initiating and completing .. at least 2 sequential personal actions

I looked for case law on this but could not find anything.
Is this descriptor satisfied if we can produce a couple of examples (or even just one example) of 2 sequential personal actions the appellant cannot complete, like doing housework or going out shopping?
Or does it work the other way round, i.e. if there are actions the claimant can complete (making cups of tea, getting dressed), the descriptor cannot be satisfied?

Hi

see: http://disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries/attendance-allowance-and

They have links to the full cases as well

There doesn’t appear to be any case law on this activity or its 2008 predecessor. I have a number of issues with the way it is implemented.

ATOS and Tribunals seem to take the view that all activity, of any kind, has to be precluded. Greg Wood has written about why he thinks this is wrong here. The current application seems to completely ignore the exhaustive definition of personal action (planning, problem solving etc.) which does not appear to be satisfied by something like dressing, as that can be done by people in their sleep. If GS 2010 UKUT 244 is correct then the function being tested here would appear to be some kind of concentration rather than ability to dress and wash.

They also don’t seem to distinguish between the three temporal levels, probably (I think) owing to the indirect questioning method not assisting them to. So if a claimant says he occasionally does crosswords, this might rule out 13 (a) but does not really speak to 13 (c), although it is taken to rule it out too. I have a UT case in progress on this point.

I would further argue that a proper interpretation would also allow for consideration of the normal activities of a person not being possible, as in JE 2010 UKUT 50 (AAC) - rather than all such activities having to be ruled out, but this seems to be even further from current thinking at First-tier level and below.

This is all very bad for people with mental health problems. The 2011 consultation said that the new Activity 13 would cover three of the 2008 mental health activities to prevent double scoring. It was not apparently envisaged that it would be impossible to score under it.

I’ve had a client who was found not to satisfy this descriptor because he told the Atos assessor that when his mood was low, he would get out of bed, make a cup of tea, and then go back to bed for the rest of the day, sometimes watching the tv. On this basis, he was found to be able to initiate and complete 2 personal tasks i.e. getting out of bed and making tea. Case currently on appeal to Upper Tribunal.

I’ve found tribunals really don’t like activity 13 and will do just about anything to avoid having to consider it. I can understand why as it’s a bit of a pain in my view.

I have made the point on a number of occasions at tribunal that the “definition” of personal action in the descriptor at paragraph 13 of Schedule 2 looks at the sort of skills that frequent many job descriptions, yet a prospective employer (when asking for examples of an ability to plan, organise, etc) is unlikely to be impressed by the ability to wash and then get dressed - as Greg Wood says, that is pretty much second nature. Whilst an inability to do even that is clearly going to score, I think the ESA50 and ESA85 focus far too much on the ability to do things that are nowhere near what is required in the work place. Although not about this descriptor, para 21 of AS v Secretary of State for Works & Pensions [2013] UKUT 0587 (AAC) makes a sensible point about the application of the descriptor concerned (in that case mobilising), which could equally apply across the board -

“Within the legislative scheme as a whole, this principle only makes sense in the context of the needs of a modern workplace and the level of activity that an employer attuned to the requirements of disability discrimination law can reasonably expect. Plainly, the test is not about a high-pressure working environment, e.g. a call-centre with demanding targets or a factory production line with a fast-moving conveyor belt. Equally, however, the test is not about what the person can do in their own home and entirely in their own time and at their own pace, subject to no external constraints or pressures whatsoever. If reasonable regularity is judged by the latter criterion, then the test has ceased to be a test of “whether a claimant’s capability for work is limited by the claimant’s physical or mental condition” within regulation 19(1) of the ESA Regulations.”

sovietleader - 17 March 2014 09:57 AM

I have made the point on a number of occasions at tribunal that the “definition” of personal action in the descriptor at paragraph 13 of Schedule 2 looks at the sort of skills that frequent many job descriptions, yet a prospective employer (when asking for examples of an ability to plan, organise, etc) is unlikely to be impressed by the ability to wash and then get dressed - as Greg Wood says, that is pretty much second nature. Whilst an inability to do even that is clearly going to score, I think the ESA50 and ESA85 focus far too much on the ability to do things that are nowhere near what is required in the work place. Although not about this descriptor, para 21 of AS v Secretary of State for Works & Pensions [2013] UKUT 0587 (AAC) makes a sensible point about the application of the descriptor concerned (in that case mobilising), which could equally apply across the board -

