Reliably, repeatedly etc.
Hi all, had a recent refusal for permission to appeal to upper tribunal.
One of my arguments for an error of law is that the judge was considering whether the activities were possible at all rather than whether they could be done reliably, repeatedly and within a reasonable timescale.
The reply from the district judge dismisses this point saying that I am referring to a test that applies to PIP descriptors rather than ESA.
I am confused by this as I am sure I have come across this terminology (or something extremely similar) in relation to WCA activities.
Can anyone please advise on whether I have missed something or whether the district judge has this wrong.
At the very least the requirement for ESA is the ability to perform activities with ‘reasonable regularity’ which is similar if not exactly the same (if you’ve got the legislation volumes, there’s a good deal of commentary on the subject). That said, I’m pretty sure I’ve seen WCA reports which use exactly the terminology you describe.
I would have thought broadly speaking that there’s not a huge difference between reasonable regularity and reliably and repeatedly, so well worth applying direct to the UT if the decision seems deficient in its reasoning on the point.
Both benefits require consideration of these sorts of issues, but the considerations for ESA are not quite as “structured” as they are for PIP. Still, it is probably best to make sure that you are referring to the right set of legislation/case law to avoid looking silly at the UT!
CPAG might be able to help : http://www.cpag.org.uk/content/upper-tribunal-assistance-project
Thanks everyone. It seems I am not going mad after all!
I have taken Elliot;s advice and applied to CPAG for support with this one. Let’s hope they can help.
A couple of quotes below from a recent submission may also help:
It was held in the case of CE/1992/2010 that:
‘…the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition…in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors. In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account…’(paragraph 11)
This view was reiterated more recently in CE/1650/2013: ‘capability of performing an activity is considered in relation to the performance of that activity reasonably reliably and repeatedly’ (paragraph 7).
This is what struck me. With PIP, the safely, to an acceptable standard, repeatedly, and within reasonable timescales criteria are actually requirements imposed by the PIP regulations, as amended http://www.legislation.gov.uk/uksi/2013/455/pdfs/uksi_20130455_en.pdf
With ESA, the regulations don’t specifically deal with these issues but there’s lots of case law that states they must be considered, so the Judge appears to be somewhat confused if we’re being kind here.
The current versions of ESA50 and UC 50 forms all have an outlined box at the top of every page with questions about the assessed activities containing the following text: “Only answer Yes to the following questions, if you can do the activity safely, to an acceptable standard, as often as you need to and in a reasonable length of time.”