Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/2774/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.    This is an appeal with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 14 January 2013.  That decision dismissed the claimant’s appeal from a decision dated 4 April 2012 that the claimant’s existing award of incapacity credits and income support  did not qualify for conversion into an award of employment and support allowance (ESA) because she did not have limited capability for work.

2.    The claimant, who was born in 1984, has no use of her left arm.  The tribunal found, however, that her right arm was fully functional and she had no other conditions that limited her functionality.  It awarded her 6 points in respect of descriptor 4(c) in Schedule 2 of the Employment and Support Allowance Regulations 2008 – “Cannot transfer a light but bulky object such as an empty cardboard box.”  It found that she would be unable to do this because she would reasonably need both arms to perform this task.

3.    The tribunal awarded her no other points.  In particular, in relation to descriptor 5(d), “Cannot use a suitable keyboard or mouse”, it stated in the statement of reasons that she was fully able to complete this task with her right hand.

4.    On this appeal the claimant contends that the tribunal erred in law in finding that she scored no points on descriptor 5(d) because she contends that she cannot use a suitable keyboard with one hand.  The Secretary of State disputes that and also contends that the tribunal was wrong in law to award her 6 points because a light but bulky object could be transferred with one arm.

5.    Descriptor 4(c) as originally worded read “Cannot pick up and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together.”  The requirement that both hands needed to be used together has gone.  The Secretary of State on this appeal has submitted that it is therefore generally accepted that a person could manage to transfer an empty cardboard box by using one hand and supporting the box against another part of the body.  I disagree.  There is no suggestion in the descriptor that the size of the bulky object has diminished because of the change in the descriptor.  Further, the descriptor relates to picking up and moving or transferring by the use of the upper body and arms.  In my judgment, the effect of the change of wording is that the use of both hands together is no longer essential.  If it can be picked up and moved by the use of one arm and the upper body, presumably by wedging it under the arm, that will suffice.  But not everybody is expected to be able to do that.  It appears to me that the tribunal concluded, as it was entitled to, that this claimant would reasonably require both arms to perform the task.

6.    Descriptor 5(d) was in its original form “Cannot physically use a conventional keyboard or mouse.”  It then became “Cannot use a suitable keyboard or mouse”, the form which applied to the claimant in this case.  Finally, subject to transitional provisions, by an amendment coming into effect on 28 January 2013, it became “Cannot single-handedly use a suitable keyboard or mouse.”

7.    I have had the benefit of extensive and helpful submissions from a representative from FRU in which she argued persuasively that my decision in CL v SSWP [2013] UKUT 434 (AAC) is to be preferred to that of Judge Wright in DG v SSWP [2014] UKUT 100 (AAC), where he disagreed with my construction of the descriptor as it then stood.

8.    Subject to one point, I do not find it necessary for the purposes of this decision to enter further into the disagreement between myself and Judge Wright as to whether 9 points are scored if the claimant can use a mouse but not a keyboard or vice versa.  There is no dispute here that the claimant could use a mouse and in my judgment there is also no basis on which it can be contended that the tribunal was wrong in law in concluding that she could also use a suitable keyboard. 

9.    The one point which is relevant to this decision is whether the claimant needs to be able to use the suitable keyboard with a computer or whether being able to press the keys in some sort of sequence is enough.  In that context, Judge Wright stated as follows in paragraph 54 of his decision:

“ I also respectfully disagree with Judge Mark in CL when he said that “in the context of using a computer, a person generally needs to be able to  use both the keyboard and the mouse, so that where the descriptor refers to a suitable keyboard or mouse, and inability to use either is sufficient to score points on this descriptor”. The opening words of this passage in my judgment wrongly seek to read into descriptor 5(d) that what it is testing is the overall use of a computer with a mouse. What is being tested is the claimant’s ability with his hands and fingers to carry out the functions so as to be able to use a suitable keyboard or a mouse in the way I have sought to describe in paragraph 46 above [Note that this ought perhaps to be a reference to paragraph 48].  Descriptor 5(d) does not use the word “computer”, it does not posit a combined test (of keyboard and mouse), and for these reasons I consider it is illegitimate to seek to read into it some overall test of using a computer with a mouse or a mouse with a computer.” [My note in italics]

10. Judge Wright plainly disagreed with my reasons for concluding that points were scored if either the keyboard or the mouse could not be used.  That disagreement may need to be resolved on another occasion.  However, there is no doubt, and no disagreement between us, that, as he states, what is being tested is the physical ability, so far as manual dexterity is concerned, to use a suitable keyboard or mouse.  His description in paragraph 48 of his decision of the test is whether the mouse can be gripped and moved over an icon or box and then clicked and using the keyboard to type out letters, numbers and symbols.  Again, I would not dissent from that, subject to questions relating to such matters as reasonable repetition and the effects of, for example, repetitive strain injury, and that the purpose of the so using the mouse or typing out letters etc. is to achieve certain results on the computer they are being used with.  It is possible that a person may have sufficient control of the hands to be able to move and click the mouse or type letters but insufficient control to do so with any degree of accuracy  or with any regularity or for any reasonable time.

11. When the descriptor speaks of using a keyboard or mouse, as Judge Wright’s examples make clear, the use can only be to achieve results on a computer.  It follows that in assessing whether hands are so lacking in dexterity as to score points on this descriptor it must be in relation to the operation of a computer.  Why that scores the same number of points as not being able to make a meaningful mark with a pen or pencil is unclear, but what is clear is that even Judge Wright’s description of what is required is far more demanding than a physical ability to make a cross on a piece of paper.

12. None of that, however, in my judgment, assists the claimant in the present case.  She has no problems with her right hand.   Suitable keyboards with standard facilities like StickyKeys, can be operated with one hand, and on the facts found by the tribunal there was no physical reason why the claimant could not use a suitable keyboard with her right hand.  The introduction of “single-handedly” into the latest form of the descriptor does no more than confirm what was already the case given the facilities now available to keyboard users. 

13. It is contended that this would not enable the claimant to operate the keyboard so as to give her the same usage of the computer as an individual with two hands and that not all computer functionality would be available through StickyKeys and that it would not help in situations where it is necessary to use the mouse and keyboard concurrently to carry out certain tasks.  No examples are given.

14. Even if there are some things the claimant cannot do using only one hand for either of the reasons given, or at all, provided that her dexterity was such as to enable her to use the keyboard so as to have a significant ability to use a computer, the fact that some uses were beyond her physical abilities would not mean that she could not use the keyboard or mouse.

15. It appears to me therefore that the tribunal came to the right decision and gave good reasons for it.

(signed) Michael Mark

Judge of the Upper Tribunal

10 October 2014