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Definition of the word ‘either’ in ESA descriptors
Good point.
I would have said that a person who has failed to adapt to their disability to the extent of being able to mobilise as required in a wheelchair should not therefore be penalised. Adaptation is the key issue here; and that varies between individuals. Thus person A who has been blind from childhood, person B who has lost their vision gradually over a period of many years, and person C who has gone blind in their fifties suddenly as a result of injury, are likely to have different levels of adaptation to a similar level of visual impairment.
That is what I always though this whole adaptation issue was about. Immediately after an incident that causes you major, permanent impairment you will need quite a long time to learn how to manage with it. Some people may adapt quickly, others need much longer, some never manage to learn any kind of coping. There’s been a lot of discussion on various threads about whether you can use a manual wheelchair. Well, Tanni Grey-Thompson can, of course, and all those athletes who did the London Marathon faster than the fastest runners. They aren’t exactly representative. Even if you have a wheelchair a lot of people will not be able to propel themselves 50m the first time they use it - or ever.
So let’s ensure that the issue of adaptation remains a question of fact to be ascertained individually in every case.
Any other opinions on the mobilising descriptor?
I mean opinions of the word ‘either’ in the mobilising descriptor.
The word ‘either’ in the mobilising descriptors is, in each case that it’s used (descriptors A, C and D), clarified by the use of the word ‘or’ between the appropriate statements.
So if the client meets one of them but not the other, they get the points?
this decision could be very useful re; act 1 and the theoretical wheelchair issue -
http://www.osscsc.gov.uk/Aspx/view.aspx?id=3364
para 16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.
edited to fix link.
[ Edited: 4 Jul 2012 at 02:51 pm by Ros ]What do people think about descriptor 5 in the support group
Cannot either:
A Cannot either: press a button, such as a telephone keypad; or
B Turn the pages of a book with either hand
I have a client who can turn the pages of a book with one hand but not the other. Would he meet this descriptor?
z
Yes, I think so. In any case, the first choice of all of them in the mobilising activity is rendered redundant by the second choice.
I can’t agree with Tony, because the second choice makes no reference to “without stopping”, whereas the first choice does. It seems to me, therefore, that one might be able to repeatedly mobilise, within a reasonable timescale, with, for instance, very brief stops (even within the 50 metres) and therefore get no points under the second choice, but still get 15 points under the first. Which, if I m correct, still leaves, unanswered, the question of whether, if one can perform descriptor 1A (i) but not 1A (ii) , or vice versa, one will score points under descriptor 1.
[ Edited: 31 Jul 2012 at 12:41 pm by tom ]
Tony Bowman said “Yes, I think so. In any case, the first choice of all of them in the mobilising activity is rendered redundant by the second choice.”
I can’t agree with Tony, because the second choice makes no reference to “without stopping”, whereas the first choice does. It seems to me, therefore, that one might be able to repeatedly mobilise, within a reasonable timescale, with, for instance, very brief stops (even within the 50 metres) and therefore get no points under the second choice, but still get 15 points under the first. Which, if I m correct, still leaves, unanswered, the question of whether, if one can perform descriptor 1A (i) but not 1A (ii) , or vice versa, one will score points under descriptor 1.
..Which, if I m correct, still leaves, unanswered, the question of whether, if one can perform descriptor 1A (i) but not 1A (ii) , or vice versa, one will score points under descriptor 1.
I stated my view of the Activity 1 descriptors in post 30 above. The meaning of “either/or” would seem to depend on the context in which it appears. That’s why I feel there’s no contradiction saying Activity 2 is a test of standing AND sitting whereas Activity 1 is a test of whether you can mobilise a specified distance once without stopping OR several times over a reasonable timescale (what is a “reasonable timescale” remains to be seen).
Descriptors 1(a)(ii), (c)(ii) and (d)(ii) appear to be aimed at those claimants who can mobilise more than the specified distance once, perhaps even a few times but who would be unable to cover that distance several times within a reasonable period of time. I had a case recently where the client’s journey to the local shop (there and back) involved walking about 1/2 a mile. He had to stop every, say, 150m. However, when he got home he had to take a lie down for about 1/2 an hour to rest, during which time he couldn’t do any meaningful mobilising. His case didn’t turn on that point, but I felt there was certainly a case for saying that he satisfied 1(a)(ii) because the reasonable timescale should be several hours including, in my client’s case, the period when he needed to go to bed to rest. Reasonable timescale to me should reflect a normal shift of say 3-4 hours.
If a person had to satisfy (i) and (ii) of descriptor 1(a) in order to score 15pts then it would make (ii) otiose. Clearly the context treats (i) and (ii) as alternatives.
