Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the claimant.

 

The decision of the Hull First-tier Tribunal dated 20 December 2011 under file reference SC950/11/02859 does not involve an error on a material point of law.  The decision of the tribunal stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The test case nature of this appeal

1. This appeal is, in effect, a test case. The outcome is obviously important to the individual appellant. However, the point at issue will affect many other claimants of employment and support allowance (ESA). For that reason I will start with the general issue before turning to consider the particular circumstances of this case.

 

2. The issue of general importance concerns the proper reading to be given to the so-called descriptors (or points-scoring yardsticks) for the activity of “standing and sitting”, part of the work capability assessment for the purpose of establishing entitlement to ESA.  In particular, the question is what is needed to score 6 points under the standing and sitting descriptor 2(c).

 

3. Shorn of some of the detail, a person meets standing and sitting descriptor 2(c), and so scores 6 points, if she “cannot ... remain at a work station, either (i) standing unassisted ... or (ii) sitting ... for more than an hour before needing to move away ...”. The question is unpacking what that descriptor actually means.

 

The Upper Tribunal’s decision on the issue of statutory interpretation in outline

4. In summary, and again putting to one side some significant details, my conclusion is that a person who can stand at a work station for more than an hour before needing to move away does not score 6 points (even if she cannot sit for that length of time). Similarly, a person who can sit at a work station for more than an hour before needing to move away also fails to score 6 points (even if she cannot stand for that period). Furthermore, a person who can neither stand nor sit continuously but can remain at a work station by a combination of standing and sitting for more than an hour (before needing to move away) likewise does not meet the requirements of the descriptor. However, an individual who can manage none of these scenarios meets the test under descriptor 2(c) and so scores 6 points.

 

5. The same principles apply to the interpretation of standing and sitting descriptor 2(b), where the wording is identical save that the “statutory endurance test” is a maximum of 30 minutes rather than an hour.

 

The First-tier Tribunal’s findings and reasons in this case

6. There was no dispute that in the present case the appellant had suffered a nasty ankle injury. On this basis the decision maker had awarded her 9 points for the mobilising unaided descriptor 1(b). She scored no further points on any other activities. The Hull First-tier Tribunal (FTT), dismissing her appeal, made detailed findings of fact. Its reasons for refusing to award any points under the standing and sitting activity were set out as follows:

 

“[The appellant] is able to rise unassisted from a seat and would be able to move to another seat located next to it. Although [she] has difficulty standing for long periods of time she was observed to be able to sit for 35 minutes during the medical. She also confirmed that she was able to watch television programmes, read and use her laptop sitting, undertaking these activities for up to 2 hours at a time. Therefore for the majority of the time she could remain at a work station sitting for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion. She therefore does not satisfy any of the descriptors in Activity 2 so no points have been awarded.”

 

The proceedings in the Upper Tribunal

7. The appellant has been ably represented by Mr Matthew Wagstaff of Carillion under the community legal advice scheme. In the original grounds of appeal, he argued that, whilst he could not find fault with the FTT’s findings as regards the appellant’s ability to sit, the FTT had failed to have sufficient regard to her problems with standing. District Tribunal Judge Taylor gave permission to appeal. Neither party has asked for an oral hearing: I also take the view that one is not needed.

 

8. When giving directions on the appeal, I commented in part as follows:

 

‘3. It seems to me that this argument actually raises an important point of statutory interpretation which may affect many other cases. It may also affect other descriptors (especially that relating to mobilising, although there is no challenge here to the FTT’s award of points on that basis). The point may be put simply thus: when the descriptor says “either…. or….” is that single word “or” meant in a disjunctive or a conjunctive sense? This needs to be explained by looking at the law involved in some detail.

 

4. The descriptors, with relevant points attached, are listed in Schedule 2 to the Employment and Support Allowance Regulations 2008 (SI 2008/794).  That Schedule was amended by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011 (SI 2011/228), which came into force on 28 March 2011. Standing and sitting descriptor 2(c), which carries 6 points, is phrased as follows (emphasis added):

 

“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 an hour before needing to move away in order to avoid significant discomfort or exhaustion.”

 

5. The submission of the appellant’s representative presupposes that “or” in this context is – as, of course, it usually is as a matter of plain English – disjunctive. In other words, where a claimant for the majority of the time cannot stand unassisted, or cannot sit for the required period, then she meets the test for the award of 6 points. On that basis a FTT must make findings about the claimant’s ability both as regards standing and sitting. If she cannot do just one of those activities, she qualifies for points.

