Activity 13 - ‘sequential’

After much brain-wrenching rumination yesterday, we have come to the conclusion that the inclusion of ‘sequential’ in 13 (a), but not (b) or (c) does not seem to make any sense.

Its inclusion in the phrase ‘two personal actions’ creates a harder activity to perform rather than an easier one. It’s easier to complete two actions over a period of time, than to do them sequentially.

Logically, an inability to complete a harder activity should score fewer points, not more. This is not immediately obvious, but if you think about it it makes sense. It’s harder to walk 200m than 50m. So 200m scores fewer points, not more, as it’s the inability that’s being rewarded and not the achievement.

The only way to resolve this sensibly seems to be to read ‘sequential’ into all of the descriptors. This is certainly how the SSAC see it in their report at 2.17 - which is here

Now to try to understand what is meant by ‘cannot… initiate OR complete’ and ‘at least two’...

MrFinch - 08 August 2013 08:37 AM

.. It’s easier to complete two actions over a period of time, than to do them sequentially….

I’m not sure I’m with you on that Mr F? Can you give a real world example? 

And I couldn’t find para 2.17 in your link.

Completing personal action

2.17 The changes simplify the descriptors relating to memory and concentration, execution of tasks and initiating and sustaining personal action. The amalgamation of three activities – memory and concentration, execution of tasks and initiating and sustaining personal action – recognises the fact that these activities identify the same disability – the inability to compete a task. The requirement to complete ‘at least 2 sequential personal actions’ has been added to recognise the fact that in a work context it is unlikely that an individual would only be required to carry out a single task. Approximating the time it takes an individual to execute a task is an overtly complex measurement and involves considerable variation. Therefore, the elements of the descriptors relating to time frame have been removed but consideration of whether it can be done reliably and repeatedly remains.

The SSAC seemed to be of the view that all of the activity 13 descriptors relate to ‘sequential personal actions’, not just (a).

I’m not sure I’m with you on that Mr F? Can you give a real world example?

The actual text of Activity 13 as enacted seems to purport to distinguish between ‘sequential personal actions’ in (a), and just ‘personal actions’ in the lower descriptors.

But if there is intended to be a difference between the two, they are surely the wrong way round.

If you’re suffering from mental fatigue, or other difficulty concentrating, and your boss sets you the tasks of 1) sorting some documents into alphabetical order, and 2) phoning to place an order, it’s easier to manage these over a day, with a break in between, than to have to do them sequentially.

So someone who can’t manage them sequentially, but can with a break, will nevertheless score 15 points under (a) (and (a) only). But someone who couldn’t manage the two tasks at all would score under all three descriptors, therefore also scoring 15.

So the only difference between (a) (b) and (c) must be the portion of time over which the problem is suffered.

Most tribunals interpret, wrongly in my view, personal actions as including getting out of bed, getting dressed, washed, going out, paying bills.  I suppose you could add to that list sorting some docs into alphabetical order and making a call to place an order (although I’m not for a minute suggesting that you’re wrongly interpreting “personal action” Mr Finch).  As I’m sure you’d agree, all of these things are merely evidence of ability/inability to do personal action rather than personal actions in themselves.  Personal actions are clearly defined in Activity 13 as “planning, organisation, problem solving, prioritising or switching tasks”.  It’s unclear whether that’s an exhaustive list but the 5 actions are so broadly drawn that they’re likely to cover most tasks in the workplace that impact on mental health. 

I think sequential actions are easier because they naturally follow each other, eg planning followed by problem solving.  I make a list of the food I need to buy or the bills I need to pay (planning) and then I go to the shops and buy the goods on the list or pay the bills concerned (problem solving).  Far more difficult to do things out of sequence.  Eg, I’m happily sorting my docs into alphabetical order (planning) and getting ready to start filing them away alphabetically (problem solving) when a colleague phones and states “never mind that filing it can wait, drop everything you’re doing and get that spreadsheet done” (switching tasks).  Switching tasks is the kind of personal action that you don’t necessarily plan for.  Consequently, it’s (i) unlikely to be done in sequence with another personal action and (ii) likely to present difficulties for disabled and non-diabled people alike, ie it’s harder to master. Hence the lower score under activity 13 for not completing two non-sequential tasks. 