[ Edited: 31 Jul 2012 at 05:58 pm by Tom H ]What do people think about descriptor 5 in the support group
Cannot either:
A Cannot either: press a button, such as a telephone keypad; or
B Turn the pages of a book with either handI have a client who can turn the pages of a book with one hand but not the other. Would he meet this descriptor?
No. Your client can turn the pages of a book with one hand so it’s not true to say he can’t do it with either hand. Simplezz :)
We have a client with one severely injured hand, but the dominant hand is ok, who has just scored zero points. I understood that the WCA for dexterity and picking up objects was essentially a test of your ‘best hand’, with the possible exception of needing at least the use of a second forearm to manage an empty cardboard box. But I have just read this, from the consultation submission linked here:
http://z2k.org/2013/09/z2k-submission-to-the-fourth-independent-review-of-the-work-capability-assesment/
30. This problem is illustrated by a case study of a client with Cerebral Palsy which predominantly affected her right hand. Because the client was shown to be able to ‘pick up a £1 coin’ and ‘turn the pages of a book’ with her left hand she was awarded zero points for manual dexterity. However the ability to carry out these tests with her left hand gave an inaccurate account of the nature of the dexterity, for example she was not able to button her shirt, tie her shoelaces or any other activity that requires the use of both hands.
31. We argued at tribunal that because the client was unable to complete any of the tests (including pressing a button) with her right hand she satisfied all the descriptors for manual dexterity and the tribunal found in our favour. This is not an isolated case, whenever we have a client whose manual dexterity is limited to one hand the Decision Maker and/or HCP invariably find that the descriptors have not been met. This demonstrates that although the descriptors have been changed for the better these changes are not always properly implemented in the WCA.
Anyone know what are they referring to?
I was also interested in this statement from Z2K, which I would be interested to know the source of:
The regulations state that as well as considering whether the claimant is able to undertake an activity listed in a particular descriptor the assessor must also consider whether they can do it:
? - Safely
? - Repeatedly
? - Reliably
? - Painlessly
? - In a timely manner
I recall that the words “with either hand” were removed from Activity 4 from 28.3.11. That made it clear that the test envisaged was, as you say, effectively a “best hand” test. A UT case had held that the requirement to use “either hand” pre 28.3.11 meant the ability to move the carton using both hands was irrelevant. So that if neither my left nor my right hand could on thier own move the carton then I could score points despite the fact that I could easily move the carton using both hands together. I read the amendment as stopping that. Post 28.3.11 an ability to move the carton using both hands together should mean you do not score points.
The large box descriptor is less clearcut. I think the box needing to be “bulky” implies that more than one hand/arm would be needed to both pick up and move it. However, Activity 4 expressly provides for the use of “upper body and arms” which could arguably mean that a person who could pick up and move it by wedging the box between their good arm and torso might be denied the points (although I doubt it because, as we know, the test is more interested in upper body strength and movement rather than workarounds you might devise to move, specifically, a large light box).
Para 30 of the Z2k submission is discussing Activity 5 which, unlike Activity 4, has retained “either hand” post 28.3.11 and has actually added the words “single-handedly” to 5(d) from 28.1.13. I disagree with Z2K’s interpretation of Activity 5. The matters it raises about the claimant not being able to fasten buttons, tie shoelaces are simply not covered by the Activity. Rather those problems appear more activities of daily living which could attract DLA/PIP. Pre 28.1.13 the difficulties she experiences might have scored her 9pts under 5(d) as there was a UT case I think which held that two hands were required to use a computer keyboard and mouse. Hence the amendment from 28.1.13 to add “single-handedly” to deny points even in that case.
I cannot find the authority for its statement in para8 that the “the Regs” require the assessment to consider whether the activity can be done safely, repeatedly etc. The IB caselaw on reasonable regularity requires those things to be considered. That caselaw also applies to ESA. I know Reg 4(2A) PIP Regs require that a descriptor can only be satisfied if the person can do it:
“(a)safely; .
(b)to an acceptable standard; .
(c)repeatedly; and .
(d)within a reasonable time period.”
But that’s PIP.
[ Edited: 17 Sep 2013 at 08:42 am by Tom H ]Thanks for the replies (and the sanity check).
The “reasonable regularity” test generally applies, via regulation 34(2). I’m not sure how that necessarily includes a test of “significant discomfort”. The wording of the mobilising and sitting/standing activities themselves allow points if, due to “significant discomfort”, someone “needs” to stop or “can not” continue, which is not quite the same as “can only continue while in significant discomfort”. The upper body activities only seem to allow points if someone can not do the activity at all.