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Each Baby Counts

Colleagues have already blogged on investigations into tragic events that have occurred in the maternity units at The Countess of Chester and Shrewsbury & Telford Hospitals.

Second worst for maternity care

Now it appears that the problems are nationwide. Although still one of the safest places to give birth, the UK is second only to Malta in having the worst record for maternity care in Western Europe.

The Royal College of Gynaecologists (RCOG) launched a programme in 2015 called ‘Each Baby Counts’ aiming to reduce the number of babies who die or are left severely disabled as a result of incidents. Now a detailed report has been published.

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The RCOG report looked at 1136 stillbirths, neonatal deaths and brain injuries that occurred on UK maternity units during 2015:

  • 126 babies were stillborn

  • 156 died within the first seven days after birth

  • 854 babies had severe brain injuries (reported within seven days of birth, it is not known how many have long term disabilities)

The report found that three in every four babies may have had a different outcome if they had received different care.

Interpreting baby's heart beat

In many of the reviewed cases, problems with accurate assessment of the baby during labour and consistent issues with staff understanding and processing complex situations, including interpreting recording of the baby’s heart beat (CTG tracing) were identified.

Many of the cases investigated at local level were not thought thorough enough to allow the report authors to do a full assessment of what went wrong.

Prof Lesley Regan, president of the RCOG, said: "The fact that a quarter of reports are still of such poor quality that we are unable to draw conclusions about the quality of the care provided is unacceptable and must be improved as a matter of urgency."

Annual training

The RCOG aim to achieve a 50% reduction by 2020 in incidents during term labour that lead to stillbirth, early neonatal death or severe brain injury. The Each Baby Counts report has recommended:

  • All low risk women are assessed on admission in labour and checked to see what foetal monitoring is required.

  • Annual training for staff on interpreting CTG traces.

  • A senior member of staff must maintain oversight of the delivery suite.

  • All Trust Boards should inform parents of any local reviews and invite them to take part.

Let us hope that everyone working in maternity care will ensure the reports recommendations are followed and outcomes are improved for all mothers and babies in the UK.

More information at https://www.rcog.org.uk/eachbabycounts

Are Wills by Text or Voicemail the Future?

Texts, voicemails and emails could be considered valid Wills by the Courts, in proposals made by the Law Commission’s consultation paper published on 13 July.

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The Commission estimates that 40% of the adult population currently die without making a Will, meaning that their estates are distributed in accordance with the law of intestacy. When a person dies intestate, there is no guarantee that their estate is distributed as he or she intended or wished. In particular, there is no provision for co-habitees, stepchildren or second marriages or relationships under the law of intestacy.

Wills Act of 1837

The law governing the making of Wills was established by the Wills Act of 1837, and states that the Will must be in writing, and signed by the Testator in the presence of two witnesses, who must also sign the Will in the presence of the Testator and of each other.

The law that determines whether a person has the mental capacity to make a Will (“testamentary capacity”) dates from 1870.

Reluctance of many to make a Will

Some have stated that the ‘outdated’ law is one reason for the reluctance of many people to make a Will. The Commission will consider whether the law can be modernised in order to encourage more people to make Wills, and to take into account the changes in society, technology and medical understanding that have occurred since Victorian times.

Some of the Commission’s proposals are:-

  • The possibility of making an electronic Wills in the future;

  • The possibility of reducing the age at which a Will can be made from 18 to 16 (and younger in some cases);

  • The possibility of changing the existing formal rules for making a Will where the Testator has made his or her intentions clear in another form – for example, by text, email or voicemail. Court approval would need to be sought for these messages to be recognised as a Will.

  • A new mental capacity test which would take into account conditions which affect decision-making, such as dementia.

The Law Commission’s consultation closes on 10 November 2017.

Local Singer/Songwriter Wanted

Local female singer/songwriter invited to collaborate with our filmmaker Spark Media.

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At Lanyon Bowdler we are looking for a local female artist to soundtrack a two minute film we are producing.

Whether it's an existing piece or something new we'd love to hear from you.

We require a beautiful piece of music with vocals, that depicts the beauty of Shropshire and conveys the importance of relationships.

