Cannot get to a specified place

Hullo,

I don’t get to think about the meaning of the ESA descriptors that much.

Anyway, I am looking at a tribunal statement at the moment.

With regard to Activity 15 (getting around etc), it seems to me there is conflicting caselaw on what a claimant needs to show to come within Activity 15(b) or (c) (both of which involve the claimant not being able to get to “a specified place” “without being accompanied” (a familiar one in the former case and an unfamiliar one in the latter). This is in distinction to Activity 15(a) (which refers to “any specified place”)

Judge Parker considered similar wording of the old Schedule’s Activity 18 in AP v Secretary of State for Work and Pensions (ESA) [2010] UKUT 266 (AAC)

She held:

15.  With respect to descriptors 18(a) and 18(b) there is a further difference in the level of incapacity required, which is important in the present claimant’s case.  Descriptor 18(a) encompasses an inability to get to “any specified place” (my emphasis) whereas 18(b) covers an inability to get to “a specified place” (my emphasis).  S.6(c) of the Interpretation Act 1978 provides:  “In any Act, unless the contrary intention appears … words in the singular include the plural and words in the plural include the singular”.  As the word “any”, however, usually means “all”, particularly when expressly contrasted with the use of “a”, this provides the necessary contrary intention.  The deliberate use of different terminology implies that “any specified place” means, in effect, anywhere at all; whereas the phrase “a specified place” reads more naturally that it could include just one kind of place.  In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains.  If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.

Judge Turnbull then had a go in DA v Secretary of State for Work and Pensions (ESA) [2011] UKUT 79 (AAC). He said:

15.  The mere fact that the Claimant would never feel able to travel to her former employer’s premises does not in my judgment bring her within either descriptor 18(a) or (b). The words “cannot get to any specified place ……” in 18(a) in my judgment clearly mean that there is no place with which the claimant is familiar (or would be familiar with if she went out) which she could get to on her own. The words “is unable to get to a specified place …….without being accompanied by another person on each occasion” in 18(b) in my judgment mean that the claimant always needs to be accompanied when getting to a familiar place.

That could be read as the opposite of what Judge Parker had said. I think probably better way for him to have dealt with it would have been to say that the claimant’s problem was not getting to the work but being at the work and so that did not come within the descriptor. But anyway….

My question is whether this comes up in other cases anyone has dealt with and what approach the tribunal takes? Or indeed whether anyone has any ideas for why one decision is better than the other in what it means. I note only the Turnbull decision is in the legislation volumes.

Yes, I don’t understand Judge Turnbull’s reasoning at all.  He’s interpreted 18(a) as the claimant could get to any familiar place if accompanied.  In my view this doesn’t hold as it puts an unnecessary gloss on the descriptor. 18(a) seems to suggest that the claimant just can’t go anywhere, even if accompanied.  There is no concept of being accompanied in 18(a), or at least I can’t see it.  A FTT judge recently agreed with me on that.  If the rest of the descriptors merely graded disability with relation to the frequency of getting to any familiar place if accompanied, then the draftsman, surely, would have used the word “any” instead of “a”.  It seems to me that 18(a) is testing an extreme example.  Then there is a big gap between 18(a) and 18(b) with smaller gaps between the other descriptors, rather than equal sized gaps between them all, merely testing the same thing according but according to severity..  Judge Parker’s analysis made perfect sense to me and the different interpretation puzzles me.  I have not had a problem with tribunals in this area up to now.