Northern Ireland - Social Security and Child Support Commissioners' Decisions

MT-v-Department for Social Development (ESA) NICom 53


                        Decision No: C10/12-13(ESA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND SUPPORT ALLOWANCE

 

 

 

                                      Appeal to a Social Security Commissioner

                                  on a question of law from a Tribunal's decision

                                                         dated 23 March 2012

 

                       DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         This is the Department’s appeal from the decision of an appeal tribunal sitting at Belfast on 23 March 2012, leave to appeal having been granted by the legally qualified member (LQM) of the tribunal.

 

2.         I held an oral hearing of the appeal on 20 June 2013, attended by the claimant. I completed my decision on 26 June 2013. I subsequently learned that the claimant died on 29 June 2013. I wish to convey my sympathy to the claimant’s family for their loss. I fully understand that from their perspective, these proceedings may have little significance.

 

3.         In the light of the circumstances, on 17 July 2013 the Department wrote to the Office of the Social Security Commissioners. Mr Toner for the Department indicated that, because case law had been obtained from Great Britain on the issue in the appeal, he sought leave to withdraw the Department’s appeal under regulation 26 of the Social Security Commissioner (Procedure) Regulations (NI) 1999.

 

4.         Before the claimant’s death, I had formulated a view on the legal issues before me in her case. This view has relevance to other claimants in Northern Ireland. I consider that it is important to express those views for the assistance of those similarly affected claimants. I sincerely hope that this will not cause distress to the family of the late claimant, but I consider that I should refuse the Department’s application to withdraw its appeal, and give the decision in the terms which I had drafted before the claimant’s death.

 

5.         For the reasons given below, I allow the Department’s appeal. It follows that I must set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security Order (NI) 1998. This also means that I must remit the appeal to a newly constituted tribunal for redetermination. I trust that the Appeals Service will communicate with the family of the late claimant with appropriate sensitivity in order to ascertain whether they will wish to participate or be represented in the remitted appeal and that those representing the late claimant will advise appropriately on the courses of action now open.

 

REASONS

 

Background

 

6.         The claimant claimed employment and support allowance (ESA) from the Department for Social Development (the Department). The Department treated the claimant as having limited capability for work due to abdominal pain and suspected Crohn’s disease and she was awarded ESA from 20 July 2010. Subsequently the claimant was diagnosed with peripheral vascular disease (PVD), which required surgery. Her condition led to open lesions on both feet. The claimant was examined by a healthcare professional on behalf of the Department on 4 November 2010. Following the examination, on the basis of all the evidence the Department decided that she had limited capability for work.

 

7.         The claimant was sent a questionnaire on form ESA50, which she returned on 17 May 2011. She was examined for a second time by a healthcare professional - a registered nurse - on 6 September 2011. On the basis of all the evidence the Department decided that the claimant did not have limited capability for work, superseding her award of ESA from and including 9 November 2011. She appealed.

 

8.         A tribunal considered the appeal on 23 March 2012. It allowed the appeal, awarding a total of 18 points under the Limited Capability for Work Assessment (LCWA). The Department requested a statement of reasons for the tribunal’s decision. This was issued on 13 August 2012. On 22 August 2012 the Department applied for leave to appeal to the Social Security Commissioner. By a determination issued on 7 September 2012 the LQM of the tribunal granted leave to appeal.

 

9.         The Department submitted its grounds of appeal on 31 October 2012. The grounds were therefore late. However, the Appeals Service had posted the notice of determination of 7 September 2012 to the wrong address and notice was not received by the officer who made the application until 25 October 2012. The Department applied for the appeal to be admitted out of time and the Chief Commissioner admitted the late appeal by his determination of 13 November 2012.

 

Submissions

 

10.       The Department submits that the tribunal erred in law as:

 

(i)            the tribunal had not correctly addressed the question of whether the applicant could reasonably use a wheelchair;

 

(ii)          the tribunal had not correctly addressed the question of whether the applicant could remain at a workstation either standing or sitting.

 

11.       The claimant was invited to make observations on the Department’s grounds of appeal. Her response did not address the specific grounds advanced by the Department, but she submitted that the facts of her case meant that she satisfied the LCWA. I directed an oral hearing of the appeal. The claimant subsequently indicated that Ms Loughrey of Law Centre (NI) would be representing her in the appeal. I directed the parties to submit summaries of the case which they would advance at the hearing. 

