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Definition of the word ‘either’ in ESA descriptors
It looks as if the meaning of this descriptor has indeed changed. As in my previous message in this thread, this has been discussed by the Social Security Committee and is probably now law (although I am no lawyer). The only way to challenge it appears to be if you can prove that your client could not repeat a combination of sitting and standing over a reasonable period in a way that could complete an effective amount of work. For instance, if they found they could not sit repeatedly for over 20 minutes duration effectively, maybe due to pain or through danger to health (the judge would conclude they could “rest” for the remaining 10 mins standing to relieve discomfort sitting), then they could score 9 points. Note this is still not the 15 points specified by the previous criterion.
Even if they could repeat the standing and sitting cycle, you could still try and argue that they could not work effectively in their condition. In this respect it does appear open to challenge, as it depends very much on whether the judge personally thinks the client is capable of productive work, a very subjective measure and one which perhaps the judge has no experience. Perhaps you could ask someone in a work-related capacity, such as a manager of a supermarket, or even your client’s doctor, to provide written confirmation that in their belief the client could not work effectively given their health condition, even with a combination of standing and sitting. They could for instance spend so much time yo-yoing up and down that work would be completely disrupted.
..... 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”....
....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.
The Tribunal of Commissioners in R(IB)2/04 affirmed the established principle of statutory interpretation as follows:
“The meaning of a statutory provision which is so clear that it admits only one possible construction cannot be altered or departed from by reference to the consequences, however inconvenient or anomalous, which would result from the application of that meaning…(para50).”
In the present case, descriptors 2(b) and (c) use the construction “either..or”, which is, grammatically, a conjunction. As noted in a post above, “either” was previously used in pre 28/3/11 descriptors 5 and 6. However, it acted there, grammatically, as a determiner. As such it was capable of meaning “one or the other” or “both one and the other” as Pete pointed out above. And it was interpreted as meaning the latter, ie both hands had to be impaired in order to score.
However, the dictionaries are less helpful on the meaning of “either..or” when used as a conjunction. Eg, Bloomsbury suggests that statements separated by “either..or” are to be treated as alternatives indicating a choice between the two statements. Fowler, on the other hand, in the 2nd edition of Modern English Usage, cautions that “Either..or is sometimes not disjunctive, but equivalent to ‘both..and’”. About.com http://grammar.about.com/od/d/g/disjunctionterm.htm clarified things for me. It would appear from the final sentence of About’s quote from Newstead and Griggs that “either..or” is indeed ambiguous.
Consequently, in accordance with R(IB)2/04 above, I think it’s probably open to judges to interpret descriptors 2(b) and (c) as if “or” was an “and”, thereby effecting Parliament’s will. Jen’s tribunal judge would, therefore, be correct in not awarding 9 points to someone who could stand for 10mins but sit for more than 30mins.
However, I think ATOS’s interpretation, as highlighted by Scarcab above, is wrong. Not content with the “or” being an “and”, they go further by treating the “or” as, potentially, a series of “ands”, ie sitting and standing and sitting and standing, not stopping the clock until the end of that particular series, albeit purporting to have some regard to reasonable regularity along the way.
As we know, limited capability for work (LCW) is a test of the EXTENT to which a person is capable or incapable of performing the ACTIVITIES (my emphasis) – see section 8(2) Welfare Reform Act and Reg 19(2) ESA Regs.
The descriptors are the means by which the “extent” referred to above is measured. Descriptors 2(b) and (c) introduce the concept of “remaining at a workstation” as a means of measuring the extent of a person’s sitting and standing difficulties. However, it is very important to note that the wording of Activity 2 itself remains unchanged from its pre 28/3/11 version, ie “Standing and Sitting”.
It is settled that general principles of construction that applied to IB are carried over to ESA. In CIB/5654/97 Commissioner Lloyd-Davies held that the use of a special cushion had to be disregarded when assessing the extent of a person’s ability to sit. Otherwise it would “essentially [alter] the nature of the activity which is under assessment”.
Sit is defined by Bloomsbury as “Rest with weight on buttocks” and stand as “to be in an upright position”. It must follow then that as a matter of ordinary language sitting ends when you stand up and vice versa. To hold, as ATOS does, that a person can “remain at a workstation” by a serious of stands and sits would appear to fall foul of CIB/5654/97 in that it would essentially alter the meaning of standing and sitting and, therefore, alter the nature of Activity 2 itself. “Remain at a workstation” must, therefore, be interpreted in a way that is not inconsistent with the Activity. ATOS’ interpretation would be right if the Activity itself was worded “Remaining at a work station through a process of standing and sitting” but it isn’t.
