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Cannot and Cannot at all
PIP shares a similar structure to ESA. PIP has majority regulation 7; ESA has regulation 34(2). In the case of ESA, we are seeing more case law deciding that the wording of certain descriptors disengages regulation 34(2) - for example CE/3038/2012 in relation to Activity 17, and more recently CE/3939/2013 in relation to Activity 16. It is likely that the wording of other ESA Activities also overrides regulation 34(2) – for example Activities 9 and 10 etc.
In relation to PIP, we have regulation 7, whose wording appears to apply to all activities and descriptors. The highest scoring descriptors in relation to 5 PIP Activities has the word “cannot” accompanied by “at all”. Should these descriptors also be interpreted through the prism of regulation 7, or is the ESA writing on the wall?
What is the difference between “cannot” and “cannot… at all” if we are to hold the pure arithmetical approach confirmed by CSPIP/754/2015?
Apologies if this has already been discussed/exhausted before!
Steve
I omitted to refer to the proposition that the ‘at all’ references exclusively refer to the ability to do the RANGE of actions within the specified Activity, rather than refer to the FREQUENCY of the need (as someone pointed out the other day). I am probably therefore answering my own question, and accordingly CSPIP/754/2015 would have no impact in that sense. For some reason I have never felt entirely happy with the range/frequency explanation, especially since the health professional is quite likely to see ‘at all’ as being a frequency indicator - anyone come across that in a decision or a PA4 yet?
i keep looking at this…
to my mind, “at all” doesn’t add anything to “cannot” that is not already implicit in the word “cannot”
one either CAN do something (whether consistently/regularly/etc) or one cannot.
If the phrase in question was “cannot regularly” or “cannot frequently” or whatever, there is room for debate about what is meant by “frequently” “regularly” or whatever.
plain “cannot” with no qualifier means “cannot” and there is no room for debate about it.
but then i am a lawyer…. and will give you a lawyer’s answer…
Points noted Claire, but what do you think about the possible explanation in terms of range, rather than frequency?
My interpretation is that in the context of the surrounding descriptors, ‘cannot’ and ‘cannot at all’ both mean ‘cannot, even with assistance’. Regulation 7 requires that every descriptor applies in respect of a day or number of days, so ‘cannot at all’ does not mean ‘cannot ever’.
so ‘cannot at all’ does not mean ‘cannot ever’.
I don’t think I agree with that. cannot is cannot. surely….
But as Mr Finch says - reg 7 provides that a descriptor applies if it does so on 50% of the days in the required period - so if you cannot do it on 183 days then you cannot do it - even if you can do it on the other 182
that’s about the qualification on the word, then, surely.
Cannot, means Cannot.
“generally” “frequently”, etc, qualify the “cannot”.
So one would then have to look at the qualifying word.
no doubt there is some description somewhere that just leaves it at “cannot” .... plain and unqualified…
I think possibly we’re reading too much in to it.
“At all” means “in any way” and we use it with questions and negatives to add emphasis, but not with affirmative statements.
I think DWP are trying to draw a line between being unable to wash the differing sections of the body in earlier descriptors and the need for help to wash the entire body in the final descriptor.
A bit of overkill maybe but it does fit with general use of words in everyday English.
Phil Soden
Hi Phil,
This was precisely my earlier point when suggesting that ‘at all’ refers to range of ability rather than frequency.
Steve