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Mr A Lloyd-Davies
Incapacity for work – personal capability assessment – whether “standing” –means standing stock still
The claimant appealed against a decision of a tribunal confirming an award of 12 points on the personal capability assessment. The sole matter in issue before the Commissioner was the tribunal’s treatment of the activity of standing (activity 4 in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995), upon which the tribunal found the claimant scored no points. The tribunal had found the claimant’s statement that he could stand for one hour while doing the ironing incompatible with his having to sit down and that the movements the claimant made while ironing did not constitute moving around. It was common ground that the tribunal had fallen into error in as much as it considered whether the claimant could stand without having to move around, but had not properly considered whether the claimant could stand without having to sit down. Each of the descriptors under activity 4 contained the phrase “cannot stand for more than [a period of time] before needing [to sit down] [to move around]”. The submission on behalf of the claimant was to the effect that standing meant standing stock still.
Held, allowing the appeal, that:
1. it was necessary when the standing activity was in issue to consider both the requirement to move about and the requirement to sit down: CSIB/60/1996 followed;
2. the quasi-involuntary movements that most people make in standing for prolonged periods did not count as moving around for the purposes of the assessment;
3. in considering the descriptors under activity 4 a tribunal should concentrate on how long a claimant could stand before needing or having to move around or sit down, usually because of pain;
4. the tribunal had not fully considered whether during a session of one hour’s ironing the claimant would need to move around or sit down because of his back pain.
The Commissioner substituted his own decision on the evidence awarding a further 3 points for the activity of standing.
1. My decision is that the decision of the tribunal held on 23 March 2001 is erroneous in law. I set it aside. I substitute my own decision namely that the claimant remained incapable of work from and including 7 August 2000.
2. The claimant became incapable of work in February 1997 on the grounds of his low back pain. He received statutory sick pay and then incapacity benefit. He satisfied a personal capability assessment in April 1999. He was required to undergo a further personal capability assessment in July 2000. Following that assessment the decision-maker decided that the claimant only scored 12 points on the personal capability assessment, that he was no longer incapable of work and that his award of incapacity benefit should be superseded from 7 August 2000. The claimant appealed. The tribunal with which I am concerned sat on 23 March 2001, a previous tribunal having adjourned. That tribunal disallowed the appeal and confirmed the award of 12 points, namely, three points each in respect of sitting, rising from a chair, bending and kneeling, walking and walking up and down stairs (in the case of the last two
activities since each was only scored three points, only one counts). The claimant appealed with the leave of a chairman.
3. The claimant’s representative requested an oral hearing which was granted. At the oral hearing the claimant attended and was represented by Mr Andrews of a local Welfare Rights Service. The Department was represented by Mr James, Solicitor. I am grateful to them for their submissions.
4. The sole matter in issue was the tribunal’s treatment of the descriptor of standing upon which the tribunal found the claimant scored no points. It was accepted before me that the tribunal fell into error in as much as it considered whether the claimant could stand without having to move around, but had not properly considered whether the claimant could stand without having to sit down. As was explained in CSIB/60/1996 it is necessary when the standing activity is in issue to consider both the requirement to move about and the requirement to sit down. This the tribunal, it was agreed before me, did not fully do.
5. The submission on behalf of the claimant was to the effect that standing meant standing stock still. I do not accept this. Except for those engaged in military activities no normal person (to whom regard has to be had when analysing the activities and the descriptors) stands stock still for any length of time. Anybody who stands for any period (for example when football was watched from terraces or when waiting for a procession to pass) will move to a certain degree on or about the spot where he is. There was considerable argument before me about what movement was necessary to count. Each of the descriptors contains the phrase “cannot stand for more than [a period of time] before needing [to sit down] [to move around]”. In my judgment the best guidance to tribunals that I can give is that concentration be placed upon the necessity for the claimant either to move around (that is away from the spot he is standing on) or to sit down after he has been standing. The quasi-involuntary movements that most people make in standing for prolonged periods do not, in my judgment, count. Instead the tribunal should concentrate on how long a claimant can stand before needing or having to move around or sit down (usually because of pain in the back or legs).
6. The claimant’s representative asked that I substitute my own decision. Mr James submitted, not particularly enthusiastically, that the case should be remitted to a new tribunal. I consider that the evidence before me entitles me to substitute my own decision. On the IB50 questionnaire received on 22 June 2000 the claimant stated that he had no problem standing, but qualified this by saying “if I stand on the same spot for about 10 to 15 minutes my back would start to ache and I would have to sit down”. The examining doctor noted that the claimant said that he ironed for about an hour standing and agreed with the claimant that the claimant had no problems with standing: the doctor did not, apparently, consider the qualification the claimant had made. That doctor did, however, identify that the claimant always had some lower back pain, which occasionally became more acute with sciatica. She further noted, when considering the mental health descriptors (no longer in issue), that the claimant was frustrated by the limitations imposed on his activity by his back pain. Before the adjourned tribunal he gave evidence (in connection with the doctor’s note that he ironed for one hour standing) that he moved about when he was ironing, that he ironed his own tee shirts and that he sat down during the hour because of pain. His own doctor stated that the claimant could not be required to stand for any lengthy periods. The tribunal with which I am concerned fastened on the statement made to the examining doctor to the effect that the claimant could stand for one hour while doing the ironing and simply found that this statement was incompatible with his having to sit down and that the movements the claimant made while ironing did not constitute moving around: it did not address the question of “needing to”. I consider the tribunal took too harsh a view of the claimant’s evidence to the examining doctor and did not fully consider whether during a session of one hour’s ironing the claimant would need to move around or sit down because of his back pain. I consider that the totality of the evidence including (i) the qualification on the original IB50, (ii) the examining doctor’s findings that the claimant had persistent back pain which occasionally became acute, (iii) the claimant’s own GP’s evidence that the claimant could not stand for prolonged periods, (iv) the claimant’s own statement to both tribunals that he needed to sit down and (v) the second tribunal’s own finding that the claimant moved about when ironing entitled the claimant to be treated as satisfying either descriptor 4(d), namely cannot stand for more than 30 minutes before needing to sit down (in which case he would attain a further 7 points) or descriptor 4(f) that he could not stand for more than 30 minutes before needing to move around (a further 3 points), on the grounds of back pain. In either event the claimant would gain the necessary further 3 points in addition to those awarded by the tribunal to obtain a total of 15 points and accordingly satisfies the personal capability assessment.
7. My decision is therefore as given in the first paragraph above