 

The relevant legislation

 

12.       The version of the Limited Capability for Work Assessment (LCWA) applying in the present appeal is that in operation on or after 28 March 2011. The following activities are of particular relevance:

 

SCHEDULE 2

Regulation 19(2) and (3)

Assessment of whether a claimant has limited capability for work

PART 1

PHYSICAL DISABILITIES

(1)                                           (2)                                          (3)

Activity                                   Descriptors                            Points

 

1. Mobilising unaided by    (a) Cannot either-                                                  15   another person with or            (i) mobilise more than 50 metres on

without a walking stick,       level ground without stopping in

manual wheelchair or         order to avoid significant discomfort

other aid if such aid             or exhaustion, or

can reasonably be used.   (ii) repeatedly mobilise 50 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(b) Cannot mount or descend two steps             9

unaided by another person even with

the support of a handrail.

 

(c) Cannot either-                                                 9

(i) mobilise more than 100 metres

on level ground without stopping

in order to avoid significant discomfort

or exhaustion, or

(ii) repeatedly mobilise 100 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(d) Cannot either-                                             6

(i) mobilise more than 200 metres

on level ground without stopping

in order to avoid significant discomfort

or exhaustion, or

(ii) repeatedly mobilise 200 metres

within a reasonable timescale

because of significant discomfort

or exhaustion.

 

(e) None of the above apply.                            0

 

2. Standing and sitting.       (a) Cannot move between one seated           15

position and another seated position

located next to one another without

receiving physical assistance from

another person.

 

(b) Cannot, for the majority of the time,           9

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.

 

(c) Cannot, for the majority of the time,           6

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 an hour before needing to

move away in order to avoid significant

discomfort or exhaustion.

 

(d) None of the above apply.                           0

 

The tribunal’s decision

 

13.       The tribunal awarded nine points for the activity of Mobilising at 1(c)(ii) and nine for the activity of Standing and sitting at 2(b)(i). This led to a total of 18 points, which satisfied the LCWA and led to the tribunal allowing the appeal.

14.       The tribunal sets out its reasons in a clear structured fashion. I consider that the key passages in the tribunal’s reasons are the following:

 

“7.4 The Tribunal accepts [the claimant’s] evidence that she could walk from Cleaver House to the City Hall, which the Tribunal estimates as less than 100 metres. Although she states that she would need to hold on to someone, the Tribunal is of the opinion that she could rely on the stability provided by her walking stick.

 

7.5 [The claimant] acknowledges that she can mount steps going one by one.

 

7.6 The Tribunal does not accept that it would be reasonable for her to use a wheel-chair as none of the professional healthcare advisers (doctors and podiatrist) have made this recommendation.

 

7.7 In conclusion the Tribunal decides that [the claimant] cannot repeatedly mobilise for 100 metres because of significant discomfort (awards 9 points).

 

8. Sitting and standing

 

8.1 [The claimant’s] previous employment was as an administrative assistant, a sedentary position. An Occupational Health Physician in June 2011 was of the opinion that she could not undertake the duties of her post due to PVD affecting both legs and that there were no reasonable adjustments that the employer could make to enable her to resume work. She lost her employment on this basis.

 

8.2 The Tribunal accepts that standing puts considerable pressure on the open lesions on [the claimant’s] feet, therefore standing is very limited. The Tribunal accepts [the claimant’s] evidence that, due to significant discomfort, she could not remain standing at a work station for more than 30 minutes (awards 9 points).“

 

Hearing

 

15.       I held an oral hearing of the appeal. The Department was represented by Mr Toner of Decision Making Services. The claimant was represented by Ms Loughrey of Law Centre (NI). I am grateful to both representatives for their clear and helpful submissions.

 

16.       Mr Toner submitted that the tribunal had erred in law in its approach to the “Mobilising” activity, as it had not followed the guidance given by Upper Tribunal Judge Levenson in RP v Secretary of State for Work and Pensions [2011] UKUT 449 (AAC). In terms of deciding whether a wheelchair would be used by persons in the claimant’s situation acting reasonably in all the circumstances, he submitted that the tribunal had fallen short in its reasons.

