Definition of the word ‘either’ in ESA descriptors

A bit of an obscure point but has anone ever seen any reference to what the word ‘either’ means in ESA descriptors. According to my pocket dictionary the word ‘either’ means ‘one or the other of two’  or ‘each of two’.

If the first meaning is the one used for ESA (and that is how I have usually taken it) then it means that if the person can do something with one hand even if they cannot do it with the other they don’t get any points.

but

If the second meaning is used then the fact that the person cannot do the activity with each of their two hands (as in ‘I can lift a pint of beer with either hand’) then they would get the points.

It was so much easier when we had IB and it just said ‘can do such and such with one hand but not the other’ - the ESA descriptors just say ‘either hand , not ‘either one hand or the other’

anyone have any thoughts?

Pete (the pedant?)

hi pete -

i think you are right in what you’ve always taken it to mean i.e - ‘cannot pick up £1 coin with either hand’ means that if you can pick it up with one hand but not the other you won’t get points.  i don’t have any particular source for that view but that’s how it reads to me.

could be wrong though - anyone else think differently?

Not me.

What about opinions regarding descriptor 2(a) & 2(b) in the new schedule 2 then?

(c) Cannot, for the majority of the time, remain at a work station, either:

(i) standing unassisted by another person (even if free to move around); or

(ii) sitting (even in an adjustable chair)

for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.

This is either/or versus neither/nor isn’t it?

Cannot either stand or sit as opposed to cannot neither stand nor sit… or am i confusing myself?

So does this mean that a claimant can get the points if they can only stand or only sit but not do both?

we’re struggling with this issue as well, particuarly standing and sitting. What has shocked us is the revised WCA handbook states:
“In Sb and Sc, the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes”.

Link to handbook: http://www.dwp.gov.uk/docs/wca-handbook.pdf

This doesn’t seem to reflect the wording of the descriptor? The logic of the handbooks explanation is that someone would only pass this descriptor if after sitting or standing they either crawled or lied flat in a hammock or something…....at a workstation of course!  Can we just ignore the handbook??

Scarcab - 05 August 2011 11:05 AM

we’re struggling with this issue as well, particuarly standing and sitting. What has shocked us is the revised WCA handbook states:
“In Sb and Sc, the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes”.

Link to handbook: http://www.dwp.gov.uk/docs/wca-handbook.pdf

This doesn’t seem to reflect the wording of the descriptor? The logic of the handbooks explanation is that someone would only pass this descriptor if after sitting or standing they either crawled or lied flat in a hammock or something…....at a workstation of course!  Can we just ignore the handbook??

I must admit that having read through the WCA handbook, I’m quite astounded to read their interpretation.

At p.10, it notes that:

In this area, it was felt that the 2008 activities did not accurately reflect the level of function required for the modern workplace….. It was also felt that considering standing and sitting abilities as separate entities was not relevant in the modern workplace and the new activity relates to the ability to remain at a workstation.

However, by p.67, as you note, the guidance states that:

In Sb and Sc, the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes.

Now, working at a workstation, which is referred to in the first quote, is clearly a very different issue to remaining at the workplace, as in the second quote. How many employers are there who would be happy to take on someone who is effectively working at 75% efficiency at maximum? Further, the risk of incurring further harm to one’s health would clearly be heightened greatly.

Indeed, the relevant guidance from the Health and Safety Executive VDU workstation checklist contains much detail about how to work safely whilst seated, but certainly (and obviously) does not address the issue of how someone could work at a workstation whilst standing - simply because you shouldn’t do so, because of the attendant risk to your health and wellbeing.

I’ll pass this particular issue onto DBC policy group, as they’re doing a lot of work on WCA and Harrington at the moment.

At the risk of extending the discauuion beyond its useful life I have just come across (thanks to sovietleader) a document from the internal review of the WCA in 2009 which says, in relation to the ‘reaching’ descriptors that;

‘the action described in putting either arm behind your backto put on a coat does not require both hands to go behind the back and therefore fails to identify this limitation’

Might this support the notion that ‘either’ means ‘both hands’  rather than ‘one hand or the other’. Surely if they had meanyt it to be one hand or the other they could have just said so, it was part of the IB descriptors for years!

many moons ago - back in the day when there was an independent medical advisor in the tribunal room to advise the tribunal on medical matters, ... i had a client who, whilst having two hands/arms, in practice only had one he could use (the other merely being attached to his body). had to go to tribunal to get him incapacity, he’d failed to get it ni relation to this area…. we won on teh basis that he could only do the task with one hand, not both (same chap had been ill health retired from Remploy. also soon to be history i see)

In the review of the WCA, which I have posted elsewhere on Rightsnet, the justification for the change in standing/sitting certainly shows that he intention was to look at the ability to remain at the work station either by standing, or sitting, or a combination of both -

“Standing and Sitting
The modern work place requires an individual to remain at their work station long enough to do their job. Whether this requirement be to stand or to sit depends upon the job itself, therefore assessing the ability to do one or other within the same activity is inappropriate. Amalgamating the descriptors facilitates assessment of an individual’s ability to remain at their work station either standing, sitting or a combination of both. In removing the requirement that an individual be able to both stand and sit, the need for a descriptor relating to movement between the two is also negated.”

