Repeatedly

. The case is with the UT. IT INVOLVES THE INTERPRETATION of repeatedly and what I call the diminishing rule. A claimant who is deemed to be able to walk between 50 & 100 metres will not be able to repeat that so his walking limitation increases each time until he cannot walk any further. It is likely that a claimant will not be able to manage 50 metres, therefore he cannot repeatedly walk not 100 metres but 50 metres.
The Oxford Dictionary defines “repeatedly” as constantly other dictionaries define it as “always”. I favour the “always” argument because the word “repeatedly” suggests this.
It is my submission that If the Government had wished to restrict the meaning they would have used the phrase “and repeat it. In other words “repeatedly” is indefinite whereas “repeated” is definite.

Your views on this are welcomed.

Lawtcrav - 13 August 2013 06:59 PM

. The case is with the UT. IT INVOLVES THE INTERPRETATION of repeatedly and what I call the diminishing rule. A claimant who is deemed to be able to walk between 50 & 100 metres will not be able to repeat that so his walking limitation increases each time until he cannot walk any further. It is likely that a claimant will not be able to manage 50 metres, therefore he cannot repeatedly walk not 100 metres but 50 metres.
The Oxford Dictionary defines “repeatedly” as constantly other dictionaries define it as “always”. I favour the “always” argument because the word “repeatedly” suggests this.
It is my submission that If the Government had wished to restrict the meaning they would have used the phrase “and repeat it. In other words “repeatedly” is indefinite whereas “repeated” is definite.

Your views on this are welcomed.

I think the phrase ““repeatedly mobilise x metres within a reasonable timescale” probably has to be viewed as a whole. “Within a reasonable timescale” puts some degree of limit on the thought process but I am sure the Upper Tribunal would say these are everyday words which must carry an ordinary everyday meaning, and probably defy any precise interpretation.

In our Chambers dictionary, “repeated” is defined as “done again; reiterated” and repeatedly as “many times repeated; again and again” 

I think the whole point, as you say, is that a person IS able to walk a distance in excess of x metres, at least to begin with, but then is not able to do that again and again within a reasonable timescale. I think this is implicit in being an alternative to the inability to walk more than x metres without stopping, where it appears to me that other than “stop” which is de minimis, if a person has to stop to AVOID significant discomfort, the descriptor is satsified, even if that distance of less than x metres ca nbe done “repeatedly”.

If, I suppose, a person can walk 100 metres, but then could not even walk 50 metres within 5 minutes, it might reasonably be said that he cannot repeatedly mobilise 50 metres within a reasonable timescale, even though you are only looking at him trying to walk that distance once more. I think

In case I had recently, which sounds like yours, client has intermittent claudication, and has to walk slowly and stop at decreasing intervals. The HCP said, quite correctly, that by walking slowly and sart/stopping he could walk reasonable distances (although it was notable that the same HCP had seen the same client twice, remembered him, but estimated the distance from the station to the medical examination centre as 300 metres the first time, and 500 the second). The tribunal accepted that because his walking rapidly decreased to stages of less than 50 metres, he could not actually either walk 50 metres without stopping, or repeatedly walk 50 metres…

I think the current guidance to HCPs is -

“When estimating the distances over which a claimant can mobilise you should not take account of brief pauses made out of choice rather than necessity. The end point is when the claimant can reasonably proceed no further because of substantial pain, discomfort, fatigue or distress.”                      (WCA Handbook 3.2.2)

As I have pointed out in submissions, the inaccurate language used (proceed no further BECAUSE OF SUBSTANTIAL PAIN) is at odds with the law itself, which simply refers to stopping TO AVOID SIGNIFICANT DISCOMFORT. Carry that to LRCC criteria - assistance required for a “substantial portion of the day” is likely to be different to “significant portion of the day”

Very interesting all round, and look forward to seeing what comes out

I regularly remind Tribunals that the word repeatedly is different to the word repeated (as used in the night time care conditions for DLA - repeated means more than once)

In my view repeatedly means again and again and again, over and over etc.

The full Oxford English Dictionary gives the definition of repeatedly as:

‘More than once, again and again; frequently’

There is some room for interpretation even within this definition!  However, given that there is supposed to already be a consideration of the capacity to perform activities in the descriptors with ‘some degree of repetition’ (from old Incapacity Benefit wisdom, via CE/1992/2010) I think that there is a strong case to suggest that any interpretation is leaning much more towards ‘again and again’ or ‘frequently’. 

This interpretation should give some protection to the those who can argue what one writer above calls the ‘diminishing rule’ where someone could manage more than, say, 50 metres, but could only manage, with breaks, such a distance a couple or a few times before they have to take a more substantial rest or such activity is perhaps just all that they can manage for the rest of the day.

Resurrecting this thread as I am working on an application for leave to appeal to the UT on this point.

Lawtcrav, is there any update on your case or does anyone else know of any recent UT cases in relation to the definition of ‘repeatedly’?

I don’t know which case Lawtcrav was dealing with, but see 2013 UKUT 587 AAC (CE/1470/2013), which is on tribunal’s website -  http://www.osscsc.gov.uk/Aspx/view.aspx?id=4037

Thank you most kindly Sovietleader- much appreciated.

Not quite the same context but might prove useful , if not already known , look at CSE/22/2013 in which Comm. Parker decision involved consideration of words such as ‘Always , Repeatedly , Persistently , Often , At all times , Majority’ .

here’s a link to CSE/22/2013 -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3752

however, see also CE/4125/2012 which disagrees with Judge Parker in CSE/22/2013 -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4021

Thanks again

As it turns out, on reading the SOR properly (!), I’ve changed my mind and advised the client to let it go. However, the issue is bound to arise again and your help is much appreciated.