 

17.       Mr Toner’s main submissions focussed, however, on the tribunal’s approach to the activity of “Standing and sitting”. He submitted that the tribunal had awarded nine points on the sole basis that the claimant was unable to remain standing at a workstation for 30 minutes. However, he submitted, the award of nine points for this descriptor also required an inability to sit at a workstation for 30 minutes. The tribunal had not made a finding to the effect that the claimant could not sit for 30 minutes and therefore its decision to award nine points was flawed. He relied on the decision of Upper Tribunal Judge Wikeley in MC v Secretary of State for Work and Pensions [2012] UKUT 324 AAC, a decision which had been given after the date of the hearing in this case.

 

18.       Mr Toner pointed out that on the score sheet attached to the tribunal’s decision, the box relating to descriptor 2(b)(i) was ticked, but the box relating to 2(b)(ii) was left blank, suggesting that the tribunal had made no finding on sitting. He accepted that the score sheet was misleading as to the proper questions for the tribunal under descriptors 2(b) and (c), but indicated that it was not a score sheet devised by the Department, but rather by the Appeals Service.

 

19.       In relation to the issue of the “Mobilising” activity, Ms Loughrey relied on the case of MG v Department for Social Development [2013] NI Com 8. She submitted that it was evident that the tribunal considered that this was not a case in which a wheelchair would normally be used. She referred to elements of the record of proceedings in which the panel had heard that there was no recommendation by those treating the claimant that she should use a wheelchair. She submitted that it was open to the tribunal to find that it would not be reasonable for claimant to be assessed as if she used a wheelchair.

 

20.       In relation to “Standing and sitting”, she accepted that Judge Wikeley’s decision in MC v SSWP was a persuasive authority on the question of whether the “either/or” element of descriptor 2(b) required both the standing and the sitting requirements to be met. However, she submitted that the tribunal had made proper findings in relation to standing. She further submitted that the tribunal had made adequate findings on the question of sitting. In particular, she referred to the Occupational Health Department report of 3 June 2011 and submitted that the tribunal relied on it to find that the claimant could not sit for the requisite period. However, she accepted that there were limitations in the evidence before the tribunal, which nowhere confirmed the duration of the applicant’s ability to sit at a workstation. She relied on the decision of Upper Tribunal Lane in JM v Secretary of State for Work and Pensions [2010] UKUT 386 (AAC) to submit that the record of proceedings did not have to be a verbatim note of the hearing, and that the evidence nevertheless supported the tribunal’s decision.

 

21.       I asked if the tribunal had found that the claimant could not remain standing at a work station for 30 minutes, and could not remain sitting at a work station for 30 minutes, whether the tribunal had erred by not going on to consider whether the claimant could remain at a work station by a combination of standing and sitting. In particular, I observed that Judge Wikeley in MC v SSWP had found, at paragraph 4 and 32 of his decision, that someone who could remain at a workstation by a combination of standing and sitting should not score points under the descriptor. Ms Loughrey submitted that, although the legislation had now changed from 28 January 2013, a tribunal applying the legislation before that date did not have an obligation to address the question of whether the claimant could remain at a workstation by a combination of standing and sitting. For the Department, Mr Toner submitted that the issue did not arise in the present case.

 

Assessment

 

22.       I will deal with the “Mobilising” point briefly. I have given my interpretation of the requirements of this activity in MG v DSD. I can summarise that rather lengthy case by two broad questions - firstly, is the appellant someone who would normally use a wheelchair to overcome particular functional disabilities in the sense that appropriate professionals would recommend use of a wheelchair by him or her and, secondly, does he or she unreasonably decline to use a wheelchair which has been so recommended? In the present case, the tribunal has found that medical professionals are not recommending the use of a wheelchair. In this context the tribunal does not accept that it would be reasonable for the claimant to use a wheelchair. The tribunal decision pre-dates my decision in MG v DSD, but I consider that it is essentially consistent with the reasoning in that case, and that no material error arises from its treatment of the “Mobilising” descriptor.

 

23.       On the issue of “Standing and sitting”, there was no real dispute as to the meaning of the descriptors at 2(b). It is worth setting out the relevant part of the legislation again, which is:

 

(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.

