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Mr. P. L. Howell QC CIB/7347/1999
Incapacity for work - all work test – bending and kneeling – meaning of “cannot either, bend or kneel, or bend and kneel …”
The appellant was accepted as incapable of work from the end of 1997 and, in October 1998 (following examination), qualified for incapacity benefit by reason of the “exceptional circumstances” provisions contained in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995. On further examination in May 1999, the examining doctor took the view that the appellant scored 9 points on the all work test, and that regulation 27 no longer applied. The appellant’s benefit was reviewed and terminated with effect from 4 June 1999. On appeal to a tribunal, the appellant raised, inter alia, his ability to bend and kneel. The tribunal varied the adjudication officer’s decision to the extent that it awarded a further 3 points, but the appellant’s score was still insufficient to qualify him for benefit. The 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. The appellant appealed to the Commissioner, who in the grant of leave raised the issue of whether the claimant did in fact satisfy descriptor 6(c) in the Schedule to the Regulations. By later direction, the Commissioner also raised the decisions in CIB/16461/1996 and CIB/4904/1998 which interpreted the bending and kneeling descriptors to the effect that a claimant who sometimes could not bend, but could kneel, did satisfy descriptor 6(c). Such decisions ran contrary to other Commissioners’ authorities. Following the refusal of an application to appoint a Tribunal of Commissioners, it was directed that the appeal be decided by a Commissioner who had not previously expressed a view on the “bending and kneeling” descriptors.
Held, dismissing the appeal, that:
1. descriptors (b) and (c) of activity 6 are not satisfied by a claimant who can reach the floor and straighten up again by bending, or by kneeling, even if he cannot do both [R(IB) 2/02 and CIB/3809/1997 followed in preference to CIB/16461/1996 and CIB/4904/1998];
2. the “bending and kneeling” activity is concerned with a basic level of agility and balance of the torso and limbs, and the descriptors characterise a minimum standard of ability to flex and extend (paragraph 20).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This appeal by the claimant must be dismissed, as in my judgment there was no error of law in the decision of the Manchester social security appeal tribunal given on 21 July 1999. In that decision the tribunal confirmed that incapacity benefit was not payable to him from and including 4 June 1999 as on the facts they found he did not then meet the conditions for entitlement, even though on previous medical evidence he had been accepted as within a category of “exceptional circumstances” entitling him to benefit up to then.
2. Having considered the whole of the papers in the case I have not been satisfied that any of the points that have been raised in the course of the appeal amounts to a sufficiently arguable point of law to have warranted the case going forward as a full appeal at all, and in my view leave to appeal was rightly refused by the chairman on 8 November 1999: see page 113. For the same reason, and because the claimant’s request for an oral hearing of the appeal made on 6 March 2001 is related only to two additional points raised which are not part of his own grounds of appeal (but understandably he says he would like to have explained to him, and pursued at an oral hearing: pages 137 to 138) I decline that request, as I am satisfied that for reasons which will appear below this appeal can properly be determined without a hearing and that to hold one would simply involve both sides in needless trouble and expense.
3. The claimant is a man now aged 60 who was formerly employed as a heavy goods driver but has not been at work for some years as he has been suffering from seriously high blood pressure, diabetes and a degree of back trouble. That, according to the consultant’s reports at pages 98 to 101, had been brought on earlier than normal in his life by a bad crash in July 1988 due to a mechanical failure of his vehicle, even though he recovered from it rapidly at the time.
4. He was accepted as having become incapable of work from the end of 1997 due to his diabetes, and following a medical examination by a departmental doctor on 19 October 1998 was accepted as qualifying for incapacity benefit by reason of “exceptional circumstances” under regulation 27 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311, since although his physical condition scored only 6 points on the all work test descriptor table his blood pressure was at that time found to be dangerously high and uncontrolled: see page 74, the examining doctor recording that a letter had been issued to the claimant’s GP to get something done about this, and the case should be reconsidered in a further six months.
