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Mr E Jacobs CIB/1664/2002
Personal capability assessment – whether claimant who presses on seat of chair in order to get up rises “ … from sitting to standing without holding on to something.”
The claimant was in receipt of incapacity benefit. On 11 July 2001 his award of benefit was superseded on the grounds that he did not score sufficient points on the personal capability assessment. The claimant appealed to a tribunal. The tribunal made no award for the activity of rising from sitting, in respect of which the claimant had indicated on his self-assessment questionnaire that he sometimes could not rise from sitting without holding on to something (3 points). It found that the claimant’s evidence that he had to push on the seat of the chair in order to rise was irrelevant to the activity of rising from sitting. The tribunal awarded a total of 13 points on the PCA and thus dismissed the claimant’s appeal. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
a claimant who has to rely on some part of the chair other than the arms (i.e. the seat or the back) in order to deliver the force necessary to rise or to provide stability while rising is “holding on to something” within the terms of paragraph 5 of the Schedule to the Social Security (Incapacity for Work)(General) Regulations 1995 and thus scores points, providing both that he “cannot” rise from sitting without using his arms to provide power or stability and that the disability arises from a specific bodily disease or disablement under regulation 25(3)(a) of the Regulations.
The Commissioner set aside the tribunal’s decision and remitted the case to a differently constituted tribunal for rehearing.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1. The decision of the Manchester appeal tribunal under reference U/40/072/2001/05221, held on 30 November 2001, is erroneous in point of law.
1.2 I set it aside and remit the case to a differently constituted appeal tribunal.
1.3 I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. In particular:
The appeal tribunal must determine the claimant’s capacity for work under the personal capability assessment from and including 11 July 2001.
The tribunal must follow the analysis of the supersession procedure laid down by the Tribunal of Commissioners in R(I) 5/02 and R(DLA) 6/02. The supersession process was begun on the Secretary of State’s own initiative. That was authorised under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The tribunal must determine the proper outcome of that process. The burden is on the Secretary of State to prove on the balance of probabilities that the claimant is no longer incapable of work. The effective date of the decision given on the supersession must be fixed in accordance with section 10(5) of the Social Security Act 1998 and regulation 7 of the 1999 Regulations.
The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 11 July 2001: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.
The appeal to the Commissioner
2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Powell. The Secretary of State supports the appeal.
3. This case concerns the interpretation of the activity of rising from sitting in the personal capability assessment. It is defined in paragraph 5 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 as:
“Rising from sitting in an upright chair with a back but no arms without the help of another person”.
Points are scored if the claimant “[sometimes] cannot rise from sitting to standing without holding on to something.”
4. Does a claimant who has to use the seat of the chair in order to rise from it satisfy this descriptor? Is pressing on the seat of the chair “holding on to something”? Commissioners have given conflicting answers to these questions and the Secretary of State has invited me to say which line of authority is to be preferred.
5. There are two possible approaches to the interpretation of the definition of this activity. Each has support in the authorities. This is an issue that arises regularly. I am sure it has been referred to often by Commissioners and deputy Commissioners. I have not read every decision on this issue. However, I have read the main authorities, which were cited by the Secretary of State.
A functional analysis of the legislation
6. One interpretation concentrates on the functions for which the activity is testing. Interpreting the legislation from this perspective produces this result.
7. The personal capability assessment is divided into two sections. One deals with physical disabilities, the other with mental disabilities. The activity of rising from sitting falls within the former. That section consists of a variety of activities that deal with different functions of the body. It is obviously designed to test in a systematic, analytical way the claimant’s various physical disabilities. The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each.
8. Ignoring the terms of the definition for the moment, the activity of rising from a sitting position depends on a number of physical abilities. The muscles of the legs must provide the force to lift the body from the seat of the chair to an upright position. The legs must provide support for the body as that manoeuvre is carried out. The back is also relevant. From personal experience, I know that someone experiencing back pain finds it difficult to rise without some form of support. The arms may also be used either to add to the power provided by the leg muscles or to provide support. That support may be needed because of an instability in the lower limbs or because of giddiness or dizziness.
9. Turning to the definition, it stipulates that the chair involved is one without arms. That suggests that the activity is testing the abilities of the claimant’s legs and, to some extent, back. It suggests that the contribution of the arms to rising is excluded. That allows the power of the legs to be tested in isolation from any added force delivered by the arms. It also excludes from consideration any support that may be provided by the arms.
10. My analysis suggests that a claimant who has to rely on some other part of the chair in order to give deliver the force necessary to rise or to provide stability while rising is “holding on to something” and scores points.
11. There is support for this analysis in the authorities.
12. In CSIB/1124/2000, Mrs Commissioner Parker decided that pushing up from the seat of a chair did involve “holding on to something” so that the claimant was entitled to points. Her decision accords with my analysis. In reaching that conclusion, she relied on two decisions.
13. She principally relied on the reasoning of Mr Commissioner Howell in CIB/614/1998. The Commissioner was there concerned with whether the use of crutches involved “holding on to something”. He held that it did. As part of his reasoning, he wrote (paragraph 16):
“… it is I think fairly clear from the definition of the ‘rising from sitting’ activity which specifies a chair with a back but no arms, and the descriptors which focus on whether a person is able to get upright without the additional use of their arms and shoulders to pull themselves up, that what are being tested for here are disabilities to do principally with the functioning of the legs, spine, general muscular co-ordination and balance.”
