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Pip Case Law
IHaveEpilepsy81
Member Posts: 31 Connected
Wondering if anyone has any positive news regarding Epilepsy at the tribunal stage in relation to case law being used.
Thanks
Replies
(I'd be interested in the judgement if you have a reference??)
"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"
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....
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.
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);
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.
https://assets.publishing.service.gov.uk/media/5acdb750e5274a76be66c00e/CPIP_3130_2017-00.pdf
'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....
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!!
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).