Pip Case Law

IHaveEpilepsy81

Wondering if anyone has any positive news regarding Epilepsy at the tribunal stage in relation to case law being used.  

Thanks 

poppy123456

HI,

As PIP isn't awarded based on a diagnosis, then it's impossible to compare others to yourself because we are all affected differently by these conditions. People do claim PIP for Epilepsy and the way they are affected but it will depend on the individual person.

IHaveEpilepsy81

All people with uncontrolled epilepsy that have no warning prior to having a seizure are being awarded using the current case law, that’s what I’m being told, Case law has to be followed surely at tribunal?

IHaveEpilepsy81

Oh sorry I thought I had made that clear, I suffer from epilepsy with no warning or trigger to any seizures, I no there are different types of epilepsy but I’m specifically seeking information from people who suffer from uncontrolled epilepsy.  

cristobal

@Ihaveepilepsy81 - when you that people "are being awarded" what do you mean? In relation to 'preparing food' as in your previous post?

(I'd be interested in the judgement if you have a reference??)

IHaveEpilepsy81

https://www.gov.uk/administrative-appeals-tribunal-decisions/rj-gmcl-and-cs-v-secretary-of-state-for-work-and-pensions-v-rj-pip-2017-ukut-105-aac

IHaveEpilepsy81

@ilovecats basically all what mentioned I suffer with in relation to my epilepsy. I have lose full conciseness, suffere severe post ictal confusion, incontinence can happen before or after a fit. No warning, history of accidents etc

cristobal

@IHaveEpilepsy81 - I'm not a lawyer but doesn't this exactly confirm what I advised on your other thread? i.e. the risk of serious harm if you have a seizure whilst using a microwave is, statistically, very low??


"a tribunal must consider whether there was a real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences were relevant"

IHaveEpilepsy81

It does but I don’t understand what it all means.  Very low means still a possibility, surely a judge is my going to say you don’t score enough points but if your burn yourself in the future come back and see me? 

cristobal

@Ihaveepilepsy81 - It's a slidiing scale...

If seizures are unexpected and random then they are more likely to come when you are in bed - because you spend a lot more time in bed than cooking, showering, etc. Even though this is the case the chances of you harming yourself in bed are very low (I imagine) so going to bed is an acceptable risk.

You are less likely to have a seizure whilst using a microwave. This has more potential for harm as you could burn yourself but it's probably still acceptable, dependent on how often you have seizures.

The chance of having a seizure is the same if you use a gas hob - but the consequences if a pan boils dry etc could be catastrophic - you could burn the house down! This is unacceptable ...

I'm not medically qualified but I agree with iloveacts - the frequency of seizures, how long it takes to recover etc need to be taken into account - and that's an individual thing not "if you're epileptic you get x or y"

I hope this helps - sorry if it doesn't but i can't think of another way to explain....

April2018mom

If you have a prolonged seizure and you need a ambulance that must be taken into account. Frequency of attacks also matter. A 1 minute non epileptic infrequent seizure experienced may not be considered. This is a individual thing. How often are your seizures? Do you take medication for them or not? 

IHaveEpilepsy81

I have over 20 a month and I am on medication but have become drug resistant.  

It is a help and it’s interesting what @cristobal [email protected] have said but I disagree, I have several fits very few are in bed, nobody can assume I fit in bed, I don’t always fit in the kitchen but it happens, I don’t always fit getting washed but it happens, I don’t always fit out side but it happens.  I have supervision to minimise the risk, but still there is a risk.  Alls I’m saying is can a decision be made to refuse points based on chance at tribunal stage? Risk is risk no matter how small or how infrequent.  

April2018mom

IHaveEpilepsy81 said:

I have over 20 a month and I am on medication but have become drug resistant.  

It is a help and it’s interesting what @cristobal [email protected] have said but I disagree, I have several fits very few are in bed, nobody can assume I fit in bed, I don’t always fit in the kitchen but it happens, I don’t always fit getting washed but it happens, I don’t always fit out side but it happens.  I have supervision to minimise the risk, but still there is a risk.  Alls I’m saying is can a decision be made to refuse points based on chance at tribunal stage? Risk is risk no matter how small or how infrequent.  

Give them examples. Try to tell them what exactly happens during a seizure too. Be honest. 

cristobal

.Previously a lot of assessors would apply the majority of days criteria but it is recognised now that for epileptics, it is risk of harm that trumps everything. 

@ilovecats - we really have gone round in a circle then if you read the caselaw link above about 'majority of days'..

1. 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 (paragraphs 54 to 55);

IHaveEpilepsy81

It doesn’t make me feel any better although it’s really nice to know your trying to help, the bottom line is if I don’t score enough points due to not being eligible for PIP that’s fine I have no issues with that.  

My issues are the assessor told lies in her report.  I have supervision whilst eating  due to previous choking episodes.  I am supervised whilst bathing due to the risk of drowning and burns.  I am supervised coking when I can coo due to the sever risk it poses.  I need supervision whilst out due to risk of harm.  Post seizure I would require help with medication and money situations.  

