with all sorts of mess, what about food hygiene and having nicely cooked food - not charred or raw chicken? For taking nutrition do you spill food all down yourself or on the floor? Are your clothes buttoned up wrong, and not pulled down correctly because you can't put them on properly? - again these are all possible areas of not reach an acceptable standard.

4. Repetition - you need to be able to repeat the activity as many times as is reasonably required across the whole day. (And of course be safe, acceptable and not too slow.) Repetition rates depend on the activity. It might be reasonable to have 3 cooked meals per day, you might need to use the toilet perhaps 10 times. Communication could however be 24/7. With walking (remember that you might be using the car, but there will always be a few steps from the front door to the outside of the building, or across the car park.) - it would not be unreasonable to take the kids to school, post a letter. Then go out to the bank, and perhaps visit the library. You might need to go to the shop, and visit your aunt on the way home. Then of course pick up the kids etc. None of these journeys and the short physical walks would be unreasonable to do in a day, and possibly with some small variation every day. Can you do all these repetitions - what prevents you - pain, fatigue, breathless, dizziness all of which could be from doing other PIP activities as a cumulative effect. If you can not do all the required repetitions, unless it is a very trivial inability you should score points at the relevant level. Failing to be able to cook 1 out of 3 meals is not trivial. Failing to get to the toilet on one occasion is unlikely to be trivial, but missing 5 minutes of conversation across the day is probably not going to allow you to score for failing to repeat.

I think that if you make a careful analysis of the 4 criteria and whether these can apply and how aid/appliance or person can help, this will give you strong ammunition to argue your case with DWP. Give examples, and explain what goes wrong and the consequences.

I hope this helps.

LL26