Managing Toilet Needs: the Commode Argument Answered

For Attendance Allowance and DLA, the legal test is the help ("attention") you reasonably require in connection with your bodily functions, set out in the Social Security Contributions and Benefits Act 1992. In Cockburn v. Chief Adjudication Officer and Secretary of State for Social Services v. Fairey (1997) the House of Lords rejected the contention that the attention must be essential or necessary for life, or that it must not be taken into account if it is merely desirable. Lord Slynn put the test as whether the attention is reasonably required to enable the severely disabled person, as far as reasonably possible, to live a normal life.

The question is whether the attention you need is reasonably required to let you live as normal a life as reasonably possible. Lord Slynn said the person is not to be confined to attention that keeps them alive.

Lord Goff gave examples in Cockburn. A woman who cannot get to the lavatory by herself may need help to get there, or help cleaning up afterwards if she has an accident. He regarded both as attention in connection with her bodily function of urinating.

For Attendance Allowance and DLA, a commode, bottle or pad does not settle the question if you still need another person's help. Lord Goff treated these kinds of help as attention:

• Help to get to the lavatory because of your disability.
• Help cleaning up afterwards if you have an accident because you cannot get to the lavatory in time.
• Changing your clothes or bedlinen and remaking your bed after incontinence, including rinsing out the soiled clothing removed from you.

Taking your laundry away to be washed is different. Lord Goff said it goes beyond personal attention, and Mrs Cockburn's appeal was dismissed, so do not rest a claim on laundry alone.

PIP scores "Managing toilet needs or incontinence" (Activity 5) by descriptor:

• Managing toilet needs or incontinence unaided scores 0. Needing to use an aid or appliance to be able to manage toilet needs or incontinence scores 2 points.
• Needing supervision or prompting to be able to manage toilet needs scores 2 points, and needing assistance to be able to manage toilet needs scores 4 points.
• Needing assistance to be able to manage incontinence of either bladder or bowel scores 6 points, and of both bladder and bowel scores 8 points.

In DWP's assessment guide, "unaided" means without an aid or appliance, or help from another person. The guide lists commodes, raised toilet seats and incontinence pads among the suitable aids for the 2 point descriptor. So "you have a commode" does not mean zero points on its own: it depends on why you use it.

The guide also says the 0 point descriptor should be appropriate for claimants who only use a commode because of limited mobility, and so have difficulty getting to the toilet, but otherwise can manage their toilet needs. Activity 5 covers getting on and off the toilet, evacuating the bladder and bowel and cleaning yourself afterwards. It does not consider managing clothing, climbing stairs or getting to the toilet. Dressing and undressing is scored separately, under Activity 6.

• Describe exactly what happens when you use the toilet or a commode on a bad day, step by step.
• Spell out every part you need help with. For PIP that means getting on and off the toilet, evacuating and cleaning yourself. For Attendance Allowance and DLA it also includes getting to the lavatory.
• Explain any risk, falls or pain, and how often this happens.
• If an assessment report relied on the commode point, name it as a specific ground in your mandatory reconsideration.