Descriptors 15 and 16

This might be a silly question but does anybody know if just one or all of the descriptors have to apply for 15 (Conveying food or drink to the mouth) and 16 (Chewing or swallowing food or drink)?  It’s just some of them say ‘or’ at the end. Thanks a lot for any help.

It’s any one of the a, b, c, or d descriptors and in relation to d, either one of d(i) or d(ii).

@Paul_Treloar_CPAG
Thanks ever so much for your response.  I was just wondering how you came to that conclusion - is there anything in the legislation etc. that you could point to?  Thanks again.

Try reg 19(3) of the ESA regs

@DManville

Thanks for the response, but isn’t 19(3) about ‘Limited Capability for Work’?  The descriptors I am on about are in Schedule 3 (Assessment of whether a claimant has Limited Capability for Work-Related Activity).  Am I looking at the right thing?

The general rule of statutory construction is that to read the items on a list disjunctively there is no need to put the word “or” between each item on that list but merely between the last two (note, 15D(i) and (ii) and 16D(i) and (ii) would be a sub-list, so to speak).  And, unless the contrary intention appears, lists drawn up this way should be read disjunctively. 

This previous thread may be helpful ..

http://www.rightsnet.org.uk/forums/viewthread/6505/

@nevip
Thanks a lot.  That is useful - where did you get that information, is there a source like some case law or something I could look at?  I have to imagine me arguing it in Court you see, so it would be good to have some kind of reference.  Thanks again.

@Craven CAB welfare benefits
Thanks for the link

wr4 - 19 November 2014 02:11 PM

@nevip
Thanks a lot.  That is useful - where did you get that information, is there a source like some case law or something I could look at?  I have to imagine me arguing it in Court you see, so it would be good to have some kind of reference.  Thanks again.

@Craven CAB welfare benefits
Thanks for the link

You will find it in any basic law book on statutory interpretation or legal method.  There is a case which dicusses this and I’ll try and dig it out when I’m back in the main office next week.

@nevip
That would be really useful, thanks for your help.

wr4 - 25 November 2014 11:01 AM

@nevip
That would be really useful, thanks for your help.

I can’t find the case I was looking for.  However, I wouldn’t worry too much about citing case law.  Series separated by semi-colons with an “or” between the last two in the series are disjunctive.  Series separated by semi-colons with an “and” between the last two are conjunctive.  These are legal presumptions in English law.  All judges know this.

However, these presumptions can be displaced where the statutory context so requires.  So, when the sense of the statute requires it “or” will be read as “and” (Fowler v Padget – 1798, a case concerning bankruptcy) and “and” as “or” (R v Oakes – 1959, a case concerning the Official Secrets Act).  These cases are not common.

@nevip

Thank you so much