 

6. The alternative view is that “or” in this context is “conjunctive” – in effect, it means “and”. There are plenty of cases where courts have ruled that in a particular context “or” does indeed mean “and”. On this reading, a claimant qualifies for the 6 points only if for the majority of the time she both cannot stand unassisted and cannot sit for the required period – so if she can do one of those activities (e.g. sitting) then she cannot qualify, however serious the problems with standing unassisted. On that basis, if a FTT finds as a fact that she can sit for the requisite period, it need not make findings on the standing aspect.

 

7. It seems to me that either construction is arguable, which is doubtless why DTJ Taylor gave permission to appeal. I note that the learned authors of the standard commentary Social Security Legislation 2011-12, Vol 1: Non-Means Tested Benefits and Employment and Support Allowance (David Bonner et al.) prefer the latter view. They say (at p.1014, para. 9.373):

 

“There is now no requirement that the individual can both stand and sit; being able to do one or the other for the requisite period of time will preclude scoring under descriptors (b) and (c).”’

 

The competing arguments

9. Mr Michael Page has provided a written submission on the appeal on behalf of the Secretary of State at the Department for Work and Pensions (DWP). He does not support the appeal. His submission can be summarised thus: (1) the policy intent is that the standing and sitting descriptors “relate to the ability to remain at a workstation and are intended to capture disruption of this activity, such that a person moves between sitting and standing while remaining at a workstation”; (2) the DWP’s official guidance to health care professionals in the Training & Development ESA Handbook (the July 2012 edition of which is publicly available on the internet at http://www.dwp.gov.uk/docs/wca-handbook.pdf) reflects this policy intent; (3) the drafting of the descriptors in question is ambiguous and “the need to clarify the wording so that it more plainly achieves the intent has been identified and it is planned to do so at the earliest opportunity”; but (4) the FTT’s conclusion on the facts in the present case was “consistent with both the law in its current form and the policy intent”.

 

10. Mr Wagstaff has provided a well-crafted and powerful reply to the Secretary of State’s response. He makes the following points: (1) the DWP’s policy intent is neither here nor there – what matters is what the legislation as it stands actually means; (2) the fact that the Secretary of State’s representative had conceded that the drafting is ambiguous immediately casts doubt on the “official” interpretation of the descriptor; (3) a “plain English” approach should be adopted; according to Mr Wagstaff, for “the average man on the street the term ‘or’ clearly determines the choice of two alternatives which in this instance should be viewed as a claimant meeting the descriptor if they have difficulties at the prescribed levels in relation to their standing or sitting ability”; (4) if the legislator had wished to state that both activities could be combined, then the drafting could have achieved this, but the descriptor does not so provide.

 

The Upper Tribunal’s analysis

Introduction

11. I should say at the outset that I entirely understand Mr Wagstaff’s position that he has “little sympathy for the ineffectiveness in implementing policy as a result of the poorly drafted legislation”. There is also, I accept, a degree of inherent difficulty in Mr Page’s line of argument that (a) the drafting is ambiguous; (b) amending legislation is needed to clarify the policy intent; but (c) the DWP’s reading of the current descriptor 2c, as also adopted by this FTT, is the correct one in law. It seems to me that Mr Page has done a good job at showing how the interpretation he advances is consistent with the DWP’s policy intent. He has been less persuasive in arguing that this reading is also consistent with “the law in its current form”. That is, however, the conclusion that I have reached.

 

The counter argument by the appellant’s representative

12. In essence, Mr Wagstaff’s position is as follows. The interpretation of descriptors 2(b) and 2(c) is a matter of plain English. Each is an “either/or” descriptor. If you cannot stand for a specified length of time, you get the relevant points (even if you can sit). Alternatively, if you cannot sit for the specified length of time, you get the points (even if you can stand). There is, moreover, no basis for saying that a person who can only manage to stay at a work station by a combination of the two activities for an hour fails to get any points. To do so would be to read into the descriptor words that are not there. If that fails to reflect the DWP’s policy intent, then the answer is to introduce amending legislation. However, that is for the future and cannot affect the meaning to be given to the descriptor as it is currently worded.

 

13. This analysis has an attractive simplicity about it. However, in my view it fails to have sufficient regard to both the nuances of the English language and the context in which the key words are used.

