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 Appellant.

The decision of the Manchester First-tier Tribunal dated 2 September 2014 under file reference SC946/14/01428 does not involve any error 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 issue posed by this appeal

1. The narrow question of interpretation raised by this appeal is the meaning of the expression “cannot chew or swallow food or drink”.

2. My conclusion is that this phrase means, in effect, and adding words to ensure clarity of meaning, “cannot either chew and swallow food or swallow drink”.

The factual context

3. The First-tier Tribunal’s findings of fact after hearing the Appellant’s appeal included the following, namely that the Appellant “buys noodles, soup, bread and alcohol from his local shop… He drinks 5 cans of lager every evening… [he] has not lost any weight over the last year”.

4. In its analysis, the Tribunal found that the Appellant did not qualify for the employment support allowance (ESA) support group on the basis of descriptor 16(b) of Schedule 3 to the Employment Support Allowance Regulations 2008 (SI 2008/794, as amended). Activity 16 of Schedule 3 is unusual in that it has no direct comparator in Schedule 2 (a characteristic it shares with activity 15, “Conveying food or drink to the mouth”).  However, a claimant who meets the terms of activity 15 or 16 is treated as having limited capability for work (see regulation 20((1)(g)). Descriptor 16(b) applies where a person “cannot chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort”. The Tribunal gave two reasons for reaching this conclusion.

5. First, the Tribunal did not accept the Appellant’s evidence. It gave several instances of matters on which the Appellant’s evidence was contradictory and unreliable. The Tribunal noted the Appellant’s account that he had “problems swallowing, and is therefore only able to eat pot noodles, soup, and bread which has been soaked in soup.” There was some medical evidence that he had reflux problems. The Tribunal also noted that the Appellant had not lost any weight. In the light of all the evidence, the Tribunal concluded on the facts that the terms of descriptor 16(b) were not met.

6. Second, the Tribunal found that in any event the Appellant only qualified for the support group if he was “unable to swallow either food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort”. As he was fully able to swallow drink and the more soft, liquid types of food without difficulty, he did not meet the statutory test under descriptor 16(b) of Schedule 3.

The parties’ arguments

7. The Appellant’s representative argues that as the descriptor refers to “food or drink”, rather than “food and drink”, then the terms of the statutory test are met where a person can only swallow one of them. The use of the ordinary English word “or” is disjunctive not conjunctive. So the Appellant’s problems with ingesting solid food meant that he qualified for the support group under descriptor 16(b) of Schedule 3.

8. The Secretary of State’s representative argues that the relevant descriptor should be read conjunctively, in accordance with my decision in MC v Secretary of State for Work and Pensions [2012] UKUT 324 (AAC); [2013] AACR 13. If I disagree with that approach, he asks me to stay (delay) any decision on the proper interpretation of the descriptor. This is because the differing approaches to the former standing & sitting descriptors (and in particular the significance of the word “or”) in MC v Secretary of State for Work and Pensions and in the decision of a Tribunal of three Social Security Commissioners in Northern Ireland in MM v Department for Social Development (ESA) [2014] NICom 48 (Decision No: C10/13-14(ESA)) are due to be addressed in the appeal pending before the Upper Tribunal under case reference CE/3634/2014.

The Upper Tribunal’s analysis

A preliminary issue

9. I reject the argument by the Secretary of State’s representative that the decision in the present appeal should be stayed to await the outcome of CE/3634/2014. I do so for two reasons.

10. First, the issue that arose in both MC v Secretary of State for Work and Pensions and in MM v Department for Social Development (ESA) was the proper construction of a descriptor that used the specific formulation of “either…or…”. The present descriptor simply uses the word “or”. There is no “either”.

11. Second, as I indicated in MC v Secretary of State for Work and Pensions:

“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.”

The issue of principle

12. I have considered other case law on “or” in the context of descriptors in Schedule 2 (e.g. HD v Secretary of State for Work and Pensions (ESA) [2014] UKUT 72 (AAC) and DG v Secretary of State for Work and Pensions (ESA) [2014] UKUT 100). These also demonstrate that the meaning to be attached to “or” is very much context specific. So how should one understand descriptor 16(b) of Schedule 3 in its context? “Cannot chew or swallow food or drink” is a form of words that is at the beginning of the three descriptors 16(a), (b) and (c). Descriptor 16(a) is absolute whereas 16(b) and (c) are qualified (the former by reference to physical problems, the latter by reference to mental health issues, e.g. severe anorexia).

13. The drafting of these descriptors is regrettably less than crystal clear. As a matter of simple English one cannot “chew” drink, so logically “cannot chew or swallow food or drink” must mean “cannot chew or swallow food or [swallow] drink”.

14. The question then is what is meant by the word “or” in the two places that it appears in that single phrase. If one puts the act of chewing to one side for a moment, the test is whether a person “cannot … swallow food or drink”. The “or” here must be disjunctive. That is the usual meaning of the word. It also fits with both the context and purpose. A person needs to be able both to eat and to drink to survive. Schedule 3 is designed to identify those with the most severe types of disability which prevent them from even being reasonably able to engage in work-related activity. On that basis a person who can drink but who cannot ingest food qualifies for the support group, as he can swallow drink but cannot swallow food. The converse would also apply, although medically it may be rather more difficult to envisage how a person could swallow food but not swallow drink.

