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Mrs L T Parker CIB727/1998
All work test – interrelation of the activities of lifting and carrying and manual dexterity – effect of exclusion in activity 8
The claimant had suffered an amputation of the index and middle fingers of his right hand at their base and his right ring finger was held in a fixed flexion deformity. The adjudication officer awarded the claimant twelve points for impairment of manual dexterity and of lifting and carrying under descriptors 7(f) and 8(e). The tribunal considered that the claimant’s difficulties could be included only within the scope of the activity of manual dexterity. The tribunal took the view that the wording of activity 8 (“lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this Schedule)”) precluded the award of any points for lifting and carrying. The claimant appealed to the Commissioner. The adjudication officer supported the appeal.
Held, allowing the appeal, that:
1. the wording of activity 8 had been amended by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996. The effect of the amendment had been to preclude from taking into consideration those activities which are often associated with lifting and carrying but which are separate components of one continuous manoeuvre (e.g. walking, reaching and bending, walking up and down stairs and standing and rising from sitting);
CSIB/42/1996 and CSIB/13/1996 distinguished.
2. on a literal interpretation of the exclusion in activity 8, any problem with the use of hands was to be excluded but this would negate a very significant aspect of what was included in the concept of lifting and carrying. Since all the descriptors in activity 8 which attract points referred to the use of a hand in picking up and carrying, it was possible that no award of points under that activity could ever be made in cases where the claimant had a problem with manual dexterity. However, the use of hands is an integral part of the activity of lifting and carrying and not a separate component of it, and adopting a purposive interpretation, the activities and the descriptors had to be read together in order for the all work test to be properly applied.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the social security appeal tribunal dated 25 November 1997 is erroneous in law and I set it aside. The decision which I give in its place is that the claimant has satisfied the all work test as at 18 March 1997 by scoring 15 points from descriptors 2(d), 7(f) and 8(e).
2. In the claimant’s incapacity for work questionnaire dated 22 January 1997, he noted problems in the activities of walking and stairs due to an Achilles tendon injury and with lifting and carrying and manual dexterity due to a right hand injury. With respect to the latter, the examining doctor on 13 March 1997 reported that the index and middle fingers of his right hand were amputated at their base and the right ring finger was held in a fixed flexion deformity of 90 degrees at the proximal interphalangeal joint. The doctor was of the opinion that descriptors 7(f) and 8(e) were applicable but no descriptors scoring points for any other activity. The adjudication officer followed the opinion of the examining doctor, thereby giving a pointage of 12.
3. The social security appeal tribunal on 25 November 1997 unanimously dismissed the appeal. They awarded the claimant 9 points. They additionally accepted that he had difficulty with respect to stairs and that 2(d) applied; they confirmed 7(f) i.e. cannot turn a sink tap or the control knobs on a cooker with one hand, but can with the other. But the tribunal did not consider any points to be appropriate for lifting and carrying.
4. The claimant appeals to the Commissioner, with leave of the Commissioner. The one ground of appeal is that the tribunal has misinterpreted the law. The claimant’s appeal is supported as can be seen from the submission by an adjudication officer recorded at pages 74 to 76 of the bundle.
5. The tribunal has given a very lucid and comprehensive statement of material facts and reasons. The salient point, on which this appeal turns, is recorded as follows:
“In respect of lifting and carrying the appellant gave evidence that he could not pick up and carry a half litre carton of milk with his right hand (but he could with his left). The reason for this is the very poor grip in his right hand. The appellant gave specific evidence that grip was the only reason why he could not pick up the half litre carton of milk.
The adjudication officer had awarded 6 points in respect of this. However, the tribunal consider that this award of points was incorrect. The activity of lifting and carrying as defined by the regulations is lifting and carrying by the use of upper body and arms (excluding all other activities specified in Part I of the Schedule). The only reason why the appellant could not pick up the carton of milk was because of grip and this is an activity which is included under manual dexterity (another activity under Part I of the Schedule). On the correct application of the regulations, the tribunal therefore found that there was no problem with lifting and carrying.”
6. The adjudication officer now concerned, in support of the appeal, cites CSIB/42/1996. In that case, Mr Commissioner Walker QC gave guidance about lifting and carrying. He refers with implied approval to the guidance initially issued to examining medical officers, to the effect that the test is concerned with: “the ability to lift and hold a weight for a sufficient period of time to be able to carry it for a distance”.
7. I consider that the decision of Mr Commissioner JG Mitchell QC in CSIB/13/1996 is also in point. The adjudication officer there argued that consequences of defective vision could not be used to give points relative to any activity other than vision. The learned Commissioner had regard to the consideration that regulation 24 to the Social Security (Incapacity for Work) (General) Regulations 1995 (“the Regulations”) directs attention to the extent of a person’s inability to perform the activities described in the Schedule to the Regulations (“the Schedule”). He also noted that an overlap was recognised in relation to activities numbers 1 and 2 and that regulation 26(2) specifically prevented double counting in that case. He therefore held there was no compelling reason for implying a scoring limitation which could have been but was not made explicit.
8. However, although both CSIB/42/1996 and CSIB/13/1996 were decided in April 1997, they each concerned social security appeal tribunal decisions of 1995. The date of the adjudication officer’s decision in issue here is missing from the papers but is presumably 18 March 1997. It has to lie between 13 March 1997 (date of the report by the examining doctor) and 21 March 1997, the date when the appeal to the tribunal was signed. Therefore, the tribunal correctly took account of the amendment to item 8 of the Schedule from and including 6 January 1997 (by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 SI 1996 No. 3207).