In the above example, the client might not be able to return to what he/she was doing after having switched duties at short notice, evidencing inability to switch tasks and organise.  But that still wouldn’t make the actions of switching tasks and organising sequential in my view.  You can be organised despite not being good at switching tasks; the latter is not naturally a pre-requisite of the former.

Obviously, because the personal actions are drawn so broadly it causes evidential difficulties.  What is not acceptable from tribunals is quickly dismissing 13(a) because the client confirms that they can get up and get washed.  Obviously, every case has to be looked at on its own merits.  Not getting up and dressed could arguably be evidence of difficulty in only one personal action (organisation) or all 5.  In fact, functional impairment in all 5 personal actions might be demonstrated alone by evidence of not getting up before midday. 

In the above example, even if the person could happily plan, prioritise and problem solve, he/she should still arguably score 6 pts where they struggle to switch tasks and organise.  The words “at least” qualify “cannot”.  (However that’s more a theoretical point I suppose.  In reality, ability to perform two personal actions is likely to be strong evidence that you can initiate or complete others as well (eg could you be competent at planning and prioritising without, at the same time, being organised?).

And by way of balance I’d suggest that a broad view needs to be taken which only a handful of enlightened judges/medical members demonstrate.  Eg, just because a claimant cannot organise themselves well after earlier being thrown by having to switch tasks doesn’t mean they’ll automatically score 6 pts.  The fact it merely represents evidence works both ways.  If there is also evidence of the claimant at home being able to successfully switch tasks at times and remain organised, then a hard decision will then need to be made by a decision maker/tribunal based on the overall picture.  I’ve less of a problem with tribunals finding against us after applying the correct test (even though it can still be very frustrating and probably, as a finding of fact, unassailable) than not realising what the correct test is.

When contemplating that overall view, however, tribunals would do well to remember that “frequently” in 13(c) actually means for a minority of the time (ie, by inference from the fact 13(b) requires a “majority of the time”).  The law acts here a bit like Starbucks’ calling its smallest size cup a “tall”.

Thanks for this discussion. I have found ‘personal actions’ to be the most difficult activity to understand what the heck the regs are actually driving at.

The old 2008 ESA activity 16 referred to being unable to “initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks)”, with various degrees of prompting. It seemed that I would need to be unable to do all five actions in order to score points under the old regime; whereas, the current regs are perhaps easier, because I can score in the event that I am able to do one action, but not then able to do any of the other four as a follow-up (whether sequentially, or otherwise).

I’ve got to say, I find it difficult to think about this without lapsing into the idea that “planning, organisation, problem solving, prioritising or switching tasks” are not personal actions, but are rather the processes by which personal actions are accomplished. Eg, it seems that if I can do one action and then sequentially another, then I have surely ‘switched tasks’ ... which is itself an action. So, anyone who can do two personal actions can, by definition, also do three actions. Is that really the intention?

Just an idle thought, but can an action that is not sequential be argued to be a concurrent one? I.e., can the current activity 13 be read as to say: if I can’t plan and then prioritise (or any other two permutations), even taking one thing at a time, then I score 15; if, for the majority of the time, I can’t plan and prioritise (or any other two permutations) at the same time, then I score 9; and if there are frequent times when I can’t do two things at once, then I score 6.
Or is that over-stretching the language..

Anyway, a couple of points:
The SSAC report MrF refers to is given in full here:
http://www.official-documents.gov.uk/document/other/9780108509698/9780108509698.pdf

In the 2013 version of the WCA regs, the word ‘sequential’ appears in all three points-scoring descriptors for activity 13:
http://www.legislation.gov.uk/uksi/2013/379/schedule/2/made

Useful discussion, thanks for the replies.