 

14. So far as the former is concerned, dictionaries and guides to English grammar and syntax make it clear that “either ... or”, while perhaps normally used in a disjunctive sense, can also be used conjunctively (equivalent to “both ... and”). So, typically, “either ... or” is used disjunctively, to indicate a choice between two mutually exclusive alternatives. For example, “tonight we can either go to the cinema or go out for a meal” (but we do not have e.g. the time or the money to do both). But “either ... or” can also be used conjunctively, especially following a negative. For example, “I cannot speak either French or German” (which carries the same meaning as, and indeed sounds better in English than, “I cannot speak [both] French and German”).

 

15. It follows that ambiguity is inherent in the language itself. This is not a situation in which the legislative wording admits of only one reading. The question then is to consider the context in which the words are used. In my view Mr Wagstaff’s reading fails to look at the wording of descriptor 2(c) in the round, in terms of both its linguistic and legislative contexts.

 

The linguistic context

16. The wording must first be considered in its linguistic context. Even though the activity is entitled “standing and sitting”, the primary focus of descriptors 2(b) and 2(c) is on whether the claimant “cannot, for the majority of the time, remain at a work station”. Rather unhelpfully, the term “work station” is not defined by the Regulations. I suspect it has been left deliberately vague. A work station might be a desk at which one usually sits (e.g. for working at a computer); it might be a bench at which one typically stands (e.g. for working at a lathe); or it might be a supermarket checkout (at which one can either sit or stand).

 

17. The supermarket checkout is perhaps a good example. Most staff working on a traditional checkout with a conveyor belt sit at the till, although some do stand. But supermarkets also have separate “one basket only” checkouts, set at a slightly higher level. Some employees sit or perch on stools to work at such checkouts, while others stand, while still others alternate their stance.

 

18. Given that the primary focus of descriptors 2(b) and 2(c) is on remaining at a work station, it follows that points will be scored only if the person concerned can neither stand nor sit there for the allotted time. If they can do one of those activities (say, sit at a work station for more than an hour, even if they were unable to stand for anything like that length of time), then it follows that they can remain at a work station for the requisite period and so fail to score any points. That was the position in the present appeal.

 

19. Mr Wagstaff’s arguments would carry much more force if the descriptors within this activity had been differently structured. For example, the existing descriptor 2(c) might have been split into two hypothetical and entirely separate descriptors:

 

‘(d) cannot, for the majority of the time, remain at a work station 6 points

by standing unassisted by another person (even if free to move

around) for more than an hour before needing to move away in

order to avoid significant discomfort or exhaustion; or

 

(e) cannot, for the majority of the time, remain at a work station 6 points

by sitting (even in an adjustable chair) for more than an hour

before needing to move away in order to avoid significant

discomfort or exhaustion.’

 

20. If activity 2 had been so structured, one can readily accept that the person who could not stand for more than an hour would meet the hypothetical descriptor 2(d), irrespective of their sitting capability. Likewise the person who could not sit for more than an hour would meet hypothetical descriptor 2(e), even if they could stand. These hypothetical descriptors (d) and (e) involve a classic disjunctive “either...or” situation. In other words, you would get 6 points if either you cannot stand at a work station for more than an hour or if you cannot sit at a work station for more than an hour.

 

21. It does not seem to be a sufficient answer to that analysis to say that the current descriptor 2(c) is simply a way of rolling up the hypothetical descriptors (d) and (e) into one all-purpose omnibus descriptor which has the same meaning (as in paragraphs 19-20 above) but eliminates repetitive language. Rather, the “rolling up” must have been done for a purpose. That purpose is to focus on the functional ability to remain at a work station by whatever means in terms of standing and sitting. That purpose is reinforced by considering the legislative context and history.

 

The legislative context

22. The legislative context is set by section 8(2) of the Welfare Reform Act 2007 (“limited capability for work”) and regulation 19(1) and (2) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) (“the ESA Regulations”). Section 8(2)(b) provides for regulations to “define the assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed”.  Regulation 19(1) further provides that:

 

“... whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant.”

 

23. Regulation 19(2) then stipulates that:

 

“(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”

 

24. Schedule 2 to the ESA Regulations lists certain physical disabilities (Part 1) as well as a mental, cognitive and intellectual function assessment (Part 2). Activity 2 in Part 1 is “standing and sitting”. The test is then – for present purposes and in outline – whether the claimant “cannot, for the majority of the time, remain at a work station, either: (i) standing unassisted ...; or (ii) sitting” for more than 30 minutes (descriptor 2(b)) or one hour (descriptor 2(c)). Thus the prescribed activity is not simply “standing and sitting”; that is a legislative label or shorthand; rather, the activity prescribed for the purpose of the work capability assessment is that of standing and sitting so as to remain at a work station.

