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Opinions please on this…
The following is part of a full statment:
“In terms of standing and sitting, the activities of his daily life, where he was able to watch TV, shop at a supermarket, drive a car, cope whilst his wife was at work and self care were such that for the majority of the time he would be able perhaps with a combination of sitting and standing to remain at a work station for at least an hour.”
Apart from the car being specially adapted and there being no mention of this, what do people think about this statement? I’m looking for an error in law obviously and would be inclined to think that maybe the Tribunal have misunderstood the law in regards the standing and sitting descriptors…no-where can i find the time someone can sit or stand can be a “combination” of both.
I really would welcome opinion on this one…thanks
I think that the use of ‘perhaps’ invalidates it as a decision.
I would also venture that activity 2 (c) means that a peson scores 6 points if they cannot for the majority of the time, remain at a work station either (i) standing unassisted by another person (even if free to move around) OR (ii) sitting (even in an adjustable chair) for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.
The discriptor is an either / or one. So by saying that with a combination of the two, someone can stay at a workstation for an hour, a Tribunal is making it’s own descriptor up. Or to put it another way, their reasons contain a false proposition law. If you can’t sit for a specified length of time, you get the points, if you can’t stand for a specified length of time you get the points.
I would also argue the tribunal has made inadequate findings of fact in relation to their assumptions of client’s sitting/standing ability. Does the SOR indicate they made any attempt to establish exactly how long he can sit to watch TV or stand when he is at the supermarket? I also don’t see how his ability to self-care when his wife is at work is relevant.
From the DWP’s WCA internal review:
The modern work place requires an individual to remain at their work station long enough to do their job. Whether this requirement be to stand or to sit depends upon the job itself, therefore assessing the ability to do one or other within the same activity is inappropriate. Amalgamating the descriptors facilitates assessment of an individual’s ability to remain at their work station either standing, sitting or a combination of both. In removing the requirement that an individual be able to both stand and sit, the need for a descriptor relating to movement between the two is also negated.
See http://www.rightsnet.org.uk/forums/viewthread/1892/
From the WCA handbook:
In Sb and Sc, the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes
1) The case.
I agree with Gareth that the ‘perhaps’ should invalidate the decision. The Tribunal should be able to explain the connection between those vague ‘facts’ to be able to explain how they reached their conclusion.
But this connection is based on a number of hidden assumptions. Does you client watch TV lying on a sofa or sitting on an (adjustable) chair? Does he sit and stand when his wife is at work, or does he need to lie down? How long can he drive? What supermarket does he use, what queues can he manage? Did the Tribunal test these assumption during the hearing?
2) ‘Either’.
It is true that the DWP’s handbooks explain that ‘either’ means a combination of standing and sitting, but would it be possible in principle to challenge the interpretation of the law?
This law, as interpreted, is too cruel. If I cannot stand five minutes and cannot sit five minute but I can ‘remain at a workstation’ by painfully standing, sitting and fidgeting all the time, according to the test as interpreted by the DWP I should be able to work. But no employer would expect any reasonable work from someone in pain like me.
Josephina
Something was niggling at the back of my mind that there was legal authority to the effect that it simply wasn’t lawful for a Tribunal to find that an event “...might have happened…” - surely too similar to “perhaps” to be distinguished.
Does this help?
B (Children) [In re] [2008] UKHL 35
http://www.bailii.org/uk/cases/UKHL/2008/35.html
At para 2:
“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”
From the DWP’s WCA internal review:
The modern work place requires an individual to remain at their work station long enough to do their job. Whether this requirement be to stand or to sit depends upon the job itself, therefore assessing the ability to do one or other within the same activity is inappropriate. Amalgamating the descriptors facilitates assessment of an individual’s ability to remain at their work station either standing, sitting or a combination of both. In removing the requirement that an individual be able to both stand and sit, the need for a descriptor relating to movement between the two is also negated.
See http://www.rightsnet.org.uk/forums/viewthread/1892/
From the WCA handbook:In Sb and Sc, the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes
Neither the internal review nor the WCA handbook set down a rule of law, but simply state what the DWP’s interpretation of the actual descriptor is.
Neither the internal review nor the WCA handbook set down a rule of law, but simply state what the DWP’s interpretation of the actual descriptor is.
Absolutely. I dropped those quotes here without comment, as context for where the tribunal was coming from in the OP’s case (adopting the DM’s argument, I would guess?). But I sincerely hope DWP’s interepretation is tested in the tribunal, it seems perverse to me.
I’ve sent the request to apply for leave to appeal to UT. All your input has been very helpful, thank you all very much.
I seem to remember from my logic classes that
Cannot either (A or B)
Has the same meaning as
Cannot A and cannot B
So the test is that the appellant can’t sit for an hour as well as not being able to stand for an hour.
I fail to see how the DWP can say that this can be a combination of A and B for an hour.
The main problem with your “Logic” argument Sandy is that we are dealing with Jobcentre Plus here and as we all know Logic dont always come into it. Not to mention that its a very unfairly applied descriptor that has nothing to do with the workplace in the “real” world.
Hope the UT allow the appeal for some good case law
“No mistake is more common and more fatuous than appealing to logic in cases which are beyond her jurisdiction”.
Samuel Butler
I think the point about work stations being set up for one or the other is important. Also I don’t quite understand the “negates the need for a descriptor for moving from one to the other”. Even if you can stand for 20 minutes, and sit for 20 minutes, if you cannot move from standing to sitting without help then you’re stuck.