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Top Incapacity related benefits topic #4698

Subject: "ESA Descriptor 3 (Bending and Kneeling)" First topic | Last topic
pete c
                              

Welfare Rights Officer, Adult Social Care, Cornwall County Council, Truro
Member since
30th Oct 2008

ESA Descriptor 3 (Bending and Kneeling)
Fri 18-Dec-09 02:43 PM

I have two clients who have been given no points for any of the bending and kneeling descriptors following a WCA medical. Both clients reported that the doctor had not asked them to actually bend, squat or kneel but only to reach down and touch their ankle while sitting in a chair

To me this seems substantially different from what might reasonably be implied from the Descriptor as it does not involve the client having to balance or support their own weight while bending. All three descriptors mention 'straightening up again' which seems to imply that the test starts in a standing position and returns to a standing position after bending etc and this view is supported to some degree by Commisioner Williams decision in CIB/15262/1996 where he refers to the very similar descriptor in the PCA and says that the test is 'bending to touch the knees ' not 'bend the knees to touch them'.

Any observations or opinions would be welcome, I doubt if the two cases I have at present will hinge on this but I wonder if this way of confirming that someone is able to bend is widespread.

  

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Replies to this topic
RE: ESA Descriptor 3 (Bending and Kneeling), ariadne2, 18th Dec 2009, #1
RE: ESA Descriptor 3 (Bending and Kneeling), Steve Johnson, 19th Dec 2009, #2

ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: ESA Descriptor 3 (Bending and Kneeling)
Fri 18-Dec-09 03:40 PM

This used to happen all the time in the PCA and as far as I know bending while in a sitting position was never accepted there either.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: ESA Descriptor 3 (Bending and Kneeling)
Sat 19-Dec-09 10:26 AM

Forgive the long quote from the ESA Medical Services Handbook...

"Scope

This activity relates to lower limb and back function. It is intended to reflect ability
to reach a low level such as a low shelf, or the floor, using supports such as
furniture if needed, but without dependence on another person for support to
straighten up again.

“As if to pick up an object” does not include the ability to manipulate the object or
the ability to lift weights (these activities are covered in other areas relating to
upper limb function).

This functional category includes a number of different activities of the spine and
lower limbs involving the ability to manoeuvre the body from a standing position.
Descriptor B(a) implies a very severe condition, with both lumbar spine and hip
movements severely reduced, or restricted by pain.

This activity is very different from the one involved in descriptors B(b) and B(c).
These descriptors consider the activity of bending and/or kneeling as if to pick
something off the floor or a low shelf which involves a combination of flexing the
lumbar spine, flexing the hip joints, and bending the knees to a squatting position.

Details of activities of daily living

Relevant activities include:
ı Dressing and undressing especially footwear
ı Getting in and out of the bath
ı Bending to reach the oven, front loading washing machine, low cupboards or
shelves
ı Hanging laundry to dry
ı Carrying out household cleaning chores.
Bending to tend to babies and toddlers may also be relevant as may leisure and
recreational activities involving bending e.g. gardening, tending to pets.

Observed behaviour

Record general mobility. Functional knee and hip movement are important for this
task and may be observed while the claimant is seated at interview. While it is not
appropriate to directly observe the claimant undressing/dressing note the time
taken and any help requested with certain items of clothing particularly shoes.
Note the claimant's ability to climb on and off the couch.
It may be possible to observe the claimant pick up an item such as a handbag or
shopping bag from the floor of the examination room.

Clinical examination

Restriction of spinal movement to the degree indicated by B(a) suggests a
severe spinal problem. Clinical examination should be consistent with this. There
may be evidence of muscle wasting. For B(b) or B(c) to apply, you would expect
in most cases to identify significant problems in knees and hips. In some cases,
where a neurological condition may be apparent, a registered medical practitioner
may need to perform an assessment of functions of balance including testing for
cerebellar or proprioceptive functions. Assessment of power in the lower limbs
will be essential"

*****

It seems to me that on the one hand the Manual visualises bending from a standing position when it says...

"This functional category includes a number of different activities of the spine and
lower limbs involving the ability to manoeuvre the body from a standing position."

Under the heading of "Details of activities of daily living" it refers to getting in and out of the bath, bending for the oven, and hanging out laundry... hardly things you can do sitting in a chair.

On the other hand it goes on to say (under the 'observed behavior' section)...

"Record general mobility. Functional knee and hip movement are important for this
task and may be observed while the claimant is seated at interview"

A mixed message here. On the one hand the Atos person is told to look at general mobility, but then permits observations when seated in the context of knee and hip movement. Of course, the restriction of such observation (in terms of knee and hip, even if correct - which it is not, if some weight is being taken by the chair) is probably lost on the Atos person, who relies on chair based observation generally.

I reckon there is scope to involve Atos person's divergence from their own Manual as a partial platform for any appeal, on top of pure legal arguments concerning the mismatch of the Atos persons recommendations, in the face of the actual tests in the descriptors.

There is nothing like a drop of divergence from their own guidance, to wobble a decision makers general arguments

Best of luck,

Steve



  

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