 

The legislative history

25. The legislative history is also significant here. Under the previous incapacity benefit regime, the sitting and standing descriptors were kept entirely separate as activities 3 and 4 (see the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311)). So a claimant might score 7 points for “cannot sit comfortably for more than 30 minutes without having to move from the chair” (descriptor 3(c)) and, in addition, a further 7 points for “cannot stand for more than 30 minutes before needing to sit down” (descriptor 4(d)).  Thus, subject to the special exception applying to walking and stairs, scores from separate activities could be aggregated, with the highest scoring descriptor within each activity applying (regulation 26(3)).

 

26. In the original version of the ESA Regulations, the standing and sitting descriptors were combined as one activity (“standing and sitting”, activity 2), but the individual descriptors referred solely to problems with either standing or with sitting, but not both. As before, only the highest scoring descriptor in the activity scored (regulation 19(6)). Thus a person could not now score 6 points for an inability to stand for more than 30 minutes (descriptor 2(e)) as well as a further 6 points for an inability to sit for more than 30 minutes (descriptor 2(f)).

 

27. In the present version of ESA activity 2, in force since March 28, 2011, the individual functions of standing and sitting have been combined into single descriptors. The fact that they have now been combined, and referenced in terms of an ability to remain at a work station for a set duration, results in the purposive reading summarised above at paragraphs 4 and 5.

 

The significance of Social Security Commissioner’s decision R(IB) 3/02

28. I find support in the decision of Mr Commissioner Howell QC in R(IB) 3/02 for the approach taken above. That decision concerned the “bending and kneeling” descriptor in the previous incapacity benefit regime. In that case the appeal tribunal did not award any points for bending and kneeling because it found that the appellant would be able to kneel, even if, at times, because of his back problems, he could not bend. Mr Commissioner Howell QC ruled that incapacity benefit descriptors 6(b) and 6(c) were not satisfied by a claimant who could reach the floor and straighten up again by bending, or by kneeling, even if he could not do both. In typically insightful terms, the learned Commissioner posed the issues as follows:

‘20. As noted elsewhere the descriptors in this Schedule are to be read in a reasonable everyday sense, and are not to be approached as a work of over‑refined legal draftsmanship which they are not. It is plain in my judgment from the way the descriptors are expressed that what the “bending and kneeling” activity is concerned with is a basic level of agility and balance of the torso and limbs. The homely example of a piece of paper on the floor is not of course used because the department is obsessed with the litter in people’s houses, but to characterise a minimum standard of ability to flex and extend, sufficient to get oneself within near enough reaching distance of the floor to carry out a simple momentary operation there on an object of negligible thickness above the floor surface itself, using one or two knees for support or stability if necessary, and then get back up again.

 

21. To describe this level of ability, the draftsman has made use of the potentially difficult syntactical device of multiple conditions in the negative – a device carrying an increased risk that someone will manage to find a real or imagined ambiguity in the result. It occurred to me when considering this case to wish that draftsmen before using it, and perhaps even those who have to interpret their work, should take a short course in the working of simple logic gates (with operators such as And, Or, Nor, and Eor, perhaps specially in point here) or at least in wiring a domestic two-way switch: there is nothing like finding the lights stay on all the time or off all the time to concentrate one’s mind on the basic principles involved. Here the draftsman’s circuitry is not perfect, on any view: on the majority reading of his negative “or” conditions for bending and kneeling, a person who can do one thing but not the other is in a dark patch with no descriptor being true; while on the minority reading, both a scoring descriptor and the final one for “No problem with bending or kneeling” will be found to be light up as “true” at once.’

 

29. Mr Commissioner Howell QC gave three reasons for reaching the conclusion that he did. Each of these three reasons was sufficient by itself to support his ruling. The first was as follows (at paragraph 23):

 

‘First, the actual words used. 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.’

 

30. For the reasons given above, the same linguistic considerations apply with equal force in determining the present issue of statutory interpretation.

 

31. The second reason given by Mr Commissioner Howell QC was as follows (at paragraph 24):

 

‘It is simply inconsistent with any conceivable rational intent that a person not able either to bend or to kneel fully, but still able to struggle and reach the floor by a partial combination of the two should be given no score, when a person who has no problem at all doing it by one means alone should still get the points.’