Note also that the “and” in “Standing and Sitting” was, pre 28/3/11, used disjunctively, ie it treated standing and sitting separately. It is submitted that the inclusion of standing and sitting in the same descriptor does not change that. They are, in my view, still separate activities though points can now only be awarded if the descriptor concerned applies to both activities.
In the example in the ATOS handbook quoted by Scarcab above, a person only able to sit for 30 mins (note: the descriptor requires “more than” 30mins), then stand for 10-15 mins, then sit for a further 30mins should score 9 points not, as ATOS believe, nil points.
[ Edited: 25 Jan 2012 at 03:28 am by Tom H ]This highlights why it’s simply unsafe to allow a private medical company to pick descriptors at all. The WCA is a legal test and I don’t think there is a legal basis for allowing ATOS the right to pick descriptors in their report. They should be restricted to making observations and clinical findings. Yes, C1/07-08(IB) holds that the nature and extent of a medical examination is “fundamentally a medical matter and for the judgment of the clinician in each individual case”, however, that is not inconsistent with what I’m saying. Hedgehog’s point about workability goes to the issue of the medical report itself. Of course, you could be waterboarded and hung upside down at a medical and it still would only go to “weight” at triubnal not admissability. I despair.
On the same subject have a look at this posting from another thread http://www.rightsnet.org.uk/?ACT=39&fid=3&aid=324_xxP79JdpqYtDB2d6rlds&board_id=1
Looking at Commissioner Howell in R(IB)3/02 in relation to descriptors 6(b) and (c) of the PCA, it would appear that “either” in this context would really mean “neither”, although with respect to that, the amended wording put this pretty much beyond doubt in relation to bending and kneeling. If push came to shove, I’d be prepared to argue that his comments were strictly obiter, and the statutory wording clouded the view in that particular case.
On the same subject have a look at this posting from another thread http://www.rightsnet.org.uk/?ACT=39&fid=3&aid=324_xxP79JdpqYtDB2d6rlds&board_id=1
I can’t get this link to work. Could you double-check it? Thanks
Have a look at the news story from earlier this week about revised guidance to healthcare professionals in relation to descriptor 7. I’m afraid I cant get the link to copy into this post and still work but I expect Ros can add it.
here’s a link to the news story on DMG Memo 03/12 which sets out revised medical services guidance to HCPs on descriptor 7 -
cheers ros
‘noon all,
i’ve just had a f-tT decsion back with cl being awarded 9pts from 2(b)(ii) - remaining seated, the TJ has clearly taken the line that either/or is separate, with the points available as per the old standing or sitting descriptors.
have warned cl we may be facing further appeal by the JCP, so far so good :)
Going back to using a wheelchair, the S of S has given the following response to the argument that my client could not repeatedly propel himself 50 metres in a wheelchair (has severe lower back problmes, asthma and hypertension and is very overweight):
“I submit that the activities of mobilising and standing and sitting focus on capability in relation to lower limb and back functions. These seek to identify an individual’s level of mobility within and around a level indoor environment and the ability to remain in one place. His ability to mobilise within a workplace is the critical issue and the modern working environment should allow for the use of a wheelchair and any other widely available aid; it is not intended to take into account transport to or from that environment.”
I have replied that it is incorrect to say that only indooor mobilising is at issue; how many workplaces have areas where one could mobilise even 50m without stopping, never mind 200m?
Any thoughts welcome.
It is not correct to say that only mobilizing indoors is at issue. This puts an unnecessary gloss on the statute. If it were indoors only the regs could easily have said so.
On descriptor 2, I had a tribunal yesterday. The Judge completely agreed with my argument that sitting or standing were disjunctive not conjunctive and the tribunal warded 6 points for not being able to stand for more than 1 hour. However, the case fell down on the use of a wheelchair (only 2 descriptors were in issue). The Judge and I concurred that, in the absence of any upper body impairment, the use of a wheelchair probably sets a very high hurdle, all other things being equal.
I’m really struggling with the wheelchair issue. I’ve argued several times now at tribunal that the ‘reasonableness’ test should be used in its widest sense, and incorporate issues including the likelyhood of meeting the criteria for an NHS wheelchair assessment, the cost of purchasing a wheelchair ‘off the shelf’ if client doesn’t meet the ctieria for an assessment, and the potential risks to the client’s health (loss of bone density, muscle wastage, increased risk of blood pressure disorders, etc) if the client took to a wheelchair rather than remaining mobile. However, to date, tribunals have only awarded points on the mobilizing descriptor where there is an upper body impairment of some sort as well as an issue with walking. I’ve not yet had to seek leave to appeal to UT on the issue as all the appeals where I have used the argument have succeeded on other grounds but I’d be interested to know if anyone else has.
surely the inclusion of wheelchair use is an attempt to remove existing wheelchair users from an automatic 15pt award - walking - and was not intended to create this “theoretical wheelchair user” conundrum?
