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Significant discomfort

Dan Manville
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Greater Manchester Law Centre

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Most of the time I’ve been dealing with PIP appeals they’ve been mental health cases so only now do I come to this question…

I’ve always had, at the back of my mind, that PIP might use a lower threshold than DLA in assessing pain and discomfort, the phrase “significant discomfort” echoes through my cranium and I’ve always thought the bar on when pain might prevent someone achieving a task might be lower than the “severe discomfort” we came to know and love in the olden days.

I’ve just come across a case where the level of discomfort a client is in may well be material, so I went a’huntin for authority for my long held belief.

I’ve looked at the regs, the act and the PIP consultations available on gov.uk yet I cannot find the words “significant” and “discomfort” in the same place.

I have two questions:

Firstly, I definitely didn’t dream a second consultation on the descriptors, when they amended the descriptors; famously (?!) continuing, in the interpretations, to include (overlook?) “social engagement” yet seeming to veer away from a social element to engaging with people in the report, I can’t find that consultation, has anyone got a copy still hanging around and…

Secondly, did I dream it? The “significant discomfort” thing that is…

TIA

Elliot Kent
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Shelter

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There is no special significance to the concept of ‘significant discomfort’ (c.f. activity 1 in the WCA). However discomfort experienced by the claimant is a factor to consider in assessing whether the claimant is able to complete the activity to an acceptable standard for the purposes of reg 4(2A). See e.g. PS v SSWP (PIP) [2016] UKUT 326 (AAC).

[ Edited: 16 Jul 2021 at 12:48 pm by Elliot Kent ]
BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Dan Manville - 16 July 2021 12:34 PM

Firstly, I definitely didn’t dream a second consultation on the descriptors TIA

I think you might have… There was second drafts of the draft regs and assessment criteria but I’m not so sure there was a second consultation, unless my memory is playing tricks. There was the late addition of Reg 4 but I think this was just ongoing discussions rather than a second consultation…

Hopefullly what you are after is in here https://www.gov.uk/government/consultations/personal-independence-payment-assessment-thresholds

 

ROBBO
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I was moved to search the digital version of the PIP case law pack - to find that there is only one mention of significant discomfort - and then insofar as it relates to ESA :-

“What followed was that she successfully secured entitlement to Employment and Support Allowance following an appeal. In that case the Firsttier Tribunal awarded her 15 points for ‘limited capability for work’ under Activity 1 within Schedule 2 – meaning that in the view of the First-tier Tribunal she could not mobilise more
than 50 metres without stopping in order to avoid significant discomfort or exhaustion or could
not do so repeatedly. Fortified by that success she put it to the Department for Work and
Pensions that she should be awarded the ‘enhanced rate’ of the ‘mobility component’ rather
than the ‘standard rate’”

I guess this suggests Elliot’s right to say there is no special significance - either that, or the search tool is a bit dodgy.

Mike Hughes
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Assessment guide references “some discomfort” in the examples as best I recall. Not that I read it or anything.

The only other discussion I was ever aware of was https://www.benefitsandwork.co.uk/forum/10-dla-esa-queries-results/96797-severe-discomfort-v-significant-discomfort

Dan Manville
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Greater Manchester Law Centre

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BC Welfare Rights - 16 July 2021 12:58 PM
Dan Manville - 16 July 2021 12:34 PM

Firstly, I definitely didn’t dream a second consultation on the descriptors TIA

I think you might have… There was second drafts of the draft regs and assessment criteria but I’m not so sure there was a second consultation, unless my memory is playing tricks. There was the late addition of Reg 4 but I think this was just ongoing discussions rather than a second consultation…

Hopefullly what you are after is in here https://www.gov.uk/government/consultations/personal-independence-payment-assessment-thresholds

 

Thank you; that’s the blighter.

To be fair it does say “consultation” in the title.

13 “significant"s but none next to “discomfort”. Ah well, I don’t think anyone can blame me for dreaming that the new disability benefit regime might actually be nicer to people in some, small way, than it’s predecessor.

We can all dream after all…

 

[ Edited: 28 Jul 2021 at 10:16 am by Dan Manville ]