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Chewing or swallowing descriptor when client can swallow but not chew
My client can swallow but not chew. Does he meet this descriptor?
The descriptor says:-
16. Chewing or swallowing food or drink.
(a) Cannot chew or swallow food or drink;
(b) Cannot chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort;
Thanks
I don’t think so but I’ve not read this fully…
There appears to be a few cases where the word ‘or’ is being tested.
Personally I don’t under know the answer to chewing or swallowing.
But the overall UT position is whether within the context of the descriptor it is conjunctive (together) or disjunctive (separate).
The topic was considered in detail in two different cases with entirely different approaches;
In CE 3466 2012 - where Judge Wright - when considering Decriptor 5d (key or mouse) decided it meant both together conjunctively.
In [2014] UKUT 0072 - Judge Williams - when considering Descriptor 1 in schedule 3 (mobilise or repeatedly mobilise) decided it is disjunctive and separate.
I would cite the 2014 case to prove your point.
I recently challenged the meaning of ‘or’ when considering Capital Disregard under Schedule 8b IS Regs - on whether “essential repairs or improvements” were to be read together or separate. In the end we won the appeal and it became a mute point.
Good luck with your case.
I suppose there is an argument to say that, if you can’t chew food, then any food you take will be unchewed - which could mean you may well be unable to swallow it, therefore you also meet the conjunctive test?
But there is also the meaning of ‘or’ in ‘food or drink’ to consider, in a similar way. E.g. the WCA handbook (pdf) seems to think that problems with both food and drink would be required (p34):
“When considering mental function, you should look for evidence to confirm a severe disorder of mood, for example requirement for hospital admission for a claimant with anorexia who refuses to drink as well as eat.”
I don’t know, but would guess that the descriptor was not intended to apply to, e.g. someone who has no teeth but can take liquid nutrition orally.
“or” means one OR the other, not both.
standard statutory interpretation (indeed, standard English)
had the drafter meant otherwise, it should have read “chew AND swallow”
I’m with Claire.
In addition, there must surely be a substantial risk of choking to anyone who can swallow but not chew, which to my mind also indicates that the descriptor was intended to apply where someone can swallow but not chew. Just a thought.
I am inclined to agree that the “or” provision should separate the two functions.
In a similar case that I had, I successful argued that there would be substantial risk to physical health if not found to have limited capability for work related activity. I argued that as my client took a very prolonged time to eat a lunch, so as to avoid choking, they could be at risk as lunch breaks for 30 mins - 1hour would not be sufficient for them to eat. Feeling rushed to promptly be back at their work station could risk choking.
It could be a good angle to use?
“Or” comes up so often and I can’t always figure out what the regulations intend. You find it under most of the schedule 2 activities. For example, activity 6 - “making self understood through speaking, writing, typing or other means which are normally, or could reasonably be, used”.
The context implies that it’s the inability to use any of these that would allow you to score points. However, if you asked a member of the public without a background in benefits what it meant, they’d perhaps tell you it was not being able to do just one of those things that scores you points, possibly because it’s sounds more reasonable.
The point above made by Claire is compelling. The availability of the word “and” is so obvious, it would be used if the descriptor was supposed to be interpreted conjunctively.
I’d say if someone cannot chew but can swallow, s/he scores points. If someone else cannot swallow but can chew, s/he also scores points.
I have a similar client so watching with interest…
I’d approach it this way - the descriptor is about being able to take nutrition orally. If you had somebody in the reverse situation to the above who can chew food but can’t swallow it then they would not be able to do this and you would imagine that the intention of the legislator would be that they would satisfy the descriptor. There is no indication of priority being given to either action - if the intention was that somebody who can’t swallow meets the descriptor but somebody who can’t chew doesn’t, the latter would not have been mentioned.
In [2014] UKUT 0072 - Judge Williams - when considering Descriptor 1 in schedule 3 (mobilise or repeatedly mobilise) decided it is disjunctive and separate.
Could anyone send me a copy of this decision.
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4126
Although note that Descriptor 1 is drafted differently as
1) Cannot either
a) Activity or
b) Activity
Whereas Descriptor 16 is drafted as
16)
a) Cannot Activity or Activity
Which is the same way as the Manual Dexterity descriptor is drafted where the UT has given an unfavourable decision.
IMHO the caselaw on previous descriptors is not favourable - I would be arguing along the lines of each descriptor being interpreted in isolation with regard to what the tribunal sees as the intention of the legislator. As above I think that is an argument that should be successful.
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4126
Although note that Descriptor 1 is drafted differently as
1) Cannot either
a) Activity or
b) ActivityWhereas Descriptor 16 is drafted as
16)
a) Cannot Activity or ActivityWhich is the same way as the Manual Dexterity descriptor is drafted where the UT has given an unfavourable decision.
IMHO the caselaw on previous descriptors is not favourable - I would be arguing along the lines of each descriptor being interpreted in isolation with regard to what the tribunal sees as the intention of the legislator. As above I think that is an argument that should be successful.
Are you saying that I shouldn’t quote [2014] UKUT 0072 in my submission?
As above it is very much In My Humble Opinion!
My concern would be that as MNM advised above there are two UT decisions on this point that came to opposing conclusions. I think that if you cite one of the decisions a judge will respond by asking why your case fits with that decision and not with the unfavourable one.
My opinion, as above, is that unfortunately it doesn’t. I’ve had a quick refresher of the 2014 case and note that it seems to put significant weight on the ‘either’ in descriptor 1 - this ‘either’ is not in Descriptor 16.
Once more this is only my opinion. When comparing the two UT cases you might find reason to argue that it is the positive 2014 one that should be followed and applied in your case - if you have that reason then obviously you would include it and argue your point.
If it was my submission I’d do a quick section acknowledging the two UT cases, setting out my reading of them (i.e. the unfavourable case seems closer to this descriptor) but inviting the judge to differ and follow the 2014 decision. I’d then argue that the UT cases are confined to the individual descriptors they concerned and submit that the judge is not bound to follow them and is free to make their own interpretation on the meaning of ‘or’ in this particular descriptor.
a trip to the nearest Law Library to consult Bennion on Statutory Interpretation will confirm what i have said above, and if you’re lucky someone will allow you to photocopy the relevant page….
OR is ALWAYS disjunctive
“or” means one OR the other, not both.
standard statutory interpretation (indeed, standard English)
had the drafter meant otherwise, it should have read “chew AND swallow”
I agree totally with this interpretation. Either chew or swallow not chew and swallow