We have recently attended an appeal with a client affected by fibromyalgia. In relation to the issue of lifting and carrying, our client concurred that he might be able to lift a normal full size kettle once, but not on a repeated basis. The tribunal did not accept this, stating in the statement of reasons that 'the term repeatedly as applied to lifting and carrying and bending and kneeling is not accepted as a reasonable interpretation of the descriptor. "The descriptor is whether someone could not or sometimes could not do the task. It is not a question of whether someone could repeatedly do the task"

Since medial services handbook, and commissioner Rice in CIB/14587/1996 appear to say the issue of whether someone can repeat an exercise within a reasonable period of time should be taken into account, it was my belief that the tribunal had erred in law.

Consequently, we sent an OSSC1 to comms to appeal. The appeal was not allowed and although the commisioner in question has commented on some of our argument, he failed to address the issue of repeatability at all. Client will not seek further legal advice or consider judicial review.

I'm now totally unsure of whether it's me who is going mad, and am misinterpreting legislation/caselaw

can someone please help??

It would appear that your Commissioner has overlooked a very good NI decision on this subject which, although not strictly to be followed in England nevertheless is highly persuasive as they say. Not sure where it leaves your particular case though..........

This was an Appeal by the DWP against a favourable decision for the client, objecting on the regularity issue
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Commissioner's File (NI): C1/95 (IB)
Mr Commissioner Chambers QC
21 June 1996

The Tribunal's reasons for decision were:-

"'s capacity for the various activities involved in the descriptors varies from day to day. Certain activities eg washing, some meal preparation (which involves standing) - she appears to repeat with reasonable regularity but we do not consider that she could with reasonable regularity walk 200 metres without stopping and she appears always to need a rest on stairs. There are some limits on her standing in one spot but she does appear with some regularity to be able to stand for 30 minutes. We have taken the view that some degree of repetition of the descriptors is necessary bearing in mind that some relate to a working situation. We have therefore awarded points where we consider reasonably frequent repetition could not be carried out. The score in our view should be 17 points which satisfies the all work test."

However, Commissioner Chambers stated in his decision that:-

"I agree that, apart from those few descriptors in which the word "sometimes" appears, there is no specific requirement that a claimant must be able to perform the activity in question "with reasonable regularity". Nevertheless, a Tribunal must in my opinion have regard to some such concept in reaching their decision. The real issue is whether, taking an overall view of the individual's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so. I consider moreover, that this approach is broadly supported by the inclusion in a small number of the descriptors of the word "sometimes". The effect of the inclusion of this word is that, whereas in most cases a claimant who could perform the activity "most of the time", but who sometimes was unable to do so, would normally not score any points, whereas these few descriptors are concerned he qualifies for a modest score. Accordingly, as I see it, there must be an overall requirement of "reasonableness" in the approach of the Tribunal to the question of what a person is or is not capable of doing, and this may include consideration of his ability to perform the various specified activities most of the time. To that extent "reasonable regularity" may properly be considered."

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Thank you for your response. This was just what I thought. It wont help my case, but at least I know now that it is the commissioner who has overlooked this (and the tribunal too) and not me losing it!

You could make a request for set aside of the refusal to grant leave on the grounds that the relevant decision was not taken into account.

Not likely but if you don't ask...