Activity sitting & standing

On page 70 of the Medical Services Handbook, version 5 of 5th July 2012 states the following:

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. N.B – the person must be able to stand with one hand free to make this effective standing in the workplace, so for example a person who needs 2 crutches to stand would not be considered as “effectively standing”.

I realise this issue was highlighted previously in thread 1170, however is it correct that with descriptors Sb & Sc should be considered in combination as described above or separately.  From appeal papers the DWP interpret the descriptors in combination, but as yet have not found any legal basis for this other than what is stated in the Medical Services Handbook.

Would appreciate, if possible, some clarification on whether the effects of the above descriptors should be considered in combination or separately.

GR
A4U

In several tribunals, I’ve argued that they should be considered separately, and the Tribunal has awarded the points (arguing that the “or” should be interpreted disjunctively).

Even if they should be considered together, I would then argue that individuals who have problems with sitting or standing will not be able to repeat this activity with reasonable regularity after a certain point and should score the points.

rreg - 05 November 2012 01:39 PM

...however is it correct that with descriptors Sb & Sc should be considered in combination as described above or separately.

I have changed my view about this activity since I posted in the thread to which Tony refers above.

“..(b) 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 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.”

I think the phrase “before needing to move away” is crucial to a proper understanding of this descriptor.  Moving away is a reference to moving away from the workstation.  I had thought that standing and sitting had to be given their ordinary meaning which was, respectively, “to be in an upright position” and ““rest with weight on buttocks” so that once you sat down any period of standing ended and vice versa. 

However, I think the words “moving away” above qualify the normal meaning.  Consider this example:

I stand at a workstation for 10 mins and then sit down for 20 mins before standing back up.  I remain standing for a further 10 mins before sitting back down for another 20 mins.  I then stand up again for another 5 mins before moving away from the workstation because if I stayed there any longer I start to experience significant discomfort.

Atos take the view that I have remained at the Workstation in the above example for 65 mins and therefore do not score any points.  However, I think the correct interpretation of law has me standing for 25 mins and sitting for 40 mins.  In other words, just because I sit down after standing doesn’t end my period of standing. That period continues from where I left off when I re-commence standing because I have not moved away from the workstation, ie “moving away” qualifies the ordinary meaning of standing.  My standing only ends when I do move away, ie after 25 mins.

I think R(IB) 3/02 applies to Activity 2 so that you only score points if you can neither stand nor sit for the required period.  The relevant quote from Commissioner Howell, as he then was, is this:

“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.”

Consequently, in my above example, I think the person should score 6 points because he can neither stand nor sit for more than 1 hour.  Despite not being able to stand for more than 30 mins, he does not score 9pts because he can sit for more than 30mins.

Atos have it completely wrong by aggregating the amount of time, ie 25mins + 40mins = 65 mins and nil points.

Of course, the difficulty for decision makers and tribunals alike is inferring from a claimant’s current typical day and medical condition the length of time he/she can stand or sit at a workstation without moving away.  Unless a claimant is already doing some permitted work or has recently left a job there’s unlikely to be any recent direct evidence to help them.

I think that the word “workstation” infers that the sitting and standing is not passive but involves the person being active whilst they stand and sit, eg standing whilst working on a production line, or sitting at a desk or till (I provided some examples of the definition of “workstation” at the start of post 30 in the above linked thread).  So, I’m not sure it’s safe to use, as ATOS does, evidence of how long a person can sit watching television as that kind of sitting is passive (and a sofa is arguably more comfortable than even an adjustable chair so any sitting on the former should perhaps be disregarded in any event).  A car seat is arguably in the same category of comfort as a sofa so potentially unreliable too, though it’s undeniable that sitting whilst driving is active rather than passive.

The ATOS report is ambiguous in the way it records the HCP’s observations.  It states along the lines of “claimant sat for 40mins without obvious discomfort” but on another line will state “claimant rose twice during examination”.  It’s often unclear whether the 40 mins includes the two episodes of standing.  However, there is always the danger of snapshot with this type of evidence anyway.  It’s a difficult decision to make.

And bear in mind that if a person cannot sit or stand for the majority of the time then they may score points despite the fact that they might be able to sit and stand for longer periods for a minority of the time.

Eg, continuing on from the example in my above post:

I return to my workstation and sit for 20mins, stand for 10mins, sit for 20mins, stand for 10mins then move away (total standing:20mins; total sitting: 40mins)

I return again and this time sit for 15 mins, stand for 10mins, sit for 10 mins, stand for 5 mins then move away (total standing:15mins; sitting: 25mins)

I return and sit for 15 mins, stand for 10mins, sit for 10mins, stand 5 mins and move away (total standing:15mins; sitting: 25mins).

That would suggest that by the end of my shift it could be said that I could not remain at a workstation neither standing for more than 30mins nor sitting for more than 30mins for the majority of the time, despite initially having been able to sit for 40mins.  Hence a score of 9 points may apply.

I’ve got cases stayed at the upper tribunal on this point - waiting for decision in lead case.