Send details/links to tracks, or clips of music to amanda.jones@lblaw.co.uk 

Where There's Blame There's a Claim

Channel 5 showed their first episode last night of “Where there’s blame, there’s a claim” and I hope the programmes will show a fair and balanced approach to the issue of personal injury claims.

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Odd rotten apple

There is often a stigma attached to someone pursuing a personal injury claim, with people thinking that the injured party is “doing it for the money” and the compensation is like a lottery win. However, this is simply not true. Of course there will be the odd “rotten apple” trying to pursue fraudulent claims, as illustrated by the so called “Crash for Cash” of Derby, which was also featured in last night’s programme, but generally fraudulent claims are in the minority and procedures are in place to flush those claims out.

Checks for previous claims 

In order for a claim to be successful a claimant has to prove that negligence has occurred and that the negligence has caused injuries. This would involve a medical report confirming the extent of the injuries sustained. In road traffic accident claims, the issue with fraud is being tackled with the use of an ASKCUE search, which searches against a claimant to see if they have had previous claims. In addition there is a set pro forma for medical experts to follow in preparation of their medical reports.

The programme included a claim that had been made by a young lady for injuries she sustained during a negligently applied eye brow wax, a gentleman who sued the police for the injuries sustained during a wrongful arrest and two riders who were involved on the horrific “Smiler” crash at Alton Towers. The injuries sustained between the featured claimants were of varying degrees but the programme showed that any level of injury has an impact on the injured person.

Cost to NHS

The episode also illustrated that in significant injury claims, for example the young lady who lost a limb in the Smiler accident, the financial impact on the NHS in the provision of desperately needed medical treatment. The costs of the amputee’s prosthesis were between £60,000 - £70,000 on each occasion, with the need for a replacement artificial limb once every 10 years. This is a drain on the NHS and if those injuries were caused by someone else’s negligence, where there is insurance available, it can only be right that those costs are covered by the insurer as part of a personal injury claim.

No amount of money will ever be able to compensate the young lady on the Smiler, she has had to make dramatic life adjustments as a result of the injuries she sustained, and her life will never be the same again.

I hope the programme will continue to illustrate why innocent people, who have been injured through no fault of their own, have the right to pursue a claim for compensation.

Landlords Have Your Say : Consultation Opens On Selective Licencing

The term ‘landlord’ no longer conjures the image of high flying property developers who have large portfolios. Many landlords are now the ‘regular Joe’ off the street. Given the uncertainties with pensions more and more people have been investing in rental properties in the hope that this will provide for them during later years. Whether you are a career landlord or someone hoping to provide for your retirement, it has been a tough few years and it may be set to get tougher again in the Telford and Wrekin area.

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Areas Impacted

Consultation has opened to consider the introduction of compulsory selective licensing for landlords owning property in the Hadley, Leegomery, Malinslee, Hollinswood, Brookside, Sutton Hill and Woodside areas.

According to Telford and Wrekin Council these areas have been identified as evidence shows ‘higher rates of housing disrepair, a higher turnover of tenants, littering, fly-tipping and anti-social behavior than other areas’.

New Legislation

However, the proposed scheme comes in the wake of what has been a raft of new legislation aimed at landlords over the last couple of years. Placing upon them more red tape and restriction of tax relief.

The introduction of this scheme would be yet another financial sting to be endured by landlords.

Costs Will Build

The proposed scheme would see a fee of around £610.00 per property be paid from the landlord to Telford and Wrekin Council. Which they claim will be used to fund administration and monitoring of the scheme but will not be used to turn a profit.

If enforcement action is then required further fees will be charged.

Potential Affect On Tenants

Although it is the Council’s intentions to protect tenants it is hard to see when costs are increasing from all aspects for Landlords how they will not ultimately be passed onto tenants via raises in deposits and rent thereby penalizing the very people the council are trying to protect and stunting the affordable housing situation, which is already in crisis.

Where to Find out More

Telford and Wrekin Council are inviting views on the proposed scheme and further details of how to submit this can be found on the Council’s website.

If you require any further information on your obligations as a landlord, please contact Sian Samuel at Lanyon Bowdler Solicitors.

