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Sitting/standing descriptor - need to consider ‘reasonable adjustments’?
Surely it’s using such aids or adaptations as might be reasonably practicable in the circumstances and as such, close attention would need to be applied to the ability to complete the desired activity at said adapted workstation in assessing what might be practicable.
Surely it’s using such aids or adaptations as might be reasonably practicable in the circumstances and as such, close attention would need to be applied to the ability to complete the desired activity at said adapted workstation in assessing what might be practicable.
Hi Dan,
I do take your point.
However, Reg 19(4) specifies aids or appliances normally worn by the claimant.
CE/1217/2011 holds that the correct approach is as follows:
“If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”
The ESA Regs do not give a definition of aid or appliance.
Its doubtful that they were originally intended to cover reasonable adjustments by an imaginary employer (although that doesn’t necessarily mean they don’t).
For me the problem in Judge Fordham’s ‘real world’ approach is that it further extends the kind of evidence and arguments that needs to considered and argued in WCA appeals - “and I will demonstrate to your satisfaction that there are no reasonable adjustments an employer can or would make that would benefit my client.”
This is in contrast to the solely ‘functional’ approach taken in two recent decisions in relation to mobilising - CE/3315/2012 and CE/3737/2012.
In effect both would hold that the fact that someone cannot in real-life be allocated or use a wheelchair as there are steps to their front door is irrelevant - the only consideration is whether they can reasonably mobilise if sitting in one.
Are aids and appliances always equatable with ‘reasonable’ adjustments?
Aids and appliances... you can tell I’m doing mental health now 😉
The meter to my mind would be “reasonably in the circumstances”; since GS v SSWP (ESA) [2010] UKUT 244 (AAC) we do know that the new test is a lot closer to the workplace than C1/95 (IB) placed the PCA so in my submission it would be reasonable to determine whether the aid hypothesied might restrain the claimant’s ability to operate in that workplace.
You lady lying down would have hell of a job with a computer on a coffee table; would the trunk movements necessary to operate siad coffee table trouble a compressed nerve root frinstance?
Seems to me that this very site shows a number of contradictory decisions currently being pushed out on this topic so we are inevitably heading toward a tribunal of judges being convened at some point.
To be honest, I don’t see as much of a problem as maybe other people do with the ‘reasonable adjustments’ approach. I would disagree that it’s just about sitting in a wheelchair.
Other recent decisions have suggested the getting in and out would be relevant for example. However, as someone who has actually been through numerous processes of reasonable adjustments I do wonder what peoples experience of the concept is. The reality is that ‘reasonable adjustments’ vary from person to person and organisation to organisation. Attempts by tribunals to impose a one size fits all are doomed to failure in the longer term.
I have a very similar ongoing issue with one of my clients (FTT failed and we’re currently awaiting the SOR) so I will be interested to see how this one pans out.
My client is, like the client in this scenario, realistically unable to sit/stand at a workplace for more than a very limited period. At home she uses a recliner chair that enables her to lie flat (the only position in which she can remain in any degree comfortable). No points were awarded in relation to sitting/standing by the FTT (despite them specifically stating that they believed the client’s account of her difficulties) and I am anticipating the SOR will mention the reasonable adjustments issue.
It seems to me that a need to lie flat is not something that any workplace could realistically make ‘reasonable adjustments’ to accommodate.
2 thoughts:
1) ‘lying flat’, or even ‘recining’ certainly at an angle of less than 45 degrees, is NEITHER ‘sitting’ nor ‘standing’ so is not an ‘adjustment’ to enable the claimant to do either—whether it is reasonable or not.
2) I think that the burden of proof must be on the adjudicating authority to identify an adjustment and establish that it is reasonable in this case and apply across a range of appropriate employments rather than on the claimant to prove that there is no conceivable reasonable adjustment.
2 thoughts:
1) ‘lying flat’, or even ‘recining’ certainly at an angle of less than 45 degrees, is NEITHER ‘sitting’ nor ‘standing’ so is not an ‘adjustment’ to enable the claimant to do either—whether it is reasonable or not.
2) I think that the burden of proof must be on the adjudicating authority to identify an adjustment and establish that it is reasonable in this case and apply across a range of appropriate employments rather than on the claimant to prove that there is no conceivable reasonable adjustment.
I agree. And.
It was the duty to make adjustments in s6 of the Disability Discrimination Act 1995 which opened the door to this approach being used in conjunction with reg 27 Of the IFW Regs. S20 of the Equality Act 2010 (which repealed the DDA) does the same thing for reg 29 of the ESA Regs. I agree there is a tension in the case law between the purely functional approach and the ‘nod to the workplace’ approach. However, I think that there is a distinction between the concept of reasonable adjustments and the use of aids or appliances.
Reasonable adjustments are aimed at the needs of a particular individual and what can or cannot be achieved on his behalf. The standing and sitting descriptor is the only one that refers to the workplace and the idea of reasonable adjustments has more resonance here mainly because language of the other descriptors lends itself far more readily to a purely functional approach. However, in this descriptor reasonable adjustments is wide enough to embrace the question of whether an aid or appliance could be used. But, for all of the descriptors the dictum of The UT in CE/1217/2011, cited by Ken, holds good.
“If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”
In my view this is a different matter from the notion of reasonable adjustments as it is not confined to the needs of the particular individual but to a class of individuals and whether the particular individual can be brought within that class. It is up to a DM or tribunal to make it clear exactly what criteria and why they are applying to the claimant for any or all of the circumstances highlighted above which are raised on his case.
http://www.legislation.gov.uk/ukpga/2010/15/section/20
I think another thing to take into account is HSE’s take on ‘reasonable adjustment’ in this way you’d get a ‘real world workplace’ view and if it could or could not be accommodated.
Also Employment Medical Advisory Service would probably have something to say about it too.
In CIB/5654/97 the claimant used a special cushion in order to sit in the then requisite upright chair without arms. Despite a similar IB regulation obliging the client to use reasonable aids/adaptations, the Commissioner held that to take into account the cushion would “essentially [alter] the nature of the acivity which is under assessment” (ie sitting).
Since then the statutory chair has, as we know, changed to include an adjustable chair (whatever that means). I suspect, however, that CIB/5654/97 would not be decided the same way now (ie, a cushion arguably adjusts the sitting position in the same way an adjustable chair does).
But I think lying down is an altogether different proposition. In my view lying down fundamentally changes the nature of the activity under consideration (ie, remaining at a workstation by standing or sitting or a combination of the two) so the principle of CIB/5654/97 would remain relevant.
I also agree with post 6 above.