- I find that the decision of the appeal tribunal ("the tribunal") given on 7 July 2004 under registration number U/06/929/2004/00377 was erroneous in point of law. Following an oral hearing of the case, I allow the claimant's appeal. Under section 14(8)(b) of the Social Security Act 1998, I set aside the tribunal's decision and remit the case for rehearing by a differently constituted tribunal.
- The claimant is a woman born on 24 February 1955. She became incapable of work on 1 September 1998 with osteo-arthritis which gave her back pain, and depression. She was awarded incapacity credits. She had three medical examinations, on 21 December 1998, 3 July 2002 and 2 April 2004. She was found incapable of work on the first two occasions, but following the examination on 2 April 2004 she was awarded no points under the personal capability assessment. Accordingly, she was treated as capable of work from 6 April 2004.
- The claimant appealed, stating she should not have been found capable of work because the pain in her right hip limited her activities severely; she had problems with sitting, standing and walking, but also with the grip in her hands. The decision was reconsidered but not revised and the appeal proceeded. The submission to the tribunal on behalf of the claimant indicated, inter alia, that the claimant could not turn a sink tap or the control knobs on a cooker or carry a 2.5 kg of potatoes with either hand.
- The tribunal was held on 7 July 2004, the claimant being present and represented. The tribunal noted that the claimant had improved since her earlier medical examinations. At the time of the 1998 examination, the claimant was being treated with antidepressants for depression. By the time of the examination in 2002, although she was assessed for mental health problems, she was no longer receiving medication for depression. In 2004 no evidence of mental problems was found, and on examination the claimant had been found to have improved physical functions. The tribunal awarded 12 points, 3 each for difficulties with bending and rising, and 6 for problems with manual dexterity in respect of her ability to turn a sink tap with one hand but not with the other. As this did not reach the required minimum score of 15, the decision maker's decision was confirmed.
- The claimant appealed, with my leave, on three grounds, the first being the tribunal's failure to provide adequate reasons. Under this head the claimant submitted that the record of proceedings noted evidence from the claimant that standing caused her severe discomfort after 20 minutes and the representative had submitted descriptor 4(d) or (e) would be appropriate. However, no points were awarded for the standing descriptor and no reason had been given, although reasons had been given in respect of every other activity which had been addressed.
- Secondly, it had been submitted to the tribunal that the activity of lifting and carrying should be considered in the terms set out in the Social Security (Incapacity Benefit) (General) Regulations 1995 ("the 1995 Regulations") prior to the amendments contained in the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 ("the 1996 Regulations"), on the grounds that the 1996 Regulations are ultra vires following the decision of the Court of Appeal in Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623 (reported as R(IB) 3/03). This was the final point made by the representative to the tribunal at the hearing, but it had not been recorded in the record of proceedings, nor was any reference made to this aspect in the statement of reasons. This might, therefore, indicate that the tribunal had incorrectly confined its consideration of the descriptor to the use of the upper body only, incorporating the amendment in the 1996 Regulations.
- It was further submitted that because of the omission of these points from the record of proceedings the tribunal did not make a record of proceedings of the oral hearing which was sufficient to indicate the evidence taken, as required by regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
- After receiving written submissions, because of the issues arising as to whether the 1996 Regulations are ultra vires in relation to lifting and carrying , and to sitting, I directed an oral hearing, held on 31 March 2005. The claimant was not present but was represented by Mr Damian Walsh, and the Secretary of State by Mr Stephen Cooper. I am grateful to them both for their helpful submissions.
- At the outset of the hearing I confirmed that I found nothing controversial in the submissions of both parties in their skeleton arguments that the tribunal erred both in failing to provide adequate reasons for not awarding points to the claimant on the standing descriptor, for which she had contended, and in not putting it to the claimant that the tribunal's observations of her ability to sit during the tribunal hearing brought into question her contention for the benefit of the sitting descriptor. On those two points alone therefore I proposed to set aside the decision and remit the case for determination by a differently constituted tribunal, as I have done.