 

24.       In MC v SSWP, Judge Wikeley analyses the meaning of the equivalent descriptors at paragraph 2(c). This refers to a period of one hour rather than 30 minutes, but obviously nothing turns on that distinction and the descriptors he considers are otherwise identical to those in 2(b). Judge Wikeley found support from the decision of Commissioner Howell in R(IB)3/02. That case was concerned with the bending and kneeling descriptor then to be found in the personal capability assessment for incapacity benefit. As the first of his reasons in that case, Commissioner Howell said:

 

“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 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”.

 

25.       In MC v SSWP the opposite was argued on behalf of the appellant. It was submitted that if an appellant could stand for the requisite period but not sit, or could sit but not stand, then the descriptor was satisfied. Judge Wikeley rejected that contention.

 

26.       Before me, MC v SSWP was accepted by both parties as correct to the extent that in order to score points under descriptor 2(b) it was necessary to satisfy both the standing (2(b)(i)) and the sitting elements (2(b)(ii)). The activity is headed “Standing and sitting”. However, for descriptors 2(b) and 2(c) the task is one of remaining at a workstation for a set period of time - whether 30 minutes or one hour. The manner of remaining at a workstation is prescribed by the legislation as either standing or sitting. Judge Wikeley analyses this, correctly in my view, as a conjunctive test. I agree with Judge Wikeley that in order to score points for descriptors 2(b) and 2(c), it is necessary that the claimant cannot stand for the required period of time and cannot sit for the required period of time.

 

27.       I will return to another aspect of Judge Wikeley’s decision below. However, the question which next arises is whether the tribunal has based its decision to award points for the activity of “Standing and sitting” solely on the standing aspect of the descriptor without making proper findings on sitting.

 

28.       The tribunal in this case expressly found that the claimant could not stand for 30 minutes at a workstation. The tribunal has indirectly referred to difficulties with sitting at paragraph 8.1 of its statement of reasons where it accepts that the claimant was no longer able to perform the duties of her sedentary job, leading to a loss of her employment. However, this would have related to the claimant’s ability to perform her own job over the course of a working day, which would be reasonably expected to last for more than 30 minutes or one hour.  I asked Ms Loughrey if she could point to evidence before the tribunal which would identify the length of time for which the claimant could have sat. Ms Loughrey candidly accepted that there was no such evidence before the tribunal.

 

29.       I observe that the score sheet before the tribunal was not helpful. It breaks various activities down into their distinct descriptors and provides a box for the tribunal to tick where it considers that the conditions of the descriptor are satisfied. Under the Standing and sitting activity, there are separate boxes for 2(b)(i), 2(b)(ii), 2(c)(i) and 2(c)(ii). The tribunal has ticked the box for 2(b)(i) and awarded nine points. I consider that within the score sheet, on a correct analysis, there should be a single box for 2(b) and a single box for 2(c). However, the fact that the tribunal did not tick the box for 2(b)(ii) also supports the case made by the Department, as it implies that the tribunal considered that it did not need to make a finding on sitting.

 

30.       On the basis of the statement of reasons and the score sheet, I consider that the tribunal has not made a finding to the effect that the applicant could not remain sitting at a work station for more than 30 minutes. Indeed, there was no evidence before the tribunal to indicate that this was so, and which would enable such a finding to be safely made. In order to satisfy descriptor 2(b) the claimant would have needed to establish not only that she could not remain at a work station standing for 30 minutes but also that she could not remain at a work station sitting for 30 minutes. I therefore consider that the tribunal has erred in law and I set aside the tribunal’s decision.

 

Further observations

 

31.       That is enough for me to decide the present appeal. However, I consider that it is appropriate to make some further observations on the obiter comments of Judge Wikeley in MC v SSWP. At paragraph 4 and paragraph 32 of that decision Judge Wikeley holds that, by the same logic as in R(IB)3/02, the person who can stand and can sit at a workstation for an hour does not score points. That much is agreed. However, he further ventures that a person who can remain at a workstation for the required duration by a combination of standing and sitting likewise does not meet the requirements of the descriptor. In other words if a person can remain at a workstation for the required duration by alternating standing and sitting, the descriptor will not be satisfied. I wish to explore the correctness of that position more closely.

