Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/917/2010

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Sunderland on 24 September 2009. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

2. The Claimant is a woman now aged 52 who suffers from anxiety and depression, neck pain, back pain, hip pain and osteoarthritis.

3. The Claimant was awarded employment and support allowance (ESA) from 27 February 2009. Following a medical examination the examining doctor advised that the Claimant scored no points from either the physical or mental health parts of the work capability assessment. A decision was therefore made on 2 May 2009 superseding and removing with effect from that date the Claimant’s award of ESA on the ground that the Claimant did not have limited capability for work.

4. The First-tier Tribunal held an oral hearing of the Claimant’s appeal at which the Claimant was represented by Mr Smith from Sunderland Welfare Rights Service. The Tribunal dismissed the appeal, but considered that the Claimant scored 6 points for descriptor 2(e) (“cannot stand for more than 30 minutes, even if free to move around, before needing to sit down”).

5. The grounds of appeal to the Upper Tribunal, prepared by Mr Smith on the Claimant’s behalf, contended that the First-tier Tribunal had erred in law in relation to the activity of bending or kneeling, and in relation to mental health descriptors 18(c) and 19(c). When giving permission to appeal I explained why I did not consider the grounds relating to those mental health descriptors to be arguable, and I therefore do not need to deal with those grounds in this decision.

6. I gave permission to appeal in relation to the way in which the Tribunal dealt with the bending or kneeling descriptors 3(b) and (c).

7. The Record of Proceedings records the Claimant as having given evidence (so far as directly material to this activity) as follows:

“Can bend holding on to something. Has been shown how to bend by squatting. Can pick up something from the floor holding on to something. Can go on to one knee first then second then pulls on to something to get up.”

8. The directly material part of the Tribunal’s Statement of Reasons was as follows:

“20. The appellant was observed [at the medical examination] to kneel to the floor and get up again without assistance.

21. On the appellant’s own evidence to the Tribunal the appellant can bend if she is holding on to something and has been shown how to bend by squatting to the floor to pick something up whilst holding something else. She can go down on one knee first then her second knee.

22. On the appellant’s own evidence she is able to bend or squat to the floor to pick up a light item and rise again without the assistance of another person.

23. The appellant may need to hold on to something or push up but this falls within the descriptor.

24. The Tribunal accordingly awarded no points under this heading.”

9. The ground on which I gave permission to appeal was that it was arguable that the Tribunal was wrong in stating that a claimant does not satisfy descriptors 3(b) or (c) if she can bend or kneel to the specified extent by holding on to or pushing up on something.

10. The activities and descriptors comprised in the work capability assessment (“the WCA descriptors”) are set out in Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”). Descriptors 3(b) and (c) are as follows:

“(b) cannot bend, kneel or squat, as if to pick up a light object, such as a piece of paper, situated 15 cm from the floor on a low shelf, and to move it and straighten up again without the help of another person.

(c) cannot bend, kneel or squat, as if to pick up a light object off the floor and straighten up again without the help of another person.”

11. Descriptor 3(b) is worth 9 points and descriptor 3(c) is worth 6 points.

12. By reg. 19(4) of the 2008 Regulations:

“In assessing the extent of a claimant’s capability to perform any activities listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.”

13. The Secretary of State submits that descriptors 3(b) and (c):

“consider the activity of bending and/or kneeling as if to pick something off the floor or a low shelf, using supports such as furniture if required but without dependence on another person for support to straighten up again …..” (my emphasis).

It is therefore submitted by the Secretary of State that the Tribunal did not go wrong in holding that the fact that the Claimant may have needed to hold on to or push up on something did not bring her within either of the descriptors.”

14. Descriptor 6(b) in the Schedule to the Social Security (Incapacity for Work)(General) Regulations 1995 (which I shall refer to as “IfW descriptor 6(b)”) is as follows:

“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.”

15. It has been held that in applying IfW descriptor 6(b) one must disregard support or assistance which can be gained from holding or leaning on an object such as furniture (CSIB/12/96; CIB/2945/2000; CIB/4300/2003). However, in contrast with WCA descriptors 3(b) and (c), there is no express statement in IfW descriptor 6(b) that assistance from another person must be disregarded.

16. In my judgment, in respectful disagreement with the Secretary of State’s submission in this appeal, an ability to perform descriptors 3(b) or (c) which can be achieved only by holding on to or pushing up on an object such a piece of furniture must (save to the extent indicated in paras. 27 and 28 below) be disregarded. My reasons are as follows.

17. First, the natural starting point is in my judgment that aids, whether human or non-human, should not be taken into account. That is because WCA descriptors 3(b) and (c) are a test of the claimant’s ability to bend, kneel or squat, which involve primarily the use of the legs and back.

18. As regards non-human aids, a person with very strong arms might well be able, whatever the degree of disability in his legs or back, to pick up a piece of paper from the floor if a suitable piece of furniture were available. But the descriptors would then not really be a test of his ability to bend, kneel or squat, but of the strength of his arms. That is a point which has been regarded as important in relation to similar questions which have arisen in relation to IfW descriptors. In CIB/614/98, for example, Mr Commissioner Howell held that reg. 25(2) of the 1995 Regulations did not require use of crutches to be taken into account in assessing a claimant’s ability to rise from sitting, because the wording of the activity and its descriptors make clear that what is being tested is the ability to rise to an upright position without the use of arms and shoulders.