Learning Lessons

When a medical negligence claim is brought against an NHS Trust, it is not the individual medical professional who is personally sued. Claims in respect of failings by NHS staff are brought against the NHS Trust they work for and the case, at least initially, is handled by the NHS Resolution (historically known as NHS Litigation Authority); a separate branch of the NHS with funding set aside to deal with medical negligence claims.

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Aim of Claims

The objective of a medical negligence claim is to obtain compensation that puts the claimant in as close to the position that they would have been in had the negligence never happened. Often, the Claimant also wants to make sure that what has happened to them never happens to anyone else and therefore medical negligence claims also aim to educate the NHS Trust and by extension their staff to prevent future failings. In theory, therefore from the Trust’s point of view, the less the Trust gets wrong, the less they pay out in compensation and the more money there is in future to fund the treatment side of the NHS.

Missing the Point

Unfortunately, some Trusts appear to be missing this point.

Take for example the circumstances that led to the conviction of Ian Paterson. Paterson was a breast surgeon who has recently been jailed for 15 years for carrying out countless unnecessary cancer operations that has left hundreds of patients physically and emotionally scarred. Paterson had been suspended by managers at Sutton Coldfield’s Good Hope Hospital before being employed by Solihull Hospital. Whilst a Director at the Heart of England Trust which manages the hospitals was alerted to Paterson’s history which included an investigation by the Royal College of Surgeons who ordered Paterson to undertake a period of supervised practice, he was reportedly still recruited to clear a backlog of surgery.

It came to light during the trial that subsequently, complaints were made to the Heart of England Trust over a number of years by patients who were concerned about the treatment they had received from Paterson. Rather than investing resources to investigate these complaints and take necessary action however, the Trust reportedly swept the problems under the rug and adopted a reported mantra of “good news to true news”.

An Important Lesson

Whilst it would have cost the Trust money to investigate the complaints and take appropriate action, had they done this, they would have saved millions of pounds as well as the pain and suffering of hundreds of patients. Instead, so far, 256 patients have been awarded nearly £10 million in compensation by the Trust in respect of Paterson’s failings. This is in addition to the thousands of pounds that would have been spent to carry out each unnecessary operation by Paterson.

It is not untrue that the NHS is under a lot of pressure to meet targets and that recruiting more staff will help meet these. It is also not untrue that the NHS runs on a limited budget; however, these aims should not be met at the expense of patient safety.

The majority of medical negligence claims are brought following one off failings; however, where a Trust becomes aware that there are possible systematic failings which are leading to claims, then they need to shake the attitude of dealing with claims as and when they arise and instead invest the time and resources to stubbing the problem out at the source before it escalates. It would save them a lot of money in the long run.

Election Results - Hung Parliament and Farming

The Conservatives won the most seats, as expected, but they have fallen short of the 326 seats required to form a majority. Below we explore what the Tories promised the farming industry in their manifesto and the uncertainty of a hung parliament on Brexit negotiations.

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Focus on agriculture

The Conservatives have said that they have “huge ambitions for our farming industry: we are determined to grow more, sell more and export more great British food.”

The manifesto does place more emphasis on production and it commits to funding farm support until 2022 providing much needed certainty for the farming community amidst Brexit concerns.

They have promised new frameworks for food production and ‘stewardship of the countryside.’

As well as helping Natural England expand its provision of technical expertise to farmers to deliver environmental improvements on a landscape scale, from enriching soil fertility to planting hedgerows and building dry stone walls.

Need for certainty

However, a hung parliament has caused farmers to brace themselves for months of continued uncertainty as we begin our departure from the European Union.

Theresa May’s reason for holding the election was to give her a strong majority with which her party could confidently negotiate with Brussels and pass necessary legislation. Now the Tories must rely on support from other parties.

NFU president Meuring Raymond has said,

“It is important for our industry to have clarity and see certainty from a functioning administration as soon as possible…We will continue to push for the right post-Brexit trade deal, regulatory framework, a domestic agricultural policy suited to Britain and access to a competent, reliable workforce.”

Motoring Law and Farming

As summer approaches, I was recently asked to clarify the legal position in respect of Motoring Law issues that crop (no pun intended) up from time to time involving farmers and their employees …

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Driving licences and age:

Tractors and trailers

  • A person aged 16 can drive a tractor as long as it is not more than 2.45 metres wide and they have passed their tractor test.

