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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Activity 4C (the empty cardboard box)

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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Brian JB - 21 May 2015 03:24 PM

I take “transfer” only to mean to move from one place to another. I don’t see anything in the descriptor to say that distance is only a couple of feet, or that it should be for miles.

.......

Taking a view that it takes some degree of effort to transfer an unwieldy/clumsy to manage object any reasonable distance, which is not de minimis or of unexpected length, to the requred standard, I can see that an argument for the descriptor could be made in many cases

I may have misunderstood you here, but I cannot see how the activity envisages anything other than a couple of feet - maybe three if a person is exceptionally tall.

“4. Picking up and moving or transferring by the use of the upper body and arms.”

- i.e. it’s clear there is no carrying involved. The activity could be performed sitting down.

nevip
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I don’t think that the purely functional approach which applied to IB carries over to ESA to such an extent that the demands of the work place can be ignored altogether and that there is more scope for arguments concerning the kinds of the contextual requirements of particular employments where specific activities are likely to be performed.

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Brian JB
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I may be ignorant of some case law here, but the fact that the descriptor refers to “upper body and arms” only serves to limit consideration to any difficulty caused by the the upper body and arms. For example, if someone said that they could not pick up and move/transfer the object becuase of severe pain in their knees, that would not be relevant. Apart from that , I think it is open to argue that the test applies in a reasonably broad manner, without looking at an ability to transfer items an especially short, or particularly long, way - as the decision kindly added to the thread by Nevip says,

“It follows that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace. In deciding whether a particular descriptor is met, decision makers and tribunals may therefore find it helpful to consider the claimant’s ability to undertake the activity in question in a range of different working contexts. However, claimants will not be awarded a defined descriptor simply because they can show that it would apply to them if they were employed to do a particular job in a specific type of working environment.”

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Brian - I may have misunderstood you. The phrases from your first post that I quoted seemed (possibly) to be arguing that the descriptor could potentially be met because of problems with carrying - i.e. the potential for an argument that hip or leg pain when transferring four or five metres could be taken into account.

I think my approach would be to take the distance the object has to be moved out of the equation entirely. Instead I’d focus on the length of time for which the object couldhad to be held whilst transferring - so if a client said, “I can do it, but only if I’m able to put it down again almost immediately…if I had to hold it for anything more than a few seconds then it would cause pain in my arms/hands/shoulder/neck” then I’d say that would be arguable.

Brian JB
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I think we are singing from the same hymn sheet!!

PCLC
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I did an appeal recently for someone with the use of only one arm and who is a heroin addict. I tried the cardboard box argument but the Judge referred to being able to wedge the box against your body with your good arm, so I expect this is a pretty standard response from a Judge. The judge then went on to remark that in her local Waitrose ( of course it would be a Waitrose wouldn’t it….. ) there was a one armed man who appeared to have no difficulty working. I resisted the temptation to ask her if her one armed man also had a heroin habit…we won anyway on mental health.

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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LOL- sounds like something from Twin Peaks!

Seriously though, there’s a whole lot of difference between what someone who has been one-armed for many years (or all their life) is capable of doing and what someone who has comparitively recently lost an arm (or the use of an arm, or has a condition resulting in a significantly painful arm/shoulder) can do. Some judges really do need to wise up a bit and get real.