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What takes precedence - more than 50% of days, or safety
- AVMSurvivor
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2 months 4 days ago #299613 by AVMSurvivor
What takes precedence - more than 50% of days, or safety was created by AVMSurvivor
I am sorry I cannot find an answer to this, so I hope someone can explain to me.
Major point from the important case :RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP): [2017] UKUT 105 (AAC) ; [2017] AACR 32
"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"
An example had been given of a person suffering seizures, not likely to happen 50% of days or more, but due to the severity of risk, it was decided the person could not safety do the activity.
The PIP guide mentions this argument could be applied to multiple activities in some cases.
But if this issue applies to one activity to give high points, but person also has a lower scoring descriptor for same activity that applies e.g. 60% of days, which takes precedence?
This lower scoring activity because it is more than 50% of the time?
Or the Safety issue -using example in that case, even if person is not likely to have a seizure every day (and less than 50% of days) but has risk of serious harm, would it be considered the risk is present majority of days (with percentage not needing to be defined) or possibly even 100% of days, so the safety issue takes precedence over the lower scoring issue happening 60% of days?
Major point from the important case :RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP): [2017] UKUT 105 (AAC) ; [2017] AACR 32
"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"
An example had been given of a person suffering seizures, not likely to happen 50% of days or more, but due to the severity of risk, it was decided the person could not safety do the activity.
The PIP guide mentions this argument could be applied to multiple activities in some cases.
But if this issue applies to one activity to give high points, but person also has a lower scoring descriptor for same activity that applies e.g. 60% of days, which takes precedence?
This lower scoring activity because it is more than 50% of the time?
Or the Safety issue -using example in that case, even if person is not likely to have a seizure every day (and less than 50% of days) but has risk of serious harm, would it be considered the risk is present majority of days (with percentage not needing to be defined) or possibly even 100% of days, so the safety issue takes precedence over the lower scoring issue happening 60% of days?
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- LL26
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2 months 2 days ago #299700 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic What takes precedence - more than 50% of days, or safety
Hi AVMSurvivor,
There are 2 important regulations to consider. (PIP Regs. 2013.)
Reg 7. Provides that you will score points if you meet the descriptor test for over 50% of the days. The rationale behind this that many disabilities are variable in their effects. Eg Pain and fatigue often vary in intensity across a day or week. This means if you have a few better days this won't preclude entitlement to points and hence PIP as long as you are precluded from completing the relevant PIP task for the majority of days.
Reg 7 also allows that you will score the highest points value if 2 or more descriptors in a set apply equally. (You can only receive points once per descriptor set.)
Reg 7 also allows aggregation, to enable the majority of days to be reached. So,if you eg need any aid to be able to able to cook for 20% of days(1b - 2 points) and on different days (35%) need supervision to cook if you add 20 +35 this is over 50% so here because supervision (1e) is worth 4 points, and is more prevalent you score 4 pts.
Rejigging the example
1b 2pts 40%
1e 4pts 12%
Here the correct award is 2pts as this is the most prevalent
Or
1b 2pts 18%
1c 2pts 18%
1e 4pts 18%
Correct score is 4pts 1e as highest/equal prevalence
Now let's consider how to calculate the majority of days.
If you are eg in bed, totally unable to move it will likely be obvious you 'can not' do any of the tasks within any one set. However it is often not so clear cut.
Reg 4(2A) provides 4 criteria all of which need to be met. Perhaps the most important one is repetition.
If you can not repeat the task as often as reasonably required over the whole day, then this indicates you should score points - the level being appropriate to whether you can use an aid/ need person/even with help can not do the task properly.
The various tasks including mobility descriptors relate to various things that people need to do across the day. Taking a bath might only be done once per day or you would like to bath once a day but can't because you can't manage it without some sort of help. Maybe you go to the toilet 5 times per day, but it could be more if you are incontinent.
Think about this - even if you drive everywhere, you will have to walk to the car and into each building,
It wouldn't be unreasonable to need to do the following short walks
Take kids to school
Go to post office
Go to bank
Go home - write birthday card and go to post box as you are en route to collect kids.
Visit aunt
Go to cinema
Come home
The rules about repetition indicate that if your disabilities prevented you from doing all these, or doing these 'reliably' unless it was for a very short amount of time then you can't 'repeat' and crucially beyond not 'repeating' you fail to meet the criteria and that day will count as a day towards the over 50% target.
