The DWP have this week updated the guidance they issue to decision makers in relation to awarding points for safety for personal independence payment (PIP) claims. The changes primarily stress the possibility of risk to a person when they are outdoors during the recovery period after a seizure or similar episode.
Back in November 2017 we covered the new guidance issued to decision makers relating to safety and supervision for PIP. The document was published in response to an upper tribunal ruling that interpreted the law more favourably for claimants.
Until then, the DWP had argued that a claimant could only score points for being unsafe if harm was likely to occur on more than 50% of the occasions on which they attempted an activity.
However, in March 2017 a panel of upper tribunal judges held that the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be. The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion.
We pointed out that it had taken the DWP a disgraceful seven months to update their guidance to decision makers. And, even then, every single one of the 5 examples given of how the law should be interpreted resulted in no change of award to the claimant.
The DWP have now updated that guidance. Of the five examples given in the original version, four remain unchanged.
In the fifth example, (now example 7) in which the claimant has epilepsy with tonic-clonic seizures, there are still only 4 points awarded for daily living. This is not sufficient for an award. Indeed, the DWP have strengthened the guidance against giving an award by claiming that there is no risk of the claimant choking during a seizure:
“During a seizure or event often the mouth will clench and people bite their tongue, any food in the mouth would remain there and the person having the seizure breathes through their nose. Alternatively, depending on the nature of the seizure, the swallowing reflex may be maintained so that the person swallows the food, even whilst semi-conscious. Also the length of time spent swallowing is short. The claimant has never choked in the past nor mentioned that risk.”
However, the claimant originally received no award for mobility either on the grounds that they could take precautions by using safe crossings. This example has now changed, with the result that the claimant gets an award of the enhanced rate of the mobility component on the grounds that 1 f) applies because they cannot follow the route of a familiar journey without another person:
“The claimant falls during their seizures. This is deemed to count under mobility activity 1 rather than mobility activity 2 as it is on account of their cognitive impairment (the losing of consciousness), not their physical ability to stand and move. The claimant has experienced injuries as a result of these falls. The decision maker considers the frequency of incidents and the severity of harm that could occur and finds that the risk is sufficient so that the person reasonably needs another person with them to make those journeys safely. The decision maker deems that descriptor 1f is the correct choice.”
Two additional examples have been added.
In example 5 the claimant has seizures for which they receive a brief warning. The decision maker gives no award of the daily living component on the grounds that the claimant can make themselves safe within their home and rest after an episode. However they receive an award of the enhanced rate of the mobility component on the grounds that 1 f) applies because they cannot follow the route of a familiar journey without another person. They need someone with them because
“ . . . when outside the home the claimant cannot make themselves safe and is deemed so vulnerable during the seizure and recovery period that they would be at risk of harm.”
In example 6 the claimant has episodes of status epilepticus which can be life-threatening. Episodes have happened twice in the last six months. The decision maker awards:
4 points for preparing food
2 points for taking nutrition
1 point for monitoring a health condition
2 points for washing and bathing
2 points for managing toilet needs
This means that the claimant qualifies for the daily living component of PIP, but only at the standard rate.
In addition they are awarded the enhanced rate of the mobility component on the grounds that 1 f) applies because they cannot follow the route of a familiar journey without another person.
Whilst the changes are mainly positive, they still encourage decision makers to believe that awards based on safety and supervision should be very much the exception rather than the rule.