- Taking next the third ground of appeal, Mr Walsh repeated in his skeleton argument his submissions as to the inadequacy of the record of proceedings; Mr Cooper maintained that the record does not have to be verbatim. Following CIB/17291/96 it was only necessary for a record of proceedings to be a summary by the chairman of the main substantive and procedural issues. The tribunal chairman has not been asked to comment on the representative's submissions. However, as Mr Walsh correctly points out, his submission on the effect of the Howker case was certainly part of the written submission to the tribunal (pages 113-114), and was not referred to in the record of proceedings or in the statement of reasons, yet it has proved to be the main substantive issue in the case and has been given a substantial airing in the appeal. On the basis that it was, in any event, raised before the tribunal, then it should have been referred to in the statement of reasons. As the case is to be remitted in any event, it is not necessary for me to take this point further.
- Because the arguments on lifting and carrying and on sitting developed from the initial written submissions through the skeleton arguments and to the hearing, I shall refer to them all where I hope it may be helpful. The 1995 Regulations described Activity 8 simply as "lifting and carrying". The wording of the 1996 Regulations amended that definition to read:
"Lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this Schedule)."
At the hearing, Mr Walsh wisely abandoned his initial submission that, following the Howker decision, all the amendments effected to the 1995 Regulations by the 1996 Regulations are ultra vires. There has been no decision, either by the courts or the Commissioners, that the 1996 Regulations as a whole are ultra vires. The decision in Howker itself was only that the deletion of regulation 27(b) from the 1995 Regulations by the 1996 Regulations is ultra vires. The Howker case was then considered in CIB/884/2003. At an oral hearing, the Secretary of State conceded, and Mr Commissioner Jacobs accepted, that the reasoning on which the Court's decision was based could apply to other amendments. That aspect did not form part of the hearing before me.
- In his written submissions that the amendment to the lifting and carrying activity is ultra vires, Mr Walsh cited in support R(IB) 5/03, a case decided in 2002, before the Howker case reached the Court of Appeal. There Mr Commissioner Turnbull said:
"5. In granting leave to appeal I referred to CIB/483/2001, where it was held (this being conceded by the Secretary of State) that the tribunal had applied the wrong test in asking whether the claimant was able to lift 2.5 kilos from table top height and hand it to another person. The Commissioner said:
"It is common ground, and I agree, that the tribunal applied the wrong test, because "carry" connotes a degree of movement from one place to another. Merely handing something to someone is not carrying it."
6. In the present case the Secretary of States likewise accepts that the Tribunal erred in, apparently, taking the view that the Claimant could "carry a 5 pound bag of potatoes if he could lift it from supermarket shelf to trolley, which could of course be done merely with the use of the arms and upper body and without walking with the bag of potatoes for any distance at all.
7. However, I do not think the tribunal was wrong to take that view. Contrary to the view of the Commissioner in CIB/483/2001, I think that it is reasonably clear that "carry" in the descriptors in para 8 of the schedule to [the 1995 regulations] involves merely moving the relevant object by use of the upper body and arms, no walking being involved…….
8. Until 6 January 1997 the activity was described simply as "lifting and carrying". In my judgment it is clear that the position since that amendment has been that the descriptors in para 8 which refer to the claimant's ability to "pick up and carry" an object do not require him to be able to do more than move the object by means of his upper body and arms, and in particular do not require him to be able to walk with it. The new tribunal must, insofar as it makes any difference, apply that view of the law."
- In the initial written submission on behalf of the Secretary of State, it was submitted that the amendment to the lifting and carrying descriptor made by the 1996 Regulations is in fact neutral, relying on 1996 cases which were all decided by Commissioners and Deputy Commissioners after the 1996 Regulations came into force and where the amendments of the 1995 Regulations were considered. For instance, in CIB/16736/1996 the adjudication officer, as he then was, submitted to the Commissioner:
"…Item 8 in column (1) of Part I of the Schedule to [the 1995 Regulations] is described as 'lifting and carrying' and 'carrying' is not qualified to include any reference to walking. Walking capacity is assessed elsewhere in the Schedule i.e. activity 1 'walking on level ground…' and activity 2 'walking up and down stairs'. The Commissioner may wish to note that with effect from 6/1/97 the description of this activity has been amended to give clarity to its purpose. Activity item 8 now reads 'lifting and carrying by use of the upper body and arms (excluding all other activities specified in Part I of this Schedule)'. I submit that this amendment served to put beyond any doubt that walking is not to be considered in this activity."