Searched for definition of workstation and found these:
“Assigned location for an employee to perform his or her job, and which is equipped with all the required tools and facilities” (businessdictionary.com)
“An area where work of a particular nature is carried out, such as a specific location on a manufacturing assembly line.” (Oxford Pocket English)
“ A desk with a computer or a computer terminal and keyboard” (Oxford Pocket English)
I agree with David Holcombe above to the extent that he’s saying, which I think he is, that the meaning of “either..or” is dependent on the wording of the particular descriptor in which it appears. People may have overlooked the fact, for example, that the Mobilising descriptors found in Activity 1 also rely on the same “either..or” construction that applies to Sitting and Standing.
“1 (a) Cannot either:
(i) Mobilise more than 50 metres on level ground
without stopping in order to avoid significant
discomfort or exhaustion;
or
(ii) repeatedly mobilise 50
metres within a reasonable timescale because of
significant discomfort or
exhaustion.”
The context makes it clear that the two choices above are alternatives. Eg, you’d probably only go on to consider 1(a)(ii) if you did not satisfy (i). So it would be absurd here if “either..or” meant that both (i) and (ii) had to be satisfied in order to score the points.
I don’t think the same can be said for Sitting and Standing whose context appears to have more in common with the bending and kneeling descriptor in R(IB) 3/02, to which David referred above. Unlike David, I find it difficult to distinguish that judgment on its facts in order to prevent it being a precedent for sitting and standing.
As Commissioner Howell held at para 23 of R(IB) 3/02:
“To say that a person cannot do A or B means, if I may be forgiven a statement of the obvious, that he cannot do either of those things: in other words he can do neither. To convey in normal English the meaning that either he cannot do A or he cannot do B, a different sentence construction is needed, or the use of a word such as “each” or “ both” after the negative.”
I think “or where the context otherwise permits” could be added to the end of that quote, so as to accommodate the disjunctive use of “either..or” in the Mobilising descriptors above.
Commissioner Howell was at pains to prevent any points being awarded to someone who could not bend but could happily kneel, or happily bend and kneel in order to pick up a piece of paper from the floor. By extension, a person able to remain standing at a workstation for only 5 minutes but quite happily able to sit there for a couple of hours, would not score. And that would appear right to me.
That shouldn’t mean you’d necessarily score nil points if you could stand and sit like a yo-yo. I remain of the view in my first post that standing ends when you sit down for the first time and vice versa. But to score 9pts you’d have to show that you could, separately, neither stand for 30 mins, nor sit for 30mins. That’s my view. Good luck to those who are persuading tribunals otherwise.
Chris, following the above logic, I think you’d need to satisfy 5(a)(i) AND (ii) in order to score 15 points. 5(a)(ii) evens sneaks a second “either” in just for good measure. There’s another draftsman in need of Commissioner Howell’s logic gates.
surely the inclusion of wheelchair use is an attempt to remove existing wheelchair users from an automatic 15pt award - walking - and was not intended to create this “theoretical wheelchair user” conundrum?
I have a case next week, which is actualy a domiciliary hearing (following a domiciliary WCA that scored “0” points) at which “mobilising” is an issue. Client gets around her house on a computer chair, pushing off furniture, has laminate flooring, etc. As to reasonableness, I have included the following in the submission -
The Secretary of State, Chris Grayling, on 14th June 2011 said in the First Delegated Committee Debate on the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011-
“The other element was what we do about people who have a disability but have adapted to that disability. The internal review commissioned by the previous Administration made a proposal on that. The previous Secretary of State said:
“The revised assessment will for example take better account of an individual’s ability to adapt to their condition and introduce improved assessment of fluctuating conditions.”—[Official Report, 29 March 2010; Vol. 508, c. 88WS.]
The adaptation point is crucial. Let me deal with that straight away to respond to a couple of the questions raised by the right hon. Member for East Ham. Essentially, under the work capability assessment before these changes, a Paralympic athlete with a university degree and previous work experience would, if they had lost their job and were on benefits and applied to go on to ESA, have no obligation to look for work, because they would automatically be put into the work-related activity group.”
What I am arguing (in addition to other issues about reasonableness) is that the central issue is whether a disabled person HAS ADAPTED to the disability and therefore uses a wheelchair. If not, it is not “reasonable” for a wheelchair to be used.
I did ask for a direction that the DWP actually address this and other points in a further submission, but this request was refused (including the point that the HCP said no mental health problem, but we have evidence after the HCP report but before the decision that GP diagnosed mental health problems of months standing, client scored 26/27 on PHQ9, treatment started and referral to domiciliary counselling service to be made).
The DWP has not responded to the submission itself.
[ Edited: 24 Apr 2012 at 01:36 pm by Brian JB ]