That reasoning is very similar to my analysis. In its reference to co-ordination, it is more comprehensive than mine.
14. Mrs Commissioner Parker also referred to the decision of Miss Commissioner Fellner, given when she was a deputy, in CIB/16310/1996. She referred to this decision in order to show that it did not support the proposition for which it was cited by the Secretary of State. Miss Fellner was there concerned with a claimant who had sustained a back injury. In his IB50, he wrote that he could rise from a chair with no arms by sliding or shuffling to the front edge of the chair and using his leg-strength to rise vertically. Later evidence was that he sometimes pushed himself up from the chair seat. The Commissioner directed the tribunal (paragraph 7) at the rehearing:
“rising from a chair in the manner described in form IB50 does not constitute ‘holding on to something’. Pushing up from the seat of the chair with the hands may do, but it must be necessary.”
Although the final sentence of that direction was not reasoned in terms of a functional analysis, it accords with it.
A linguistic analysis of the legislation
15. The other interpretation concentrates on the language of the definition. There are two linguistic points which suggest a different interpretation from the functional analysis. One point is that holding on to the chair itself in not “holding on to something”. The other is that pushing up from the seat of the chair does not involve “holding on to something”.
16. Apart from authority, I do not find those points persuasive.
17. First, they take no account of the functional analysis. Statutory interpretation is bounded by the possibilities of the statutory language. But the meaning within those possibilities may be informed by considering a wide range of factors in addition to the language itself. Indeed, the boundaries of the possibilities may themselves be set by reference to factors other than the language.
18. Second, even viewed linguistically without reference to the functional analysis, I do not find the points persuasive. A person who rests a hand on the arm of a chair could be described as holding on to the arm. That would be a proper use of language. Why, then, is resting the hand in the same position on a different part of the chair not appropriately described as holding on? Why should the part of the chair touched by the hand affect whether the person is holding on? Also, a chair is something. Why does the “something” have to be something else? If something other than the chair had been intended, the legislation could easily have said so, although I recognise the danger in interpreting statutory language by reference to how it might have been differently worded.
19. So far I have only referred to decisions that support my analysis. The decision of Mr Commissioner Levenson in CIB/15456/1996 does not. This decision was given after CIB/16310/1996. It was given before, but is not referred to in, CIB/614/1998 and CSIB/1124/2000. It appears that it was not cited in either case. Mr Commissioner Levenson was concerned with a case in which the claimant had given evidence that he had difficulties rising from sitting because of pain in his foot and used the seat of the chair in order to propel himself upright. The tribunal decided that he did not score points, because he did not need to hold on to something which:
“was extraneous to the chair, either a piece of furniture placed in a convenient position like a table. In other words that the person would be unable to rise form a chair if it was placed in isolation.”
The adjudication officer supported the tribunal’s reasoning, arguing that the claimant’s condition had to be sufficiently severe to require a considerable degree of help from some equipment in order to rise. The Commissioner rejected that submission on the ground that the legislation did not refer to degrees of help. The issue was whether the claimant had to hold on to something. The Commissioner then wrote (paragraph 6) that:
“by propelling himself from the seat of the chair and/or by pushing against the floor with his feet, this is not within the concept of holding on to something.”
20. With respect to Mr Commissioner Levenson, I disagree. First, for the reasons I have given, I do not find the linguistic analysis persuasive in its own terms. Second, his analysis takes no account of the functional analysis. Third, the reasoning of the tribunal in his case shows that his interpretation requires a further condition to be read into the legislation. This is that the chair must be assumed to be placed in isolation.
21. My conclusion is that a claimant who has to rely on some other part of the chair (the seat or the back) in order to deliver the force necessary to rise or to provide stability while rising is “holding on to something” and scores points. This is subject to two qualifications. First, the points are only scored if the claimant “cannot”. rise from sitting without using his arms to provide power or stability. Second, the disability must arise from a specific bodily disease or disablement under regulation 25(3)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995.
22. Turning to this case, the tribunal held that the evidence that the claimant had to push on the seat of the chair in order to rise was irrelevant to the activity of rising from sitting. That interpretation of the activity was wrong for the reasons I have given. What impact did that have on the outcome of the hearing? The tribunal found that the claimant scored 13 points on the personal capability assessment. In his self-assessment questionnaire, the claimant indicated that he sometimes could not rise from sitting without holding on to something. That carries 3 points. Together with the 13 points scored by the tribunal, that would be sufficient to satisfy the assessment.
23. The claimant’s representative and the Secretary of State have invited me to make findings on this activity. It is not appropriate for me to do that. The tribunal ruled the claimant’s evidence irrelevant to the activity. It did not decide whether it accepted that he rose from sitting as he described. Nor did it decide whether he had to rise in that way. Those are matters that have to be determined before the claimant’s capacity for work can be determined. They cannot be determined on the papers before me. There must be a rehearing. At that rehearing, the tribunal will consider afresh the claimant’s appeal against the Secretary of State’s decision. It will not be bound to accept the points scored in the decision that I have set aside.