  • They can also drive tow trailers less than 2.45m with 2 wheels or 4 wheels close-coupled

  • As a rough guide, older tractors are smaller than newer ones

  • At the age of 17, once a driving test (Class B) has been passed, a 31t tractor and trailer can be driven

  • However, a person still needs to be 21 before they can drive a combine harvester, telehandler and self propelled foragers/sprayers

Insurance

  • Employers should ensure that this is in place, expressly covering those under 17.

Mobile phones

  • The rules are the same as for other motorists…6 penalty points and a fine.

No Such Thing as a Free Divorce

I doubt I am the only one suffering from “election fatigue” and longing for 9th June. However, I was amused by the exchange during Wednesday’s televised debate, when Leanne Wood of Plaid Cymru pointed out to Paul Nuttall of UKIP that there is no such thing as a free divorce (in relation to the plans outlined for the UK’s departure from the EU).

Turkey voting for Christmas

To take her entirely literally, she has a point! Even if that turns out to be the only accurate thing said by any politician in the whole lead-up to the election (and I’ll leave you, Dear Reader, to be the judge of that) it’s fair to say that the people involved in divorce proceedings do nevertheless have a significant role to play in keeping the costs of the process as low as possible. The expression “turkey voting for Christmas”, to keep up the election theme, might spring to mind when a lawyer writes an article about how to pay your lawyer less, but essentially the solicitor should be as motivated to help the parties emerge with their dignity intact and a sense of mutual goodwill, especially when children are involved, as with the size of the bills delivered. This is common and commercial sense, in the short and long terms.

Mutual understanding

Whilst certain expenses, such as Court fees, Land Registry search fees, etc are largely unavoidable there is scope for sensible agreements to be reached over whether these should be split between the parties and in what proportion.

Forming a mutual understanding of what you both want to achieve before seeing the solicitor can also be a huge bonus in terms of everyone saving money later (even if meeting face-to-face is too emotionally fraught or impractical, polite and respectful email / text exchanges can help foster good communications that pave the way for sensible negotiations once a solicitor becomes involved). I am not suggesting that everything has to be agreed and tied-up before involving the solicitor since neither person should commit themselves to anything before getting advice, but even being able to identify the points on which you cannot agree is a useful exercise which reduces the amount of time spent in protracted meetings and correspondence with and between lawyers.

Mediation & Collaborative law

Mediation is a great tool for working through issues to try to reach agreement and the Courts now require parties to attempt it. The costs of a mediator are usually lower than a solicitor’s hourly rate, although both parties will need to seek legal advice on any agreement they reach in mediation, and there are proper measures in place to ensure the parties are physically safe.

Collaborative law serves a similar purpose and we are fortunate to have two collaboratively-trained lawyers in our Family Law team.

Dealing sensibly

However, with the best will in the world, sometimes it is simply not possible to reach agreement. Whilst that is not necessarily an indication that one or both are being unreasonable, starting court proceedings in such cases to deal with finances or children can, as counter-intuitive as it sounds, be helpful. Instead of funds being spent on correspondence and meetings which seem to be leading nowhere, those resources can be ploughed into getting a Court timetable and ensuring all the steps required are dealt with fully and thoroughly in order that the Court has everything it needs to be able to assist the parties. Dealing sensibly with Court proceedings and being open with your information can help to bring about settlements at the first, rather than third or fourth, Court hearing with very obvious financial advantages for both parties.

Personalised pricing structures

At the end of the day (to return to an expression much-favoured by politicians), whatever is spent unnecessarily on fractious proceedings simply means there is less available, financially and emotionally, for the parties to be able to move on and re-build after a difficult time.

We offer personalised pricing structures to give clients options and help them make the right decision about their case and their priorities.

If it sounds too good to be true, then it probably is!

I recently represented somebody whom I will refer to as ‘Dave’. I had previously represented Dave on unrelated matters and he had been very happy with the outcome I achieved on that occasion.

