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CIB/228/1999

 

This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=813


R(IB) 2/02
(Purdy v. Social Security Commissioners)

Mr. A. Lloyd-Davies CIB/228/1999
7.3.00

CA (Aldous LJ)
6.10.00
Incapacity for work – all work test – whether squatting is bending or kneeling
The claimant was refused incapacity benefit by an adjudication officer in 1995 on the ground that he had not satisfied the all work test, because he only achieved 3 points in respect of the “bending and kneeling” activity. A tribunal ultimately allowed the claimant’s appeal for part of the period in question, but decided, by a majority, that during the remainder of the period the claimant only scored 6 points, being 3 in respect of “rising from sitting” and 3 because he “sometimes cannot bend or kneel as if to pick up a piece of paper from the floor”. The view of the dissenting minority was that the claimant could only pick up a piece of paper from the floor by squatting, so he satisfied the descriptor “cannot bend or kneel as if to pick up a piece of paper from the floor” and should accordingly be awarded 15 points. The claimant had submitted that squatting was neither bending, that is bending at the waist, nor kneeling, that is placing one or both knees to the floor. All members of the tribunal agreed that the claimant could only achieve that task by squatting. The claimant appealed to the Commissioner.
Held, dismissing the appeal, that:
1. in the context of the descriptors for the activity of “bending and kneeling”, the words “as if to pick up a piece of paper from the floor” colour the words “bend or kneel”;
2. people would normally pick up a piece of paper from the floor by a combination of bending at the waist and bending at the knee;
3. the descriptors therefore encompass bending at the knee, so that a person who only bends at the knee, or squats, does not satisfy the two descriptors concerned.
The claimant applied for permission to appeal to the Court of Appeal.
Held, refusing permission to appeal, that:
1. the descriptor “cannot bend or kneel as if to pick up a piece of paper from the floor” is concerned with the disability of a person who is unable to get down to the floor and pick up a piece of paper without assistance;
2. the claimant’s only limitation is that he does not, or cannot, bend his back;
3. the Commissioner’s construction is correct.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the social security appeal tribunal (“the 1998 tribunal”) held on 16 September 1998 is not erroneous in point of law. Accordingly, I do not allow the claimant’s appeal.

2. The claimant had been in receipt, successively, of sickness, invalidity and incapacity benefit from 1988, following an industrial accident he suffered in June that year. The principal problems from which he suffers are a lumber back lesion with degenerative disc disease of the lumbar spine, a torn hamstring muscle, and a perforated right ear drum. He was required to complete an incapacity for work questionnaire which he did on 10 May 1995. He was examined by a medical officer on 5 July 1995. After considering the evidence an adjudication officer disallowed the claimant’s incapacity benefit from and including 4 August 1995 on the grounds that he had not satisfied the all work test, inasmuch as he had only achieved 3 points on the physical descriptors, namely in respect of bending and kneeling. The claimant appealed. A tribunal held on 17 November 1995 disallowed his appeal, confirming the decision of the adjudication officer. The claimant appealed to the Commissioner. The Commissioner allowed the claimant’s appeal and remitted the case for rehearing by a differently constituted tribunal on the grounds that the 1995 tribunal had not fully considered the claimant’s allegations that he was sometimes completely out of action for four or five days at a time because of his back and that this could occur between one and three times a month. By the time the Commissioner gave his decision on 6 August 1998 the claimant had in fact applied for and had been awarded incapacity benefit again from 27 February 1996, although this award was disallowed with effect from 15 November 1996, a decision which was upheld by a tribunal held on 30 September 1997. Accordingly when the case came before the 1998 tribunal it only had to consider the period (“the closed period”) from the date of the original disallowance, namely 4 August 1995, down to the day before the subsequent award, namely 26 February 1996. The 1998 tribunal allowed the claimant’s appeal in part inasmuch as it found that the claimant satisfied the all work test from 1 January 1996 to 14 January 1996 on the grounds that he was wholly unable to walk during that time and accordingly scored 15 points in respect of that activity. However the tribunal, by a majority, held that for the rest of the closed period the claimant only scored 6 points, 3 in respect of rising from sitting and 3 since he sometimes could not bend or kneel as if to pick up a piece of paper from the floor. The dissenting minority held that, since the claimant could only pick up a piece of paper from the floor by squatting he satisfied the descriptor “cannot bend or kneel as if to pick up a piece of paper from the floor” on the grounds that squatting did not constitute bending or kneeling and he should accordingly be awarded 15 points.

3. The claimant appeals with the leave of the Commissioner. The appeal is not supported by the adjudication officer concerned. The claimant asked for an oral hearing, to which request I acceded. At the hearing the claimant appeared in person and Mr. Sriskandarajah of the Office of the Solicitor to the Department of Social Security appeared on behalf of the Secretary of State (who had succeeded to the functions of the adjudication officer). I am grateful to both for their submissions.

4. Two issues arose in the appeal. First, whether squatting constituted bending or kneeling for the purposes of the relevant activity. The descriptors concerned are:-

“cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again” (15 points)

and

“sometimes cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again” (3 points)

It was common ground between all members of the tribunal that the claimant could only achieve the task mentioned in these descriptors by squatting. It was further common ground that he sometimes was disabled from doing the task by reason of his back pain. The issue between the majority and the dissenting minority was whether “squatting” constituted “bending or kneeling”. The claimant submitted that squatting was neither (i) bending, that is to say, bending at the waist nor (ii) kneeling, that is to say placing one or both knees to the floor. On behalf of the Secretary of State it was submitted, by reference to various dictionary definitions, that “bend” could refer not only to vertebral movement but also to bending of the knees.