It is odd, however, that this recognises that the requirements of a job (as to whether you need to stand or sit) depend on the job, but then they go on to say that a combination of both will do. There are jobs where you can either sit or stand (such as when my daughter is on the checkouts at Tesco) but many jobs require you to do one or the other. As an example, those who assess benefit claims at Jobcentre Plus are unlikely to be able to do their work standing at the work station.

Presumably, if a person needs to stand to relieve pain/discomfort/stiffness, it may well be that they need to walk about to relieve that pain/discomfort/stiffness. I don’t have any significant problems myself but the usual wear and tear means that I may need to get up to walk around a bit to ease things before I sit down again. As I am not immediately standing at the work station as such, does the break involved by walking about for a minute or so break the sitting/standing cycle? Does this make things easier to score for the person who cannot sit for periods of time without getting up and walking about as opposed to the person who stands to work, but needs to relieve the discomfort by sitting down -under the PCA, the person who had to sit down from standing scored a higher descriptor than the person who needed to move around. Now, the test seems to operate the other way, if the DWP interpretation is correct.

I’m rather late coming to this thread now but hope you all get to read it. They definitely have changed the legislation so that a combination of both standing and sitting would count as achieving this activity, provided you can remain at the “workstation” for the appointed time, without needing a rest. This quote is from an Explanatory Memorandum, dated 13th Aug 2010, addressed to the Social Security Advisory Committee:

“2.8 Sitting or Standing:
The changes to Schedules 2 and 3 – Lower Limb – remove the descriptors ‘to remain seated’ and ‘to remain standing’ for 10 minutes, replacing them with a requirement to ‘remain at a workstation’, either seated or standing, for 30 minutes and more than an hour. This more accurately reflects the varying requirements of the modern work place. The changes also account for the range of adaptable chairs available.”

However, when considering these activities, ATOS should also consider (under 2.3.1 on p20 og the ESA Training and Development Handbook):

“In considering each of these activities the concept of repeatedly, reliably and safely must be taken into account.
If a person can perform a task but is unable to repeat it within a reasonable timescale the person should be considered unable to perform the task.”

A person must be considered as being able to perform the activity successfully while standing and sitting, maybe like a yoyo. Also this begs the question, what is a reasonable rest period before the activity must be restarted? And also, for those individuals who cannot sit at all, how are they expected to rest, if their only real means of resting is to lie down? Or would they suggest that the ability to walk about in the “rest period” should be sufficient? And on how many occasions would they be expected to repeat the activity in one day of work?

Then again, people can no longer gain 15 points if they can either only stand or sit. The first point, about moving from one chair to another, is supposed to be for the consideration of wheelchair patients (ie in consideration of whether they need assistance to get on and off a toilet)
(p 67 of the ESA Training Handbook):

“S(a) “Moving between adjacent seated positions” is intended to reflect a wheelchair user who is unable to transfer, without help, from the wheelchair.”

However, this has not been specified in the ESA50 questionaire. Furthermore, the regulations specify on several occasions that a person is considered unable to complete ANY activity if they experience serious discomfort while doing so. So, on this basis, for those individuals unable to sit down for any real time because of pain, say 10 mins or less, who would have qualified under the older rules for the Support Group, could you use this argument and say, well actually, this activity of transferring between chairs could not be performed without significant pain and therefore they qualify, even if they are not in wheelchairs?

Of course you couldn’t make this argument for those who cannot stand at all. Even so, there are quite a few factors here which are cloudy at least. Any ideas anyone?

I suppose we’re just going to have to suck it and see, run all the potential arguments and wait for some caselaw to clarify some of these issues. I’m still struggling with the ’ manual wheelchair if such aid can reasonably be used’ issue with mobilising (does ‘reasonable’ encompass it being financially reasonable/practical? Got to be worth including in a sub at some point. The cheapest ‘budget’ manual wheelchair I’ve found is £110.00).

One of these would be the experts.

http://www.wheelchairmanagers.nhs.uk/services.html

I have referred a few customers to their GPs for referrals for wheelchair assessments.

None have yet been referred as the GP in each case says ‘non.’

