PIP: Scoring points for night time incontinence, even if you don't use incontinence pads as an aid during the night. Upper Tier Tribunal decision CPIP/3104/2017
CPIP/3104/2017 A reasonable need to use incontinence pads at night, whether used as a precautionary measure or not used at all, may be enough to satisfy PIP descriptor 5b  UKUT 78 (AAC)
A case that will be of significant interest to PIP applicants that suffer from bladder incontinence has recently been heard in the Upper Tier Tribunal and has resulted in a ruling that will make it far easier to score points in PIP descriptor 5b "needs an aid or appliance to manage toilet needs or incontinence" If you suffer from incontinence for the majority of the time, you need to read this and include it your PIP submissions.
Why was the case referred to the Upper Tribunal?
The First-tier Tribunal that heard the claimant’s personal independence payment (PIP) appeal accepted that she had ‘some problems with bed wetting at night’. The claimant had provided written evidence stating that she wore incontinence pads during the day and night, although she appears to have told the tribunal that she did not wear pads. The tribunal decided that she had not demonstrated that she needed an aid to manage her toilet needs and therefore did not satisfy descriptor 5b - 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence'.
The claimant appealed to the Upper Tribunal.
Issue before the Upper Tribunal
Whether a reasonable need to use incontinence pads at night (even on a precautionary basis or if they are not used at all) for the majority of the time satisfies descriptor 5b.
Judge Rowley allows the appeal and refers the case to a new tribunal for rehearing.
Judge Rowley firstly highlights the principles established through case law that apply when assessing whether descriptor 5b is satisfied -
Judge Rowley goes on to find that the tribunal in this case failed to make clear findings on these principles, in particular as regards to the possibility that descriptor 5b may be satisfied if pads are not in fact worn at all. Contemplating the options open to the tribunal to provide an adequate explanation for its decision on the facts it found, Judge Rowley observes that -
‘If the tribunal found that the claimant did wear incontinence pads at night (which, on any view, constitutes some point of a 24 hour period), it erred in failing to explain why that meant that she did not satisfy daily living descriptor 5b.
If, on the other hand, the tribunal found that the claimant did not wear incontinence pads at night, it failed to consider a further relevant matter in the light of its clear finding that she wet the bed at night (with an unspecified frequency).' (paragraphs 8 and 9)
In addition, Judge Rowley provides general guidance, holding that -
'Drawing together the principles set out above, daily living descriptor 5b will be satisfied if a claimant has a reasonable need to use incontinence pads (even on a precautionary basis) at night for the majority of the time, even if they are not in fact used by the claimant. It was incumbent on the tribunal to explore and make findings on this issue. Its failure to do so amounted to an error of law.’ (paragraph 9)
How can you use this judgement?
If you suffer from bladder incontinence and night times are a particular problem for you, it can be argued in your submissions to the DWP or prospective first tier appeal hearings that due to your need to use incontinence pads for the majority of the time you should be awarded 2 points in daily living even if you do not regularly use them.
If you choose to use this judgement in your submissions, use this article to describe why the judgement applies to you and refer to the article by its full title reference (CPIP/3104/2017 A reasonable need to use incontinence pads at night, whether used as a precautionary measure or not used at all, may be enough to satisfy PIP descriptor 5b  UKUT 78 (AAC) )
You can also find a downloadable version of this article in the Case Law and UTT Decision section of the members area of our web site. Make it easy for the DWP decision maker by sending them a copy of this article!
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