19. As regards assistance from another person, again, a very strong assistant might enable a claimant, almost regardless of the degree of his disability, to perform the stated activities. But the test would then become one not of the claimant’s ability to bend or kneel, but of the ability and strength of the assistant. Even in the absence of the express exclusion the natural assumption would therefore in my judgment be that that such assistance should not be taken into account.

20. Secondly, if the intention of the draftsman had been that use of items such as furniture should be taken into account (i.e. should not be disregarded), it is in my view very unlikely that descriptors 3(b) and 3(c) would have been drafted in the way they are. As I have said, had the descriptors been silent in relation to the use of aids, whether human or non-human, the natural meaning would have been that both must be disregarded. Had the intention been that (a) use of furniture should be taken into account, but (b) help from another person should not, the obvious way of drafting the descriptors would have been expressly so to state. It would have been odd to leave the former consequence to be implied simply from the express disregard of help from another person. In my judgment the purpose of expressly excluding help from another person was merely to make it clear (I accept unnecessarily) that such help cannot be taken into account, not to imply that use of furniture can be taken into account.

21. Thirdly, if it had been intended that use of furniture should be taken into account, one would have expected the draftsman at least to specify what sort of furniture (or other object) is assumed to be available.

22. Fourthly, a piece of furniture will not necessarily in fact be available to someone who wants to pick up, say, a piece of paper from the floor, whether at home or at work. True, he could no doubt, without bending down, manoeuvre the piece of paper in to a position where there is furniture available, but I do not see why one should assume that furniture is necessarily available.

23. Fifthly, reg. 19(4) of the 2008 Regulations (the equivalent of reg. 25(2) of the 1995 Regulations), in stating that a claimant is required to be assessed “wearing or using any aid or appliance which is normally worn or used”, does not in my judgment require it to be assumed, in relation to the activity of bending or kneeling, that an item of furniture is conveniently present on which to lean or push on. It in my judgment refers only to portable aids which can be “worn” or “used”, in the ordinary sense, and is not capable of referring to items such as furniture.

24. In my judgment one does not get much help from examining the extent to which other WCA descriptors specify what aids or support must be taken into account. As regards walking, the activity is described as “walking with a walking stick or other aid if such aid is normally used”. It is therefore made explicit that certain non-human aids such as a stick are to be taken into account, and in my view it is clearly implicit that support or assistance from another person cannot be taken into account.

25. In relation to standing and sitting, WCA descriptors 2(a) (standing for more than 10 minutes), 2(c) (rising from sitting) and 2(d) (moving from one seated position to another) all expressly require physical assistance from another person to be disregarded, but (like descriptors 3(b) and (c)) say nothing about whether holding on to or pushing up on furniture can be taken into account. Bizarrely, descriptor 2(e) (standing for more than 30 minutes) does not even say that assistance from another person must be disregarded, although that must in my view be implicit.

26. I would make the following qualifications to the view which I expressed in para. 16 above.

27. First, it is in my judgment implicit, in relation to both descriptors 3(b) and 3(c), that one can take into account such assistance as a claimant may gain from using his hands to steady himself or push up on the floor. A floor will necessarily always be present, and it would be unrealistic to presuppose a bending/kneeling/squatting exercise which outlaws use of the floor.

28. Secondly, there is the question of what significance should be attached to the fact that, in descriptor 3(b), the “light object” is notionally situated “15 cm from the floor on a low shelf”. On balance, I think that one is required to take into account such assistance as the claimant may gain from leaning/pushing on that notional shelf itself. The counter-argument is that the only purpose of the reference to the shelf is to indicate how far from the ground the light object is to be found. However, the notional exercise involves not only picking up the light object, but also moving it, and it seems unrealistic to judge a person’s ability to pick up an object from a shelf, and move it, and straighten up again, without ignoring possible use of the shelf itself to steady oneself or push up on. It does not seem to me that, realistically, one would need to know anything about the precise characteristics of the particular shelf in order to apply the notional test. However, I do not think that this descriptor requires the further assumption that there are necessarily further shelves above the “low shelf”, which are therefore also available to be used. The only assumption required is in my judgment that that one low shelf is present.

29. That still leaves the question whether reg. 19(4) of the 2008 Regulations requires use of portable aids such as a stick, if normally used, to be taken into account in relation to these particular descriptors. I do not feel it necessary to express a view as to that, in that there was no suggestion in the evidence in the present case that use of a stick would make a material difference, and the question has not been argued before me.

30. My decision of this appeal is therefore as set out in paragraph 1 above. I note that at the outset of the hearing before the First-tier Tribunal the Claimant’s representative submitted that descriptor 3(c) applied. As noted above, that would have been worth only an additional 6 points, which would have given the Claimant 12 in total. I have considered whether, in the light of my rejection of the grounds of appeal in relation to the mental health descriptors, I should therefore dismiss this appeal. However, it is not in my judgment sufficiently clear on the evidence that descriptor 3(b) could not have applied. If the Claimant’s representative had appreciated that the difference between 3(b) and 3(c) would or might be determinative, it might well have been submitted that 3(b) applied. In my judgment the appeal should therefore be allowed and the matter remitted to a new tribunal.

31. The new tribunal will reconsider the appeal entirely afresh (i.e. will consider all the activities and descriptors realistically in issue), but will apply the law as set out above.

Charles Turnbull

Judge of the Upper Tribunal

1 February 2011