I suspect the “manual wheelchair” idea was to cover something that might be supplied free or at relatively low cost, as opposed to an expensive mobility scooter or electric wheelchair which it would be completely unreasonable to expect people to have.

If you simply can’t get one, for whatever reason, then it isn’t reasonable to use one (the same would apply to guide dogs for navigation - if you don’t like dogs, are waiting for one, are not allowed by your landlord to have pets, etc).

There was an entry on one thread a few months ago that pointed out that new users of wheelchairs are unlikely to have the strength in their upper bodies to be able to propel themselves 50 m reliably and repeatedly, or even at all; and lots of wheelchair users will have problems with arms/shoulders/upper back which makes it impossible anyway.

There was supposed to be this idea about adapting to impairment. Most people with new impairments find it very hard to manage anything, but with time they may learn to overcome some of the effects and become less disabled. Increasing the strength in another aprt of the body could be one way. I’m not saying it happens invariably - of course it doesn’t, but the idea behind the review as I see it was to allow for the possibility that poeple may learn to work round their impairment.

As regards the manual wheelchair business, you might have already read this on p 22 of the ATOS Training Manual:

“This Support Group could, for example, apply to a claimant with quadriplegia, who has upper and lower limb weakness, and therefore cannot walk or manually propel a wheelchair. A claimant who was paraplegic, and had normal upper limb function should be able to propel a manual wheelchair and therefore would not fall into this Support Group category. A manual wheelchair may be considered any form of wheelchair that is not electrically driven.

In this activity, the HCP should consider whether a person could potentially use a wheelchair regardless of whether or not they have ever used a wheelchair. In considering this issue, as above, upper limb function and cardiorespiratory status must be taken into account.”

This all sounds pretty subjective. But also it does imply that cost, from their point of view, is not an issue and the claimant need not even own one (so how can they test someone’s capability to use one?). The way to go would probably to get clinical confirmation that the claimant could not be strong enough to propel one, through upper limb muscle wastage and so forth (or get some numbskull doc to witness their attempts at using one (eg try and demonstrate with a spare one at the local hospital)).

Bear in mind also however p 67 of this handbook:

“In considering their ability to transfer the use of reasonable aids such as a transfer board should be taken into account. Use of
situation specific aids such as a hoist should not be considered.”

How about the other points raised in my earlier post, such as how long a rest period should be? I’ve come across this on p 20:

“... the HCP should consider what would be expected of an individual who did not have an impairment of their ability to mobilise. That is, a ‘normal’ individual would be able to perform this activity within a given time period and repeat that activity again after a reasonable rest period. The duration of the reasonable rest period can then serve as a basis for comparison to gauge the range of what is ‘reasonable’.”

From this it sounds like the rest period is entirely subjective and depends on a figure the HCP comes up with, ie just a guess when they probably have no experience of the work environment advocated to the claimant. For instance, how many retired docs, physiotherapists, etc, know how long a rest period would be in a supermarket, and whether this would change for different types of work?

Anyone have any ideas about this and any of the other points raised? It all sounds full of holes to me and open to all sorts of misinterpretation. Could it’s entire “workability” be questioned?

hedgehog - 02 December 2011 01:58 PM

I’m rather late coming to this thread now but hope you all get to read it. They definitely have changed the legislation so that a combination of both standing and sitting would count as achieving this activity, provided you can remain at the “workstation” for the appointed time, without needing a rest. This quote is from an Explanatory Memorandum, dated 13th Aug 2010, addressed to the Social Security Advisory Committee:

“2.8 Sitting or Standing:
The changes to Schedules 2 and 3 – Lower Limb – remove the descriptors ‘to remain seated’ and ‘to remain standing’ for 10 minutes, replacing them with a requirement to ‘remain at a workstation’, either seated or standing, for 30 minutes and more than an hour. This more accurately reflects the varying requirements of the modern work place. The changes also account for the range of adaptable chairs available.”

However, when considering these activities, ATOS should also consider (under 2.3.1 on p20 og the ESA Training and Development Handbook):

“In considering each of these activities the concept of repeatedly, reliably and safely must be taken into account.
If a person can perform a task but is unable to repeat it within a reasonable timescale the person should be considered unable to perform the task.”

A person must be considered as being able to perform the activity successfully while standing and sitting, maybe like a yoyo.

Sorry, again coming a little late to the thread - but interested as had this very point raised at a tribunal this morning. In submission we had stated client unable to stand for 30mins (indeed 10 mins max) but judge pointed out that to meet the desciptor a combination of sitting AND standing would be considered rather than one or the other. Prior to this I thought the descriptor should be interpreted as either/OR…and so if the client could not stand for this time limit then they would score points.

Could you clarify if this definately not the case now under new descriptors? Is the DWP interpretation correct or open to challenge?Thanks.