Mr Commissioner Goodman stated:
"8. I accept in principle that submission by the adjudication officer and reject the claimant's representative's contrary contention. However, I should make the obvious point that the amendment to the regulations from 6 January 1997 cannot cast any light one way or the other on what the earlier version of the regulation meant. An amendment can either be because it is perceived that there was a doubt in the earlier version or alternatively 'out of abundant caution'. I do not propose to speculate which appear nor does this decision of course have to consider the meaning of the new amendment….
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10. The new tribunal however will need to apply the construction that I have given to this particular descriptor i.e. that it does not involve any element of locomotion merely the ability actually to lift and hold up the 2.5 kilogram bag of potatoes. If the claimant is able to raise the 2.5 kilogram bag of potatoes from the ground and hold it there then he cannot comply with the descriptor even though he could not walk any distance with the bag."
Similarly, in CIB/16224/1996 and CIB/14709/1996 Deputy Commissioners Ovey and Ramsay concluded that walking was not involved in the test under the 1995 Regulations prior to the amendment. In the initial written submission, the Secretary of State's representative suggested that "holding" an item is not a requirement under either version of the regulations. This was not pursued, and I may say at this stage that it is axiomatic that it is necessary for the item to be held for the period in which it is being transported. In my view the essence is correctly expressed in CIB/14709/1996 that "the descriptor is properly limited to considering an ability to transport the item (my italics) over very short distances". The quotation from CSIB/42/1996 set out in paragraph 13 sets out the position clearly.
- In the initial submission, the Secretary of State's representative did not refer to the decision by Mrs Commissioner Parker, in R(IB) 4/03 where she said
"10. In the guidance to examining medical officers referred to, and as quoted in CSIB/42/96, 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.
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At the hearing Mr Walsh submitted that the other decisions by Commissioners, CIB/16624/1996 paragraph 13 and CIB/16736/96 were simply wrong. He relied heavily on R(IB) 4/03, submitting that there is a qualitative difference between considering an ability to lift and carry different weights and considering other activities such as walking, reaching or manual dexterity separately. There is little stress in picking up a pint of milk but more in picking up potatoes; as the descriptors become more arduous, other parts of the body necessarily come into play. They are composite activities involving lifting, then conveying, and carrying. Each aspect appears under other descriptors, for instance lifting involves grip which is involved in manual dexterity, conveying involves reaching, and carrying involves walking. If the exclusion of those additional aspects were to be applied, there would be little left within activity 8, and Mrs Commissioner Parker's "purposive approach" could not be applied.
- In Mr Cooper's view, the Secretary of State's description to the Social Security Advisory Committee of the amendment to activity 8 as "neutral" is just. The words "by the use of the upper body and arms (excluding all other activities specified in Part I of this schedule" simply clarify, without amending, the activity, because quite clearly picking up and carrying is done by the upper body and the whole purpose is to spell out that each activity should be considered in turn, not as a combination with another activity. As the Secretary of State has withdrawn his proposal to amend regulation 27 of the 1996 Regulations, no amendment to the 1995 and 1996 Regulations is immediately forthcoming. He saw no injustice to the claimant if the matter falls to be adjudicated as the amendment currently stands.
- It was noted by both Mr Walsh and Mr Cooper that the Howker case was not referred to Lady Paton in Capello v. Secretary of State for Work and Pensions, an application for judicial review of refusal of an application for leave to appeal. In her Opinion of 28 September 2004, Lady Paton expressly disapproved CIB/483/2001, a decision of Mr Commissioner Rowland, referred to in paragraph 12 above in the extract from R(IB) 5/03. It appears none of the 1996 decisions referred to above had been referred to Mr Commissioner Rowland. Mr Walsh did not seek to maintain his reliance on CIB/483/2001, at the hearing. Lady Paton agreed with both R(IB) 4/03 and R(IB) 5/03.