Most tribunals interpret, wrongly in my view, personal actions as including getting out of bed, getting dressed, washed, going out, paying bills.  I suppose you could add to that list sorting some docs into alphabetical order and making a call to place an order (although I’m not for a minute suggesting that you’re wrongly interpreting “personal action” Mr Finch).  As I’m sure you’d agree, all of these things are merely evidence of ability/inability to do personal action rather than personal actions in themselves.  Personal actions are clearly defined in Activity 13 as “planning, organisation, problem solving, prioritising or switching tasks”.  It’s unclear whether that’s an exhaustive list but the 5 actions are so broadly drawn that they’re likely to cover most tasks in the workplace that impact on mental health.

I am of the view that it probably means tasks that include some element of organisation, problem solving etc. Otherwise I can’t really see a way to make sense of it. Greg Wood has a good post on it here which I may cite as a medical opinion on the distinction between tasks needing concentration and things that are merely automatic routine.

The other thing I will be using in argument is the fact that activity 13 is an amalgamation of three pre-2011 activities - reduced down to one to prevent (purported) double scoring.  It was explicitly being acknowledged in this process that the new activity 13 includes consideration of memory and concentration - as opposed to abolishing taking any account of them. It therefore shouldn’t be harder to get points under 13, than under any individual one of the previous three it replaces.

I think sequential actions are easier because they naturally follow each other, eg planning followed by problem solving.

Just an idle thought, but can an action that is not sequential be argued to be a concurrent one? I.e., can the current activity 13 be read as to say: if I can’t plan and then prioritise (or any other two permutations), even taking one thing at a time, then I score 15

Interesting - both these points make quite a bit of sense.

In the 2013 version of the WCA regs, the word ‘sequential’ appears in all three points-scoring descriptors for activity 13:
http://www.legislation.gov.uk/uksi/2013/379/schedule/2/made

Also interesting - but if it’s right that ‘sequential’ actually makes the activity easier to perform, this in fact represents a further tightening rather than a loosening of the criteria.

Mr Finch - you and Craven make some interesting points and links.

I looked at the WCA handbook which seems to envisage various candidates for Activity 13 amongst whom are those severely depressed with symptoms of apathy or extreme fatigue.  The example which it offers regarding 2 sequential actions is “getting dressed and going out”. 

It also offers these further examples of what might represent personal action:

“Personal action” may include:
• ability to plan and organise a simple meal
• ability to get up, washed, dressed and ready for work in the morning
• ability to cope with simple household tasks e.g. sorting laundry and using a washing machine
• dealing with finances
• arranging GP appointments, picking up prescriptions, taking medication”

That would clearly support the view that organisation, planning etc are merely the headings under which real, more specific personal actions, eg getting dressed, paying bills, take place.  The advantage of that approach is that it makes it a lot easier to assess people under Activity 13.  However, the disadvantage is that it opens the door to the type of simplistic approach which Greg Wood mentions and which I criticised tribunals for using in my earlier post, eg, identifying a few tasks which a client may be able to do in order to justify a refusal to award any points under the activity.

I think one problem is that we expect the measurement of capability for work to be precise when it can never really be.  Organising, problem-solving etc are arguably chosen precisely because they are such general terms which offer a wide margin of appreciation to decison makers and DMs.  They are value judgments like all secondary facts/facts-in-issue.  Like “frequent attention” and “virtually unable to walk”. 

My concern is that tribunals (who should know better) take too simplistic a view.  Yes, ther’ll be cases when credibility can be used to quickly dismiss Activity 13 but in a lot of cases a person’s ability to do personal action can vary.  With any client you could probably identify if you persisted a specific example of ability to do each of the 5 personal actions as well as a specific example of inability to do each of them.

The truth if we’re honest is that tribunals regularly form a view on the papers and then simply elicit the answers from the appellant which confirm their pre-conceptions and allow them to dispose of the appeal.  It can work the other way of course.  But “personal action” is perfect for this purpose.  It’s a great thing discretion, especially when you’re paid so well to exercise it.  Sometimes, I think we’d be able to achieve the same level of justice that tribunals provide by simply giving appellants a scratch card from a bunch which contains equal amounts of winning and losing cards and shuffling them well beforehand.

In my experience, tribunals will go to almost any lengths to avoid having to consider activity 13. I tend to do the same unless there is no choice. It’s easily the messiest activity in terms of definition in my opinion.