 

32. This second reason is just as compelling. In R(IB) 3/02 it was held that a person who can kneel to pick a piece of paper off the floor, or can bend and kneel to do so, should not score points simply because he cannot bend to do so. By the same logic, a person who can sit at a workstation for the required period, or remain there by a combination of sitting and standing, should not score points just because she cannot stand there for that duration. I do not need to consider the third reason cited in R(IB) 3/02.

 

 

33. The decision in R(IB) 3/02 is significant for a further reason. The relevant descriptor, as originally enacted in 1995, was described in terms of “cannot bend or kneel as if....” In 1997 the statutory provisions were amended to read “cannot either, bend or kneel, or bend and kneel as if....” Mr Commissioner Howell QC concluded that the difference was not material (at paragraphs 18 and 24). The amended and expanded statutory language simply had the effect of to “place beyond argument” the construction arrived at. In the same way, if, as Mr Page indicates is likely, the DWP later bring forward amending regulations to clarify the meaning to be attached to ESA descriptor 2, the fact that the Secretary of State has not yet taken that step does not detract from the meaning adopted above.

 

Conclusion

34. For these reasons, I reach the conclusion that ESA activity 2, and in particular descriptors 2(b) and 2(c), as presently drafted, should be read in the way summarised at paragraphs 4 and 5 above.

 

The DWP’s guidance

35. The Department’s guidance to health care professionals (see paragraph 9 above) describes the scope of the standing and sitting descriptor as follows (at page 70):

 

‘This activity relates to lower limb and back function. It is intended to reflect the need to be able to remain in one place, through either sitting or standing. When standing, a person would not be expected to need to stand absolutely still, but would have freedom to move around at the workstation or shift position whilst standing. Similarly, it is considered reasonable that a person would be able to move around when sitting. The reference to an “adjustable chair” reflects the advances in ergonomics over the years. Those with some difficulty/ discomfort on sitting can often be significantly aided by provision of an adjustable chair. This type of adaptation is likely to be considered a reasonable adjustment under the Equality Act.’

 

36. The guidance continues (at page 71; the references to ‘Sb’ and ‘Sc’ are to descriptors 2(b) and 2(c) ):

 

‘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”.’

 

37. For the avoidance of doubt, I should make it clear that I have not relied on that guidance as an aid to the interpretation of activity 2 and in particular descriptors 2(b) and 2(c). However, the passages cited above are consistent with the analysis above.

 

The “majority of the time” and reasonable regularity

38. Descriptors 2(b) and 2(c) each expressly requires decision makers and tribunals to make an assessment as to whether a person cannot undertake the relevant activity “for the majority of the time”. At the same time, it is well established that an individual must be able to do so “with reasonable regularity”. The individual who can either sit or stand at a work station for a prolonged period may not be problematic. However, there may be individuals who, because of their health condition, have to alternate between sitting and standing. One may envisage that there may be situations in which a person has to alternate so much between the two positions that it may be difficult to see how they can indeed “remain at a work station” in any meaningful way, given the level of disruption involved.

 

Other ESA activities and descriptors

39. This decision is solely concerned with the meaning of “either ... or” in the context of the standing and sitting activity. The same reasoning may not necessarily apply where “either ... or” is used in defining other activities and descriptors, even in the same Schedule to the ESA Regulations. This is because it all depends on the particular context.

 

Other arguments

40. There is a separate and unrelated ground of appeal. The appellant had elected for a paper hearing. Mr Wagstaff argues that the FTT failed to apply rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), a provision considered by Judge Mesher in MM v Secretary of State for Work and Pensions (ESA) [2011] UKUT 334 (AAC). In particular Mr Wagstaff relies on the decision of Judge Poynter in JP v Secretary of State for Work and Pensions (IB) [2011] UKUT 459 (AAC) as supporting his submission that the FTT should have adjourned the case for an oral hearing, to explore both the issue of standing and also the extent of the appellant’s speech impediment.

 

41. I am not persuaded by Mr Wagstaff’s argument on this point. The present case is not like JP v Secretary of State for Work and Pensions (IB), where the tribunal had treated the appellant’s absence as an adverse factor in the weighing of the evidence. Rather, the FTT in the instant case consciously exercised its discretion under rule 27 and gave concise but adequate reasons for deciding to proceed.

 

Conclusion

42. For the reasons explained above, the decision of the First-tier Tribunal does not involve any material error of law.  I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 24 September 2012 Judge of the Upper Tribunal