“Within the legislative scheme as a whole, this principle only makes sense in the context of the needs of a modern workplace and the level of activity that an employer attuned to the requirements of disability discrimination law can reasonably expect. Plainly, the test is not about a high-pressure working environment, e.g. a call-centre with demanding targets or a factory production line with a fast-moving conveyor belt. Equally, however, the test is not about what the person can do in their own home and entirely in their own time and at their own pace, subject to no external constraints or pressures whatsoever. If reasonable regularity is judged by the latter criterion, then the test has ceased to be a test of “whether a claimant’s capability for work is limited by the claimant’s physical or mental condition” within regulation 19(1) of the ESA Regulations.”

You say that someone who can’t wash or dress is clearly going to score, but the example I gave above was of someone who didn’t wash or dress, yet didn’t score because he got out of bed and made a cup of tea. Honestly, the absurdity of the decision making and the repeatedly inadequate lines of reasoning used by assessors and decision makers is scandalous.

Whilst I completely agree with your logic around the need to consider these activities within the context of a workplace and a working environment, I don’t often see that logic being used by DWP unfortunately.

... and like 1964, I don’t find tribunals particularly keen to deal with it (or accept my argument)!! I forgot what you said in your post Paul about the getting up and making tea, and that too seems somewhat removed from the level of functionality required in the workplace. I think anyone offering that as evidence of an ability to plan, organise, prioritise, etc would be given short thrift by most employers.

Also discussed here

I’m also constantly confused by how many points to ask for for this activity, when it seems to apply. Although I said that doing a crossword might rule out 13 (a), there is an explicit requirement in the descriptors that the ability is reliable, which presumably would be intended to add something over and above the normal reliability needed of ‘as and when required’. So really if a claimant has problems at all with these tasks, 15 points could be said to apply. No wonder Tribunals avoid this activity - although the result of that is unjust.

Lo and behold, the first UT case to consider this has just come out: http://www.osscsc.gov.uk/Aspx/view.aspx?id=4139

It’s not my case but I think it backs me up on the frequently/majority of the time point. It’s a shame the definition of personal action as meaning problem solving (etc.) wasn’t considered though.

Is anyone aware of any further caselaw in relation to this activity? What happened with your case Mr Finch?

Also, does kb v sswp (2013) ukut 152 interpretation of always actually meaning “repeatedly” or “persistent” or “often” still stand or is this now out of date?

I am thinking in relation to a case where client affected by depression and Chronic Fatigue and meets 13 (a) most days of the week but not all days.

I’m shocked that the use of the word b**** by 1964 has gone unchallenged since March 2014.
(I’ve only just read this thread for the first time.)
There is no place for sexist language on Rightsnet.

One of my cases was listed as CE/171/2014 and although I was initially disappointed it did not go further, on re-reading seems quite useful. Judge Mark held that the tribunal should consider what a claimant can’t do as well as what they can do for the purposes of 13(b) and (c).

The other was CE/1532/2014 which succeeded on activity 14 but not 13. Judge Parker in that case thought the tribunal was entitled to find that going out shopping did include planning, organising etc. although she didn’t say it necessarily does as a matter of law.

Hi Helen - thanks for your post - 1964 says they didn’t mean to cause any offence and is happy for us to edit their message, which we’ve done. Hope that’s OK… Cheers…

Case Billy refers to is here - http://www.osscsc.gov.uk/Aspx/view.aspx?id=3752

Rightsnet summary here - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/correct-approach-to-applying-coping-with-social-engagement-descriptor-and-s

rightsnet summaries of Mr Finch’s cases here -
http://www.rightsnet.org.uk/welfare-rights/caselaw/item/failure-to-properly-assess-effect-of-claimants-mental-health-problems-on-ap
http://www.rightsnet.org.uk/welfare-rights/caselaw/item/descriptor-14c-coping-with-minor-unplanned-change-is-not-concerned-with-sup