 

32.       From 28 January 2013 the descriptor which I have discussed above was amended by regulation 5 of the Employment and Support Allowance (Amendment) Regulations (NI) 2013 (the Amendment Regulations). This has the effect that the relevant descriptor now reads:

 

(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); or

(iii) a combination of (i) and (ii),

for more than 30 minutes, before

needing to move away in order to avoid

significant discomfort or exhaustion.

 

33.       Therefore, the legislation has now been amended to make express provision within descriptors 2(b) and 2(c) for remaining at a workstation by a combination of standing and sitting. This amendment parallels the interpretation which Judge Wikeley has placed on the earlier form of the descriptor in MC v SSWP. In the present case I am concerned with the question of entitlement based on the law as it stood on 9 November 2011 and therefore the old form of the descriptor. The question which I must ask is whether there was any basis for implying that the combination of standing and sitting was part of the relevant descriptor prior to amendment.

34.       As indicated above, Judge Wikeley drew on the earlier case of R(IB)3/02, decided by Commissioner Howell, when reaching his conclusions in MC v SSWP. This concerned the incapacity benefit descriptors under the activity heading “Bending and kneeling”. Another important decision on the same activity was the earlier case of R(IB)2/02, referred to in R(IB)3/02, and which was decided by Commissioner Lloyd Davies.

 

35.       Commissioner Lloyd Davies was concerned with the original form of the bending and kneeling descriptor, which was in effect from 13 April 1995 to 5 January 1997. This read “Cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again”. This was amended from 6 January 1997 and, by the time Commissioner Howell was considering the descriptor, it had been amended to read “Cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again” [my emphasis].

 

36.       The argument before Commissioner Lloyd Davies on the original form of the descriptor was whether the action of picking up a piece of paper from the floor by means of the action of squatting - but not bending the spine or placing a knee to the floor - satisfied the relevant descriptor. Commissioner Lloyd Davies said at paragraph 5:

 

“In my judgment “bending or kneeling” does encompass squatting. I reached this conclusion not so much on the dictionary definition recited to me on behalf of the Secretary of State, but rather in the context of the descriptors taken as a whole. The descriptors refer to bending or kneeling “as if to pick up a piece of paper from the floor”. In my judgment these words colour the words “bend or kneel” and require one to consider how people normally pick up a piece of paper from the floor. This is normally done by a combination of bending at the waist and bending at the knee, with an inclination of the head in order the better to be able to see: the number of people who actually kneel, in the sense of placing one or both knees on the floor, in order to pick up a piece of paper, are relatively few, as are the number of people who bend only at the waist without flexing the knee at all. The descriptors thus must encompass bending at the knees. On this analysis a person who only bends the knees, or squats, can “bend or kneel as if to pick up a piece of paper from the floor” and therefore does not satisfy the descriptors … “.

 

37.       Subsequently, in refusing leave to appeal to the Court of Appeal in England and Wales, Aldous LJ held that there was no way that the Court of Appeal would construe the descriptor in any way other than the Commissioner did. 

 

38.       Commissioner Howell was considering the argument that (as accepted by a Commissioner in CIB/16461/1996 and CIB/4904/1998) a claimant who sometimes has a problem with bending but remains able to kneel, or sometimes has a problem with kneeling but remains able to bend, nevertheless qualified for the score of 3 points under the relevant descriptor. He was further addressing that question under the amended descriptor which expressly required consideration of ability to perform the action of picking up a piece of paper by a combination of bending and kneeling.

 

39.       As indicated above, Commissioner Howell in R(IB)3/02 based his decision firstly upon a linguistic analysis of the amended descriptor. I consider that his logical approach to the language of the descriptor was enough to determine the question. He secondly relied on the addition of the words “bend and kneel” to the descriptor by the January 2007 amendment. He observed that it would be an absurd outcome if someone who could struggle to pick up a piece of paper by a combination of bending and kneeling under the amended descriptor would not score points, whereas someone who could easily pick up a piece of paper by either bending or kneeling alone could still score points. Thirdly, he relied on the Court of Appeal’s refusal of leave to appeal from the decision in R(IB)2/02.