My personal view of the law is that except for tasks such as reading or communication which could be required either during daytime hours or 24/7 - not being able to eg perform one out of 3 times you need to cook, or say one time you need to take medicine is important. One out of 3 is a third! Missing one amount of pills can have clear health implications more so if it happens every day!
I used the word 'reliably' - this is a shorthand for the criteria of Reg 4(2A).
•safely
•reasonable time
• acceptable standard
•repeatedly
The case you cite of GMcL is the leading case about safety. (3 similar cases were considered ar the same time.) The joint cases held that you don't have to have eg a fall every time you do an activity or hurt yourself, but if there is a real risk of this happening then since you can not be 'safe' this will indicate some sort of help or actually 'can not' do the activity.
Most of the tasks within each descriptor set are cumulative-
Can I do the activity without help?
What help do I need - some sort of gadget or a person? Even with help, how do I complete the activity. Am I 'reliable'?
In the GMcL cases the judges considered various types of epilepsy.
Sometimes fits occurred very seldom, however they were unpredictable without warning and of course could have terrible consequences if the person was alone, cooking, in the bath, walking along the pavement etc. Effectively this shows a need for supervision across the whole day, which therefore translates into help- likely to be supervision- for relevant PIP descriptors and entitles points to be awarded.
The judges considered different types if fits- if infrequent with a warning. This may well negate the need for supervision as the claimant could get to safety during the warning time. Risk if injury is thus much lower. If however the fits are very often, even with warnings supervision or other help is going to be needed anyway.
Also the GMcL cases largely dealt with epilepsy, any potential risk causing illness/disability can comprise not being safe.
The crucial point is that there is a prevailing risk thst could cause injury on at least 50% of all days. You may never have an injury but then again you just might....
Considrr the following potential health risks ...
Shaking hands that lose grip in the kitchen- risks of scalding/ cuts with knife
Weak legs can cause falls- slipping in a wet bathroom with many hard surfaces is a sure way to get injured!
Migraines that cause dizziness and visual problems can cause both falls and scalds.
For people that self harm with knives, the mere availability of these in a kitchen could lead to another episode of cutting
Poor memory can easily lead to missing sizes of medicine or worse accidental overdose...
The list goes on...
Additionally not understanding cooking times or food hygiene could also lead to safety issues eg eating raw chicken
Acceptable standard may overlap with safety. It also comprises having a significant amount of pain (nb not severe pain), could also include eg breathlessness fatigue, -activities done in these states or causing these will not be acceptable.
More examples of non acceptable standard will also include health conditions causing poorly done tasks, only washing half of body , not wiping oneself after using the toilet, eating and spilling food, so it goes everywhere. Not being able to read all the words in a letter about a debt and therefore not realising the bailiffs are coming round.
Reasonable time - if your disability means that a PIP task takes more than twice as long as a non disabled person. Thus, if the 'standard' time to put on a shirt is 1 minute, and it takes you 5 minutes you are too slow! (Realistically not many people time their activities, but if you always take longer than your partner to get ready, or get tasks done, then this criteria could apply.( It is often apparent in walking speeds, especially if you have to rest awhile even just doing the short drive and walks I discussed earlier. ) If you live alone, or maybe partner is out at work disabilities can be very troublesome. There are basically 2 options.
Do nothing. (Don't take a bath, don't eat, don't get dressed, don't go out. Avoid!)
Or
Somehow manage. After all not going to the toilet, not eating, not washing etc is not sustainable so the remaining option is to try and muddle through. Of course there is a risk of falling or hurting yourself, yes it will cause you pain, it will take a long time because of arthritic weak hands, and maybe you can't quite manage to complete the whole task, but it's kinda almost there.
The reliability criteria of Reg 4(2A) recognise this pattern of coping strategy- the need for help, or the desire/need to avoid.
The repetition criteria provides that you have to be able to 'repeat' but also within time, safely and acceptably. Otherwise you haven't repeated properly.
So consider each descriptor task over the course of a whole day
•Could you complete all the relevant repetitions unless for a verify trivial time. add all non repeat days together
•If not why not?