Risk of harm is always an issue for me as I have no warning.  That’s my situation I can’t change it that’s just the way it is and the way I am.  To add I also suffer with Syncopal attacks due to a heart issue and Rectal intussusception.  

All aspects of this have been ignored, my evidence thankfully is top notch from both specialists and GP.  I’m being told if tribunal follow case law and evidence I won’t have an issue.  After reading comments by you guys on here it seems not the case and there will be issues.  

poppy123456

The Tribunal won't be interested in any lies that may have been told in the report. They will only be interested in how your conditions affect you against the PIP descriptors.

It's always very difficult to give any advice on whether or not you'll score any points for any of the activities because no one knows exactly how your conditions affect you or anything about your case.

My knowledge on PIP is pretty good but i have no idea about case law and i won't even go down that road. Far to complicated for me to even start to read anything about it. For this, you'll be better off getting some expert advice. Welfare rights or a law centre will be a good place to start and this link will help you find what's available to you. https://advicelocal.uk/

IHaveEpilepsy81

My epilepsy nurse and GP both clearly state in the medical evidence that I suffer from cognitive issues and memory deficit post seizure, this can last for 8-10 hours after.  How does the 50% rule work? If I’m having 20 seizure a month say is that classed as more then 50%? 

IHaveEpilepsy81

Here is more Case Law regarding uncontrolled epilepsy.  Whilst the assessors have updated information regarding descriptors they are not using this information.  I no this for fact as they used the older descriptors to score me.

https://assets.publishing.service.gov.uk/media/5acdb750e5274a76be66c00e/CPIP_3130_2017-00.pdf

I have tried to get help of welfare rights but there to busy, my careers and family have been helping and you guys have helped.  I am just adamant that risk is risk, it doesn’t matter if it’s very low, choking while eating is a very low possibility, but I would only have to have one episode while eating for it to kill me, that my thinking.  Same with crossing the road and the same with cooking and bathing.

poppy123456

What old descriptors? The only descriptor that changed was following and planning a journey and the changes wouldn't have affected you because it's to do with overwhelming psychological distress.

IHaveEpilepsy81

Regarding risk.  The case law that I posted states that risk is ever present even if the chance of an event happening is low, there is still a risk.  I was told assessors had been updated on this but were not using it and continuing to use the its low risk.  

In all honesty I really give up and just think it’s pot luck weather you get PIP.  Tribunal is the only chance I as an epileptic has, and clearly from speaking to people on here the system is against people with my condition.  

cristobal

@IHaveEpilepsy81 - you're nearly there....

'Risk' is only half of it...you have to look at 'hazard' as well, which you've just done without realising it!

That's why you wouldn't eat without supervision because, as you say, you could have a fatal choking incident. What you've done is realised that there is a 'risk' but, even though it might be quite low, the 'hazard' is potentially catastrophic (which is why you don't do it) 

If you google "health and safety hazard" there are lots of better explanations than mine....

That's me done on this but I really hope that everything turns out well for you....

IHaveEpilepsy81

cristobal said:

@IHaveEpilepsy81 - you're nearly there....

'Risk' is only half of it...you have to look at 'hazard' as well, which you've just done without realising it!

That's why you wouldn't eat without supervision because, as you say, you could have a fatal choking incident. What you've done is realised that there is a 'risk' but, even though it might be quite low, the 'hazard' is potentially catastrophic (which is why you don't do it) 

If you google "health and safety hazard" there are lots of better explanations than mine....

That's me done on this but I really hope that everything turns out well for you....

Thank you @cristobal it’s really hard to understand and word right what you want to say but your help has been amazing and it’s very knowledgeable information.  When my outcome is complete I shall comment on here good or bad.

IHaveEpilepsy81

Hi guys

I had my tribunal this afternoon and I won.  I scored enhanced enhanced and the judge was very clear regarding case law and risk.  DWP even didn’t turn up.  Good luck to all of you going through similar situations!!

April2018mom

IHaveEpilepsy81 said:

Hi guys

I had my tribunal this afternoon and I won.  I scored enhanced enhanced and the judge was very clear regarding case law and risk.  DWP even didn’t turn up.  Good luck to all of you going through similar situations!!

Congratulations! That is good news @[email protected]

david235

ilovecats said:

I know very little about case law. I don’t generally read links when they are posted because the decisions have been made about one case and I think about the thousands of other cases that assessors handle. Unless DWP change the criteria off the back off a case then it does not inform at assessment stage.

The Upper Tribunal and court cases that are published ("reported" in legal jargon) are those which make legal rulings felt to be of wider import.

Case law established in the Upper Tribunal and the courts automatically binds DWP and the First-tier Tribunal. It is entirely possible to put forward arguments based on case law at application stage. DWP's internal guidance (known as Advice for decision making, which is available online) is regularly updated based on evolving case law and ADM memos are issued to update decision makers following certain particularly important decisions (such as memo ADM 24/18).