- Mr Cooper submitted that there is not an entire consensus between Commissioners as to the effect of the amendment effected by the 1996 Regulations, noting in particular R(IB)4/03 and R(IB) 5/03, extracts of both of which are set out above. At first sight, this appears to be correct. In paragraph 11 of R(IB) 4/03 Mrs Deputy Commissioner Parker did state that "the amendment to activity 8 has undoubtedly introduced a scoring limitation." However, in paragraph 10 she had set out the guidance to examining medical officers given before the amendment effected by the 1996 Regulations which expressly state that the officer was to consider "only the power and function of the upper limbs and not the ability to walk, climb stairs etc", and in paragraph 15 she states:
"15. It seems self-evident therefore that this was not the anticipated result of the amendment, which was clearly designed to reinforce (my italics) the policy behind the guidance for examining doctors already referred to, ie 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.
The case focused on whether any problem with the hands was to be excluded from activity 8, which would negate a significant aspect of lifting and carrying. That was a different emphasis from what is being considered in this appeal. It is clear from the guidance to the examining medical practitioners that extent of the activity to be considered was not changed by the 1996 amendments and that the word "reinforces" applies more accurately in these circumstances than any reference to an "introduction".
- In R(IB) 5/03, whilst Mr Commissioner Turnbull expressly directed the tribunal to apply the descriptor as amended by the 1996 Regulations, he also stated "in so far as it makes any difference" and did not take this point further.
- The cases mentioned in paragraph 13 were not referred to the Commissioner in either R(IB) 4/03 or R(IB) 5/03 which were bothdecided before the Howker case. Although Lady Paton expressly approved both Commissioners' references to amendments made by the 1996 Regulations, I suggest that her focus was on her decision that the activity of lifting and carrying for the purpose of activity 8 did not involve walking, and not whether the 1995 Regulations were amended adversely to a claimant by the 1996 Regulations, still less whether those amendments are ultra vires.
- It appears to me that the evidence as a whole is that there was no change effected by the amendment inserted by the 1996 Regulations and I conclude that the explanation given to the Social Security Advisory Committee that the amendment was neutral is correct. Following the Howker judgement, paragraph 8 of Schedule 1 to the 1996 Regulations is not ultra vires. There is no evidence that the tribunal was in error in its application of the test to the claimant although, like Mr Commissioner Turnbull, I would add the words "insofar as there is any difference".
- The 1995 Regulations described Activity 3 as:
"sitting in an upright chair with a back but no arms"
The descriptors then state:
"cannot sit comfortably for more than [a variety of periods] without having to move from the chair."
The 1996 Regulations then added to the end of that phrase the words:
"because the degree of discomfort makes it impossible to continue sitting".
- Mr Walsh's position consistently throughout has been that I should follow CIB/1239/2004, where Mr Commissioner Henty held that the amendment made by the 1996 Regulations to the sitting activity was ultra vires. He said:
"5. ….. para 3(b), (c) and (e) must therefore be construed without the offending words in brackets [because the degree of discomfort makes it impossible to continue sitting].
6. Does this matter? In my view, the words in brackets I have struck out do sensibly alter the meaning of the descriptor in question. Those words, in my view, connote a high degree of discomfort which means that albeit maybe only temporarily, the claimant cannot continue to sit. The words of the descriptor, without the offending words in my view, connotes some lesser degree of discomfort which, while not making continued sitting actually impossible, necessarily means that the act of moving from the chair affords some relief. There is a difference between not being able to continue sitting comfortably and not being able to continue sitting because the discomfort makes it impossible."
