16 June 2009

Many people who suffer from severe bowel incontinence may now be able to claim the higher rate mobility component of disability living allowance even if they can walk fast and run.

Feet in shoesUntil now, faecal incontinence was very unlikely to lead to an award of higher rate mobility.  In addition, a change in the law in 2002 prevented ‘fear and anxiety’ relating to a physical health condition, rather than a mental health one, being taken into account for lower rate mobility.  This meant it was hard for people with incontinence to claim either rate of the mobility component.

However, in May of this year Commissioner Levenson looked at the matter anew in CDLA/0217/2009.

The case involved a claimant with back problems and also abdominal problems  which led to ‘sudden  attacks of diarrhoea and fear of and actual incontinence’.

The tribunal accepted that ‘her incontinence was so voluminous that it could not be contained by incontinence pads’.  However, it did not accept that this was the position most of the time and found that the claimant could physically walk, sometimes fast, or even run.  The tribunal refused any award of the mobility component.

However, Commissioner Levenson allowed the claimant’s appeal and awarded her higher rare mobility. He found that the tribunal had failed to consider the claimant’s ‘physical condition as a whole’ as required by statute.

The Commissioner held that the claimant was:

 ‘on the whole, virtually unable to walk without severe discomfort caused by physical factors.  These factors include not only any referred or residual effect of her neck and back problems, but also the physical and muscular effort of trying to control her bowels and the very real effects of an episode of faecal incontinence, including discomfort, soreness and so on.’

The decision may allow many claimants with conditions such as colitis and Crohn’s disease to make a successful claim for higher rate mobility if their condition means that they are usually in severe discomfort when walking outdoors because of such things as the effort of trying to control their bowels.

We’ll be updating our DLA guides to take account of this decision in the near future.

A scanned version of CDLA/0217/2009 can be downloaded from this link.

Congratulations to ‘Rosessdc’ of South Somerset District Council for successfully pursuing this case for two years.

 

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