•consider safety/time/acceptable standard - if you don't meet these criteria for the best part if each day these will be non repeat days too, add these to the tally
• if you count up each day where you weren't safe/in time etc does the total number of days come to over 50% in eg week or month
•add any days where you were too disabled to even start or finish a task
If you have arrived at the majority if days where you can't do the the task or fulfil any of the reliability criteria considering any aggregation if you need to, then consider what could help you do the task at the appropriate level.
An aid
A person
None of the above because neither help, or I'm still too slow, can't repeat, I'm in too much pain ( not acceptable) etc
If differing types of help over differing amounts if days the aggregation rules will provide guidance.
Phew! And breathe.
I hope that helps.
Let us know if you need more clarification.
LL26
There are 2 important regulations to consider. (PIP Regs. 2013.)
Reg 7. Provides that you will score points if you meet the descriptor test for over 50% of the days. The rationale behind this that many disabilities are variable in their effects. Eg Pain and fatigue often vary in intensity across a day or week. This means if you have a few better days this won't preclude entitlement to points and hence PIP as long as you are precluded from completing the relevant PIP task for the majority of days.
Reg 7 also allows that you will score the highest points value if 2 or more descriptors in a set apply equally. (You can only receive points once per descriptor set.)
Reg 7 also allows aggregation, to enable the majority of days to be reached. So,if you eg need any aid to be able to able to cook for 20% of days(1b - 2 points) and on different days (35%) need supervision to cook if you add 20 +35 this is over 50% so here because supervision (1e) is worth 4 points, and is more prevalent you score 4 pts.
Rejigging the example
1b 2pts 40%
1e 4pts 12%
Here the correct award is 2pts as this is the most prevalent
Or
1b 2pts 18%
1c 2pts 18%
1e 4pts 18%
Correct score is 4pts 1e as highest/equal prevalence
Now let's consider how to calculate the majority of days.
If you are eg in bed, totally unable to move it will likely be obvious you 'can not' do any of the tasks within any one set. However it is often not so clear cut.
Reg 4(2A) provides 4 criteria all of which need to be met. Perhaps the most important one is repetition.
If you can not repeat the task as often as reasonably required over the whole day, then this indicates you should score points - the level being appropriate to whether you can use an aid/ need person/even with help can not do the task properly.
The various tasks including mobility descriptors relate to various things that people need to do across the day. Taking a bath might only be done once per day or you would like to bath once a day but can't because you can't manage it without some sort of help. Maybe you go to the toilet 5 times per day, but it could be more if you are incontinent.
Think about this - even if you drive everywhere, you will have to walk to the car and into each building,
It wouldn't be unreasonable to need to do the following short walks
Take kids to school
Go to post office
Go to bank
Go home - write birthday card and go to post box as you are en route to collect kids.
Visit aunt
Go to cinema
Come home
The rules about repetition indicate that if your disabilities prevented you from doing all these, or doing these 'reliably' unless it was for a very short amount of time then you can't 'repeat' and crucially beyond not 'repeating' you fail to meet the criteria and that day will count as a day towards the over 50% target.
My personal view of the law is that except for tasks such as reading or communication which could be required either during daytime hours or 24/7 - not being able to eg perform one out of 3 times you need to cook, or say one time you need to take medicine is important. One out of 3 is a third! Missing one amount of pills can have clear health implications more so if it happens every day!
I used the word 'reliably' - this is a shorthand for the criteria of Reg 4(2A).
•safely
•reasonable time
• acceptable standard
•repeatedly
The case you cite of GMcL is the leading case about safety. (3 similar cases were considered ar the same time.) The joint cases held that you don't have to have eg a fall every time you do an activity or hurt yourself, but if there is a real risk of this happening then since you can not be 'safe' this will indicate some sort of help or actually 'can not' do the activity.
Most of the tasks within each descriptor set are cumulative-
Can I do the activity without help?
What help do I need - some sort of gadget or a person? Even with help, how do I complete the activity. Am I 'reliable'?
In the GMcL cases the judges considered various types of epilepsy.
Sometimes fits occurred very seldom, however they were unpredictable without warning and of course could have terrible consequences if the person was alone, cooking, in the bath, walking along the pavement etc. Effectively this shows a need for supervision across the whole day, which therefore translates into help- likely to be supervision- for relevant PIP descriptors and entitles points to be awarded.
The judges considered different types if fits- if infrequent with a warning. This may well negate the need for supervision as the claimant could get to safety during the warning time. Risk if injury is thus much lower. If however the fits are very often, even with warnings supervision or other help is going to be needed anyway.