5. Just over six months later he had a further medical assessment on 21 May 1999 by which time he had been put on treatment for his blood pressure and this had reduced, though it was still high. The doctor recorded that his blood pressure was now controlled and he was not suffering any complication so that the exempting condition for persons with an uncontrolled severe life-threatening disease no longer applied to him: see pages 46 to 47. Again his score on the all work test (9 points on this occasion, for the sitting, rising and standing descriptors) did not qualify him for the benefit by that route and on the basis of these fresh medical findings an adjudication officer reviewed and terminated the claimant’s benefit from 4 June 1999 onwards, by a decision given on that date: see pages 49 to 50.
6. The claimant appealed to the tribunal on various grounds set out in his notice of appeal dated 10 June 1999 at pages 51 to 52, the only material ones for the present purpose being in relation to the activities of “bending and kneeling”, where he had not identified any problems in the questionnaire he signed on 28 April 1999 (see page 9) but now said “I cannot bend or kneel without severe discomfort”; and “seeing”, where again he had originally identified no problems (page 14) but now said “I suffer from double vision due to my diabetes, I also suffer from third nerve and sixth nerve palsy”. On each of those two descriptors the doctor’s assessment had been that he suffered no material problems so that no scoring descriptor was applicable: it was noted that on examination on 21 May 1999 he had a “normal looking back, no tenderness, can flex to touch ankles, side flexion and rotation full and painless, mild lumbar osteo-arthritis”, and “no visual problems at present”.
7. The tribunal which sat on 21 July with a medical assessor took detailed oral evidence from the claimant himself to supplement the medical reports and other evidence in the papers, and considered all relevant issues in the appeal before them. As explained in the full statement of reasons for their decision issued to the parties on 27 September 1999 (pages 107 to 108) the first conclusion was that as the claimant’s blood pressure had now reduced, and the medical assessor’s view expressed in the course of the hearing confirmed the medical assessment that the claimant’s condition did not now fall within the special exempting condition for uncontrolled life-threatening diseases, the claimant was no longer entitled to benefit by that route.
8. The decision then went through the various relevant descriptors on the all work test, awarding the claimant an additional 3 points for needing to hold on when he walked up and down stairs, on which the tribunal preferred the claimant’s evidence to the assessment of the examining doctor. As regards the other descriptors the tribunal confirmed the doctor’s assessment, awarding 3 points for not being able to sit comfortably for more than one hour in a chair without having to move, 3 for sometimes needing to hold on to something when rising out of a chair without help, and 3 for not being able to stand more than 30 minutes unsupported before needing to move around. That made a total of 12 points instead of the 9 awarded by the adjudication officer, but still less than the 15 necessary to qualify for benefit on the all work test.
9. As regards the point raised by the claimant on his vision, where his oral evidence had been to the effect that he “could see OK” but at some times of the day got flickering in his eyes which lasted for a minute or so, the tribunal’s conclusion was that:
“The claimant referred to his diabetes but confirmed that his control was OK though not perfect. He does not suffer from hypos. He is on insulin but takes his blood test twice a day, he has some problem with his eyes and can get flickering of the eyes during the day but mostly he can see OK. He can see well enough to see a number plate which was required in a driving test.”
Accordingly the doctor’s score of no points for the “seeing” descriptor was confirmed.
10. As regards “bending and kneeling” the tribunal also confirmed the doctor’s award of no points, expressing their reasons as follows:-
“The claimant had not indicated any problem in his claim pack. At the tribunal the claimant indicated that he could bend and go down on one knee, that he didn’t have knee problems. It appeared to the tribunal that he would be able to kneel even if at times of back problems he couldn’t bend.”
11. The claimant’s evidence of some difficulties and discomfort from his back problems had been broadly accepted by the tribunal and these were the reason for his being awarded 3 points each for the sitting and rising descriptors. There was no dispute about the right descriptor for rising, but for sitting the tribunal preferred the medical estimate of a tolerance of up to one hour before having to move, rather than the claimant’s own figure of 30 minutes, for reasons stated as follows:
“It appeared that the claimant had a level of backache but he has never been advised how to sit properly, had not had physiotherapy and it appeared to the tribunal that if the claimant sat properly he would be able to sit for longer and the tribunal agreed with BAMS doctor the claimant should be able to sit for an hour.”