5. In my judgment “bending or kneeling” does encompass squatting. I reached this conclusion not so much on the dictionary definitions recited to me on behalf of the Secretary of State, but rather in the context of the descriptors taken as a whole. The descriptors refer to bending or kneeling “as if to pick up a piece of paper from the floor”. In my judgment these words colour the words “bend or kneel” and require one to consider how people normally pick up a piece of paper from the floor. This is normally done by a combination of bending at the waist and bending at the knee, with an inclination of the head in order the better to be able to see: the number of people who actually kneel, in the sense of placing one or both knees to the floor, in order to pick up a piece of paper, are relatively few, as are the number of people who bend only at the waist without flexing at the knee at all. The descriptors thus must encompass bending the knees. On this analysis a person who only bends the knees, or squats, can “bend or kneel as if to pick up a piece of paper from the floor” and therefore does not satisfy the descriptors. As mentioned above the majority of the tribunal, however, found that the claimant was sometimes disabled from picking up a piece of paper from the floor even by squatting and for this reason correctly awarded the claimant 3 points.

6. The second issue is as follows: during the hearing I indicated that I was concerned whether the tribunal had properly considered the variability of the claimant’s condition and whether, given the claimant’s original allegations that he was sometimes laid up in bed for four or five days at a time, it had had sufficient regard to incapacity which might have lasted for four days or more. On reconsidering the tribunal’s decision I am, however, satisfied that it adequately considered these matters, even though it had not had the advantage of having the Tribunal decision CIB/14534/1996 [R(IB) 2/99] (which dealt with variable conditions) before it. It only had to consider the closed period - just under 7 months. Within the closed period it identified 14 days in January 1996 when the claimant was found to be wholly incapable. The majority concluded that (page 210), taking an overall view for most of the time the claimant was during the rest of the closed period able to perform the various descriptors making up the all work test and accordingly did not qualify. It had previously examined in some detail for what periods the claimant had been laid up for any length of time and, having identified these (only one of which - that in January 1996 - fell within the closed period) found that there were no other periods when the claimant had been confined to bed.

6. For the above reasons, the claimant’s appeal fails.



Date: 7 March 2000 (signed) A. Lloyd-Davies
Commissioner


The claimant applied for permission to appeal to the Court of Appeal. The decision of the single judge follows.



DECISION OF THE COURT OF APPEAL


The Applicant appeared in person.

The Respondent did not appear and was not represented.


Judgment


1. LORD JUSTICE ALDOUS:

Mr. Purdy came this afternoon to renew his application for permission to appeal to this court. The case originally came before me and I considered it on paper. I gave my reasons on 2 August 2000.

2. Mr. Purdy has, as I pointed out in those reasons, suffered with his back since 1988. Clearly he has a damaged back. He was awarded three points because sometimes he cannot bend or kneel as if to pick up a piece of paper. He has been through a number of medicals and his case has been considered. The most recent consideration was by Mr. Lloyd-Davies who gave his decision on 7 March 2000. The issue that was before the Commissioner was whether Mr. Purdy was entitled to 15 points because he could not bend or kneel as if to pick up a piece of paper from the floor and straighten up again. The Commissioner said this:

“In my judgment ‘bending or kneeling’ does encompass squatting.”
3. Mr. Purdy asked to demonstrate the squatting which he was held to have been able to do. This he did before me. It involved bending his knees. He keeps his back straight, but he bends forward from the hips to look down. In the way that he does that the back itself is not curved.

4. The Commissioner went on to give his reasons for coming to the conclusion that squatting of the type I have described came within the descriptor. He said this:

“I reached this conclusion not so much on the dictionary definitions recited to me on behalf of the Secretary of State, but rather in the context of the descriptors taken as a whole. The descriptors refer to bending or kneeling ‘as if to pick up a piece of paper from the floor’. In my judgment these words colour the words ‘bend or kneel’ and require one to consider how people normally pick up a piece of paper from the floor. This is normally done by a combination of bending at the waist and bending at the knee, with an inclination of the head in order the better to be able to see: the number of people who actually kneel, in the sense of placing one or both knees to the floor, in order to pick up a piece of paper, are relatively few, as are the number of people who bend only at the waist without flexing at the knee at all. The descriptors thus must encompass bending the knees. On this analysis a person who only bends the knees, or squats, can ‘bend or kneel as if to pick up a piece of paper from the floor’ and therefore does not satisfy the descriptors. As mentioned above the majority of the tribunal, however, found that the claimant was sometimes disabled from picking up a piece of paper from the floor even by squatting and for this reason correctly awarded the claimant 3 points.”

5. The way Mr. Purdy argues the case is this: because he cannot bend his back, in the sense of curving his back so as to enable him to pick up a piece of paper, he is entitled to the 15 points. In my view he has misunderstood the descriptor. As the Commissioner pointed out, it contains not just the statement “cannot bend”, it goes on “as if to pick up a piece of paper from the floor and straighten up again”. It is concerned with the disability of a person who is unable to get down to the floor and pick up a piece of paper without assistance. Mr. Purdy has demonstrated to me when going down to pick up a piece of paper that he bends his knees, he bends at the hips and he bends his head. All that he does not do, or cannot do, is to curve his spine.

6. In my view, there is no way that this court would construe the descriptor in any way other than the way the Commissioner did. I therefore believe he stands no real chance of success in this court on his appeal. I therefore refuse the application for permission to appeal.


Order: Application for permission to appeal refused. (Order not part of approved judgment.)