Also the GMcL cases largely dealt with epilepsy, any potential risk causing illness/disability can comprise not being safe.
The crucial point is that there is a prevailing risk thst could cause injury on at least 50% of all days. You may never have an injury but then again you just might....
Considrr the following potential health risks ...
Shaking hands that lose grip in the kitchen- risks of scalding/ cuts with knife
Weak legs can cause falls- slipping in a wet bathroom with many hard surfaces is a sure way to get injured!
Migraines that cause dizziness and visual problems can cause both falls and scalds.
For people that self harm with knives, the mere availability of these in a kitchen could lead to another episode of cutting
Poor memory can easily lead to missing sizes of medicine or worse accidental overdose...
The list goes on...
Additionally not understanding cooking times or food hygiene could also lead to safety issues eg eating raw chicken
Acceptable standard may overlap with safety. It also comprises having a significant amount of pain (nb not severe pain), could also include eg breathlessness fatigue, -activities done in these states or causing these will not be acceptable.
More examples of non acceptable standard will also include health conditions causing poorly done tasks, only washing half of body , not wiping oneself after using the toilet, eating and spilling food, so it goes everywhere. Not being able to read all the words in a letter about a debt and therefore not realising the bailiffs are coming round.
Reasonable time - if your disability means that a PIP task takes more than twice as long as a non disabled person. Thus, if the 'standard' time to put on a shirt is 1 minute, and it takes you 5 minutes you are too slow! (Realistically not many people time their activities, but if you always take longer than your partner to get ready, or get tasks done, then this criteria could apply.( It is often apparent in walking speeds, especially if you have to rest awhile even just doing the short drive and walks I discussed earlier. ) If you live alone, or maybe partner is out at work disabilities can be very troublesome. There are basically 2 options.
Do nothing. (Don't take a bath, don't eat, don't get dressed, don't go out. Avoid!)
Or
Somehow manage. After all not going to the toilet, not eating, not washing etc is not sustainable so the remaining option is to try and muddle through. Of course there is a risk of falling or hurting yourself, yes it will cause you pain, it will take a long time because of arthritic weak hands, and maybe you can't quite manage to complete the whole task, but it's kinda almost there.
The reliability criteria of Reg 4(2A) recognise this pattern of coping strategy- the need for help, or the desire/need to avoid.
The repetition criteria provides that you have to be able to 'repeat' but also within time, safely and acceptably. Otherwise you haven't repeated properly.
So consider each descriptor task over the course of a whole day
•Could you complete all the relevant repetitions unless for a verify trivial time. add all non repeat days together
•If not why not?
•consider safety/time/acceptable standard - if you don't meet these criteria for the best part if each day these will be non repeat days too, add these to the tally
• if you count up each day where you weren't safe/in time etc does the total number of days come to over 50% in eg week or month
•add any days where you were too disabled to even start or finish a task
If you have arrived at the majority if days where you can't do the the task or fulfil any of the reliability criteria considering any aggregation if you need to, then consider what could help you do the task at the appropriate level.
An aid
A person
None of the above because neither help, or I'm still too slow, can't repeat, I'm in too much pain ( not acceptable) etc
If differing types of help over differing amounts if days the aggregation rules will provide guidance.
Phew! And breathe.
I hope that helps.
Let us know if you need more clarification.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: AVMSurvivor, Waxwing
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2 months 2 days ago #299722 by AVMSurvivor
Replied by AVMSurvivor on topic What takes precedence - more than 50% of days, or safety
Thank you so much for your help!
When I first started my claim, I seemed to be so much better at reading all the guides and understanding everything, but after stuff that's happened, this time I'm really struggling.
This time I've struggling where to even start, but your knowledge hopefully will let me seriously attack it this time round.
When I first started my claim, I seemed to be so much better at reading all the guides and understanding everything, but after stuff that's happened, this time I'm really struggling.
This time I've struggling where to even start, but your knowledge hopefully will let me seriously attack it this time round.
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- LL26
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2 months 2 days ago #299725 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic What takes precedence - more than 50% of days, or safety
Hi AVMSurvivor,
Thank you for your kind words. If you need further help you know where we are!
LL26
Thank you for your kind words. If you need further help you know where we are!
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: AVMSurvivor
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