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ESA descriptor 9 - incontinence
- carmind
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8 years 11 months ago - 8 years 11 months ago #136061 by carmind
ESA descriptor 9 - incontinence was created by carmind
Just lost an appeal because the client, who has IBS, does not actually soil himself (Desc 9). This is because when he is ill he stays home and is close to his toilet. If he went out, he would soil himself. No points.
Also no points for going out and social engagement (Desps 15/16) as this is not a mental health problem.
Are there any cases where a condition is recognised despite the claimant taking preventative measures?
Also no points for going out and social engagement (Desps 15/16) as this is not a mental health problem.
Are there any cases where a condition is recognised despite the claimant taking preventative measures?
Last edit: 8 years 11 months ago by .
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- Gordon
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8 years 11 months ago #136073 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA descriptor 9 - incontinence
carmind
I think you will struggle to show that they should score points for the Continence descriptor based on you post. This descriptor has possibly the most requirements of any for ESA.
From your post they don't meet the requirements for 9(a) because there appears to be any actual soiling, even if there was this would have to happen despite the use of continence pads, even if the claimant does not actually use these and must be sufficient to require cleaning and a change of clothing.
You may be able to argue that 9(b) applies but you would still need to address the issue of continence pads and for cleaning and a change of clothing.
If the Decision Maker has said that Descriptors 15 and 16 are not met by Mental Health issues then this would be an Error of Law and it should be easy to overturn the Decision, however, if the justification for your claimant meet 15 & 16 is due to there Incontinence Problems then you will not score points.
You cannot score points for Descriptors 11-17 if the underlying problem is considered to be a physical one, so unless you can show that problems in this area are the result of documented mental health issues you will get nowhere. If your claimant has for example; depression resulting from their incontinence problems then this may offer a route to points, but their GP will need to confirm this and I would expect they would also need to show that they are receiving treatment for this.
Gordon
I think you will struggle to show that they should score points for the Continence descriptor based on you post. This descriptor has possibly the most requirements of any for ESA.
From your post they don't meet the requirements for 9(a) because there appears to be any actual soiling, even if there was this would have to happen despite the use of continence pads, even if the claimant does not actually use these and must be sufficient to require cleaning and a change of clothing.
You may be able to argue that 9(b) applies but you would still need to address the issue of continence pads and for cleaning and a change of clothing.
If the Decision Maker has said that Descriptors 15 and 16 are not met by Mental Health issues then this would be an Error of Law and it should be easy to overturn the Decision, however, if the justification for your claimant meet 15 & 16 is due to there Incontinence Problems then you will not score points.
You cannot score points for Descriptors 11-17 if the underlying problem is considered to be a physical one, so unless you can show that problems in this area are the result of documented mental health issues you will get nowhere. If your claimant has for example; depression resulting from their incontinence problems then this may offer a route to points, but their GP will need to confirm this and I would expect they would also need to show that they are receiving treatment for this.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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