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Drink driving

Dave was recently arrested for Drink Driving. Rather than ask a local firm of solicitors, whom he knew and trusted, Dave went on Google and was ‘sold’ by a solicitors firm advert effectively promising to ‘get him off’.

£9,000 plus VAT

As a single father of two, in his desperation to avoid the conviction and subsequent mandatory disqualification, Dave was convinced into parting with his money. Clearly it was worth it to keep his driving licence. He was quoted £9,000 plus VAT for the case. He begged his mum to loan him an initial £1,500 which she reluctantly gave him, even though she wanted him to speak to me first.

After paying the initial instalment, Dave could not then afford the balance and therefore his solicitors, having effectively done nothing to assist his case, ceased to act for Dave leaving him high and dry.

In full view of the police

A worried Dave then contacted me, days before his trial which he would now potentially have to run himself, for a second opinion. I bluntly advised him that he ‘did not have a leg to stand on' and was bound to be convicted of the offence.

In simple terms he had consumed alcohol and driven his car the wrong way down a one way street in full view of a police officer! There was no defence!

Sympathetic Magistrates'

I was subsequently able to represent Dave at court, charging him a fraction of his initial outlay for my expertise, and he entered the correct plea, something he should have done months earlier.

Fortunately the Magistrates’, whom I know very well from regularly appearing before them, were sympathetic when I explained Dave’s tale of woe to them. They were persuaded to sentence him to the minimum penalty available to them.

Dave has given me permission to write this blog so that other people don’t make the mistakes he did! The moral of the story is….if it sounds too good to be true then it probably is!!!

#ifitsoundstoogoodtobetruethenitprobablyis #sometimeslocalisbest

Give Mental Health the Funding it Needs

On average, one in four people will experience a mental health problem each year. Mixed anxiety and depression is the most common mental disorder in the UK, and whether as a result of bereavement, financial worries or relationship issues, that’s around 16 million people affected in the UK every year.

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Funding

Despite the prevalence of mental health issues and arguments to the contrary, mental health problems appear to be low down on the list of priorities, and certainly not parity to physical health issues. The charity Mind reported that local authorities spend on average, less than one percent of their public health budgets on mental health. This means that in 2016-2017, when the Government’s budget for local authorities’ public health expenditure was £3.32m, less than £30,000 was spent on mental health. It seems unsurprising then that only two out of more than 50 mental health trusts in England have received outstanding ratings by the Care Quality Commission, given the apparent lack of resources.

In January of this year, Prime Minister Theresa May had pledged to tackle the stigma surrounding mental health with the implementation of new initiatives for schools and employers to provide mental health support. However, only around £23,000 per parliamentary constituency was promised in support of these plans and critics remain sceptical about the Government’s attempt to improve mental health services without a significant amount of extra funding to match. And, whilst money certainly isn’t everything and we should not underestimate the power of raising awareness, the level of funding allocated to mental health provision remains an unresolved part of the agenda.

Royal discussions

Mental health is not just a current topic of conversation for politicians though. In a recent interview with the Daily Telegraph, Prince Harry revealed his own struggles with his mental health following the death of his mother Diana, Princess of Wales in 1997.He spoke openly about the negative impact that burying his emotions for almost 20 years and refusing to process his grief had on his mental health.

Together with the Duke and Duchess of Cambridge, Prince Harry was seen at the recent London Marathon promoting the Heads Together mental health campaign, which was the marathon’s charity of the year. The Heads Together project is a partnership between several charities and their hope is that others suffering from mental health issues will feel encouraged to talk about them and break the stigma that unfortunately still surrounds such issues.

Raising awareness is the first step to normalising conversations about mental health and the Telegraph reported that since Prince Harry’s interview, mental health charities had double the amount of people contacting them the following week seeking help and information.

Minds matter

And it’s not just the Royal family getting involved in the conversation. Stars such as Tom Hardy, David Tennant and Olivia Coleman have taken to social media to support the #1in4 selfie campaign as part of the BBC’s Minds Matter season to encourage people to normalise conversations about mental health.

It’s difficult to stress just how important raising awareness can be. It’s the first step to opening up a national dialogue for mental health discussions and dispelling the stigma so often associated with it. With the snap general election looming, an increase in mental health coverage could prompt party candidates to make it a part of their manifestos and give it the funding it undeniably needs.