15. But what about the first “or” as in the phrase “cannot chew or swallow food”? Is this “or” also disjunctive or is it conjunctive? Obviously the words “chew” and “swallow” are not synonyms. Chewing is an activity that is a precursor, if needed, to the act of swallowing food. The latter without the former may be fatal. Food itself may be solid, soft or virtually liquid (e.g. some soups and forms of pureed fruit). An individual who is able to chew food but cannot, for whatever reason, then swallow food has a very significant disability. Likewise a person who cannot chew food, but can swallow it (e.g. as a thin soup or as pureed fruit), undoubtedly has a significant disability. So chewing and swallowing are, for most types of food, sequential activities both of which typically have to be done to food (but not to drink) in order for it to be safely ingested.

16. Given that the overall purpose of the activity must be to provide a route to the support group for those who have very severe difficulties with eating and/or drinking, it follows that “cannot chew or swallow food” means “cannot either chew or swallow food” or, to put it another way, “cannot chew and swallow food” (but not “can neither chew nor swallow food”). We must assume rational intent on the part of those drafting the legislation. The word “chew” must be there for some purpose or added value. If the policy intention was to exclude from the support group those with serious problems with mastication but who had no problems with swallowing (food or drink), then the test would simply have read “cannot swallow food or drink”. So the first “or” in the phrase “cannot chew or swallow food or drink” must be read conjunctively.

17. Perhaps the drafter avoided using the word “and” (instead of “or”) between “chew” and “swallow” for the simple reason that one cannot chew drink. I simply observe in passing this appears not to have concerned those responsible for drafting the definition of “take nutrition” in the Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377), Schedule 1, Part 1, paragraph 1. This defines the term (other than being fed by tube) to mean “cut food into pieces, convey food and drink to one’s mouth and chew and swallow food or drink”.

18. At this stage a reality check is appropriate. Does this mean that a person who has lost their dentures has a passport to the ESA support group? They may be able to swallow, but (assume for the moment) they cannot chew. The answer to that question is a clear no. In deciding whether a particular descriptor applies, the claimant is to be assessed “wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used” (regulation 34(3)(b)). Moreover, the relevant incapability must arise from a “specific bodily disease or disablement” (or consequential treatment) in the case of descriptors 16(a) and 16(b) and from a “specific mental illness or disablement” (or such treatment) in the case of descriptors 16(c) and 16(d) (regulation 34(6)).

19. On that basis the requirement that the claimant “cannot chew or swallow food or drink” as contained in descriptors 16(a) and 16(b) is clearly targeted at those, amongst others, with severe neurological conditions or disorders of the head and neck as a result of e.g. extensive surgery for head and neck cancer, as contemplated by the DWP’s Revised WCA Handbook (version 7, February 2015, p.37).

20. So, on this analysis, the first “or” in descriptor 16(b) is conjunctive and the second “or” is disjunctive. Thus a person who cannot chew food “without repeatedly stopping, experiencing breathlessness or severe discomfort”, but who can swallow thin soup and drink liquids, qualifies under descriptor 16(b) for the ESA support group.

The application of that principle in practice in this case

21. The following exchange took place at the hearing, according to the very careful record of proceedings:

“Representative: ‘He cannot swallow w/o severe discomfort. Living off liquids/pot noodles/bread dunked in soup. He effectively can’t eat. My interpretation is, + I’ve followed it on Rightsnet, he can’t swallow food.’

Judge: ‘But he can swallow drink’.”

22. From that exchange, and the passage in the statement of reasons summarised at [6] above, it is plain that the Tribunal read the second “or” to be conjunctive (hence its re-phrasing of the test in terms of the Appellant only qualifying for the support group if “unable to swallow either food or drink (etc)”. Put another way, the Tribunal took the view that the Appellant could qualify for the support group only if he could swallow neither food nor drink.

23. In doing so, the Tribunal erred in law, for the reason set out at [14] above.

24. However, was this a material error of law? In my view it was not. The Tribunal found the Appellant to be an unimpressive witness. It explained why it had reached that assessment. It is fundamental that the assessment and evaluation of the evidence is a matter for the tribunal, which, of course, includes a medical member. Credibility in particular is a classic “jury question”.

25. The Secretary of State’s representative argues that on any reading of the evidence and the facts as found by the Tribunal then the Appellant did not meet the terms of descriptor 16(b). He apparently survived on a diet of pot noodles and bread soaked in soup. That is solid, albeit soft, food. There was no medical reason why he was unable to chew food. He clearly had no problem swallowing liquids. He had not lost any weight, which was indicative of no significant problem with swallowing food either. That was ultimately a question of fact.

26. It follows that the Tribunal’s decision was sustainable on the evidence before it and the findings of fact that it made, even if there was a misdirection as to the relevant construction of descriptor 16(b). My conclusion, therefore, is that the Tribunal’s decision does not involve a material error of law. I accordingly dismiss the Appellant’s appeal.

Conclusion

27. For all these reasons, 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). 

28. This is not the first and it will not be the last Upper Tribunal decision on the statutory interpretation of the ESA descriptors and in particular the significance of the word “or”. I could simply echo a recurrent message that more care needs to be taken over the statutory drafting. There may be other ways of ensuring clarity of meaning, for example by way of an algorithm or flow chart.

Signed on the original Nicholas Wikeley

on 02 June 2015 Judge of the Upper Tribunal