Activity 9: Evacuation of the bowel and/or bladder (LCW)
Activity 9 is defined in regulations as -
Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally or could reasonably be worn or used.
Activity 9 considers the ability to maintain continence of bladder or bowel, or prevent leakage from a collecting device. The descriptors take into account loss of continence while a claimant is awake/conscious and the loss of continence must lead to 'extensive' leakage of urine or faeces which is likely to require the person to have to wash and change clothing.
Note: in Autumn 2023, the Conservative Government launched a consultation on reform of the work capability assessment including proposals to either remove the LCW continence activity or reduce the points awarded for its descriptors. However, in its November 2023 response to the consultation, the government confirmed that it will not make any changes to the LCW continence activity or descriptors.
Descriptors
The descriptors that relate to Activity 9 are -
- At least once a month experiences: (i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or (ii) substantial leakage of the contents of a collecting device, sufficient to require cleaning and a change in clothing. 15 points
- The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly. 6 points
- Neither of the above applies. 0 points
Sources:
- Part 1 of Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI.No.794/2008) and Part 1 of Schedule 2 to SR.No.280/2008 in Northern Ireland (apply to income-related and old-style contributory ESA).
- Part 1 of Schedule 2 to the Employment and Support Allowance Regulations 2013 (SI.No.379/2013) and Part 1 of Schedule 2 to SR.No.219/2016 in Northern Ireland (apply to new-style contributory ESA).
- Part 1 of Schedule 6 to the Universal Credit Regulations 2013 (SI.No.376/2013) and Part 1 of Schedule 6 to SR.No.216/2016 in Northern Ireland (apply to universal credit).
See also section 3.2.10 of the DWP’s Work Capability Assessment handbook: for healthcare professionals.
Case law
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Whether loss of control of bowel and/or bladder during seizure can ever amount to loss of control ‘whilst conscious’
- [2019] UKUT 39 (AAC)
- CE/2227/2018
- CL v Secretary of State for Work and Pensions (ESA)
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Relevance of distinction between urgency and incontinence when assessing absence or loss of control of the bowel and/or bladder
- [2017] UKUT 397 (AAC)
- CE/3637/2016
- NL v Secretary of State for Work and Pensions (ESA)
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Using stairs ‘unaided by another person’ meant without active physical or psychological support in cases before January 2013
- [2016] UKUT 93 (AAC)
- CE/1850/2014
- DJ v Secretary of State for Work and Pensions (ESA)
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Assessment of whether claimant is unable to reach toilet quickly is a notional test / need to assess whether claimant is in severe discomfort when mobilising
- [2015 ] UKUT 370 (AAC)
- CE/4876/2014
- DG v Secretary of State for Work and Pensions (ESA)
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Whether mobility problems affecting ability to reach a toilet quickly can be taken into account / need to properly explore a person’s ability to ‘repeatedly mobilise’
- [2015] UKUT 151 (AAC)
- CE/3928/2014
- FR v Secretary of State for Work and Pensions (ESA)
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Incontinence descriptor in schedule 3 ESA Regulations wrongly formatted in ‘Sweet and Maxwell’ and DWP tribunal submission
- [2015] UKUT 84 (AAC)
- CE/3809/2014
- RT v Secretary of State for Work and Pensions (ESA)
- Bucket is not a continence aid / continence points cannot be scored for mobility problems alone
- [2015] UKUT 285 (AAC)
- CE/3689/2014
- PC v Secretary of State for Work and Pensions (ESA)
- Double test of mobilising and mobilising repeatedly / level of ‘risk’ of incontinence
- [2014] UKUT 126 (AAC)
- CE/2490/203
- KB v Secretary of State for Work and Pensions (ESA)
- Mobility problems affecting ability to reach a toilet quickly / meaning of ‘change in clothing’
- [2014] UKUT 34 (AAC)
- CE/1695/2013
- LB v Secretary of State for Work and Pensions (ESA)
- Continence descriptor and use of aids
- [2013] UKUT 352 (AAC)
- CE/4000/2012
- LB v Secretary of State for Work and Pensions (ESA)
- Approach to descriptor 10(a) - incontinence of the bladder
- [2011] UKUT 82 (AAC)
- CE/1172/2010
- NH v Secretary of State for Work and Pensions