Tue 17-Feb-04 12:46 PM by jean

A new decision, CIB/884/03, could potentially have far reaching implications for appealing PCA decisions.

In Howker (R(IB)3/03), the Court of Appeal held that the amendment made by the Incapacity For Work and Miscellaneous Amendments
Regs 1996 to Reg 27(b) IFW (Gen) Regs 1995 was ultra vires. The amendment removed the ability for someone who suffered from a specific disease, such that there is a substantial risk to health, to be treated as incapable of work.

The basis of the Court of Appeal's decision was that the DWP had mislead the Social Security Advisory Committee by describing the potential effect as neutral whereas it had a potentially adverse effect to claimants.

CIB/884/03 holds that the reasoning used in Howker also applies to the amendment to para 14 of the Schedule to IFW(Gen) Regs 1995.
This means that for PCA purposes, the activity of “Remaining conscious” should not now be determined in its amended form of:
"Remaining conscious without having epileptic or similar seizures during waking moments",
but instead by reference to its originally enacted form:
"Remaining conscious other than for normal periods of sleep."

CIB/884/03 also significantly adds that tribunals in considering any issue involving other amendments made by the 1996 Regulations, must also consider if they are ultra vires.

Just for example, isn't requiring that the assessment of any physical descriptor activity be based on a client's use any aid or appliance they normally use, rather than as previously just a prosthesis adverse and therefore ultra vires??? What do other people think ???

Click here for a link to the rightsnet Briefcase summary of the decision:
http://www.rightsnet.org.uk/cgi-bin/publisher/display.cgi?1715-0104-6214+swopshop#CIB/884/2003
Click here to go to the full text of the 1996 amending regs:
http://www.legislation.hmso.gov.uk/si/si1996/Uksi_19963207_en_1.htm

I think it's really bad timing, just as I'd finished the first draft of a guide to the physical health test. But it is also potentially very far reaching.

The change to the lifting and carrying activity "by the use of upper body and arms (excluding all other activities specified in Part I of this Schedule)", effectively converted it into a lifting and holding activity, which is something quite different. I know there's a recent reported decision confirming that you can't consider moving from one place to another under this activity, but if we go back to the old wording then presumably it's up for grabs again. The Oxford concise definition of carry is 1 support or hold up, especially while moving. 2 convey with one from one place to another. I don't see how you can reasonably argue that picking something up and placing it back down again without moving your feet is the ordinary, everyday meaning of 'carrying'.

The "because the degree of discomfort makes it impossible to continue sitting" is clearly a much stiffer test than just being able to sit comfortably.

And didn't the "either, bend or kneel, or bend and kneel" come about because a commissioner had held that if you could do one but not the other under the original wording then you scored the points?

Then there's the addition of 'potentially dangerous' to mishaps under mental health - that's got to be a harder test, hasn't it?

Time for some new, or at least reissued, legislation I suspect. I wonder, does this make it rather less likely that the SSAC will still be with us in 2005?