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[1998] UKSSCSC CIB_16237_1996 (24 June 1998)

R(IB) 1/98

Mr. D. G. Rice CIB/16237/1996

All work test - right handed person unable to hold a pen or pencil in right hand and able only to scrawl with left hand - whether able to "use a pen or pencil"

On 14 December 1995 the adjudication officer decided that from that date the claimant ceased to be entitled to incapacity benefit because he did not reach a score of at least 15 points from the physical descriptors in Part I of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 and thus failed to satisfy the "all work test". A tribunal allowed the claimant's appeal because they were satisfied that he should score 15 points under descriptor 7(d) of the Schedule "cannot use a pen or pencil". The claimant was right-handed. He stated that he could not hold a pen or pencil in his right hand and he could not write legibly with his left. He could only scrawl. The adjudication officer contended that a person could use a pen or pencil if he could merely tick a box on a form and sign it.

Held that:

"cannot use a pen or pencil" meant cannot use a pen or pencil for the purposes for which a pen or pencil was normally used. If a person could not write reasonably clearly and at a reasonable speed, descriptor 7(d) of the Schedule applied;

as most people can only use a pen or pencil in one hand the words "with either hand" were to be implied in descriptor 7(d). Thus an ambidextrous person would not satisfy description 7(d) if he had sufficient use of one hand. The tribunal had not erred in law.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons set out below, the decision of the social security appeal, tribunal given on 6 June 1996 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 6 June 1996. As I found the written submissions of the adjudication officer unpersuasive, I directed an oral hearing. At that hearing the claimant was present but unrepresented, whilst the adjudication officer appeared by Mr. J. Heath of the Solicitor's Office of the Department of Social Security.

On 14 December 1995 the adjudication officer decided that from that date the claimant ceased to be entitled to incapacity benefit, because he was unable to reach a score of at least 15 points from the physical descriptors under the all work test. In due course, the claimant appealed to the tribunal, who in the event reversed the decision of the adjudication officer. They were satisfied that the claimant could score 15 points under description 7(d) of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, SI 1995 No. 311, and six points under descriptor 8(e), making 21 points in all. Accordingly, they continued the claimant's entitlement to benefit from 14 December 1995, and added that any unemployment payments paid since that day should be offset against their present award.

The award of six points pursuant to descriptor 8(e) is not in dispute. The sole question for determination by myself is whether the tribunal were right to award 15 points pursuant to descriptor 7(d). That descriptor, which falls under "manual dexterity" reads as follows:

"Cannot use a pen or pencil."

It was the claimant's case that he could not hold a pen or pencil in his right hand, and that, insofar as he was able to hold a pen or pencil in his left hand he could not do so as to write legibly. He could only make a scrawl.

Mr. Heath contended on behalf of the Chief Adjudication Officer that a person could use a pen or pencil without necessarily being able to write. He could fill up a form by ticking boxes and signing. I reject that submission. In my judgment, the words "cannot use a pen or pencil" should be taken in their obvious everyday sense. The use referred to is the use to which a pen or pencil is normally put. If a person cannot physically write with a pen or pencil, he cannot be said to be able to use it. In other words, a person qualifies for the 15 points if he cannot use a pen or pencil for the purposes for which a pen or pencil is normally used.

Somewhat surprisingly, the descriptor does not contain the words with "either hand". I say "somewhat surprisingly" because the other descriptors falling within "manual dexterity" giving rise to 15 points to contain these words. They read as follows:

"7. (a) Cannot turn the pages of a book with either hand.

(b) Cannot turn a tap or control knobs on a cooker with either hand.

(c) Cannot pick up a coin which is 2.5 centimetres, or less in diameter with either hand."

Notwithstanding the absence of the words "with either hand", I do not consider that a person is entitled under descriptor 7(d) to 15 points if he cannot used a pen or pencil in each hand. As most people can only use a pen or pencil in one hand, such a construction would make nonsense of the descriptor. Accordingly, I am satisfied that the test is whether or not a person cannot use a pen or pencil with either hand, a construction which Mr. Heath felt obliged to accept.

Accordingly, if a person cannot use a pen or pencil for the purposes for which a pen or pencil is normally used with either the right or the left hand, depending upon which is the command hand, he will prime facie be entitled to 15 points. Of course it may be that in unusual circumstances a person who, is for example right-handed, and has lost the use of that hand for writing, has acquired a compensating skill in his left hand. If that is the case, then he will not satisfy the descriptor. It may be that his skill in the left hand is not as good as it was originally in the right hand, but provided the skill attains a reasonable standard, so that he could be said in everyday language to be able to use a pen or pencil to write reasonably clearly and at a reasonable speed, as well as to accomplish other things, such as ticking forms and signing his name, he will not be entitled to the 15 points. It is all a matter of fact in any particular instance. Seemingly in the case of an ambidextrous person, he will not satisfy the test, so long as he has sufficient use of one hand.

Applying the above principles to the present case, the evidence indicates that the claimant, who is right-handed, cannot hold a pen or pencil in his right hand, and he cannot use the same in his left hand so as to write legibly, he can only make a scrawl. In those circumstances, it is clear that the claimant cannot use a pen or pencil within descriptor 7(d), and as a result he is entitled to 15 points. He has in addition a further six points pursuant to descriptor 8(e).

It follows that the tribunal did not err in point of law, and accordingly I dismiss this appeal.

Date: 24 June 1998 (signed) Mr. D. G. Rice

Commissioner