12. Against that decision the claimant appealed, on two grounds set out on his behalf in the letter of appeal at pages 115 to 117. These sought to question first the tribunal’s finding that the exempting condition for an uncontrolled life-threatening disease did not apply to the claimant from 4 June 1999 onwards, and second the award of no points for “seeing” on the ground that “The claimant reported flickering in his eyes yet nothing was reported in the second all work test. Considering the high risk of visual damage due to combined high blood pressure and diabetes I feel a more thorough examination and line of questioning would have revealed the early onset of future visual impairment.”
13. In my view, neither of these provided the claimant with any arguable ground of appeal against the tribunal’s decision. Each was concerned with a question of fact and depended entirely on the medical and other evidence before the tribunal, all of which was properly considered as the record shows. The conclusion that the claimant’s blood pressure though still high was now under control as a result of his medication was justified by the evidence in the more recent medical report to that effect, as confirmed by the evaluation of that evidence given by the medical assessor in the course of the hearing itself, as recorded at page 104. The conclusion that none of the scoring descriptors for varying degrees of inability to read or see was applicable to the claimant’s condition despite the periodic flickering which the tribunal took into account was also plainly justified on the claimant’s own oral evidence at the hearing that he was currently able to see OK, and the evidence in the medical report only two months previously that he had no current problems with his ability to see, watched TV and drove his own car. The tribunal’s reasons on both of those issues are clearly and adequately explained in the statement and I accordingly do not accept that either of the grounds put forward on behalf of the claimant shows the tribunal in any way to have erred as a matter of law.
14. This appeal has got as far as it has because of two directions given by the Commissioner who granted leave to appeal on 17 March 2000, raising further points. The first on the grant of leave itself suggested that:
“…it seems that sometimes the claimant could not bend and therefore descriptor 6(c) applies”.
15. The Commissioner’s observations in the second direction dated 19 January 2001 returned to that point and drew attention to two decisions of his own in cases CIB/16461/1996 and CIB/4904/1998 interpreting the descriptors for “cannot either bend or kneel…” in that way, despite other decisions to the contrary. The second direction also raised two further points, neither of which had been raised by or on behalf of the claimant, as follows:
“It is arguable that in referring to what the claimant could do with physiotherapy and training, the tribunal asked itself the wrong questions in relation to the sitting descriptors. It is also possible that in considering the claimant’s eyesight the tribunal did not ascribe the evidence to the correct time period.”
16. Following that, and an application to the Chief Commissioner to appoint a Tribunal of Commissioners to determine the case in view of the apparent inconsistency between the decisions referred to, this appeal was instead directed to be dealt with by a Commissioner who had not previously expressed a view on the meaning of the “bending and kneeling” descriptors, and has been referred to me.
17. The relevant descriptors for the “bending and kneeling” activity in Part I of the Schedule to the Incapacity (General) Regulations are, as they now stand and stood at all times relevant for this appeal, as follows:-
“6(a) Cannot bend to touch his knees and straighten up again. (15 points)
(b) Cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again. (15 points)
(c) Sometimes cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again. (3 points)
(d) No problem with bending or kneeling. (0 points)”
18. That is the form in which they have stood since an amendment was introduced to descriptors 6(b) and 6(c) on 6 January 1997. Before then these two descriptors started simply “(b) Cannot bend or kneel as if ...” and “(c) Sometimes cannot bend or kneel as if ...” though for the reasons explained below I do not consider that difference material for the present purpose.