PIP - Costing An Arm & A Leg

In 2013, the government launched Personal Independence Payment (PIP) to replace Disability Living Allowance (DLA) for individuals between 16 and 64 who require financial assistance to help with the extra costs caused by long-term ill health or disability.

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In certain circumstances, payments can be made to assist with mobility. Individuals are assessed to establish whether they qualify for either the standard or enhanced rate (previously the lower or higher rate, under DLA) for their mobility needs.

Whilst the rates have remained the same between DLA and PIP, the eligibility criteria have changed, resulting in over 50,000 people losing their specially adapted vehicles. This has cost numerous individuals their jobs and their independence. Due to the change in the criteria, the effect has been particularly detrimental to those who have suffered a lower limb amputation.

Motability Scheme

Individuals can spend their mobility allowance as they wish to best accommodate their needs. For example, someone who travels only short distances may spend their allowance on taxis, whilst others who travel further, such as to their place of work, may require their own (often specially-adapted) transport.

The Motability Scheme allows disabled people to lease a new car, scooter or powered wheelchair for three years by exchanging their mobility allowance if they receive either the higher rate mobility component of DLA or the enhanced rate mobility component of PIP. Anyone who is ineligible for the enhanced rate will not be able to get a vehicle.

Change in criteria

Under PIP, only those who can stand and then move less than 20m will qualify for the enhanced rate. The PIP Assessment Guide states that ‘‘Standing’ means to stand upright with at least one biological foot on the ground with or without suitable aids and appliances’. Aids and appliances may include walking sticks, crutches and even prostheses. Previously, an individual who could move no further than 50m would qualify for the higher rate under DLA.

The consequences of this change have been severe for many. To put it in real terms, consider an individual who is able to move, with aids, around their house and to their car but requires a wheelchair once at their destination. Previously, someone in this situation would have qualified for the higher rate and, subsequently, the Motability Scheme but is unlikely to be eligible under PIP.

If that wasn’t enough, there is also now a requirement under PIP that a claimant’s health condition or impairment must have been present for at least three months at the time of their assessment and be expected to last for at least a further nine months.

Why are the changes such a problem for lower limb amputees?

The best way to demonstrate the true effect of the changes is by way of an example.

Suppose you are unfortunate and find yourself in a road traffic accident. Up until that point, you were healthy and had no disabilities – you visited family, socialised with friends and worked Monday to Friday. Life was very 2 point 4. As a result of the accident, your right foot is amputated.

It takes no stretch of the imagination to begin to understand the difficulties you will face getting around. In the early stages, you may not be allowed to use crutches and will rely on a wheelchair to move about. Your leg will need to heal before you can be fitted for a prosthetic limb and, even then, the process can take some time. During this period, how will you get out of the house, visit friends and relatives, take your children to school? What about grocery shopping or even going to work?

Under DLA, you would have qualified for the higher rate mobility payments, being unable to walk further than 50m. You could have applied to the Motability Scheme to lease a specially adapted vehicle during your recovery and lived your life as independently as possible.

Even if you are initially unable to move further than 20m, you will probably struggle to satisfy the PIP time requirements to claim any benefit. Three months before the accident, you had no disability. In nine months’ time, it is most likely that you will have a prosthetic limb or at least be competent to get around using crutches and move more than 20m. You will not qualify for the enhanced rate mobility payments under PIP and you will be barred from the Motability Scheme. You will have no specially adapted transport and you will therefore be unable to go out. If you have been affected by the loss of a limb you could be entitled to Amputation Compensation and should contact our Serious injury Laywers

Is this fair?

It is imperative that people who suffer from a lower limb amputation do not lose their independence. Being confined to one’s house will not aid any recovery and preventing someone from getting to work, and potentially losing their job, benefits no one.

The media will often espouse the view that people take advantage of disability benefits and the system needs reforming so that only those who really need help receive it.

Following the 2013 reforms and introduction of PIP, someone who has suffered such a life-changing event as losing part of their leg is apparently no longer deserving of this help. Does society really begrudge an individual, in such a devastating situation, the best opportunity to recover, maintain their independence and lead a normal life?

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