9. In its unamended form, activity 8 read simply: “lifting and carrying”. Following the amendment, activity 8 now reads: “lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this Schedule)”.
10. In the guidance to examining medical officers referred to, and as quoted in CSIB/42/1996, lifting and carrying was to be assessed on the basis of:
“Picking up from table/counter height is to be considered, no bending to pick up from the floor … can the tasks be done reliably, repeatedly, and at reasonable speed? Can the stated loads be carried safely and reliably? Consider shopping, preparing/serving meals, housework and hobbies. Can the person lift (pick up) from a convenient place (without bending or reaching) and hold an object, and if so: would they be able to carry that object a distance (as might reasonably be expected) by an employer, considering only the power and function of the upper limbs and not the ability to walk, climb stairs etc).”
11. The amendment to activity 8 has undoubtedly introduced a scoring limitation. The claimant is not able to score by a descriptor for lifting and carrying where the activity impaired is ancillary to lifting and carrying and is itself a separate activity under Part I. Thus a person may, depending upon his original position, have to bend or reach before lifting and carrying an object or after having done so; usually, a person walks while carrying. But none of these activities are essential concomitants of the action of lifting and carrying. A person may pick up and carry and object from a table nearby and at waist level and may even do so while moving around in a wheelchair. Therefore, it is possible to isolate the activity of lifting and carrying from other activities specified in Part I of the Schedule which are otherwise often associated with lifting and carrying, because they are each separate components of one continuous manoeuvre. In addition to walking, reaching and bending, other such activities might be walking up and down stairs, standing and rising from sitting. The limitation introduced by amendment seems certainly to preclude taking into account impairment of these activities when considering whether the claimant is able to lift and carry by the use of upper body and arms.
12. The clinical findings of the examining doctor in the claimant’s case are that he has very poor grip of his right hand; as a consequence the examining doctor considered him unlikely to be able to lift and carry a half litre carton of milk in the right hand with safety nor be able to turn a tap. The tribunal has concluded that as the only reason why the appellant could not pick up the carton of milk was because of grip and this is part of manual dexterity, therefore it is not to be taken account in determining whether or not the claimant can lift and carry.
13. The claimant’s representative argues that all of the descriptors set out under item 7 of the Schedule, manual dexterity, relate to functions that are concerned with fine motor control. They involve a test of manipulation, which is not required when lifting an object. The submission of the adjudication officer now concerned does not address the difficulty, pinpointed by the tribunal, which has arisen under the amendment.
14. The issue is certainly not without difficulty. The activity under item 7 is: “manual dexterity”. The ordinary dictionary definition of dexterity is “skill in handling”. Skill in handling necessarily encompasses a wider group of movements than those involved in the manual aspects of lifting and carrying. Nevertheless, there is an overlap. Although a person can carry some objects under an arm (in some countries, even on their heads!), the usual method of carrying is by use of the hands. Unlike the other activities mentioned above such as bending and reaching, which precede or follow an act of lifting and carrying, use of the hands is an integral part of lifting and carrying in all but the most exceptional cases. Impairment of lifting and carrying may, of course, arise from problems in, for example, the shoulders or the arms rather than the hands. But if one is to exclude any problem with the use of the hands which affects lifting and carrying, on the basis that manual dexterity is another activity specified in Part I of the Schedule, then this negates a very significant aspect of what is, on common-sense terms, included in the concept “lifting and carrying”.
15. It seems self-evident therefore that this was not the anticipated result of the amendment, which was clearly designed to reinforce the policy behind the guidance for examining doctors already referred to, i.e. that activities which could be compartmentalised from lifting and carrying, such as walking, climbing stairs etc. should not assist the claimant to score points for lifting and carrying in addition, simply because they were sometimes associated with lifting and carrying. It surely cannot have been intended that by a side wind an impairment of the hands, and whether or not for the purposes of a separate manoeuvre it fulfilled a descriptor under manual dexterity, would thereby preclude a score in lifting and carrying.
16. Happily, a purposive construction of activity 8 seems to support the common-sense approach. The activities and descriptors have to be read together. It is only by satisfaction of descriptors, that a claimant can satisfy the all work test. All the descriptors under item 8 which attract points, refer to the use of a hand in picking up and carrying. Any possibility of a score for activity 8 would very often be blocked by a literal interpretation of the wording of activity 8, read in isolation from its accompanying descriptors, if this entails having to put any matter of manual dexterity aside. I conclude that because one may not be able, for example, to determine whether someone “cannot pick up and carry a 0.5 litre carton of milk with one hand, but can with the other” without considering the dexterity of the hand in question, then therefore the phrase “excluding all other activities specified in Part I of this Schedule” impliedly excepts from that exclusion the activity of manual dexterity.
17. The tribunal has already found 12 points to be satisfied on the basis of descriptors with respect to walking up and down stairs and manual dexterity. There was no suggestion by the tribunal that they would not have found descriptor 8(e) to be satisfied, standing the evidence from the medical examiner and the claimant’s own evidence at the hearing, had it not been for their approach to the terms of activity 8.
18. In the circumstances therefore, I am able to dispose of this case without a remit, as I am expressly invited to do by the adjudication officer now concerned. I do so by substituting the decision set out in paragraph 1 above. Therefore, although the decision of the tribunal is required to be set aside, for practical purposes the claimant’s appeal succeeds without further action.