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|Posted on February 14, 2017 at 5:25 AM||comments (10657)|
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.
Community Legal Representation CIC
|Posted on August 23, 2016 at 10:05 AM||comments (16968)|
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)  UKUT AACR 2 and CB v SSWP(ESA)  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?