Schedule 3 Descriptor 13

Apparently, CSE/22/2013 is under appeal.  Since then this has been handed down (see below).  In it judge Ward disagrees with Judge Parker where, amongst other things, at paragraph 26 is stated the following:

“The claimant’s representative’s original submission drew attention to the range of definitions in the Concise Oxford Dictionary, one of which, on which he sought to rely, was “relating to or designed for activities in which people meet each other for pleasure.”  Given the nature of human interaction in the social sphere (when a distinction is drawn between that and the professional or business transaction) and the legislative context of the amendment, that in my view was much nearer the legislator’s intention”.

http://www.rightsnet.org.uk/briefcase/summary/meaning-of-social-engagement-in-activity-16-of-the-work-capability-assessme

See CE/4125/12 which has just gone onto the Ossc site today for more discussion of activity 16.  Incidentally, I think Judge Mark’s reason for not putting the appellant in that case into the support group (see para 24) is arguably indirectly discriminatory given that most lone parents are likely to be female.

... here’s a link to CE/4125/12
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4021

The Court of Session has now upheld the Upper Tribunal decision. Details are in the “News”.

Great work on that case johnwilson. Well done.

Here’s a link to the rightsnet news story on the Court of Session decision -

http://www.rightsnet.org.uk/news/story/ESA-descriptor-13-and-whether-engagement-in-social-contact

and the decision itself -

http://www.scotcourts.gov.uk/opinions/2014CSIH39.html

ps - i like the first para of the decision -

‘The capturing of a butterfly in a net may prove to be an easier task than that of capturing Parliamentary intention in the language of legislation, particularly when the latter involves the need to place human beings - in their myriad of forms - into limited categories. It is the difficulty inherent in that unenviable task that has given rise to this appeal.’

neilcoll - 07 May 2014 10:50 AM

Great work on that case johnwilson. Well done.

Thank you Neil. A lot of work went into this case.
We had the help of an excellent firm of solicitors from up your way, Thompson & Brown, Glasgow, who employed a first class Barrister for the case.

ros - 07 May 2014 11:25 AM

ps - i like the first para of the decision -

‘The capturing of a butterfly in a net may prove to be an easier task than that of capturing Parliamentary intention in the language of legislation, particularly when the latter involves the need to place human beings - in their myriad of forms - into limited categories. It is the difficulty inherent in that unenviable task that has given rise to this appeal.’

Gosh that’s remarkably poetic isn’t it?

Well done to all concerned.

A good result, but where does this leave the second part of CSE/22/2013 about what constitutes social engagement? Are we back to handing over money in a shop and so on counting as ‘engagement’, or is this part not covered by the Court of Session’s judgment?

I think the following passage suggests that social contact involves all forms of human interaction but doesn’t qualify “engagement”.  But, in my view, engagement has to be more than de minimis.

“Such a person is not likely to have labour market potential and, moreover, if, for the majority of the time, that person cannot engage in social contact, requiring participation in a work focused interview would be not only unreasonable but pointless. Further, that construction avoids the fact finder being necessarily driven to the absurd conclusion that descriptor 13 is not satisfied if, for instance, on a single occasion, a claimant has given instructions to a representative for the purposes of a tribunal hearing”.

And if you like your judgements to be somewhat prosaic then how about the following in Euratemps v Collins, per Lord Millet and Lord Steyn.

The words dwell and dwelling “suggest a greater degree of settled occupation than “reside” and “residence”, connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports. It finds no support in English literature. According to the Book of Common Prayer, “the fir trees are a dwelling for the storks” (Psalm 104); while W. S. Gilbert condemned the billiard sharp “to dwell in a dungeon cell” (where it will be remembered he plays with a twisted cue on a cloth untrue with elliptical billiard balls): The Mikado Act II”.

And “The social phenomenon of the person “Who friendless in a London lodging lives, Dines in a dingy chop-house” (O.E.D., s.v. “chop-house” (1861)) goes back a very long time indeed. Dickens has described this world for us in unforgettable scenes. It is to be contrasted with the world of ostentatious dinner parties in smart houses mocked again and again by Trollope in many of his novels”.