19. The simple issue, on which the Commissioner who granted leave in this case is I think in a minority of one, is whether a claimant who sometimes has a problem with bending but remains able to kneel, or sometimes has a problem with kneeling but remains able to bend, or can manage both but only partially, in each case so as to be able to get within sufficient reach of the floor to pick up a piece of paper, qualifies for the score of 3 points under descriptor 6(c) or not. It is common ground for this purpose that the person in question, like the claimant in this case, is not so badly disabled that he cannot normally bend to touch his knees and straighten up again so as to score the 15 points that would qualify him for benefit in any event under descriptor 6(a).
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.
22. The issue before me however is simply whether the Commissioner who granted leave to appeal was right in identifying an error of law in the tribunal having failed to award the three points under descriptor 6(c) to the claimant who in their words “would be able to kneel even if at times of back problems he couldn’t bend”. On that there can be only one answer: the view expressed in the grant of leave is unarguable, even assuming in its favour that this claimant could in fact get down to the floor by kneeling without bending any relevant bit of him, so that the two things could be truly separate.
23. The majority view is in my judgment to be preferred, and the minority decisions to the contrary regarded as per incuriam, for three reasons: each sufficient by itself, but together overwhelming. 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. I agree with what is said in decision CIB/3809/1997 para. 14 that the scoring descriptors (b) and (c) are not satisfied if the claimant can reach the floor by bending but not by kneeling or vice versa, and the language used excludes the contrary view.
24. Second, the additional words inserted into these two descriptors in the form in which they now stand place beyond argument that they are intended to be read in the majority sense. 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.
25. Third, the minority view is in my judgment necessarily inconsistent with the approach of Aldous LJ in the Court of Appeal in Purdy v. Social Security Commissioners, 6 October 2000, rejecting as unarguable the claimant’s application for leave to appeal against the Commissioner’s decision in case CIB/228/1999 [both reported as R(IB) 2/02]. There the claimant was able to reach the floor mainly by bending at his knees and squatting or crouching though he had to keep his back straight, and the refusal of a scoring descriptor was held correct, Aldous LJ observing in particular that the descriptor was
“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.”
Subject to the qualification that the manual dexterity needed for the operation of actually picking up the paper is separately tested under the next activity, and is not part of this one, that decision seems to me to confirm that the scoring descriptors do not apply to a person who is able to get down and up again by one means or another, even if he cannot do both. Although given on an ex parte application for leave to appeal, it was a reasoned decision given in the Court of Appeal and thus in my view to be taken as authoritative so far as Commissioners are concerned.
26. The remaining two issues raised by the further direction of 19 January 2001 do not in my judgment provide the claimant with any more arguable grounds of appeal than those put forward on his own behalf. The mere fact that the tribunal referred to the claimant as not having had physiotherapy does not seem to me in any arguable way to invalidate the conclusion they drew, that his ability to sit comfortably in a chair without having to move fell within the one-hour band rather than the 30-minute one: an issue of fact and degree for the tribunal of fact to determine on the evidence before them, if ever there was one. Here it is significant that neither the claimant’s appeal to the tribunal at page 51, nor the notice of appeal at pages 115 to 117, sought to take issue at all with the score awarded for “sitting”, and the tribunal’s conclusion was supported by the evidence of the medical assessment on page 30 as noted above. As regards the suggestion that “it is also possible that in considering the claimant’s eyesight the tribunal did not ascribe the evidence to the correct time period” I regret that I am unable to follow the point being made or see that it gives rise to an arguable ground at all. The relevant date was that of the withdrawal of benefit on 4 June 1999. The tribunal’s conclusion was clearly based on the examining doctor’s assessment on 21 May 1999 noted above, and the claimant’s own oral evidence given to the tribunal at the hearing on 21 July 1999. Together those provided a basis for the tribunal’s conclusion on the state of the claimant’s visual abilities in terms of the descriptors in paragraph 12 of the schedule to the regulations which I should have thought quite unimpeachable.
27. For those reasons the Chief Commissioner was in my respectful view right not to appoint a Tribunal of Commissioners to consider this appeal under section 16(7) Social Security Act 1998 as it was not one of “special difficulty”, and I now dismiss it.
Date: 23 May 2001 (signed) P. L. Howell