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Community Legal Representation CIC

PIP help and representation, by qualified lawyers 

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Each month we will open a new discussion topic here. We will give a short anylisis of the issue and invite comments. Regretably, we must monitor comments and will delete the whole of any comment that has any part of it which is contrary to law or disrespectful to others views.

We will endevour to respond to any legal points or general questions raised; however, we are not obliged to do so and any comments we make are not legally binding.

If you need representation we will invite you to contact us directly, rather than trying to assist at arms length.

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When is an Aid an Aid?

Posted on 14 February, 2017 at 5:25 Comments comments (6)

The Upper Tribunal has had to deal with a plethora of appeals asking whether certain things are ‘aids’ or not for the purposes of the Personal Independence Payment descriptors. Is a chair an aid if it is used to dress? Are slip on shoes an aid if the individual cannot bend to tie laces? Is the floor an aid if the individual has to lie down to dress?

 

The general consensus appears to be that if an aid is something that is ordinarily used, even if it is one of a number of choices, by people without the individual’s disability; then it is unlikely to amount to an aid. So to answer the questions above, a chair is not per se an aid, as those without the disability may also use a chair to dress, nor are slip on shoes and nor is the floor.

 

However, the cases suggest that the test is more complex than that. It seems the presumption that it is not an aid is rebuttable. If the appellant can show that they need that particular chair or a specific type of slip on shoe, then it could amount to an aid, because the need to use a specific chair, rather than any old chair, could cause the chair to be a device which improves, provides or replaces the impairment (the Regulations definition of an aid).

 

As a result, an appellant needs to consider why they use a chair to dress? Does the chair they use have any special characteristics which are the reason why this chair is used rather than any old chair. For example, the chair may have particularly firm and wide arms, for the appellant to use to raise up from a sitting position, which any old chair would not have; it may be higher, wider, firmer than any other chair and those characteristics are what aid the impairment rather than any old chair, which wouldn’t assist.

Darren Martin 

Community Legal Representation CIC

 

ESA and PIP Tests and Dizziness / Vertigo

Posted on 23 August, 2016 at 10:05 Comments comments (5)

Surprisingly, there is little to no legal authority for the proposition that dizziness and vertigo type symptoms affect the tests for PIP and ESA.

For example, the (physical) mobility test for ESA and PIP are somewhat the same in that they ask – How far can the Claimant mobilise without the aid of another person, but with any other aids the Claimant might reasonably be expected to use.

A Claimant suffering from severe vertigo may say they cannot mobilise due to the spinning sensation they suffer; but Tribunals are reluctant to accept this falls into the legal test and prefer, though it is against the true reading of the test, to say that the test focuses on the Claimant’s lower half and perhaps the back or neck.

There are a number of Upper Tribunal cases attempting to determine the ESA test of ‘loss of consciousness’ which discuss the dizziness sensation but only in relation to that test. see for example: BB v SSWP(ESA) [2011] UKUT AACR 2 and CB v SSWP(ESA) [2015] UKUT 0287(AAC)

Should dizziness (which is difficult to test / prove medically) of such a level that prevents the Claimant from mobilising to a reasonable standard be considered in the tests?

Darren Martin

23/8/16

 

Are Deductions Fair at the ET?

Posted on Comments comments (0)


In employment law the principle of deducting a financial amount from a successful employee’s compensation for unfair dismissal, is deep rooted and has become a normal part of proceedings.

Briefly, the Tribunal may make a deduction from the gross remedy amount in any of three circumstances:

1) In accordance with s.122 of the Employment Rights Act 1996 – A Tribunal may have regard to the amount it finds the employee’s actions ‘contributed’ to the dismissal and make a deduction equal to that amount.

2) In accordance with the House of Lords (now Supreme Court) case of Polkey v AE Dayton Services Ltd [1988] 1 AC 344 – A Tribunal may have regard for the likelihood that the employee would be dismissed anyway during the compensation period and make a deduction equal to that likelihood (be that a percentage or in time).

3) In accordance with the Common Law principle of mitigation – An employee is required to make reasonable efforts to secure alternative employment to the financial value s/he would receive in compensation. A Tribunal may deduct an amount reflecting any lack of mitigation.

But is this fair? The result is often some level of deduction and depending on the Judge can amount to a majority of the award deducted for one or a combination of reasons. Does this let the employer off the hook, because there is such an opportunity for deductions?

English law only recognises the need to compensate the victim for his/her loss and does not recognise a need to punish the offender, unlike the American jurisdiction. The reality though is that progress with employment rights is surely only made through an employer’s desire to not pay a financial award to the employee in the Tribunal. In other words, seek to avoid financial punishment; in real terms then, there is no carrot here, only the threat of a stick. If employers become increasingly aware that they can unfairly dismiss and the financial penalty for that breach is minimal as a result of likely deductions, then surely the law provided to protect employees is itself significantly diminished.

Darren Martin

CLR 21/8/16

 


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