Definitions of 'Reliably' and 'Majority of the time' for ESA

AA

Apologies for the delay in responding.

There is no legal definition of "reliably" in regard to UC/ESA, however, there is Case Law that supports the requirement for the UC/ESA Activities to be completed in a reliable manner.

So, "reliably" should be taken as meaning;

- to an acceptable standard
- within a reasonable time
- repeatedly
- safely

Unlike PIP there are no additional qualifiers such as twice the time of a healthy person for "reasonable time" but if you assume similar qualifiers you should be OK.

Majority of the time for UC/ESA is more than 50% of the time, however, it is reasonable to argue that this is 50% of the relevant time, for example; excluding time asleep should be accepted.

Specifically to the Activity you mention.

First, take the individual Descriptors as is so we are talking about two sequential actions.

Sequential means one after another, however, you can argue that the requirement may not be met if the two actions are separated by an unreasonable time or if you perform other unrelated actions in between.

As to the actions themselves, all I can do is point you at the UC/ESA claim guides and the comments it makes about this.

Gordon

Hi Anxious Anonymous

I am not sure what question you are asking but this may help.

All descriptor tasks have to be done safely, in reasonable time, to acceptable standard and repeatedly. If you can't achieve all four of these you legally can not do the task and should score points at the appropriate level to your disability.

Whilst I am all too aware that many assessments do not reflect the severity of disability and use tenuous analogy to suggest the activities can be done, I wonder if you haven't properly explained your disability in accordance with the above criteria (from Regulation 4(2A) PIP regulations 2013. (If you don't explain properly, this will just create more justification for a negative report from the Assessor!)

Don't worry, many claimants don't know about reg 4, and the Assessors and decision makers ignore it!

Let me explain reg 4 in more detail...

Safety - can you complete the activity without a risk of substantial harm to you or another. Even if the likelihood of harm isn't often, it doesn't matter. Think epilepsy- fits are seldom, but risk when eg using bath or cooking is very great if you have a fit at this time. But safety refers to all activities so eg mobility if there is a risk of a fall.

Reasonable time is no more than twice the time of non disabled person. So if the 'normal time' is 10 minutes, but your disability means it takes 30 mins you fail the reasonable time test and then can't do that activity and should get points.

Acceptable standard this isn't defined in the regulations but is the standard you would normally expect. So under descriptor 1 can you cook etc - if you always burn food and ruin pans, even though you can peel chop vegetables. This would indicate assistance or prompting is required and hence you should get the points that are relevant to your disability.

Pain must also be taken into account. Whilst tasks don't have to be pain free, high levels of pain will suggest non acceptable standard. Specifically for mobility 2, any walking done with severe discomfort must be discounted.

This means if you have severe discomfort at the start of any walking your PIP ability is actually zero even though you may actually be able to walk say 50m! You said your feet scream pain and this suggests that your PIP ability ie your 'legal' ability not absolute ability is very little and hence you fall within the 12 points category.

Even if you can walk for a few metres without pain consider why you need to stop, breathlessness, fatigue etc all fall within 'severe discomfort' - so think about this too.

If your stop is a longer one, then it is possible you will fail to be in a reasonable time.

Final criteria - repetition - you need to be able to do each activity throughout the day meeting the other 3 criteria as often as reasonably required. Each activity will have different repetition rates. Cooking might be 3 or 4 times per day. Toilet needs could be 8 times per day but maybe 20+ if you have incontinence. Communication is 24/7.

Maybe mobility is 200m 4 or 5 times per day. Eg walk kids to school, rest come back. Walk to post box. Later realise need to go to bank. Walk to friends house. Etc None of the above would be unreasonable across the day.

Remember, even though it sounds implausible all these places would be 200m or less, they could be less than 200m from the disabled parking place!

Last thing to consider - regulation 7. There are various different values within each descriptor section. Reg 7 stated that highest value should apply when one or more of the activity levels apply equally, otherwise the most prevalent activity score should be awarded if your disability levels vary.

Reg 7 also says that points are awarded for the activity you can't do for the majority of time, so having a better day won't preclude points.

Basically consider each descriptor. Look at the first one and go down. Which one applies for majority of days?

Take into account the safety, repetition etc, at each level to determine whether you can perform the activity.

Work out eg do you need an aid/appliance, may be you need assistance or support, or prompting, maybe because you can't repeat, can't be safe, you can't do it at all!

You can explain your disability and say what points you should have got as per above.

Gary