- In the initial written submission, the Secretary of State's representative robustly submitted that
"earlier pre-amendment case law [CSIB/12/96] had already been developed which stated that the requirement for satisfaction (of the descriptors) was first whether the individual is suffering discomfort from sitting which, after a time becomes so uncomfortable that the chair has to be left. The tribunal decided not to accept the claimant's assertion that she needed to rise from her chair every 15 minutes or so and based this on their observations of the claimant during the hearing…."
Thus only one case was cited in support of this submission.
- In Mr Walsh's submission at the hearing, the focus should be on the word "comfortably" immediately before the amendment. A claimant may be able to remain seated even though not comfortable. The additional changes made by the 1996 Regulations changed the test to one of endurance, when a claimant can no longer stay seated and this was subjective and contrary to the spirit of the Regulations. The words "without having to" is to prevent an aggregation of two spells of sitting.
- At the hearing, Mr Cooper described his skeleton argument as sitting somewhat on the fence. He was content that the tribunal's decision on sitting should be set aside on a natural justice point, as is being done. He confirmed that the amendment had been considered neutral when it had been put to the Committee. Although he considered that it was intended simply to clarify the words "without having to move, in his view there might be a difference between a claimant saying "I have to move from the chair" and its being "really impossible to remain". In the light of Mr Commissioner Henty's decision, he could now see a material difference in the position so that he would come off the fence to submit that it would be better for me to send this case back with a direction that the test should be considered under the 1995 Regulations, although he would not lightly invite me to declare or, in this case, to confirm, that the amendment is ultra vires.
- I put to both Mr Walsh and Mr Cooper my concern that, as it seems to me, the nub of the descriptor is that the claimant "has to move from the chair". That is the position set out in the 1995 Regulations, and that phrase was not removed or altered by the 1996 Regulations, which simply added "because the degree of discomfort makes it impossible to continue sitting". Was this just a clarification to put beyond doubt that the reason for moving was not connected with anything other than the discomfort on sitting, eg a need to visit the lavatory? My doubts were not removed by either submission. I cannot accept the submission on behalf of the claimant that the amendment discriminates against those who have greater determination; the activity is no more subjective after the amendment, and the position is no different a position from any other descriptor. Some claimants will always have greater powers of endurance. Similarly, I cannot see that the additional words were added to prevent 2 periods of sitting being aggregated – if that were the intention, periods could be aggregated if there were any other reason for moving, than that expressed in the amendment, which is clearly not the case.
- Whilst I accept what Mr Commissioner Henty said in paragraph 6 of his decision set out in paragraph 22 above, what, with respect, he did not say was there is a difference between "not being able to continue sitting comfortably without having to move from the chair" and "not being able to continue sitting because the discomfort makes it impossible" (my emboldening in each case). I cannot see any difference between "without having to move from the chair" as in both cases, a claimant will find it essential to move from the chair. As expressed in the Notes for the Social Security Advisory Committee that was the intention, which is not in itself conclusive, but in my view the amendment was correctly advised to the Committee as neutral. There was therefore no error by the tribunal in its treatment of the descriptor, but as already confirmed, I accept the submission by the Secretary of State's representative that the tribunal should have given the claimant an opportunity to comment on the discrepancy between its observation and her own submission. The new tribunal will therefore have no need to disregard the wording added by the 1996 Regulations, although in my view they add nothing other than clarification.
- The new tribunal must conduct a complete rehearing of the issues that arise for decision. It must make, and record, full findings of fact on all necessary points in respect of all the contested descriptors, with reasons for its acceptance of the evidence which is preferred, and taking into account my comments above with regard to the standing, sitting and lifting and carrying descriptors.
- It must not take account of circumstances which did not obtain at the date of the decision appealed against, 6 April 2004, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date. If the claimant is minded to submit further medical evidence, she will bear in mind that any report given must relate to her condition at 6 April 2004.
- The claimant will also bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or more helpful to her.
- For the reasons stated, the claimant's appeal succeeds; my decision is set out in paragraph 1, and my guidance in paragraphs 28 to 30 above.
(Signed on the original) E A Jupp
Commissioner
(Original decision) 18 April 2005
(Corrected on) 5 May 2005