 

40.       At paragraph 32 of MC v SSWP, Judge Wikeley has relied on R(IB)3/02 as authority for an interpretation of the activity of “Standing and sitting”, in the form it took prior to 28 January 2013, as requiring a tribunal to consider whether a claimant can remain at a workstation by a combination of standing and sitting for an hour - that is to say by alternating standing and sitting within the required time. With the greatest respect to Judge Wikeley, I do not agree that the present situation is sufficiently analogous to “Bending and kneeling” to permit such a conclusion. 

 

41.       In the case of “Bending and kneeling” the descriptor involved the discrete action of picking up a piece of paper from the floor and straightening up again. Commissioner Lloyd Davies addressed the manner in which picking up a piece of paper is normally done. The task was held by Commissioner Lloyd Davies to involve a combination of bending at the waist and bending at the knee. Therefore, the two actions required to be read as involving combined action.

 

42.       In the present case, the descriptor is addressed to remaining at a work station. I consider that this must be envisaged as a hypothetical work station. Some workstations may normally involve sitting, such as a desk, whereas others may normally involve standing, such as a reception counter. Judge Wikeley has suggested a supermarket checkout as an example of a workstation involving both actions. However, it seems to me that a more obvious construction is to view the test as one of remaining at different hypothetical work stations by the different methods of standing and sitting.

 

43.       It is well established that the tests involved in the LCWA involve assessment of functionality. The descriptors contain hypothetical situations aimed at assessing that functionality - such as picking up a piece of paper from the floor or remaining at a workstation. The activity considered by Commissioner Lloyd Davies and Commissioner Howell required consideration of the potentially complementary functions of bending and kneeling to pick up paper. However, the functions of standing and sitting are mutually exclusive. I consider that the particular descriptors in issue before me test endurance in relation to those functions separately when carrying out the particular exercise of remaining at a work station. If a person both cannot stand for 30 minutes and cannot sit for 30 minutes that is enough to satisfy the test.

 

44.       The relevant activity is headed “Standing and sitting”. Within the legislation the text is sub-divided under separate roman numerals into the tasks of standing unassisted by another person (even if free to move around) and sitting (even in an adjustable chair). The structure of the descriptor gives a clear warrant for interpreting these as conjunctive tasks, as I accept above. However, I consider that the structure of the descriptor similarly tends to support a construction that the tests of standing and sitting must be considered separately.

 

45.       I see no basis in the text, as it was before amendment, for reading in a requirement to consider ability to remain at a work station by means of alternating standing and sitting. This reading has the effect of fundamentally altering the test which actually appears in the text. A potential effect is to exclude claimants who would otherwise satisfy the 30 minute or one hour standing and sitting requirements. So, for example, if such a claimant could stand for 10 minutes at a work station, and then sit at a work station for 10 minutes, and then can stand again at a work station for 10 minutes, he or she would not satisfy the test. If such an outcome was intended, I consider that it would need to be expressed clearly in the legislation. I would not be prepared to hold that a claimant who satisfied the descriptors as expressly set out in the legislation would, nevertheless, fail the test on the basis of implied conditions which do not appear in the text.

 

46.       The descriptor prior to amendment on 28 January 2013 is addressed to ability to remain at a work station by separate methods of standing and sitting. After 28 January 2013 a third method - namely a combination of standing and sitting - has been added by a new sub-clause under a new roman numeral. The Explanatory Note to the Amendment Regulations at paragraph 3.14 indicates that the amendment “removes any perceived ambiguity and clarifies that this activity looks at the ability to remain at a workstation by sitting, standing or a combination of both, for specified periods of time”. Notwithstanding this amendment, I consider that in addressing the plain text of the descriptor as it was before 28 January 2013, decision-makers should not read into it words which are not there. 

 

Disposal

 

47.       Having set aside the decision of the appeal tribunal on the basis that the sitting element of the descriptor was not correctly addressed, I consider that procedural fairness requires that the representatives of the late claimant should be given an opportunity to adduce further evidence on this issue. Therefore, I remit the appeal to a newly constituted tribunal for redetermination.

 

48.       Judge Wikeley’s remarks giving his analysis of the issue of combined standing and sitting are, strictly speaking, obiter, as are mine. I do not need to decide this issue to determine the appeal. However, I direct that, when the matter comes to be reheard by the newly constituted tribunal, my remarks should be taken into consideration.

 

 

            (Signed):        O Stockman

 

            COMMISSIONER

 

 

 

            25 July 2013